Civ Pro Flashcards
A civil suit is commenced by
petition filed in the office of the clerk. In order to compel the defendants to file an answer, the plaintiff must obtain service on each defendant of the citation issued by the clerk and a copy of the petition.
Response to Objectionable Pleadings
Motion to Strike or Dismiss: court may dismiss or strike objectionable pleadings if plaintiff elects to “stand” on his disallowed allegations and refuses to amend despite the opportunity to do so.
Curing a Defective Answer Pre-Trial
Pretrial Amended Answer: can file a pretrial amendment without leave of court if it is made more than seven days prior to trial. Otherwise, a motion seeking leave of court is required.
Compulsory Counterclaim / Permissive
COMPULSORY: Must—arise out of the same T/O that is the subject matter of the principal action; be within court’s juris; not be subject of pending action; claim the pleader has at time of filing; and not require presence of 3rd parties over whom court cannot acquire juris
• Must be asserted against P in pending action or subject matter thereafter barred
PERMISSIVE: Permissive: May be brought in the same action or D has option of asserting permissive counterclaim in a separate action filed against P
Defense of Arbitration
Arbitration and award is an affirmative defense, but the right to compel arbitration is not. There is no fixed time to file the motion, but delay can cause waiver if the party seeking arbitration substantially invokes the judicial process and the opponent suffers prejudice as a result of the delay
Raising a SoL Issue (why it’s better than raising as a trial amendment)
Affirmative defense raised in an answer. D has burden of proof; failure to plead waives this defense. If pleaded and evidence is produced, Dan is entitled to have his affirmative defenses submitted as questions to the jury
Should be used in lieu of trial amendment because trial amendment could show surprise or prejudice leading a court to deny the motion for leave to file a trial amendment
Does a court presume jurisdiction over D? / Grounds for PJ
SMJ Presumption: court generally presumes in favor of SMJ unless the lack of jurisdiction affirmatively appears on the face of the petition.
Adequate if:
Physical presence of D in forum statement (accompanied by service in forum state)
D is a domiciliary of the forum state
D consents OR
D has min contacts w/the forum state
Objecting to a Court’s Jurisdiction / what can the court consider? / Long Arm Statute
should file a special appearance to challenge the court’s exercise of personal jurisdiction. Under the due order of pleading rule, the special appearance must be filed before any other plea, pleading, or motion; however, special appearance may be consolidated w/other pleadings in a single instrument
Court may consider: The court may consider pleadings, stipulations, affidavits, the results of discovery processes, and any oral testimony
Nonresident Ds and the Min Contacts Test:
—Must properly allege D has min contacts showing:
• Non-resident D or foreign corp must purposefully do some act or consummate some transactions in TX
• Cause of action must arise from, or be connected with, this act or transaction (specific jurisdiction)
• Assumption of juris by TX must not offend traditional notions of fair play and substantial justice.
o Must be essentially at home in the forum state: human (where domiciled) / Entity (state of org or PPB)
If you think venue is improper…
D must file a motion to transfer venue. Under the due order of pleading rule, a motion to transfer venue must be filed before any other plea or pleading other than a special appearance. The defendant may file a consolidated response without waiving the motion. If venue is proper against one defendant, it is proper as to all Ds.
P’s response to improper venue claim
P must file a response at least 30 days prior to hearing on motion to transfer venue. Response should present prima facie proof (affidavits and disco materials) of matters specifically denied by D and specifically deny any of D’s pleaded venue facts P wishes to contest
Venue is valid where:
Valid in county in which all or a substantial part of the events or omissions giving rise to the claim occurred; D resides; D’s PPB or incorp
Venue on Appeal
Venue determinations are incidental trial rulings correctable on appeal (not an interlocutory appeal) following final judgment as reversible error
DC min. amount for jurisdiction
DC exclusive juris over cases seeking a determination of title to land or enforcement of a lien on land
The court has subject matter jurisdiction assuming the amount in controversy exceeds of $500, which is the jurisdictional floor for district courts
Removal based on lack of diversity
Diversity jurisdiction requires that there must be complete diversity. Even if the parties were diverse, the presence of D’s (David and Supplies) who are residents of the forum state (Texas) would defeat removal based on diversity.
Improper classification of business
Verified Denial gives P notice that D intends to invoke its status as a corporation.
Plea in Abatement
Challenging the Suit: sets forth an obstacle to further prosecution of the suit, the effective cure, and asks the court to suspend the suit until plaintiff has corrected the defect.
