In Pleadings & Practice Flashcards
When may PJ be exercised under Indiana’s long arm statute?
If the cause of action arises out of the following acts committed by that person/person’s agent:
(1) Doing any business in IN;
(2) Causing any PI or property damage by an act done in IN;
(3) Causing any PI or property damage in IN that results from any act done outside IN, if D regularly does/solicits business in IN or derives substantial revenue from goods/services used, consumed, or rendered in IN;
(4) Supplying/contracting to supply services, goods, or materials in IN;
(5) Owning, using, or possessing real property in IN;
(6) Contracting to insure persons/property in IN;
(7) Living in a marital relationship in IN, if the action concerns obligations arising from alimony, child custody/support, or property settlement and the other party continues to reside in IN; and
(8) Abusing, harassing, or disturbing the peace of or violating a PO of any person in IN by an act or omission in IN, or an act or omission outside IN that is part of a continuing course of conduct having an effect in IN.
Who is responsible for preparing the summons?
The litigant or his attorney, who must then provide it to the clerk of court with the complaint.
How may process be served on an individual in Indiana?
(1) Registered or certified mail to person’s residence or place of business,
(2) Personal service,
(3) Leaving a copy of the complaint and summons at a person’s usual place of abode, followed by a mailing, or
(4) Service on an agent, followed by a mailing.
What is the process for service of process by publication?
This is a last resort. Affidavits must be submitted showing a diligent search was made. The summons must be published 3 times in a newspaper authorized by law. The first publication must occur “promptly” after the complaint is filed. The 2 succeeding publications must occur at least 7 days, but not more than 14 days, after the preceding publication.
What are Indiana’s preferred venues?
(1) Defendants’ residence,
(2) County in which the land in question is located,
(3) Where the accident occurred,
(4) Defendant’s PPB, or
(5) County to which the parties stipulated in the contract.
When is transfer of venue required?
When a claim is filed in a county that is not a preferred venue and a party objects. The plaintiff must then pay the costs and traveling expenses (and attorneys’ fees if done in bad faith).
When is a change of venue from a preferred county available?
(1) The county is a party, or
(2) A party is unlikely to receive a fair trial due to prejudice and/or bias.
What are the rules re: a change of judge?
A party is entitled to one change of judge.
The application must be filed no later than 10 days after the issues are closed on the merits.
No reason for the request is needed.
What are considered “pleadings?”
Complaint and answers (in whatever form).
What is a preliminary injunction?
A preliminary injunction is sought by a party prior to trial on the merits of the complaint. It may not be issued unless the adverse party receives notice and a hearing.
What is the standard for receiving a preliminary injunction?
A party must show, by a preponderance of the evidence, that:
(1) He has a substantial likelihood of success on the merits,
(2) His remedy at law in inadequate and he will suffer irreparable harm,
(3) The threatened injury to the plaintiff outweighs the harm that may be caused if issued, and
(4) The public interest would not be disserved.
What is a TRO?
Temporary restraining order.
TROs are granted by a court when it is necessary to prevent irreparable injury to a party and the injury will result before a preliminary injunction hearing can be held.
A TRO may be granted ex parte if the moving party shows she has made all efforts to notify the adverse party.
The moving party will need to provide security.
What are the time restrictions on a TRO?
May not exceed 10 days unless good cause is shown for an extension.
What must a complaint contain?
(1) Short and plain statement of the claim, and
(2) Demand for relief.
When must a claim be stated with particularity?
Fraud or mistake and special damages.
What are the Rule 12 motions?
(1) Lack of SMJ (can be raised at any time),
(2) Lack of PJ,*
(3) Improper venue,*
(4) Insufficiency of process,*
(5) Insufficiency of service of process,*
(6) Same action pending in another Indiana court,*
(7) Failure to state a claim upon which relief can be granted, or
(8) Failure to join a party needed for a just adjudication.
*Must be raised at the time of motion or answer, otherwise deemed waived.
When must a defendant serve an answer if no pre-answer motion is made?
Within 20 days after service.
If a pre-answer motion is denied, when must a defendant serve an answer?
Within 10 days after notice of the court’s action.
When must affirmative defenses be asserted?
In the answer, or else they are deemed waived.
When are pleading amendments allowed?
Once, before a responsive pleading is served, or if no response pleading is required, within 30 days of service of the pleading. Thereafter, amendments are only allowed with written consent of the adverse party or leave of the court.
What are the rules re: changing a named party?
An amendment changing the named party relates back if it is re: the same conduct, transaction, or occurrence as the original pleading, and
If within 120 days after filing the complaint, the new party has received notice of the action and she knew or should have known that but for the mistake she would have originally been a party.
When does a cause of action accrue (i.e. when does the statute of limitations begin to run)?
When a claimant knows or should have known of the injury.
When is the statute of limitations tolled?
(1) While the defendant is a nonresident of the state,
(2) During concealment of an action, or
(3) A person under legal disabilities may bring a cause of action within 2 years after the disability is removed.
What is the general statute of limitations?
10 years.
When is joinder of a party needed for just adjudication?
If:
(1) Complete relief cannot be given to existing parties in her absence,
(2) Disposition in her absence may impair her ability to protect her interest in the controversy, or
(3) Her absence would expose existing parties to a substantial risk of double or inconsistent obligations.
When is a counterclaim compulsory?
When the defendant has a claim that arises out of the same T/O.
Failure to assert the compulsory counterclaim will preclude the defendant from bringing the action.
What is an impleader?
When a defendant may bring in a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiff’s claim against him (indemnification).
