West Virginia Civil Motion Practice: A Comprehensive Guide

West Virginia civil motion practice is governed primarily by the West Virginia Rules of Civil Procedure (W. Va. R. Civ. P.), which apply in Circuit Courts and other trial courts. While modeled in some respects on the Federal Rules of Civil Procedure, West Virginia's rules contain important differences that practitioners must understand to avoid procedural missteps.

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Motion Filing and Service Requirements

Format and Content

W. Va. R. Civ. P. Rule 5(a) requires that all motions be in writing, except when made during a hearing or trial. A proper motion package typically includes:

W. Va. R. Civ. P. Rule 5(e) governs service and filing. Unlike federal practice, West Virginia permits both electronic and traditional paper filing, with requirements varying by county and circuit. Check your specific circuit's administrative orders for e-filing requirements.

Notice Requirements

W. Va. R. Civ. P. Rule 6(d) requires that written motions be served at least 7 days before the hearing, unless the court orders otherwise or a rule specifies a different time. Service must be made in accordance with W. Va. R. Civ. P. Rule 5, which includes:

Page and Word Limits

West Virginia does not impose strict page limits in the civil rules comparable to federal practice. However, individual circuits may adopt local rules limiting brief length. Always check your specific circuit's administrative orders. Absent local limits, briefs should be concise and well-organized, typically not exceeding 20-25 pages for substantive motions.

Filing Procedures

E-filing is increasingly required in West Virginia's larger circuits. The West Virginia Supreme Court of Appeals has authorized electronic filing in all courts, but implementation varies. Some circuits require e-filing; others permit it optionally. Verify the requirements with your circuit clerk's office. When e-filing, submissions must comply with W. Va. R. Civ. P. Rule 5(e) regarding formatting and document management.

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Motion to Dismiss for Failure to State a Claim

Pleading Standard

West Virginia employs notice pleading, similar to Federal Rule 8(a). Under W. Va. R. Civ. P. Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The pleader need not plead facts with particularity, except where rules require it (e.g., fraud, which requires heightened specificity under Rule 9(b)).

Dismissal Standard

W. Va. R. Civ. P. Rule 12(b)(6) governs motions to dismiss for failure to state a claim. The standard mirrors Federal Rule 12(b)(6): the court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in the plaintiff's favor. However, conclusory statements and legal conclusions are not entitled to the presumption of truth.

West Virginia courts have held that a complaint is subject to dismissal under Rule 12(b)(6) only when it is clear that no relief could be granted under any set of facts that could be proven. The complaint must contain sufficient facts to state a plausible claim, not merely a possible one—a standard articulated in line with Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Procedure and Timing

Motions to dismiss must be filed before or with the answer under W. Va. R. Civ. P. Rule 12(b). If a party files other Rule 12 motions (such as a motion to strike or for a more definite statement) in the same pleading, failure to include the Rule 12(b)(6) motion constitutes a waiver unless the court excuses it.

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Motion for Summary Judgment

Standard

W. Va. R. Civ. P. Rule 56 governs summary judgment. The moving party must demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. West Virginia follows the federal standard established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986): the moving party bears the burden of demonstrating the absence of a genuine issue of material fact, and once satisfied, the burden shifts to the non-moving party to establish specific facts showing a genuine issue for trial.

Timing and Deadlines

W. Va. R. Civ. P. Rule 56(a) permits summary judgment to be sought at any time until 30 days after the close of discovery. However, the court may consider a motion for summary judgment filed after this deadline if good cause is shown. Practitioners should seek summary judgment well before trial to allow time for appeals if the motion is denied in part.

Burden of Proof and Evidence

The non-moving party must respond with affidavits, declarations, or other evidence that create a genuine issue of material fact. Bare assertions and conclusory statements are insufficient. W. Va. R. Civ. P. Rule 56(c) requires that supporting materials be authenticated and admissible in evidence.

Partial Summary Judgment

W. Va. R. Civ. P. Rule 56(a) explicitly permits partial summary judgment on individual claims or issues, allowing the court to narrow the scope of trial.

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Motion for Judgment on the Pleadings

Procedure

W. Va. R. Civ. P. Rule 12(c) permits a motion for judgment on the pleadings after the pleadings are closed. This motion resembles a Rule 12(b)(6) motion but is filed after the answer. The standard is similar: the court accepts all allegations in the complaint as true and asks whether, as a matter of law, the defendant is entitled to judgment.

