The Problem of Personal Jurisdiction in Cases of Online Defamation

​By Susann Nordvik
 
As the Information Age reaches the pinnacle of its estate, courts continue to struggle with questions of jurisdiction over disputes arising out of information and commentary posted online, usually on social media.  The courts in most jurisdictions have managed to find ways to shoehorn traditional notions of personal jurisdiction into the narrow slipper of internet discourse.  Nevertheless, there are classes of cases that continue to slip through the cracks in the carefully crafted framework. 

For example, most courts have taken what we would now consider “old timey” analyses of jurisdiction based on writing and telephone calls and applied them to online business transactions.  This is fine, because in the old days, one might be greeted by a door-to-door salesman, or receive a cold call from an enterprising telemarketer, and the resulting transaction is not unlike the type of situation one might have today by placing an order on Amazon.  Prior notions of “systematic contacts” and “minimum contacts” would still apply quite readily.  Thus, when you have an entity like Amazon, which has warehouses in many states across the country, and which processes billions of dollars in transactions annually, visiting virtually every home at least once, one could probably say that Amazon maintains “systematic” business contacts in every state in the Union. Therefore, Amazon as an entity could reasonably anticipate being haled into court in any one of the states for any issue that arose.

However, what happens when someone gets in an internet scrap with a “keyboard cowboy,” on Twitter, Reddit, or Facebook, only to subsequently find their good name associated with all kinds of bad conduct and various libelous references?  In those cases, the bad actor is not always easy to track down, and the “support” coming from the various tech giants is almost universally underwhelming.  Nevertheless, if by some miracle you are able to divine the identity of the transgressor, but you also find out (wait for it) he is on the other side of the country.  Now what?  Conventional wisdom would suggest that if you wanted to bring the scallywag before the court, you would have to file in his home state and county.  This is simply because you have a private actor sending messages out into the Twittersphere from the safety of his or her own home, and who may not even be aware of your location, much less intentionally availing him or herself of the benefits of the law of your home state.

In general terms, the idea of being sued in a court in a foreign jurisdiction is somewhat daunting, as you may be unable to travel and defend yourself in a meaningful way from 2,000 miles away.  This is why the United States Supreme Court in its landmark decision International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) determined that the Due Process Clause demands that personal jurisdiction must be exercised only if doing so does not offend “traditional notions of fair play and substantial justice.”  Id.  Virginia’s long arm statute, Virginia Code, § 8.01-328.1, was crafted with the concepts espoused by the International Shoe Court in mind.  However, application of those concepts in the world of Reddit and Facebook has proven challenging. 

Although the Virginia Supreme Court has not addressed the specific issue outlined in my “keyboard cowboy” example, you can develop hypotheses regarding the likely outcome of such a case by review of what courts have held when a nonresident writes a defamatory letter outside the forum state and mails it into the forum.  Previous cases have determined that such an act is not a “tortious act” within the forum as required under the Commonwealth’s long arm statute.  See St. Claire v. Righter, 250 F. Supp. 148, 151 (W.D. Va. 1966) disapproved on other grounds, Beaty v. M.S. Steel Co., 401 F.2d 157 (4th Cir. 1968); Loria v. Regelson, 38 Va. Cir. 283, 287 (1995). Similarly, defamatory remarks made by a nonresident over the telephone to a person receiving the call in Virginia are considered to have originated outside the forum and, thus, do not constitute an act within the state.  Bochan v. La Fontaine, 68 F. Supp. 2d 692, 700 n.26 (E.D. Va. 1999).

In St. Claire v. Righter, the United States District Court for the Western District of Virginia found that a defamatory letter sent to Virginia from outside the state did not establish personal jurisdiction over the defendant under the “tortious act” provision of the long arm statute.  250 F. Supp. at 151. The court reasoned that while the tortious injury occurred in Virginia, the harm was actually “caused by the act of writing and mailing the letters outside of Virginia.”  Id.  

Although the distinction may seem impossibly subtle, there is actually good reasoning behind it.  This is due to the manner in which the various provisions of the long arm statute work together.  Virginia Code, § 8.01-328(A)(3) provides that a court may exercise jurisdiction when an act within the Commonwealth causes tortious injury.  By contrast, § 8.01-328.1(A)(4) applies to tortious injury arising from an act outside the Commonwealth.  However, this latter provision only applies when the tortfeasor “regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth.”  Consequently, the St. Claire court determined that a contrary holding would render Code § 8.01-328.1(A)(4) “completely obviated, as every set of facts which give rise to tortious injury could be brought within the terms of paragraph (3).” 250 F. Supp. at 151.

This rationale has been extended by the federal courts reviewing conduct occurring over the internet.  In Bochan v. La Fontaine, the United States District Court of the Eastern District of Virginia addressed the issue of whether defamatory remarks posted on the internet constitute a tortious act in Virginia under Code § 8.01-328.1(A)(3).  68 F. Supp, 2d at 694-703.  In Bochan, Texas and New Mexico residents separately posted defamatory remarks about a Virginia resident on an internet newsgroup.  Id. at 695.  The court held that Virginia’s long-arm statute did not grant jurisdiction over the New Mexico resident under (A)(3).  Id. at 700.  The court rejected the plaintiff’s argument that the tortious act occurred in Virginia merely because the defamatory remarks that originated in New Mexico were published in Virginia.  Id. at 700 n.26.  However, the court noted that because the statements made by the Texas resident were transmitted through a server that was physically located in Virginia, this constituted an act within the Commonwealth, and subject to jurisdiction under § 8.01-328(A)(3). 

At least one Circuit Court, Nathan v. Takeda Pharmaceuticals America, Inc., (Fairfax Cir. 2011) applied the rationale of Bochan and left open the possibility of exercising personal jurisdiction over a defendant who initiated an email or internet post in another state, but the material was then transmitted through a server or internet provider resident in Virginia.  This is an important consideration due to the fact that a number of social media platforms, such as Twitter, utilize data housing and servers provided by Amazon from its Northern Virginia data centers.  Consequently, a Virginia resident that has suffered defamation over the internet based on social media posts and commentary may be able to obtain a measure of relief in his or her home state, rather than having to resign themselves to a long-distance legal affair.  This possibility is not without its risks, however.  The tech giants tend to keep the whereabouts of their server facilities under tight wraps for security and other similar reasons.  Thus, the courts are likely to grasp on the idea that a would-be defendant is probably completely unaware that his or her nefarious missive would pass through the Dominion on its way to the “internet of everything.”  This returns us to the inevitable questions of purposeful availment, and ever-present balancing act of “traditional notions of fair play and substantial justice.”

If you're considering a defamation lawsuit in Virginia or Washington, D.C., especially if the defendant is not in the same state as you, please contact us for a consult about personal jurisdiction. 

