Civil Procedure Flashcards
What is the general SOL on a tort action?
2 years
What steps must the plaintiff take to “initiate a civil suit against defendants” or to “file a civil lawsuit for damages and require other parties to respond to his suit” or “what documents must be served upon defendants in order to compel them to file an answer” or “how does attorney get formal notice to the defendant?
Petition and Service of process. A plaintiff needs to get a copy of the petition and the citation served upon the defendant. The plaintiff must request from the district clerk that a citation be issued. Citation has to contain certain information like the answer date, name and location of the court, and a warning about default. An additional step is that a Case Information Sheet must be filed with the petition.
How does plaintiff “serve an out-of-state corporation that does not have a registered agent” or “serve an out-of-state corporation that has no place of business and no agent for service in TX?”
If the out-of-state corporation is doing business in TX and has not appointed a registered agent, the plaintiff can get substituted service through the secretary of state, who acts as defendant’s agent for service. The secretary of state then forwards the process and petition to nonresident defendant. If person driving in the state and suit comes out of such driving then serve the Chairperson of the Texas Transportation Commission
By when must an Answer be filed by D?
By 10 a.m. on the first Monday after the expiration of 20 days from the date the D was served with process.
What can P do if D does not timely file an Answer?
P can affirmatively seek the entry of a default judgment. P will have to: (i) show that the court has subject matter jurisdiction; (ii) show that proper service was made; (iii) allege a cause of action; and (iv) show that the return (from sheriff showing you sent notice) has been on file 10 days exclusive of the day of filing the citation and the day of the default judgment.
What is the due order of pleadings?
A special appearance must be filed before any of D’s other pleas, pleadings, or motions. If D fails to comply, he makes a general appearance, consents to jurisdiction, and waives all defects in service of process. If D files an Answer before anything else, he waives his right to transfer venue.
- In what venue may a lawsuit be brought?
(i) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; or
(ii) if D is a natural person, county of D’s residence; or
(iii) if D is a corp., county of D’s principle office in the State; or
(iv) if none of the above apply, county where P permanently resided at the time of the accrual of the cause of action.
What pleading must a D file if they want to keep the suit from proceeding in a Texas court?
Party should file a special appearance. In a special appearance, the party should assert that it is not amenable to service of process issued by the courts of Texas. The special appearance must be verified. It must be filed before any other plea, pleading, or motion or it is waived. It must be filed before deadline for filing the answer.
- What must P assert if D files a special appearance?
The issue in a special appearance is whether D, a non-resident, has minimum contacts w/ TX. D has burden of proof and must negate all grounds of personal jurisdiction. P may oppose special appearance by producing evidence to show that D purposefully did some act or consummated some transaction in TX. Also must show, having suit in TX does not violate traditional notions of substantial justice and fair play. The court can consider pleadings, stipulations, affidavits, and attachments, discovery, and oral testimony. Responses including opposing affidavits must be on file 7 days before the hearing.
