West Virginia Judiciary

Rules of Civil Procedure for Magistrate Courts | Rules 1-12

NOTE: The Rules of Civil Procedure for the Magistrate Courts of West Virginia became effective on July 1, 1988

Table of Contents

Rules 13 through 23

Rule 1. Application of rules.

These rules apply to all civil cases in the magistrate courts of the State of West Virginia. These rules supplement, and in designated instances supersede, the statutory procedures set forth in Chapter 50 of the West Virginia Code. The purpose of the rules is to help resolve cases in a just, speedy, and inexpensive manner.

Rule 2. Complaint.

A civil action is commenced by filing a complaint with the magistrate assistant, magistrate clerk, or magistrate deputy clerk. A complaint shall contain:
(a) A short and plain statement of the claim showing that the plaintiff is entitled to relief; and
(b) A demand for judgment for the relief the plaintiff seeks.

Rule 3. Service of process.

The summons and complaint in civil actions shall be served upon the defendant in the same manner as is provided by Rule 4 of the Rules of Civil Procedure for Trial Courts of Record.

Rule 4. Answer.

(a) Filing and service. - An answer to a complaint shall be filed by the defendant with the magistrate assistant, magistrate clerk, or deputy clerk. The defendant shall serve a copy of the answer upon the plaintiff in the manner set forth in Rule 8.

(b) Time. - The answer shall be filed and served by the defendant:
(1) Within 20 days after service of the summons and complaint; or
(2) If service of the summons and complaint is made upon an agent or attorney in fact authorized to accept service upon the defendant, within 30 days after service; or
(3) Not later than the date specified in an order of publication; or
(4) In cases of unlawful entry and detainer and wrongful occupation of residential rental property, within 5 days after service of the summons and complaint.

(c) Motions to transfer. - A defendant may, in his answer or within a reasonable time, move to transfer the case to the magistrate court of another county. The motion shall be ruled on promptly by the magistrate. Upon request by any party, the magistrate may schedule a pretrial hearing on the motion in accordance with Rule 11. If the magistrate finds that venue is improper or that, under West Virginia Code § 56-1-1(b), transfer to the magistrate court of another county would promote convenience and the ends of justice, the magistrate shall transfer the case to the magistrate court of the proper county.

(d) Failure to state defense. - The failure of the defendant to state a particular defense in an answer shall not prevent the defendant from raising such defense at trial. (Amended by order dated June 26, 1990, effective July 1, 1990; and by order entered July 1, 1991, effective August 1, 1991.)

Rule 5. Counterclaim and cross-claim.

(a) Counterclaim. - A defendant may state as a counterclaim any claim that the defendant has against the plaintiff that is within the jurisdiction of magistrate court. Such counterclaim may be stated together with the defendant's answer and may be filed and served in the same manner as the defendant's answer, without additional cost. A reply to a counterclaim shall not be required.

(b) Failure to file counterclaim. - The failure of a defendant to institute a counterclaim permitted by this rule shall not preclude the institution of a separate action on such claim at a later time.

(c) Cross-claim. - In a case where there are two or more defendants, a defendant may state as a cross-claim any claim that the defendant has against another defendant arising out of the transaction or occurrence that is the subject matter of the complaint. Such cross-claim may be stated together with the defendant's answer and may be filed and served in the same manner as the defendant's answer, without additional cost. An answer to a cross-claim shall not be required.

Rule 6. Third-party complaint.

(a) If the defendant alleges that another person, who is not named as a party in the case, is wholly or partially responsible for the damages set forth in the complaint, the defendant may file a third-party complaint against such person. No filing fee shall be required.

(b) A third-party summons and complaint shall be served upon the thirdparty defendant in the same manner as an initial summons and complaint. A third-party complaint shall be answered in the same manner as is provided by Rule 4.

Rule 6A. Election of jury trial.

(a) Right to elect.-Aparty to a civil action in magistrate court has the right to elect that the matter be tried by a jury when the amount in controversy exceeds twenty dollars or involves possession to real estate. All parties to such cases shall be notified in writing of the right to election.

(b) Assertion of the right. - The election must be made in writing by the party asserting the right any time after the commencement of the action but not later than
(1) 20 days after the service of any first timely filed answer to the complaint, or
(2) 5 days after service of the summons and complaint in cases involving expedited proceedings such as actions for unlawful entry and detainer and wrongful occupation. When the right to a jury trial is asserted in a case involving an expedited proceeding, the trial shall be scheduled as soon as a jury panel can be assembled.

Failure to elect within the relevant time limit constitutes a waiver of the right to trial by jury. (Adopted by order entered June 30, 1994, effective July 1, 1994.)

Rule 7. Amended and supplemental pleadings.

Upon request by any party, the magistrate may permit the filing of an amended pleading, or amendment by interlineation, at any stage of the proceeding and upon such terms as may be just. Upon request, the magistrate may also permit the filing of supplemental pleadings asserting claims or defenses which have arisen since the date of the pleading to be supplemented. Permission to file an amended or supplemental pleading shall be freely given, and may be done with or without a hearing. Continuances to meet new matter asserted by way of amended or supplemental pleadings shall be granted if necessary to avoid surprise or other prejudice to the opposing party. (Amended by order entered July 1, 1991, effective August 1, 1991.)

Rule 8. Service of pleadings, motions and other papers.

(a) When service is required. - Every pleading subsequent to the original complaint, every answer, every written motion other than one which may be heard without notice to other parties and every written notice, appearance, demand, and similar paper submitted by a party to a case shall be served upon each party to the case.