By Katarina Nguyen
 
I.          What is defamation?
 
The elements of defamation in Virginia are “(1) publication of (2) an actionable statement with (3) the requisite intent.” Jordan v. Kollman, 612 S.E.2d 203, 206, 269 Va. 569 (Va. 2005). In litigation, the plaintiff has the burden of proving that a defamatory statement is false. Id. at 206-07 (citing Williams v. Garraghty, 249 Va. 224, 235, 455 S.E.2d 209, 216 (Va. 1995)). The standard for the burden of proof is by the preponderance of the evidence. Gazette, Inc. v. Harris, 229 Va. 1, 15, 325 S.E.2d 713, 724-24 (Va. 1985). “Preponderance of the evidence” is the standard burden of proof for most civil cases, which is a lower standard than “beyond a reasonable doubt” in criminal cases and “clear and convincing evidence” in certain types of civil cases.
 
The first element simple enough to understand: the defamatory statement has to be shared with other people. The third element gets more complicated with different types of intents for different types of defamation, but the general concept is still clear: the person making the defamatory statement had to intend it to be so. However, the second element tends to be the trickiest.
 
II.        What is an actionable statement?
 
The Virginia Supreme Court has held that an “actionable statement” is one that is both false and defamatory. Id. (citing M. Rosenberg & Sons v. Craft, 182 Va. 512, 518, 29 S.E.2d 375, 378 (Va. 1944)). Being a false statement is not enough to be actionable--the statement must also be defamatory. Conversely, being a defamatory statement with the required “sting” is not enough to be actionable--the statement must also be false.
 
III.       What is the defamatory “sting”?
 
The Court refers to this as the defamatory “sting” needed for the statement to be actionable. Schaecher v. Bouffault, 290 Va. 83, 92, 772 S.E.2d 589, 594 (Va. 2015). Actionable statements with the required defamatory “sting” are those that harm the person's reputation so much so that third parties or the community as a whole holds a poorer estimation of him or her, or that third parties feel deterred from associating with him or her as a result of the statement. Id. at 91-92, 772 S.E.2d at 595 (quoting Chapin v. Knight-Ridder, Inc., 993 F.2d 1097, 1092 (4th Cir. 1993)). Statements with the required defamatory “sting” also tend to shame or disgrace the person, cause others to scorn, contempt, or ridicule him or her, and gives him or her a ridiculous, odious, or infamous reputation. Id. at 92, 772 S.E.2d at 594.
 
IV.       What qualifies as a defamatory “sting” and an actionable statement?
 
While the definition of an “actionable statement” is broad, the Virginia Supreme Court has established certain categories of actionable statements as having a strong defamatory “sting”, so much so that the plaintiff would not have to show how exactly he or she was injured by the statement. Great Coastal Exp., Inc. v. Ellington, 334 S.E.2d 846, 849, 230 Va. 142, 146-47 (Va. 1985). These are actionable statements that constitute defamation “per se”. Actionable statements that do not constitute defamation per se are categorized as defamation “per quod”.
 
The four types of actionable statements that are defamatory per se are as follows:
 
1.     Stating that the person committed a criminal offense involving moral turpitude which, if charged, could result in indictment and punishment.
2.     Stating that the person is infected with a contagious disease which, if true, would exclude that person from society.
3.     Stating that the person is unfit to perform their official duties or job duties, or that the person lacks integrity to perform such duties.
4.     Making a statement that would prejudice the person in his or her profession or trade.
 
Id.
 
The Virginia Supreme Court has ruled that a crime of “moral turpitude” is where the offense is so base, vile, or depraved either in private or in social settings and is contrary to customary rules governing what is right and the duties that people who to each other.  Id. at 850 (quoting Tasker v. Commonwealth, 202 Va. 1019, 1024, 121 S.E.2d 459, 463 (Va. 1961)).
 
The statements have to strictly meet the foregoing requirements to qualify as actionable on a per se basis. For instance, falsely stating that the person drove a vehicle with expired registration tags perhaps may qualify as defamatory, but because no reasonable person would consider failing to renew their vehicle registration to be a base, vile, or depraved act, this statement would not qualify as actionable per se. Similarly, falsely stating that the person contracted influenza may be defamatory, but because it would not exclude that person from society, it would not be actionable per se.
 
V.        What doesn't qualify as a defamatory “sting” or an actionable statement?
 
Because there is a broad spectrum of what meets the definition of an actionable statement, it can often be easier to define an actionable statement by what does not qualify as actionable or otherwise lacks the required defamatory “sting”.
 
A.             Absolute Privilege
 
The Virginia Supreme Court has held that statements made as part of a judicial proceeding, so long as those statements are both material and relevant to the matter, are protected by absolute privilege. Mansfield v. Bernabei, 727 S.E.2d 69, 73 (Va. 2012) (citing Donohoe Constr. Co. v. Mt. Vernon Assocs., 235 Va. 531, 537, 369 S.E.2d 857, 860 (Va. 1988) (internal quotations omitted). Absolute privilege is not limited to just those statements made within a courtroom. Id. However, this privilege does not extend to “mere potential litigation”, so statements made prior to litigation may be actionable.  Id. (citing Lindeman v. Lesnick, 268 Va. 532, 537-38, 604 S.E.2d 55, 58 (Va. 2004)). But statements made as part of attempted settlement negotiations related to seriously considered proposed judicial proceedings are protected by absolute privilege if those statements are only made to people with an interest in the proposed judicial proceeding and the statements themselves are material and relevant to the matter. Id. at 75.
 
An example of a privileged pre-litigation statement is if the person prepares a settlement proposal or draft of a judicial filing and circulates it among parties who would be involved in the potential lawsuit. Statements made during the litigation, including in the courtroom, judicial filings, or at depositions, are also protected by absolute privilege.
 
B.             Qualified Privilege
 
The Virginia Supreme Court has recognized a defense of qualified privilege to what would otherwise be actionable statements. This type of privilege covers statements where the person making the statement has an interest or duty in the subject matter of the statement. 286 Va. at 338, 749 S.E.2d at 533 (citing Larimore v. Blaylock, 249 Va. 568, 572, 528 S.E.2d 119, 121 (Va. 2000)).
 
A classic example of qualified privilege is demonstrated by the case of Cashion v. Smith. In that case, two surgeons were providing emergency treatment to a patient, who died during the surgery. After the treatment, one of the doctors made several statements about the other doctor in front of the other members of the treatment team, including stating that the other doctor “purposefully didn't resuscitate” the patient, implying that the other doctor euthanized the patient. The Virginia Supreme Court affirmed the trial court's ruling that the statements were not actionable because the doctors both had an interest or duty in the subject matter of the statement, namely the quality of the patient's treatment.
 
However, simply because the person making the statement has an interest in the subject matter of the statement does not mean that he or she can say anything without consequence. Qualified privilege can be revoked if the plaintiff is able to show that (1) the person making the statement knew it was false or recklessly did not care if it was true or false, (2) the person making the statement communicated it to a third party with no interest or duty in the subject matter, (3) the person making the statement did so out of ill will or personal spite, (4) the person making the statement used disproportionately violent or strong language when compared against what was being alleged, or (5) the person making the statement did so in bad faith. Id. If any one of those arguments applies, then qualified privilege can be revoked.
 
