Cram.com Flashcards
What is Subject Matter Jurisdiction?
Court’s power to hear a specific case.
What is personal jurisdiction?
Court’s power over a party to the action or a party’s property.
What does venue concern?
Proper placement of case within judicial system
What are the two basic questions to determine if a court has subject matter jurisdiction?
- Whether type of case or relief sought requires case to be filed in a particular court or courts.
- If no, what is the amount in controversy.
What is the amount in controversy?
Amount prayed for by plaintiff.
What are the limits for justice courts?
$10K
What are the limits for Constitutional County courts?
$200.01 to $10K
What are the limits for County Courts at Law?
$200.01 to $100K
What are the limits for District Courts?
Greater than $500, no upper limit.
What are the formal requirements for a petition?
- The names of the parties and their residences.
- Cause of action
- If unliquidated damages, statement that damages w/in limits of court.
- Demand for judgment for all other relief deemed entitled.
- Signed by party or atty
What is the effect of a pretrial amended pleading?
Supersedes the prior pleading and must be complete in and of itself.
At what point before trial must a party obtain leave to amend a pleading?
Seven days.
When should leave be granted to file a trial amendment (pleading)?
Should be granted unless defendent can prove surprise or prejudice.
What is a purpose of a supplemental pleading?
To reply to a defendant’s defense. It adds but does not supersede the last pleading.
What is required for a verified pleading on a sworn account
- An itemized statement of the goods or services sold.
- Reveal offsets to the account.
- Be supported by an affidavit stating that the claim is just and true and within the affiant’s knowledge.
What does a defendent file to defend against a verified pleading on a sworn account?
A written denial under oath.
(This applies when: an action is founded on an open account on which a systematic record has been kept and is supported by an affidavit;
account taken as prima facie evidence of the claim).
How do you establish your right to an injunction?
Plead and prove:
- Probable right to relief
- Probable injury
- Harm is immiment
- Without injunction, harm will be irreparable.
- No adequate remedy at law.
What is required for a temporary restraining order?
- Application must be verified.
2. Party obtaining a TRO must post bond in favor of the adverse party.
What are the two issues to be considered for personal jurisdiction?
- Whether there is a sufficient basis for the exercise of jurisdiction;
- Whether the defendant has received notice.
What are four adequate grounds for personal jurisdiction?
- Phyiscal presence
- Domiciliary of state
- Consent
- Minimum contacts.
What are the three elements of the minimum contacts test?
- Must PURPOSEFULLY do some act or txn in Texas.
- Cause of action must arise from or be connected with this act.
- Must not offend traditional notions of fair play and substantial justice.
How is personal service accomplished?
Personal delivery
Registered/certified return receipt mail
What other means of service are there?
- Substitute service
- Citation by publication
- Service on corporation
What are the elements of the long-arm statute? (Note - can just use mail. TRCP R. 108)
- D must be nonresident
- Have no regular place of business in TX
- Have no registered agent in TX
- Have been doing business in TX.
How does the Statute of Limitations work with service of process?
P must exercise actual diligence for SOL to be tolled.
How many days does D have to respond to service? Federal?
- 10:00 a.m. on the first Monday after the expiration of 20 days.
- 20 days.
When must a special appearance be filed?
What happens if done otherwise?
- Before any other plea, pleading, or motion by the defendant.
- Consents to jurisdiction. Exception - discovery does not waive it.
What must a special appearance assert?
- Should assert that D is not amenable to service of process and deny allegations.
- Be verified.
Where may lawsuits be brought? (Venue)
- In the county in which all or a substantial part of the events or omissions giving rise to the claim occurred.
- County of D’s residence
- D’s principal office.
- If none of the above, in the county where P permanantly resides.
Where there are multiple defendants, where is venue proper?
Wherever it is proper for any one defendant.
What are the two permissive venue exceptions to know?
- Consumer good warranty breach - action may be brought in county of P’s residence at time cause accrued.
- Suit on written K can be brought in county where D is to perform.
When must a motion to TRANSFER venue be filed?
Before any other plea or pleading other than a special exception.
If there are multiple defendants, and one files a pleading other than an Motion to Transfer Venue, may the others still file a MTV?
Yes.
What must a Motion to Transfer Venue assert?
- That the action should be transfered to another specified county of proper venue.
- That the current county is not proper or that venue is more convenient in another county.
- Legal and factual basis for the transfer.
- Request a transfer to a specific county.
Who has the burden of proof on a Motion to Transfer Venue?
Defendant.
What must accompany a Motion to Transfer Venue?
Supporting affidavits.
Does a Motion to Transfer Venue need to be verified?
No.
How much notice is required for a Motion to Transfer Venue?
45 days, except on leave of court.
When must a plaintiff file a response to a Motion to TRANSFER Venue?
At least 30 days prior to the hearing on the motion to transfer venue.
What is required for a Motion to CHANGE venue?
- D’s affidavit and affidavits of three credible persons who are residents of the county of suit.
- Affidavits must assert that there is such a prejudice against the D such that he cannot obtain a fair and impartial trial.
When may a Motion to Change Venue be filed?
At any time.
What is the purpose of a Motion to Quash?
To challenge defective jurisdictional allegations or defects in service of process.
If the Motion to Quash is granted, does the Defendent need to be re-served?
No.
What is the purpose of a Plea in Abatement?
To challenge P’s pleadings by alleging facts arising outside the petition that justify the suspension or dismissal of the case.
What is a Plea in Abatement based upon?
- A defect in the parties (such as capacity, non-joinder, improper party)
- A defect in the petition’s allegation (such as another action pending)
How does one object to a plaintiff’s or defendant’s pleading?
Special Exceptions
What are special exceptions based upon?
Defects of Substance or Form.
What must a defendent state in a general denial?
Defendant denies each and every allegation in plaintiff’s original petition.
What does a defendant file to challege a plaintiff’s assertion that a condition precedent has been performed or has occurred?
Special Denial.
What are the four affirmative defenses that must be verified?
- Denial of plaintiff’s properly filed sworn account action.
- Denial that D is a partnership or corporation.
- That there is another suit pending in TX with same parties and cliam.
- That there is a defect of the parties.
What is an affirmative defense?
Any matter that provides an independent reason that will totally or partially bar the plaintiff from recovering, even if the allegations are true.
When can a case be removed to Federal court?
Only if the case could have been filed in federal court originally.
To whom is removal to federal court available?
Only the defendant. If multiple defendants, all must join in the removal.
What are the requirements of diversity of citizenship?
- Parties must be diverse.
2. Must be sufficient amount in contoversy ($75K).
What diversity of citizenship is required for removal?
Complete diversity. Each plaintiff must be diverse from each Defendant.
How is citizenship determined for individuals?
Domicile.