Responding to a Virginia complaint: 21 days, no general denial, and default that waives your jury

Virginia's response rules are short, and three of them are unusual enough that habits from other states actively mislead: the general denial is prohibited, the list of permitted responses is closed, and default carries a consequence beyond losing.

Twenty-one days, or 60 or 90

Rule 3:8(a):

A defendant must file pleadings in response within 21 days after service of the summons and complaint upon that defendant, or if service of the summons has been timely waived on request under Code § 8.01-286.1, within 60 days after the date when the request for waiver was sent, or within 90 days after that date if the defendant was addressed outside the Commonwealth.

The waiver track mirrors the federal Rule 4(d) structure. Note the base period is 21 days — the same as the federal answer period, and shorter than the 30 days common in neighbouring states.

Rule 3:5(a) requires the summons to say so on its face: the party served "is hereby notified that unless within 21 days after such service response is made by filing in the clerk's office of this court a pleading in writing, in proper legal form, the allegations and charges may be taken as admitted and the court may enter an order, judgment or decree against such party either by default or after hearing evidence." The form adds a helpful line: "Appearance in person is not required by this summons."

The permitted responses are a closed list

Rule 3:8(a): pleadings in response "other than an answer — are limited to the following, and are deemed responsive only to the specific count or counts addressed therein":

• a demurrer;
• a plea;
• a motion to dismiss;
• a motion for a bill of particulars;
• a motion craving oyer; and
• a written motion asserting any preliminary defense permitted under Code § 8.01-276.

Two things follow. The list is exhaustive — a filing outside it is not a responsive pleading. And each is "deemed responsive only to the specific count or counts addressed therein," so a demurrer to Count I does not respond to Counts II and III.

A motion craving oyer is a Virginia survival worth knowing: it compels the plaintiff to produce a document the complaint relies on, which then becomes part of the record for testing the pleading. It has no modern analogue in most states.

If no other responsive pleading is filed, the answer must be filed within the applicable 21-, 60- or 90-day period.

No general denial

Same subdivision: "An answer must respond to the paragraphs of the complaint. A general denial of the entire complaint or plea of the general issue is not permitted."

That is the opposite of Texas Rule 92, where a general denial suffices to put everything in issue, and it aligns Virginia with Pennsylvania's Rule 1029 and Illinois's 735 ILCS 5/2-610 in requiring paragraph-by-paragraph responses.

One bite at the preliminary motions

Rule 3:8(a1) — Limitation on Serial Pleading:

After filing any pleading or pleadings as an initial response to a complaint or amended complaint, a defendant may not, without leave of court for good cause shown, file a demurrer, plea, or motion described in subsection (a) except as provided under subsection (b) of this rule or under another rule of court or statute that expressly allows such a pleading or motion to be filed at any other time.

The same one-motion discipline as FRCP 12(g), CPLR 3211(e), Ohio Civ.R. 12(G) and CCP 430.41(b) — raise your preliminary objections together or lose them.

Default happens by itself, and costs you the jury

Rule 3:19(a):

A defendant who fails to timely file a responsive pleading as prescribed in Rule 3:8 is in default. A defendant in default is not entitled to notice of any further proceedings in the case except as provided in subsection (c) below; and written notice of any further proceedings must be given to counsel of record, if any, until default judgment is entered against such defendant. The defendant in default is deemed to have waived any right to trial of issues by jury.

Three consequences, and the third is the one nobody expects. Default in Virginia is not merely a step toward judgment — it forfeits the jury on any issue that remains, including damages.

Compare Georgia, where § 9-11-55(a) also makes default automatic but expressly preserves a jury on damages where the defendant has placed damages in issue by pleading. Virginia goes the other way.

Getting out of default before judgment

Rule 3:19(b):

Prior to the entry of judgment, for good cause shown the court may grant leave to a defendant who is in default to file a late responsive pleading. Relief from default may be conditioned by the court upon such defendant reimbursing any extra costs and fees, including attorney fees, incurred by the plaintiff solely as a result of the delay.

Good cause, before judgment, potentially on payment of the plaintiff's costs. That window is far more forgiving than what follows it, so the first question in any Virginia default problem is whether judgment has been entered.

Notice of the default-judgment motion

Rule 3:19(c)(1): except in suits for divorce or annulment, the court will, on the plaintiff's motion, enter judgment for the relief appearing to be due. And:

Written notice of such motion must be mailed to the defendant's last known address, if known or reasonably available to plaintiff or plaintiff's counsel, or otherwise to the service-of-process address for defendant. If plaintiff is unable to provide such notice, the motion must contain a certification that plaintiff has made [the required efforts].

So a defendant in default is not entitled to notice of proceedings generally — but is entitled to notice of the motion that ends the case.

Extensions are unusually flexible

Rule 1:9: "The time allowed for filing pleadings may be extended by the court in its discretion and such extension may be granted although the time fixed already has expired."

No excusable-neglect standard for a late request, unlike the federal Rule 6(b)(2) structure. Virginia leaves it to discretion either way.

One carve-out: "the time fixed for the filing of a motion challenging the venue will in no case be extended except to the extent permitted by § 8.01-264."

Summary judgment, and the deposition bar

Rule 3:20 allows any party to move for summary judgment "at any time after the parties are at issue," except in an action for divorce or annulment.

Then the provision that makes Virginia summary judgment unlike anywhere else:

No motion for summary judgment or motion to strike the evidence will be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the action agree that such deposition may be so used, or unless the motion is brought in accordance with the provisions of subsection B of § 8.01-420.

Discovery depositions generally cannot support summary judgment without the agreement of all parties. That single sentence explains why summary judgment is granted far less often in Virginia than in systems built around Rule 56 records.

The rule adds an exception: "As further provided in subsection C of § 8.01-420, depositions and affidavits may be used to support or oppose a motion for summary judgment in any action where the only parties to the action are business entities and the amount at issue is $50,000 or more."

Rule 3:20 also states that summary judgment "may not be entered if any material fact is genuinely in dispute," and permits interlocutory summary judgment on the undisputed portion of a contested claim or on liability alone.

How Virginia compares

A short checklist

1. Calendar 21 days from service — or 60/90 if service was waived under § 8.01-286.1.
2. Pick from the closed list if you're filing something other than an answer, and remember it responds only to the counts it addresses.
3. Answer paragraph by paragraph. A general denial is not permitted.
4. Raise your preliminary motions together — Rule 3:8(a1) bars serial pleading without leave.
5. If you're already in default, move under Rule 3:19(b) before judgment — and expect to be asked to pay the plaintiff's extra costs.
6. Remember the jury. Default waives it, so curing default early matters more in Virginia than elsewhere.

Where these rules live

• Va. Sup. Ct. R. 1:9 — Extension of Time
• Va. Sup. Ct. R. 3:5 — The Summons
• Va. Sup. Ct. R. 3:6 — Proof of Service
• Va. Sup. Ct. R. 3:8 — Responsive Pleadings
• Va. Sup. Ct. R. 3:19 — Default
• Va. Sup. Ct. R. 3:20 — Summary Judgment

Virginia's courts publish self-help material at vacourts.gov. Several of the provisions above cross-refer to the Code of Virginia — §§ 8.01-264, 8.01-276, 8.01-286.1 and 8.01-420 — which this site doesn't publish. This page explains what the rules say. It isn't legal advice.