Using the above Cashion v. Smith scenario as an example, if the doctor accusing the other doctor of purposefully failing to resuscitate the patient actually knew that the other doctor did, in fact, try to resuscitate the patient, but then made that statement anyway, then the qualified privilege is revoked and the statement becomes actionable.
 
C.            Rhetorical Hyperbole
 
The Virginia Supreme Court has held that statements qualify as rhetorical hyperbole and, therefore, are not actionable, if a third party could not reasonably infer from the statement that the person actually engaged in the described conduct. Cashion v. Smith, 286 Va. 327, 339-40, 749 S.E.2d 526, 533 (Va. 2013 (quoting Yeagle v. Collegiate Times, 255 Va. 293, 296, 497 S.E.2d 136, 127 (Va. 1998)). Rhetorical hyperbole can also encompass statements that are offensive, inappropriate, or insulting. 290 Va. at 92, 772 S.E.2d at 594. These types of statements lack a defamatory “sting” due to the fact that most reasonable people would not believe the statements as being the truth.
 
Exaggerations and extreme-language tends to qualify as rhetorical hyperbole. For example, a statement such as, “This person is a pig because they ate all of the restaurant's food in one meal,” would be considered rhetorical hyperbole because no reasonable person would believe that the subject person was a literal pig or that a single person could eat an entire restaurant's stock of food in a single sitting.
 
However, rhetorical hyperbole can still cross a line, carry the required defamatory “sting”, and therefore be deemed actionable statements under certain circumstances. If the statement accuses the person of lying, then an average third party reading or hearing that statement would not know if that statement was hyperbole or not.  Schaecher v. Bouffault, 772 S.E.2d 589, 599 (Va. 2015). Because of that, statements that accuse the person of lacking honesty or being a liar have been ruled as being potentially actionable statements depending on the circumstances. Id. at 600.
 
D.            Opinion
 
The Virginia Supreme Court has exempted statements of opinion from being deemed actionable statements because, like rhetorical hyperbole, they lack the required defamatory “sting”. In discussing what constituted an opinion, the Court defined it as being largely dependent on the speaker's point-of-view and being relative in nature. 286 Va. at 336, 749 S.E.2d at 533. But if the opinion is couched in language with factual connotations that can be proven false, then those statements can be actionable. Fuste v. Riverside Healthcare Ass'n, 265 Va. 127 575 S.E.2d 858, 861-62 (Va. 2003) (quoting WJLA-TV v. Levin, 264 Va. 140, 156, 564 S.E.2d 383, 392 (Va. 2002)). And insinuations within an opinion can cause the statement to become actionable. Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 47, 670 S.E.2d 746, 751 (Va. 2009).
 
Using the previously explained scenario from Cashion v. Smith, the doctor's statement that the other doctor “purposefully didn't resuscitate” the patient is not an opinion because there are factual connotations and insinuations in that statement that can be proven false, which is either than the other doctor failed to perform the resuscitation treatment or actively stopped the resuscitation treatment from happening. But that doctor's remaining statements about how the other doctor “didn't really try”, gave “a very poor effort”, and “gave up on” the patient were all deemed to be opinions because they entirely depended on that doctor's point-of-view and were subjective in nature.
 
E.             Truth
 
The truth is always a strong argument against an alleged actionable statement. However, the defendant no longer has to raise the truth as an affirmative defense in defamation cases. 229 Va. At 15, 325 S.E.2d at 725. Rather, the plaintiff has the burden of proving that the actionable statement is both defamatory and false. Id.
 
VI.       What should I do if I think someone defamed me?
 
Defamation cases are all very fact-specific, meaning that no two cases are exactly alike. You will need to have the precise words that the person spoke or wrote in order to proceed with a defamation case in court. And you will also need background information and perhaps other statements that were made to establish the circumstances, conditions, and context of your case, which all directly impact the strength of your defamation case. And bear in mind that the statute of limitations for defamation is one year from when the cause of action accrues, which is generally from the date of the statement's publication. Va. Code Section 8.01-247.1. That means that if you suspect you have been defamed, you need to maintain a record of the statement, if possible, and determine whether to take legal action sooner rather than later.
 
If you need assistance in determining whether you have a potential defamation claim, please contact us for a consultation.

By Charles Michael Fulton

Many people in the metro-DC area have security clearances. When a legal issue arises, they are rightfully concerned about the impact on their security clearance and the corresponding impact on their careers. Like most legal questions, the answer is it depends—that is to say, it depends on your particular legal issue and the underlying facts. To give you some background on how we’d answer your question, however, this blog post will discuss the relevant portions of the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, 32 C.F.R. § 147 (2021), (the “Adjudicative Guidelines”).

The Adjudicative Guidelines list thirteen Guidelines outlining areas of concern for agency supervisors to apply to both initial and continuing eligibility for access to classified information. Each Guideline is assigned a letter from A to M. The first three Guidelines, A to C, along with Guideline L, deal with allegiance to the United States and foreign influences, including in activities outside of employment—generally not areas with which our clients are concerned. See 32 C.F.R. § 147.3–.5, .14 (2021). Guideline I outlines areas of concern relating to emotional, mental, and personality disorders. See 32 C.F.R. § 147.11 (2021).

For criminal issues, the analysis starts with Guideline J, entitled Criminal conduct. See 32 C.F.R. § 147.12 (2021). Guideline J is primarily concerned with a “serious” crime, but multiple “lesser” offenses can also be a basis for disqualification. 32 C.F.R. § 147.12(b)(2) (2021). It’s unclear whether the distinction between “serious” and “lesser” offenses follows the distinction between a felony and a misdemeanor—but the felony/misdemeanor distinction is probably a good rule of thumb. Note that, in Guideline J, agency supervisors are directed to consider allegations and admissions of criminal conduct, not just criminal charges. 32 C.F.R. § 147.12(b)(1) (2021).

As an example, assume you’ve been charged with reckless driving in Virginia. In Virginia, among other things, reckless driving is driving either twenty miles over the speed limit or over eighty-five miles per hour. Va. Code Ann. § 46.2-862. Reckless driving is a first-degree criminal misdemeanor. Va. Code Ann. § 46.2-868(a). First-degree criminal misdemeanors are subject to jail time of no more than twelve months and/or a fine of no more than $2,500.00. Va. Code Ann. § 18.2-11(a).

Applying the distinction between a felony and a misdemeanor, a single count of reckless driving in Virginia may not be sufficiently serious for an agency supervisor to revoke your security clearance. If this is your second or third reckless driving charge, however, it does provide a stronger basis for an agency supervisor to revoke a security clearance.