Plea challenges P’s pleadings by alleging facts arising outside petition that justify suspension or dismissal of the case. Based either on:
• Defect in the parties (ex: capacity; non-joinder of necessary part; improper party) OR
• Defect in petition’s allegation (ex: pendency of another action involving same parties/claim)
Plea IDs the impediment, effective cure, and asks court to suspend lawsuit until P has corrected the defect.
Adding parties (when filed to avoid leave of court)
At any time after the commencement of the action, the defendant may file a third-party petition. The third-party plaintiff need not obtain leave of court to make the service if he files the third-party petition not later than 30 days after service of his original answer. Otherwise, the D must obtain leave of court upon motion after giving all parties notice of the motion.
Failure to sufficiently set out a claim in original complaint
Special Exception— A special exception is used to indicate formal defects in particular allegations such as excessively general, uncertain or ambiguous allegations which fail to give fair notice. (e.g., seeking specification of damages and asking the court to require Paul to amend so as to specify the maximum amount claimed.)
Special exception may be based on: defects of substance related to the cause of action, defense, an element of damage, or relief not allowed by law OR defects of form relating to vagueness, ambiguity, and the like.
Response: must object in writing, call for a hearing, and get a ruling on the exception on the record. If successful, P should re-plead
A party specially excepting must object in writing, call for a hearing, and get a ruling on the exception on the record otherwise it’s waived
If exception sustained, ruling will allow the party to amend the pleadings and correct the defect if possible. If party elects not to amend the pleading, opposing party can file a motion to dismiss or strike for the defective allegation which the party refused to amend.
Answer
In order to avoid a default judgment, each defendant must file an answer by 10 AM on the first Monday after expiration of 20 days from the date the D was served with process.
Inadvertent Disclosure of A-C Privileged Material
Producing party does not waive the privilege if, within 10 days of discovering the comms were produced, it amends the response identifying the material produced and states the privilege asserted. After timely amendment, requesting party must promptly return the privileged material and any copies pending any ruling by the court denying the privilege
Perfecting the right to a jury (does each D need to make the demand?)
To perfect the right to a jury trial, a litigant must:
(1) file a written request for a jury trial and
(2) pay the jury fee a reasonable time before the date set for trial on the nonjury docket, but not less than 30 days before the trial date.
In such a case, the trial court may not remove the case from the jury docket over the objections of the opposing party
ONE FOR ALL—A demand for jury trial, once made by one party, inures to the benefit of all parties.
How many on a jury?
6—12
In the district court, a verdict may be rendered by the concurrence of 10 members of the original 12 person jury. Where as many as three jurors are“disabled from sitting,” the remaining jurors may render and return a verdict. When the missing juror meets the definition of being “disabled from sitting,” the case can proceed even without consent of both parties
Challenging Jurors: For Cause
A perspective juror who has expressed equivocal bias, as here, is not disqualified as a matter of law. Additional voir dire questions may be allowed to determine if the person could be fair and objective.
Should use peremptory strike on a juror to preserve error as to the court’s ruling on the challenge for cause.
Challenging Jurors: Peremptory Challenge
Strikes a juror for any or no reason (other than prohibited classification; Batson)
Each party entitled to 6 peremptory challenges in DC and 3 in county court
Co-parties (Co-Ds), share 6 unless antagonistic on any issue. Proof of antagonism = 6 each.
If additional given, party may move for additional peremptory challenges by filing a motion to equalize
Witness’ Inconsistent Statement
Must confront the witness with the statement before proving it with extrinsic evidence (e.g., a deposition). Must tell the witness the contents of the prior statement, the time and place, and the person to whom it was made. At some point witness must be given opportunity to explain or deny (if party-opponent then this is n/a)
Motion to Quash (Filing an Exception)
Challenging Service
Availability: D does not challenge court’s power over D. Instead, D challenges procedure used to serve D. Challenge defective juris allegations or defects in service of process/citation here.
Utility: If motion granted, D does not need to be re-served. Moving party required to file an answer by 10AM on first Monday after expiration of 20 days from date that the service or citation is quashed
Forms of Discovery [PAIDD]
(1) request for Production or inspection;
(2) request for Admission;
(3) request for Interrogatories;
(4) request for Disclosure (No objection or assertion of work product is permitted in response to a request for disclosure);
(5) request for written or oral Depositions—must respond within 30 days of discovery request
