CvlPE Review: PLEADING AND VENUE Flashcards
PLEADING AND VENUE
When can you file a motion to transfer venue?
A motion to transfer venue before or concurrently with any other pleading or motion, except for a special appearance, within 20 days of service. Must include legal/factual basis for transfer.
PLEADING AND VENUE
Where is venue proper?
Venue is proper in the county where
(1) a substantial part of the events that gave rise to the claim took place;
(2) the county where the D resided at the time of the event;
or
(3) if D is not a natural person, the county where it had its principal office. If none of these apply, the county where the P resided at the time of the event is the last resort for venue.
*note: If there are multiple Ds, and P has established proper venue against one D, the court also has proper venue over all Ds and claims arising out of the same transaction(s) or occurrence(s).
PLEADING AND VENUE
When to file a special exception?
1) If there is a defect on the face of P’s pleading, the D can file a special exception to the petition seeking a court to compel P to amend the pleading OR reveal necessary information.
2) D can file a special exception if P’s original petition is overbroad or lacks specificity.
3) When P’s original petition fails to state how much P seeks, file a special exception. D is entitled to a court order compelling P to amend a state maximum damages sought—not exact amount.
PLEADING AND VENUE
What is the difference in the deadline when a party serves a pleading by mail?
When a party serves a pleading by mail, the other party gets an additional 3 days to respond.
PLEADING AND VENUE
When can you file an amendment?
In general, to amend a pleading, a party must file an amendment by the deadline set by a pretrial scheduling order, or, if there is none, more than 7 days prior to trial.
If a party learns of an affirmative defense after filing a pleading, they must file an amendment by the deadline set by the pretrial scheduling order or, if none, more than 7 days prior to trial in order to prevent waiver of defense.
PLEADING AND VENUE
When must D file their answer?
D must file an answer by 10:00 AM on the first Monday after the expiration of 20 days from the date D was served with process.
PLEADING AND VENUE
What is served on D to compel him to file answer?
After P files the lawsuit, the pleading and request citation must be served on D to compel him to file an answer.
PLEADING AND VENUE
How can D object to personal jurisdiction?
For a D to object to personal jurisdiction, D must file a special appearance by sworn motion before the deadline for filing an answer and the facts must be verified by affidavit. This must be the first pleading in the case.
PLEADING AND VENUE
How can D add a 3rd party as party to the case?
To add a person as a party who may be liable to P for all or part of the original claim against D, the D must serve a third party petition on the person.
PLEADING AND VENUE
How can D get a non-party recognized as a responsible 3rd party?
If D wants the court to consider the liability of a non-party for all or part of P’s claim against D, but does not want to add the person as a party, D must file a motion for leave to designate the person as a responsible third party.
PLEADING AND VENUE
What if D was sued in the wrong capacity?
If D is a corporation and not a proprietorship as stated in P’s petition, D should file a verified pleading that it was sued in the wrong capacity. Must be verified by affidavit.
PLEADING AND VENUE
When must affirmative defenses be raised?
Affirmative defenses (e.g., SOL or contributory negligence) must be raised in the answer or it is deemed waived. An answer can be amended without leave up to 7 days before trial.