Fortunately, Guideline J provides some instructions on facts that could reduce a supervisor’s concern for serious or multiple lessor criminal offenses. Specifically, Guideline J instructs a supervisor to consider whether the alleged criminal behavior was in the past; was isolated; resulted from pressure or coercion; or was involuntary. 32 C.F.R. § 147.12(c)(1)–(4) (2021). Additionally, Guideline J instruct supervisors to consider whether the applicant was acquitted on the alleged criminal charges or whether there was “clear evidence of successful rehabilitation.” 32 C.F.R. § 147.12(c)(5)–(6) (2021).

For these reasons, if you’re accused of reckless driving in Virginia, and you don't need to attend driving school to resolve the charge, you could "save" driving school until the second such charge. Driving school may help you avoid the second conviction for reckless driving—and, if it does not, it may be evidence of rehabilitation. To prove that the rehabilitation was successful, however, you may want to reconsider driving over the speed limit—or to trade in your sports car for a mini van!

Additionally, several other Guidelines can factor into a criminal issue analysis. For example, are Guideline D directs agencies to consider the sexual behavior of an applicant—and first on the list is sexual behavior of a criminal nature. 32 C.F.R. § 147.6(a) (2021). You should consider these guidelines focusing on individual criminal behavior as well as Guideline J when you’re evaluating the effect of an allegedly criminal act on your security clearance.

These are just basic examples of how criminal allegations may affect your security clearance. A proper evaluation will require a fuller discussion of your facts and circumstances. If you have questions about how criminal allegations may impact your security clearance, please contact Steven Krieger Law, PLLC for a consultation on the matter.

This blog post on how a criminal allegation may affect your security clearance is part of a series of blog posts on how legal matters may affect a security clearance. For information on how a family law matter may affect your security clearance, click here. For information on how a civil matter may affect your security clearance, click here.

By Charles Michael Fulton

Many people in the metro-DC area have security clearances. When a legal issue arises, holders of security clearances are rightfully concerned about the impact on their security clearance and the corresponding impact on their careers. Like most legal questions, the answer is it depends—that is to say, it depends on your particular legal issue and the underlying facts. To give you some background on how we’d answer your question, this blog post will discuss the relevant portions of the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, 32 C.F.R. § 147 (2021), (the “Adjudicative Guidelines”).

The Adjudicative Guidelines list thirteen Guidelines outlining areas of concern for agency supervisors to apply to both initial and continuing eligibility for access to classified information. Each Guideline is assigned a letter from A to M. For example, the first three Guidelines, A to C, along with Guideline L, deal with allegiance to the United States and foreign influences, including in activities outside of employment—generally not areas with which our clients are concerned. See 32 C.F.R. § 147.3–.5, .14 (2021).

For a civil matter, such as a lawsuit over a debt or a landlord/tenant dispute that ends up in litigation, the most relevant guideline is Guideline F, which deals with money concerns. See 32 C.F.R. § 147.8 (2021). Guideline F instructs supervisors to consider, among other things, an applicant’s history of not fulfilling financial obligations and an inability or unwillingness to satisfy debts. 32 C.F.R. § 147.8(b)(1),(3) (2021).

As an example, a debt collector sues a client for a debt that the client had long forgotten, never new existed, or was not actually the client’s obligation. This would likely be a concern for a supervisor in a security clearance review because it is an indicator that the client has a history of not fulfilling financial obligations.
As another example, a client failed to pay the full amount of rent (and late fees) due on his or her previous rental unit. This would also likely be a concern for a supervisor in a security clearance review because it is an indicator that the client has a history of not fulfilling financial obligations.

Fortunately, Guideline F provides some instructions on facts that could reduce concern for failing to pay debts. Specifically, Guideline F instructs supervisors to consider whether the issue happened a long time ago; the issue was isolated; the issue resulted from circumstance beyond the client’s control, due to extenuating circumstances such as loss of a job; and whether the client is actively working to resolve the issue or making an effort to repay his or her debts. 32 C.F.R. § 147.8(c)(1)–(4),(6) (2021).

To reduce concern for the first example, the client could point out that the debt arose a long time ago, and that the client has no other such debts on his or her record. Of course, the later would require the client to investigate whether the client did, indeed, have any other such outstanding debts—a great way to do this would be for the client to request several credit reports and carefully review the results.

To reduce concern for the example using unpaid rent, the client could point out that the unpaid rent was the result of unexpected circumstances, such as the loss of a job or, perhaps, the loss of a spouse or co-tenant. Further, the client could point to the fact that, hopefully, the client was actively trying to negotiate with his or her former landlord to reach a mutually agreeable settlement arrangement to resolve the debt.

If these examples do not answer your questions about how a civil claim you have, or someone has a claim against you that may affect your security clearance, please contact Steven Krieger Law, PLLC, for a consultation on the matter.

This blog post on how a civil matter may affect a security clearance is part of a series of blog posts on how legal matters may affect a security clearance. For information on how a family law matter may affect your security clearance, click here (coming soon). For information on how a criminal matter may affect your security clearance, click here (coming soon).

By Andrew J. Salinas

Imagine this: you’re a contractor in Virginia who just accepted a major home improvement project. You spend days collecting the necessary materials and doing backbreaking work so you can do the best job you can. You drive away with the final check and take it to the bank. You walk in, expecting to get paid for the last few long days of your labor you’re shocked when the teller tells you the check bounced. Now you have to explain to your workers that they won’t get paid.

Or, you’re a young person in Virginia working odd jobs off Craigslist. You just cleaned out a person’s apartment, walked their dog, or mowed their lawn. They thank you for the work and hand you a check. You deposit it through your banking app and go about your day. A few days later you’re surprised when the bank notifies you that the check was bad and now you’re short on the cash you needed for rent this month. 

Maybe you co-own a property with someone and your co-owner gave you a bad check for their part of the mortgage, which put your loan in jeopardy of default? (Note: if you need to re-finance your mortgage due a bad check or covid or some other reason, check out this article that may be helpful.)

What can you do to recover the money from the bounced check?

In addition to getting the exact amount recorded on the bad check, Virginia law also entitles you to:

1. The legal interest from the date of the check;
2. The protest or bad check return fee, if any, charged by the financial institution;
3. A processing charge of $50.00; and
4. Reasonable attorney's fees if awarded by the court.[1]

What if I’m in a situation where I was depending on this person to write me more checks? Say I’m a contractor who made an agreement with a client to renovate their house and we’ve already agreed they would pay me in three installment checks. I’ve already purchased all the building materials and put in a substantial amount of labor when the second check they gave me was bad. Even if I get the full amount of the second check, I’m still one full check short. I also passed on another project to do the home renovation and now have lost that opportunity. Do I have any other legal remedies?

