Do you have a customer who paid for the car repairs you made with a check that "bounced?" Is your landlord refusing to refund all of your security deposit, or won't let you back into the apartment to get some things you left behind when you moved? These are the kinds of disputes over property and money that are handled by the West Virginia magistrate courts, or "small claims" courts.
And, now that you're ready to file a lawsuit, you need to know the mechanics of what to do and how to do it. In general, you have to have to know exactly who you're suing, have the right paperwork, and file the lawsuit in the right court.
Where to File
You file a small claims case with the clerk of the appropriate magistrate court. In West Virginia, there's a magistrate court for each county in the state. Generally, you need to file your lawsuit in the magistrate court for the county where the defendant lives. However, if your lawsuit:
- Involves personal injuries, you may file in the county where the injuries happened, such as the county where the car accident happened
- Involves real property, like an eviction or another landlord-tenant tenant dispute, you must file in the county where the property is located
- Is against someone who doesn't live in West Virginia, you may file in the county where you live or in any a county you can find the defendant, such as when he comes into the state to visit or work
- A defendant that's a corporation, you may file in the county where it has its principal office or where its chief officer lives
If you don't file the lawsuit in the right court, the defendant can ask the court to move the case to the proper court or even ask that the case be dismissed or "thrown out" of court. This can slow things down for you. So, if you're unsure about where to file your suit, contact the clerk's office for your area for some help.
Complaint and Summons
Lawsuits begin when the plaintiff, the person who's suing, files a "complaint." In the West Virginia magistrate courts, there's a special form called a "Civil Complaint." The court clerk can give you the form and some basic instructions on completing it, or you can find the materials online. The form is straight-forward and self-explanatory, but if you need help, the clerk can offer some assistance. He can't give you legal advice about your suit, though. The "Summons" essentially tells the defendant when and where to show up for trial. The clerk completes most of this form.
When filling out the Complaint, you need to give information about your case in a clear and simple way. Print neatly and just give the facts about your claim. Specifically, you'll need to give:
- Your name, address and a telephone number where you can be contacted during the day
- The defendant's name and address
- The amount of money you want the defendant to pay, or what property you want from him
- Reasons why the defendant owes you money, or why the property you're after rightfully belongs to you
It's very important that you have the defendant's proper name and address. If you're suing:
- A business that's not a corporation, like a sole proprietorship or a "dba" (meaning "doing business as"), you should check the "trade name" records and registrations in the county clerk's office for the county where it does business. There you should be able to get the legal names and addresses for the business and its owner
- A corporation, you can get its exact name and address from West Virginia's Secretary of State. You'll also find the name of the company's "registered agent," the person who accepts important documents for the corporation
- A partnership, you should list the name of the partnership as well as the individual partners as defendants. Again the, Secretary of State can help you get that information for some partnerships, and you should check with the county clerk as well. If you still can't find the proper names, check with the local Better Business Bureau (BBB)
Get the right form! In West Virginia, there are different Complaint forms for suits involving "bad" or worthless checks, evictions from a residential home or factory-built home site (eviction forms are called "Petitions"), and all other claims for money or property.
Want a jury trial? If so, there's a place on the Complaint (or Petition) for you to elect to have a jury, or there's a separate form if you decide that you want a jury trial after you've filed. You (or the defendant) may ask for jury trial only if you're suing for at least $20 or it's an eviction action. Any request must filed within 20 days after the defendant files his Answer (or 5 days if it's an eviction action). If a jury is requested, the magistrate may make the losing party pay a jury fee, or he may order you and the defendant to share the cost. The clerk can tell you the amount of this fee.
At the time you file your forms, you will need to pay a filing fee. In West Virginia, the fee may vary from court to court, and it depends on how much money you want the defendant to pay you or if you're suing to get some personal property from him. Generally, however, you can expect to pay $30 and $60 to file your Complaint and Summons. These fees can change at any time, so be sure to ask the district court clerk about the fee.
Generally, if you win your case, the small claims court will order the defendant to pay your filing fee (called "court costs"). This will be in addition to any other money or "damages" the court awards you on your claim.
Service of Process
"Service of process" is when one party gives the other party notice that he's being sued. Generally, this is done by making sure that the defendant gets a copy of the Complaint and Summons you filed. You're responsible for making sure that the defendant is served. When you file your papers, the clerk will give you detailed instructions on how to do this. Generally, you can pay the clerk to have the papers mailed to the defendant, or you can pay a fee to have the local sheriff deliver them. The clerk can explain your options and the fees involved.
Make sure you have the right name and address! If the defendant isn't served properly your case can't go forward, and it may be dismissed, or "thrown out" of court, and you'll then have to start all over again. If you're suing a corporation, you need to serve its "registered agent." She's the person named by the corporation who's responsible for accepting important documents and papers on behalf of or for the corporation. If you're suing a sole proprietorship, you need to serve the business's owner or its registered agent, if it has one. If you're suing a partnership, you need to serve its general or managing partner.
Once you've filed suit, the defendant can do any number of things, such as :
- Settle the claim, that is, simply agree with your claim and either pay you or turnover the property you sued for. If you agree to a settlement before trial, you should get it in writing and signed by both of you, and you should contact the court immediately so that your case can be cleared from the court's schedule
- Answer the suit. Generally, the defendant has 20 days after he gets your Summons and complaint to file an answer (he has five days if it's an answer to an eviction suit). This is where the defendant either tells the court, in writing, that he agrees with your claim and will pay you (called "confessing judgment"), or he challenges or contests your right to the money or property you sued for. A trial date will be scheduled after the defendant files an answer that doesn't confess judgment
- Default. If the defendant doesn't file an answer within the 20- or 5-day limit, or if he doesn't show up for trial at the date and time scheduled by the clerk, he "defaults," and you win automatically win, so long as he was properly served with your Complaint and Summons and you can show the magistrate that your claim against him is valid
- Counterclaim, or file a claim against you. The defendant has to file it as part of his Answer, and he must make sure that you get a copy of it before trial
- Ask for a continuance, which postpones the trial to another day. The request has to be writing and there must be a good reason for it, such as illness
Questions for Your Attorney
- I filed a small claims suit against a dog owner, who lives on the next street over from me, because her dog bit me. She says that she never received my Complaint and Summons," but I know the papers were mailed to the right address. What can I do now?
- Should I ask for a jury trial?
- The defendant I sued in small claims court said that I filed suit in the wrong county and the case was moved to another court. Do I have to file another Complaint and Summons and pay another filing fee?