Timing

The motion may be filed after the answer is filed and the pleadings are closed—typically after the defendant's answer and any reply to a counterclaim.

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Motion to Compel Discovery

Meet-and-Confer Requirement

W. Va. R. Civ. P. Rule 26(f) requires parties to hold an initial discovery meeting and Rule 26(g) mandates certification. Before filing a motion to compel, counsel must make a good faith effort to resolve the dispute without court involvement. Many circuits enforce this requirement strictly; failure to meet and confer can result in denial of the motion.

Procedure and Filing

The moving party must certify that it has made a good faith effort to obtain the information without court intervention. The motion should identify:

Fee-Shifting

W. Va. R. Civ. P. Rule 37(a)(5) requires that if a motion to compel is granted, the court must award the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the moving party did not attempt in good faith to obtain the information, the non-movant's position was substantially justified, or other circumstances make such an award unjust.

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Motion in Limine

Procedure and Timing

West Virginia does not have a dedicated rule governing motions in limine, but they are recognized in practice. Motions in limine should be filed early, typically well before trial. W. Va. R. Civ. P. Rule 404 and 405 govern evidence about character and prior acts; Rule 408 governs settlement discussions; Rule 411 governs insurance; and Rule 609 governs impeachment with prior convictions.

Common Topics

Prior Bad Acts (Rule 404(b)): Evidence of a party's prior acts is generally inadmissible to prove character or propensity but may be admitted for other purposes (motive, opportunity, knowledge, identity). A motion in limine should articulate the specific, non-propensity purpose.

Insurance (Rule 411): Evidence that a party carries liability insurance is inadmissible to prove negligence or wrongdoing. Motions in limine commonly seek to exclude such evidence.

Settlement Discussions (Rule 408): Offers of settlement and related communications are inadmissible to prove liability. This applies both in the same dispute and in some circumstances across related disputes.

Standard

The court applies the balancing test in W. Va. R. Civ. P. Rule 403: even if evidence is relevant under Rule 401, it may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice.

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Motion for Default Judgment

Procedure When Defendant Fails to Answer

W. Va. R. Civ. P. Rule 55(a) provides that if a defendant fails to plead or otherwise respond within the time prescribed (typically 20 days under Rule 12), the clerk may enter default. Before seeking default judgment, the plaintiff must:

1. Verify that no responsive pleading has been filed
2. Serve notice of intent to seek default judgment on the defendant if the defendant's address is known
3. Wait 3 days after service (Rule 55(a))
4. Request entry of default from the clerk

Judgment by Default

Once default is entered, the plaintiff may seek a default judgment under Rule 55(b). The court is not bound by the plaintiff's damage allegations; if damages are unliquidated, the court must hold a hearing to determine the proper amount. The court must ensure that the defendant was properly served and that entry of default was appropriate.

Proving Damages

If the complaint specifies a sum certain (e.g., "I am owed $5,000"), default judgment may be entered for that amount without further proof. If damages are unliquidated, the plaintiff must present evidence (affidavits, invoices, testimony) to prove the amount. The defendant may challenge default at any time before judgment if the defendant shows good cause, which courts interpret generously in the interest of deciding cases on the merits.

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Motion to Amend Complaint

Standard for Leave to Amend

W. Va. R. Civ. P. Rule 15(a) allows a party to amend once as a matter of right within 21 days after service of a responsive pleading or within 21 days of filing if no responsive pleading is required. After this period, amendment requires either written consent of the opposing party or leave of court.

Courts grant leave to amend liberally under Rule 15(a), absent undue delay, bad faith, prejudice to the opposing party, or futility. West Virginia follows the Foman v. Davis, 371 U.S. 178 (1962) standard: leave should be denied only if the amendment would be futile or if the opposing party would suffer unfair prejudice.

Relation Back Doctrine

W. Va. R. Civ. P. Rule 15(c) permits amendments to relate back to the date of the original pleading if:

This rule is critical in cases involving multiple defendants or name corrections and is interpreted similarly to Federal Rule 15(c).