Possibly. Did you already perform or substantially perform your end of the deal? In that case there are several options under the common law of Virginia. For example, there exists the private right of action known as breach of contract. Circling back to the hypothetical contractor situation, in a breach of contract claim a court could award you restitution, thus entitling you to the money you already spent on materials and labor. A plaintiff asserting a claim for breach of contract must prove the following elements:

1. There exists a legally enforceable obligation of a defendant to a plaintiff;
2. The defendant's violation or breach of that obligation; and
3. Injury or damage to the plaintiff caused by the breach of obligation.[2]

Even if you didn’t have some sort of contract with the bad check issuer, the common law also provides you with a fraud claim where plaintiff needs to prove by clear and convincing evidence that:

1. The seller intentionally and knowingly;
2. Made a false representation;
3. Of a material fact;
4. That was relied upon by the plaintiff buyer; and that
5. Resulted in damaged to the party misled.[3]

Under these common law claims you could be entitled to receive restitution for any labor you provided the issuer and even potentially punitive damages that punish the issuer for their deceptive conduct.
 
Finally, Virginia criminalizes writing bad checks as a form of larceny. The elements of this crime are outlined as follows:

1.  Any person within the Commonwealth of Virginia who;
2. With intent to defraud;[4]
3. Makes, draws, utters, or delivers;
4. Any check, draft, order, or other instrument for the payment of money upon any bank, banking institution, trust company, or other depository; and
5. Knowing at the time of creating the aforementioned instruments that the maker or drawer does not have sufficient funds in or credit with such bank, banking institution, trust company, or other depository;

           a.  Is guilty of the Class 6 felony of larceny if the check is worth $1,000.00 or more and could receive                  one to five years in prison or up to one year in jail and/or a fine up to $2,500.00, or
          b.  Is guilty of a Class 1 misdemeanor of larceny if the check is worth less than $1,000.00 and could                    serve a jail sentence up to a year and/or pay a fine of $2,500.00.[5]

You do not need to show that you received anything in return for the check for this law to apply.[6] You may report the bad check issuer to your local Commonwealth’s Attorney’s Office for prosecution. You can do this even if they eventually pay you back.[7]
 
If you received a bad check and want to get what you’re owed, contact Steven Krieger, PLLC for a consultation.

***

[1] § 8.01-27.1(A).
[2] Sunrise Continuing Care, LLC v. Wright, 277 Va. 148, 671 S.E.2d 132, 135 (Va. 2009) (quoting Filak v. George, 267 Va. 612, 594 S.E.2d 610, 614 (Va. 2004)).
[3] State Farm Mut. Auto. Ins. Co. v. Remley, 270 Va. 209, 218, 618 S.E.2d 316 (2005)(quoting Prospect Development Co. v. Bershader, 258 Va. 75, 85, 515 S.E.2d 291 (1999)).
[4] The fact that the issuer issued the check in the first place creates a prima facie presumption that issuer knew the account had insufficient funds. Bolinsky v. Commonwealth, No. 2055-93-2 (Ct. of Appeals Feb. 14, 1995).
[5] Va. Code §§ 18.2-181; 18.2-10; 18.2-11.
[6] Payne v. Commonwealth, 222 Va. 485, 281 S.E.2d 873 (1981).
[7] Cook v. Commonwealth, 178 Va. 251, 16 S.E.2d 635 (1941).

By Andrew J. Salinas

Imagine this: you’re a contractor in D.C. who just accepted a major home improvement project. You spend days collecting the necessary materials and doing backbreaking work so you can do the best job you can. You drive away with the final check and take it to the bank. You walk in, expecting to get paid for the last few long days of your labor you’re shocked when the teller tells you the check bounced. Now you have to explain to your workers that they won’t get paid
 
Or, you’re a young person in the District of Columbia working odd jobs off Craigslist. You just cleaned out a person’s apartment, walked their dog, or mowed their lawn. They thank you for the work and hand you a check. You deposit it through your banking app and go about your day. A few days later you’re surprised when the bank notifies you that the check was bad and now you’re short on the cash you needed for rent this month.
 
What can you do to recover the money from the bounced check?
 
D.C. limits bad check recovery to “merchants” or people who do or would “sell, lease, or transfer, either directly or indirectly, consumer goods or services, or a person who does or would supply the goods or services which are or would be the subject matter of a trade practice.”[1] In other words, you can receive the amount on face of the check as long as it was for the payment of goods or services. If that is the case, then the D.C. Code mandates that after the financial institution dishonors a bad check, you send a written letter[2] to the issuer demanding payment.[3] If after 30 days the issuer still hasn’t paid you, D.C. law entitles you to the face amount on the check and:

1. Twice the amount of the check, or $100.00, whichever is greater;
2. Costs; and
3. Reasonable attorneys’ fees.[4]

 
Additionally, in D.C., it is a crime to write a bad check. The elements of this crime are outlined as follows:

1. Any person within D.C. who;
2. With intent to defraud;[5]
3. Makes, draws, utters, or delivers;
4. Any check, draft, order, or other instrument for the payment of money upon any bank or other depository; and
5. Knowing at the time[6] of creating the aforementioned instruments that the maker or drawer does not have sufficient funds in or credit with such bank or other depository;

           a.     Is guilty of a felony if the check is worth $1,000.00 or more and could be fined up to $2,500.00                       and/or be imprisoned for one to three years, or
           b.     Is guilty of a misdemeanor if the check is worth less than $1,000.00 and could be fined up to                           $1,000.00 and/or be imprisoned for up to 180 days.[7]
 
Essentially, you can report the bad check issuer to the D.C. United States Attorney’s Office to get them prosecuted.[8]
 
If you received a bad check and want to get what you’re owed, contact Steven Krieger, PLLC for a consultation.

***

[1] § 28-3151.
[2] Specifics according to § 28-3152(g).
[3] § 28-3152(b).
[4] § 28-3152(c).
[5] The bank or financial institution’s failure to honor a check 5 days after the check was issued is considered prima facie proof of intent to defraud.
[6] This includes false representation, knowledge of falsity, and intent to defraud. Ciullo v. United States, 325 F.2d 227, 117 U.S. App. D.C. 31, 1963 U.S. App. LEXIS 3861 (D.C. Cir. 1963)(interpreting the bad check statute’s previous codification of D.C. Code 1961, § 22-1410).
[7] D.C. Criminal Code §§ 22-1510; 22-3571.01.
[8] To report a complaint, visit the USAO’s website at https://www.justice.gov/usao-dc/contact.

By Andrew J. Salinas

Under Virginia law, a Board[1] licensed car dealer may provide you with temporary license plates and a certificate of temporary registration after you fully or partially purchase a vehicle.[2] The vehicle registration certificate needs “its date of issuance, the name and address of the purchaser, the identification number of the vehicle, the registration number to be used temporarily on the vehicle, the name of the state in which the vehicle is to be registered, the name and address of the person from whom the dealer acquired the vehicle, and whatever other information may be required by the [DMV]” to be legally valid.[3]
 
Regardless of whether the dealer does or, through no fault of their own, does not have the original title for the vehicle at the time you buy, it is your responsibility to make sure the temporary registration certificate is recorded by the DMV.[4] Once that happens, you receive a copy of the temporary registration certificate, which allows you to get the vehicle insured and lawfully drive it around on the road while you wait for transfer of title.[5]
 
When am I entitled to receive title?
 
