FINALS CIV PRO Flashcards
State the undertakings implied under counsel’s signature in court submissions and the sanctions for breach thereof
A: Rule 7, Sec. 3: Every pleading and other written submissions to the court must be signed by the party or counsel representing him or her.
The signature of counsel constitutes a certificate by him or her that he or she has read the pleading and document; that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) It is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) The claims, defenses, and other legal contentions are warranted by existing law or jurisprudence, or by a non-frivolous argument for extending, modifying, or reversing existing jurisprudence;
(3) The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after availment of the modes of discovery under these rules; and
(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
Effect of violation of this rule:
If the court determines, on motion or motu proprio and after notice and hearing, that this rule has been violated, it may impose an appropriate sanction or refer such violation to the proper office for disciplinary action, on any attorney, law firm, or party that violated the rule, or is responsible for the violation. Absent exceptional circumstances, a law firm shall be held jointly and severally liable for a violation committed by its partner, associate, or employee. The sanction may include, but not limited to, non-monetary directives or sanctions; an order to pay a penalty in court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation, including attorney’s fees for the filing of motion for sanction. The lawyer or law firm cannot pass on the monetary penalty to the client.
Note from UP BOC:
Under the Amended Rules, an unsigned pleading may no longer be remedied since the provision for such has been deleted from the amended rules of court. The lawyer, law firm, or party responsible for filing an unsigned pleading may thus be sanctioned under this rule unless there are exceptional circumstances. Also note that an unsigned pleading remains to be without legal effect, and is treated as “a mere scrap of paper.”
State the contents of the certification against forum shopping and sanctions for breach thereof
Q: State the contents of the certification against forum shopping and sanctions for breach thereof;
A: RULE 7, SECTION 5
Section 5. Certification against Forum Shopping. — The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith:
CONTENTS TO:
(a) that he or she has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his or her knowledge, no such other action or claim is pending therein;
(b) if there is such other pending action or claim, a complete statement of the present status thereof; and
(c) if he or she should thereafter learn that the same or similar action or claim has been filed or is pending, he or she shall report that fact within 5 calendar days therefrom to the court wherein his or her aforesaid complaint or initiatory pleading has been filed.
The authorization of the affiant to act on behalf of a party, whether in the form of a secretary’s certificate or a special power of attorney, should be attached to the pleading.
SANCTIONS:
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing.
The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions.
If the acts of the party or his or her counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.
Distinguish Affirmative Defenses from a Motion to Dismiss;
A. Grounds for dismissal - Affirmative Defenses
Basis: (RULE 6) Sec. 5
An affirmative defense is an allegation of, a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him or her.
The affirmative defenses include
1. Fraud
2. Statute of limitations
3. Release
4. Payment
5. Illegality
6. Statute of frauds
7. Estoppel
8. Former recovery
9. Discharge in bankruptcy; and
10. any other matter by way of confession and avoidance.
Affirmative defenses may also include grounds for the dismissal of a complaint:
1. that the court has no jurisdiction over the subject matter
2. that there is another action pending between the same parties for the same cause
3. that the action is barred by a prior judgment.
B. Grounds for motion to dismiss
Basis; (RULE 15) Sec 12.
Prohibited motions. — The following motions shall not be allowed:
(a) Motion to dismiss except on the following grounds:
That the court has no jurisdiction over the subject matter of the claim;
That there is another action pending between the same parties for the same cause; and
That the cause of action is barred by a prior judgment or by the statute of limitations;
Q: Distinguish Third Party Complaints from Complaints in Intervention and Interpleader;
A. Third Party Complaint -Rule 6. Sec. 11- Third, (fourth, etc.)-party complaint. — A third (fourth, etc.)-party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.)-party defendant for contribution, indemnity, subrogation or any other relief, in respect of his opponent’s claim.
B. Complaints in Intervention - Rule 19. Sec. 1.Who may intervene. — A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor’s rights may be fully protected in a separate proceeding
C. Complaints in Interpleader - Rule 62. Sec. 1. When interpleader proper. — Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves
State the contents of a pretrial brief and the sanctions for absence at the pretrial for plaintiff and defendant;
A: Contents of pre-trial brief:
a. A concise statement of the case and the reliefs prayed for;
b. A summary of admitted facts and proposed stipulation of facts;
c. The main factual and legal issues to be tried or resolved;
d. The propriety of referral of factual issues to commissioners;
e. The documents or other object evidence to be marked, stating the purpose thereof;
f. The names of the witnesses, and the summary of their respective testimonies; and
g. A brief statement of points of law and citation of authorities. [Sec. 6, Rule 18]
B. Absence at the pretrial for plaintiffs and defendants
- By Plaintiff