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Motion for Temporary Restraining Order and Preliminary Injunction

Requirements

W. Va. R. Civ. P. Rule 65 governs temporary restraining orders (TROs) and preliminary injunctions. The movant must demonstrate:

1. Likelihood of Success on the Merits: The plaintiff must show a reasonable likelihood of success at trial, not merely a possibility.
2. Irreparable Harm: The plaintiff must demonstrate that monetary damages are an inadequate remedy and that the plaintiff will suffer irreparable harm absent the injunction.
3. Balance of Equities: The court balances the hardship to the plaintiff if the injunction is denied against the hardship to the defendant if the injunction is granted.
4. Public Interest: The court considers whether the injunction serves the public interest.

Procedure for TROs

A TRO may be issued without written notice or hearing if the moving party shows that immediate and irreparable injury, loss, or damage will result before notice can be served. The TRO remains in effect for 14 days and may be extended once for 14 days if the court good cause.

Preliminary Injunctions

A preliminary injunction requires a hearing at which both sides present evidence. The movant bears the burden of proving the four factors above.

Bond Requirement

W. Va. R. Civ. P. Rule 65(c) requires a court to condition a TRO or preliminary injunction on the plaintiff's posting an undertaking (bond) in an amount the court considers proper, unless the court orders otherwise.

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Motion to Change Venue or Transfer

Standard and Procedure

W. Va. R. Civ. P. Rule 12(b)(3) permits a motion to dismiss for improper venue. West Virginia permits venue in the county where the defendant resides, where a substantial part of the events giving rise to the claim occurred, or where property at issue is located. W. Va. Code § 56-1-2 defines venue rules for specific actions.

A defendant may move to transfer venue under Rule 12(b)(3). The court may transfer to a more appropriate county if venue is proper in multiple counties or if the balance of convenience favors transfer.

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Motion to Consolidate or Sever

Consolidation

W. Va. R. Civ. P. Rule 42(a) permits the court to consolidate cases involving common questions of law or fact. The court may consolidate for trial only or for all purposes. Either party may move to consolidate; the court also may consolidate sua sponte.

Severance

W. Va. R. Civ. P. Rule 42(b) permits the court to sever claims or parties if separate trials would be appropriate to avoid prejudice or promote convenience and economy.

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Motion for Continuance

Procedure and Standard

West Virginia does not codify a specific motion for continuance in the civil rules, but continuances are routinely granted for good cause. The court has broad discretion to grant or deny continuances. Common grounds include:

Motions for continuance should be filed as soon as the need is identified and should not be used as a delay tactic.

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Post-Trial Motions

Motion for New Trial

W. Va. R. Civ. P. Rule 59(a) permits a party to move for a new trial on any ground for which a new trial was granted before January 1, 2018. Common grounds include:

The motion must be filed within 30 days after entry of judgment.

Motion for Judgment Notwithstanding the Verdict (JNOV) or Judgment as a Matter of Law

W. Va. R. Civ. P. Rule 50 governs judgment as a matter of law. A party may move for judgment notwithstanding the verdict (or judgment as a matter of law, as it is increasingly called) if, at the close of the opposing party's evidence or after the jury's verdict, the evidence is so one-sided that a reasonable jury could not render a verdict for the opposing party.

The standard is whether the evidence, viewed in a light most favorable to the non-moving party, permits only one reasonable conclusion. The motion must be filed within 30 days after entry of judgment.

Motion to Alter or Amend Judgment

W. Va. R. Civ. P. Rule 59(e) permits a party to move to alter or amend a judgment within 30 days after entry. This motion is appropriate if the party has discovered newly discovered evidence, identified an obvious error, or wishes to argue that the judgment is inconsistent with the evidence.

Deadlines

All post-trial motions—motions for new trial (Rule 59(a)), motions for judgment as a matter of law (Rule 50), and motions to alter or amend (Rule 59(e))—must be filed within 30 days after entry of judgment. If no timely motion is filed, the judgment becomes final and the time to appeal begins to run. These deadlines are strictly enforced; late filing generally results in loss of the right to seek relief.

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Oral Argument and Hearing Procedures

Submission on Papers vs. Oral Argument

Many West Virginia judges decide motions on the papers without a hearing, especially in busy circuit courts. However, a party may request oral argument by:

1.