Those temporary certificates of registration are only valid until either 30 days after they are issued or until the dealer delivers title to you.[6]
 
It has been 30 days and I still haven’t received title. What now?
 
If the dealer fails to deliver the certificate of title or certificate of origin to you or the DMV within the first 30 days, a couple of things can happen.
 
First, you can get a full refund for what you paid for the vehicle and return it to the dealer.[7]
 
Second, if you decide to notify the dealer you still want to keep the car, the dealer is required to deliver an application for title, a “copy of the bill of sale, all required fees and a written statement of facts describing the dealer's efforts to secure the certificate of title or certificate of origin to the vehicle” to the DMV within the first 30 days period.[8] When the DMV receives those documents, the DMV may in its discretion issue a secondary temporary certificate of registration that would be valid for another 30 days.[9]
 
If after this 60-day period the dealer is still unable to produce your vehicle’s title, the DMV may extend temporary registration for an additional 90-day period.[10]
 
Okay it has been 150 days and I still don’t have my title, what are my rights?
 
After the secondary temporary certificate of registration period and the additional period expires, you have a couple of options according to Virginia law:
 
A.    Return the car and get a refund
 
Your first and most obvious option is to get a full refund. Virginia law dictates that you have a right to a full refund of all the payments you made towards the vehicle as long as you give the dealer notice that you’re returning the car before a title is issued.[11] But, one court has ruled that this also means that you are not entitled to a refund while any of the temporary registration periods are running.[12] Also keep in mind that any damage incurred to the vehicle while you had the keys and any accrued mileage after you return it will come out of your refund.[13]
 
B.    File a complaint about the dealer with the DMV Commissioner
 
Another option you can take is to report the dealer to the DMV Commissioner.[14] If you really feel slighted by the dealer and think getting a refund isn’t enough, you can bring a complaint to the DMV Commissioner who after conducting a hearing can outright suspend the dealer’s ability to issue temporary certificates of registration.[15] Doing so won’t net you any monetary benefit, but it can send a message to the car dealer to never sell a vehicle without possessing title again. If you do choose to go this route, remember to have any paperwork, emails, or text messages relating to the sale and the dealer’s failure to provide you with title ready for the hearing.
 
Keep in mind that these two options only apply to licensed car dealers who are unable to deliver title because it was lost or in another’s possession.[16] If you fail to pick up the title of certificate from the dealer after the first 30 days, one court has ruled that you’re out of luck on getting a refund on the car or collecting damages from the dealer if your car is impounded.[17] Likewise, Virginia law considers title transferred if you drive the car off the lot and the dealer has already filled out the paperwork, even if it has not delivered the paperwork to the DMV yet.[18] As of this writing, it is an open question whether you can sue a licensed dealer specifically for failing to provide title after providing a buyer with a temporary certificate of registration under Virginia Code § 46.2-1542. A federal court in Virginia ruled in 2001 that a private right of action may exist from this part of the state code.[19]
 
What if the dealer never had the title to the car in the first place? What can I do then?
 
A.    Virginia Consumer Protection Act
 
The Virginia Consumer Protection Act (VCPA) establishes a private right of action for a customer aggrieved by a fraudulent or deceptive consumer transaction within the Commonwealth of Virginia.[20] A “consumer transaction” includes the sale or offering for sale of “goods or services to be used primarily for personal, family, or household purposes.”[21] This section applies to car sales.[22] The VCPA also prohibits misrepresenting goods for having certain characteristics and using any form of deception in connection with a consumer transaction.[23]
 
If you sue a car dealer under the VCPA and win, you would be entitled to recover actual damages as a result of your lack of title (e.g. impound and other registration costs).[24] If a court finds that the dealer willfully deceived you into thinking they had title, it may award you up to three times the actual damages you incurred.[25] You could also be entitled to reasonable attorneys’ fees – see our prior blog post about this here.[26]
 
B.    Common Law Breach of Contract and Fraud Claims
 
Under the Virginia common law, a plaintiff asserting a claim for breach of contract must prove the following elements:
 
1.     There exists a legally enforceable obligation of a defendant to a plaintiff;
2.     The defendant's violation or breach of that obligation; and
3.     Injury or damage to the plaintiff caused by the breach of obligation.[27]
 
Virginia common law also provides a private right of action for fraud when a plaintiff can prove by clear and convincing evidence that:
 
1.     The seller intentionally and knowingly;
2.     Made a false representation;
3.     Of a material fact;
4.     That was relied upon by the plaintiff buyer; and that
5.     Resulted in damaged to the party misled.[28]
 
Under these common law claims you could be entitled to receive any costs associated with the non-transfer of title and potentially punitive damages that punish the dealer for their deceptive conduct. Keep in mind that if you are awarded damages under the VCPA, you are barred from recovery based on state common law.[29]
 
C.    Civil Penalties
 
Virginia law also states that it is a Class 3 misdemeanor to sell, trade, exchange, or barter a motor vehicle, trailer, or semitrailer without first having secured title for it or without legally having in their possession a certificate of title for the vehicle.[30] This means the dealer could potentially receive a fine of up to $500.00[31] if you chose to report them to the Virginia Attorney General’s Office.[32]

Remember that VCPA and state common law claims have a two-year statute of limitations that accrue either when you discover the fraud or reasonably should have discovered the fraud.[33] If you have experienced a title issue from a licensed or unlicensed car dealer, contact Steven Krieger, PLLC for a consultation.