(b) How service is made. - Whenever service is required to be made upon a party represented by an attorney of record, the service shall be made upon the attorney. Service upon the attorney or upon a party shall be made by delivering a copy, by mailing a copy to the last-known address, or by facsimile transmission to his or her office or usual place of abode.

Delivery of a copy means:
(1) Handing it to the person to be served;
(2) Leaving it at the person's office with the person's clerk or other person in charge thereof; or
(3) If the office is closed or the person to be served has no office, leaving it at the person's usual place of abode with some member of the person's family above the age of 16 years.

Service by mail is complete upon mailing. Service by facsimile transmission is complete upon receipt of the entire document by the receiver's facsimile machine.

(c) Parties in default. - No service need be made on parties in default for failure to answer or appear, except that pleadings asserting new or additional claims for relief against them shall be served in the manner provided for service of summons and complaint in Rule 3. (Amended by order entered July 10, 1996, effective September 1, 1996.)

Rule 9. Filing of pleadings, motions and other papers.

(a) When filing is required. - The originals of all papers subsequent to the answer which are required to be served upon a party pursuant to Rule 8 shall be filed with the clerk, deputy clerk, or magistrate assistant within 5 days after they have been served.

(b) Certificate of service. - There shall be attached to every such paper a statement by the attorney or by the party that the paper was served in the manner prescribed by Rule 8, setting forth the date and manner of such service. (Amended by order entered July 1, 1991, effective August 1, 1991.)

Rule 10. Default judgment.

(a) A magistrate shall enter judgment by default against a defendant when it appears from the record that the defendant has been served with the summons and complaint in accordance with these rules and has failed to appear or to answer within the time provided in Rule 4, and the plaintiff submits either an affidavit or sworn testimony stating:

(1) That the defendant has failed to appear or to answer the complaint or notify the court of intent to contest the case; and
(2) The relief the plaintiff requests from the court and whether it is for a sum certain or for a sum which can by computation be made certain.

(b) In the event that the plaintiff's claim is not for a sum certain, or for a sum which can by computation be made certain, the magistrate shall require further proof by affidavit or sworn testimony as is necessary to determine the propriety of the relief sought.

(c) A default judgment may be obtained in a similar manner against any party that has been served, in accordance with these rules, with a copy of a counterclaim, cross-claim, or third-party complaint, and has failed to appear or otherwise defend as required by these rules.

(d) No default judgment may be entered against a party who is an infant, an incompetent, or an incarcerated convict unless such person is represented by a guardian, committee resident, or guardian ad litem.

(e) A default judgment may be set aside in accordance with Rule 17 and Rule 20(c). (Amended by order entered December 15, 1988, effective January 1, 1989; and by order entered July 1, 1991, effective August 1, 1991.)

Rule 11. Notice of trial and pretrial hearings.

(a) Notice of trial. - When an answer is filed with the court denying or otherwise opposing the relief requested in the complaint, the court shall schedule a date and time for trial. Unless otherwise provided by statute or rule, all parties shall be notified by the court by first-class mail not less than 21 days before such date of trial. All such notices shall contain:

(1) The date, place and time of trial;
(2) The name of the magistrate scheduled to hear the case;
(3) A statement of the time periods in which pretrial motions must be filed, in accordance with Rule 12;
(4) A statement of the manner in which pretrial motions may be filed;
(5) Astatement of the restrictions upon continuances as set forth in Rule 12; and
(6) A statement of the manner by which motions for disqualification may be filed as set forth in Rule 1B of the Administrative Rules for Magistrate Courts.

(b) Notice of pretrial hearing. - If an answer sets forth a defense of lack of jurisdiction, insufficiency of service or process, or failure to state a claim upon which relief can be granted, upon request by any party, the court shall schedule a pretrial hearing to determine whether the case should be dismissed upon such grounds prior to trial. Notice of such pretrial hearing shall be in accordance with the requirements for notice of trial as set forth in section (a). Amended by order entered July 1, 1991, effective August 1, 1991; by order entered June 30, 1994, effective July 1, 1994; and by order entered January 30, 1997, effective March 1, 1997.)

Rule 12. Pretrial motions.

(a) Time periods. - Unless good cause is shown as to why such requirements should be excused, the following motions, if made, shall be made in writing and shall be filed with the court and served upon all parties not less than 10 days before the first date scheduled for trial:

(1) Removal to circuit court;
(2) Motion and affidavit for transfer to another magistrate;
(3) Motion for continuance; and
(4) Any other motion which, if granted, would require rescheduling of the
hearing or trial.

The clerk, deputy clerk, or magistrate assistant shall provide appropriate forms on which such pretrial motions may be made.

All other pretrial motions may be made at any time in writing prior to trial, or may be made orally or in writing at time of trial.

The time periods set forth in this subsection shall not apply to summary proceedings for wrongful occupation of residential rental property or to proceedings for domestic violence protective orders.

(b) Continuance. - A motion for a continuance may be granted only upon:

(1) Compliance with the requirements set forth in section (a) of this rule;
(2) A showing of good cause; and
(3) A reasonable effort by the magistrate to notify all parties and provide them with an opportunity to respond to the motion. (Amended by order entered December 15, 1988, effective January 1, 1989; by order entered June 30, 1994, effective July 1, 1994; and by order entered January 30, 1997, effective March 1, 1997.)

Rules 13 through 23

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