[1] Motor Vehicle Dealer Board (§ 46.2-1503; 46.2-1542(A)).
[2] § 46.2-1542(A).
[3] Id.
[4] § 46.2-1542(A)-(B); Va. Code Ann. § 46.2-630.
[5] § 46.2-1542(A).
[6] § 46.2-1542(B).
[7] Id.
[8] 46.2-1542(C)
[9] Id.
[10] § 46.2-1542(D).
[11] § 46.2-1542(B).
[12] Rolander v. Luxury Auto Sales of Dumfries, 77 Va. Cir. 114, 2008 Va. Cir. LEXIS 129 (Prince William 9/17/2008).
[13] § 46.2-1542(B).
[14] § 46.2-1542(E). See also Lewis v. Commonwealth, 28 Va. App. 164, 170 (1998)(Va. Code Ann. § 46.2-1542 provides that the issuance of a temporary certificate of ownership pursuant to § 46.2-1542 shall have the effect of vesting ownership to the vehicle in the purchaser for the period that the certificate remains effective.)
[15] § 46.2-1542(E)
[16] Nigh v. Koons Buick Pontiac GMC, Inc., 143 F. Supp. 2d 535, 2001 U.S. Dist. LEXIS 5374 at *9 (E.D. Va. 2001), aff'd, 319 F.3d 119 (4th Cir. 2003)(ruling that § 46.2-1542’s provisions did not apply to car dealership who had possession of vehicle’s title when it sold the vehicle to plaintiff).
[17] Rolander, 77 Va. Cir. at 115-15, 118. 
[18] Wicker v. Nat’l Sur. Corp., 330 F.2d 1009, 1012-13 (4th Cir. 1964).
[19] Nigh, 2001 U.S. Dist. LEXIS 5374 at *2-*3 (E.D. Va. 2001), aff'd, 319 F.3d 119 (4th Cir. 2003) (holding that § 46.2-1542 only applies to licensed vehicle dealers and that, despite much of Title 46.2 only creating administrative remedies, a private right of action may spring from this statute).
[20] Va. Code. § 59.1-200.
[21] Va. Code. § 59.1-198.
[22] Alexander v. Southeastern Wholesale Corp., 978 F.Supp.2d 615, 621-22 (E.D. Va. 2013).
[23] Va. Code § 59.1-200(A)(5), (14).
[24] Va. Code § 59.1-204(A).
[25] Id.
[26] Va. Code § 59.1-204(B).
[27] Sunrise Continuing Care, LLC v. Wright, 277 Va. 148, 671 S.E.2d 132, 135 (Va. 2009) (quoting Filak v. George, 267 Va. 612, 594 S.E.2d 610, 614 (Va. 2004)).
[28] State Farm Mut. Auto. Ins. Co. v. Remley, 270 Va. 209, 218, 618 S.E.2d 316 (2005)(quoting Prospect Development Co. v. Bershader, 258 Va. 75, 85, 515 S.E.2d 291 (1999)).
[29] Va. Code § 59.1-204(A).
[30] Va. Code § 46.2-617.
[31] Va. Code § 18.2-11.
[32]To file a complaint, visit the Attorney General Office’s website at: https://www.oag.state.va.us/consumer-protection/index.php/file-a-complaint.
[33] Va. Code §§ 59.1-204.1; 8.01-248.

By Susann Nordvik

More Americans than ever have been able to enjoy the freedom, and the responsibility, of being a small business owner (“SBO”).  Entrepreneurship can be both an extremely rewarding and extremely risky proposition.  This self-starting demographic in many cases has not only developed unique and innovative products or services, but has sought professional assistance to create the right business entity as a vehicle for their efforts and to protect and separate their personal interests from their professional ones.  In many cases these intrepid individuals form limited liability companies or a closely held corporation under Subchapter S.  However, the shield from liability of company debt can be compromised if certain formalities are not observed.

Moreover, because revenue streams for small businesses can be somewhat erratic, many SBOs opt for credit lines and short-term loans to bridge the income gap.  However, although such loans are highly regulated in the case of a consumer loan,[1] loans in the name of a SBO’s company are considered commercial, and are not subject to consumer protections.  As such, various so-called lenders have arisen to take advantage of this niche market and in some cases, trap the unwary SBO in a loan that has wide ranging implications to the SBO if his or her company ultimately fails.

These essentially predatory lenders offer attractive options for quick and easy “signature” loans that are often handled entirely over the internet.  In many cases they advertise that no personal guarantees are required.  However, a close look at the fine print may show this not to be the case at all.  In such cases, the SBO who signs on the dotted line may have just executed a personal guarantee that bypasses the corporate veil of limited liability, and if the SBO defaults on the loan due to financial difficulty, that SBO may find their personal finances and assets in jeopardy. 

So, what should the wise SBO do?

First, make sure that you are engaging only with a reputable lender.  Finance companies that previously made their money dealing in subprime mortgages and what the industry refers to as “C paper” were hit hard when the real estate bubble burst in the early 2000s.  Some of them found new life in the post-Obama era by lending to small businesses at high interest rates or with hidden liabilities.  Therefore, the SBO’s may be better off going to their local bank or credit union and avoiding independent finance companies altogether.

If it isn’t possible to stick to a mainstream commercial lender, make sure that you are dealing with a lender that has a good rating, or is in good standing with the Better Business Bureau, the FDIC, the Office of Thrift Supervision, and/or FINRA (if the SBO is dealing with an investment company), or state regulatory agencies for state-chartered banks or lenders.  

Second, make sure that you fully review any contract and all addenda before signing anything.  Although the lender may promise a quick turnaround for much-needed funds, prudence is the better part of valor.  If at all possible, have your contract reviewed by an attorney skilled in matters involving the lending industry and closely-held businesses.  Most importantly, if you see a “personal guaranty” as part of your signature packet, think twice before agreeing to this loan.  You may be signing away your personal assets by accepting funds under such terms.

All right, thanks for the advice, but what do I do if I’ve already signed such an agreement and the lender is attempting to sue me personally?

​One of the tactics used by predatory lenders is to attempt to sue the SBO in a foreign state, possibly with the belief that the SBO will not appear to defend themselves, or because the foreign state has laws that the lender views as more favorable to it.  In such a case, the SBO may not have the requisite contacts with the forum state for the lender to successfully sue in that state.   In order for a court in another state to have personal jurisdiction over a defendant, one of two types of circumstances must exist:

1. The SBO must have either had “continuous, substantial, and systematic” contacts with that forum state.  In other words, the SBO must regularly do business in that state.[2]  This is what is known as “general jurisdiction.”
2. The second type of circumstance, “specific personal jurisdiction,” occurs when the transaction in question took place in the forum state.  For example, in most jurisdictions, a contract is formed in the locale where it is signed.  Therefore, an argument may exist that the foreign state court cannot exercise specific jurisdiction over the transaction if the contract was formed and performed elsewhere.

If the lender cannot establish one of the two types of personal jurisdiction over the SBO in the court that it chose, the SBO may be able to successfully prevent the case from moving forward in that court by making a motion to dismiss for lack of personal jurisdiction.  It is important to note, however, that if the lender does not prevail in the face of a jurisdictional argument, the lender may choose to file a new lawsuit in the SBO’s home state.  If that occurs, there may be other defenses available to the SBO in his or her home jurisdiction.

Unless and until the state legislatures pass laws to protect SBOs from predatory lending practices, SBOs will need to remain particularly vigilant in protecting their interests.  It is far better to delay a few days in securing a loan rather than risk the personal liability the SBO organized to avoid.

If you've signed a business loan or would like an attorney to review the loan documents, please feel free to contact us. 


[1]  See, e.g., Code of Virginia, § 6.2-1816, relating to the requirements and prohibited business methods for consumer lenders pertaining to “payday” loans.

[2]  See Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014) (“Our cases have long stated the rule that a defendant’s contacts with a forum State must be continuous, substantial, and systematic in order for the defendant to be subject to that State’s general jurisdiction.”)

By Katarina Nguyen

The biggest hurdle in family law litigation is often the initial one: getting that first court order. This applies to spousal support and child support, particularly when the payor spouse or parent is contesting paying the amount of support you are seeking or contesting paying any amount of support at all. But you complete all the litigation and trial to obtain your spousal support and/or child support order, the fight may not be over.
 
When a payor spouse or parent fails or refuses to pay their court-ordered support, you're left with only two options: working out a resolution with the payor spouse or parent or, more often than not, resorting to litigation. Most people are apprehensive at the idea of having to go back to court because of the time, energy, and financial resources it takes. Plus, they remember the initial litigation and how hard it was to get that first support order and the idea of going back is discouraging. However, you're able to ask the court to award you attorneys' fees if the payor spouse or parent is not paying. 
 
But lawsuits to collect on spousal support or child support arrears are actually relatively straightforward and typically involves much less effort than the initial support determination. This is because the court is only interested in four main questions: (1) whether the payor spouse or parent failed to pay the full amount due and, if yes, how much back-support is owed, (2) whether to hold the payor spouse or parent in contempt of court for violating the support order, (3) setting a new payment plan for the arrears on top of the regular support that continues to accrue, and (4) determining whether any additional punishments are necessary as a result of a contempt finding.  Plus, again, you are able to ask the court to award you your attorneys' fees for bring this type of lawsuit.
 
These lawsuits are referred to as "show cause" petitions or, simply, a "show cause." "Show cause" means that the payor spouse or parent has to appear in court and "show cause," i.e., explain why he or she is not in violation of the court order and should not be held in contempt.
 
Show cause litigation in Virginia comprise of two steps: there is the first, initial status hearing, also called the initial return, and the second hearing, which is the trial. There may be other hearings in between depending on whether you or the payor spouse or parent files any motions.
 
 I.         The Filing Requirements
 
Va. Code Section 8.01-274.1 provides the requirements for show cause petitions in the Circuit Court, while Va. Code Section 20-115 provides additional details for show cause petitions in the family law context in the Circuit Court. You will need to file a "rule to show cause," the show cause petition, and an affidavit. The petition and affidavit can be the same document, but the rule to show cause is separate. The rule to show cause is a very brief order that is entered by the court. The order instructs the payor spouse or parent to appear at the designated initial return date. The order does not grant your petition, but rather merely initiates the court hearing process by putting the payor spouse or parent on notice of the proceeding.
 
Va. Code Section 16.1-278.16 provides the requirements for show cause petitions in the Juvenile and Domestic Relations District Court ("JDR Court"). The JDR Court uses Virginia form DC-635, which has instructions.
 
The court you file your petition with depends on which court entered your support order. If the Circuit Court entered the support order, which may be part of a final divorce order or a settlement agreement incorporated into a final divorce order, then you may file in Circuit Court. However, you should review the order and/or settlement agreement to see if the Circuit Court remanded the matter of spousal support or child support to the JDR Court. If yes, then you will need to file your show cause petition with the JDR Court. And if the JDR Court entered your support order, then you simply file your show cause petition with the JDR Court.
 
Generally, you will need to include a copy of the support order with your show cause petition. When filing, you should bring one original copy of each document and extra copies for service and for you to keep for your records. If in doubt, call the court and ask about the number of copies that is required, but remember to bring one extra copy to get date-stamped with proof of filing for your own records.
 
II.         Service
 
Va. Code Section 8.01-274.1 requires the rule to show cause, the show cause petition, and the affidavit to be served on the payor spouse or parent. Va. Code Section 16.1-278.16 requires personal or substituted service of the documents.
 
Va. Code Section 8.01-296 details the types of service that are permitted for individuals. Personal service means hand-delivering a copy of the documents to the actual payor spouse or parent. Substituted service means hand-delivering a copy of the documents to a member of the payor spouse or parent's household that is at least 16 years of age. Substituted service can also mean posting a copy of the documents to the front door of the payor spouse or parent's "place of abode," or their home, and mailing a copy of the documents to the same address at least ten days before the first hearing date, with a certificate of mailing filed with the court.
 
If the payor spouse or parent lives in Virginia, you can request service through the Sheriff's Office for $12.00. If they live outside of Virginia, you can obtain service through the Secretary of the Commonwealth or by private process service.
 
III.         The Initial Return
 
The initial return is normally a short status hearing. The court will ask the payor spouse or parent if he or she admits to owing the amount you stated in your petition. If yes, then the court may enter a final order that same day or schedule another hearing on the contempt disposition. If no, then the court will schedule a trial date.
 
If you are in the Circuit Court, you automatically have the right to issue discovery. But if you are in the JDR Court and you want to be able to issue discovery, you will need to ask the court for permission at the initial return. The court may ask you to explain why you believe discovery is necessary.
 
IV.         The Trial
 
At the trial, bring your support order and proof of all payments made by the payor spouse or parent since the entry date of your support order. The court will ask you how much the payor spouse or parent owes you through the trial date, so be prepared to provide that number along with any supporting calculations.
 
If the payor spouse or parent is unable to provide proof of payment for any month that you stated he or she missed or failed to pay in full, then he or she will be unable to disprove your testimony.
 
The court will weigh the evidence presented, including the parties' testimony, the testimony of any witnesses, and any other evidence submitted before the court. The court will then decide whether to grant your show cause petition and find that the payor spouse or parent violated the support order. If yes, the court may enter its final ruling that same day or it may set a status hearing some time out for the ruling. The court may delay its ruling to allow the payor spouse or parent time to demonstrate that he or she is putting in a serious effort to comply with the court's order. If he or she does so, then the court will likely exercise leniency in its ruling.
 
V.         The Ruling
 
Regardless of whether the ruling happens the same day as trial or at a later date, the court first decides what the arrearage amount is after weighing the evidence. Once that amount is determined, the court will decide how the payor spouse or parent will make payments towards that arrearage. The payor spouse or parent may already have an existing spousal support or child support obligation owed to you, so the court will take that and the payor spouse or parent's financial status into consideration when setting the arrearage payment. The court will also decide whether to formally hold the payor spouse or parent in contempt and, if yes, whether to sentence the payor spouse or parent to imprisonment for a term of up to one year. The court is not required to hold the payor spouse or parent in contempt in order to order him or her to comply with the support order. The court may also order the payor spouse or parent pay for your reasonable attorneys' fees and costs.
 
VI.         Conclusion
 
While suing in court can be daunting, show cause petitions based purely on nonpayment of support are often relatively straight forward because the evidentiary burden is easy to prove: either the payor spouse or parent paid or didn't. Once you establish how much is owed, the arguments shift to how much the payor spouse or parent can afford to repay on a monthly basis and whether the court ought to make a contempt finding.
 
If you need assistance filing a show cause petition or would prefer to have an attorney represent you in court, especially since attorney’s fees are recoverable in these actions, please feel free to contact us for a consultation.