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Missouri Bar Prep > Indiana Practice > Flashcards

Indiana Practice Flashcards

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1
Q

Indiana Practice

Personal Jurisdiction

A

Requires

  1. Certain contacts by def. w/ home state
  2. Proper notice and service of process
    - Bases for in personam jur.
  3. Def. present in state and is personally served
  4. Def. domiciled in state (can be served outside of state)
  5. Def. consents
    - Def. may enter, but must timely object to jur.
    - must include challenge in any 12(b)(6) motion or waive.
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2
Q

Indiana Practice

Statutory personal jurisdiction

A
  1. Doing any business in IN
  2. Causing personal injury or prop. damage by an act done in IN
  3. Causing per. injury or prop. damage in IN by an act done outside state.
  4. Supplying or contracting to supply services, goods, or materials in IN
  5. Owning, using, possessing real property
  6. Contracting to insure
  7. Living in marital relationship
  8. Abusing or disturbing peace or violating a protective order by
    a. act in Indiana
    b. act outside that is part of continuing course of conduct having effect in IN.
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3
Q

Indiana Practice

Pleading special matters

A

Fraud or mistake - Particularity
Malice - Generally
Conditions precedent - generally
Denial of performance or occurrence - particularity
- Official document or act - aver that issued or done in compliance with the law
- Time and place - averments are material to testing the sufficiency of a pleading
- special dmages - must be specifically stated

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4
Q 
Indiana Practice
Affirmative defenses
Rule 8(C)
A
  • Accord and satisfaction
  • arbitration and award
  • assumption of risk
  • contributory negligence
  • discharge in bankruptcy
  • duress
  • estoppel
  • failure of consideration
  • fraud
  • illegality
  • injury by fellow servant
  • laches
  • license
  • payment
  • release
  • res judicata
  • statute of frauds
  • statue of limitations
  • waiver
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5
Q

Indiana Practice

Amending Pleadings

A

Pleading may be amended once before a response is served, or if no response required, within 30 days of service of the pleading.
- After, w/ consent or leave

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6
Q

Indiana Practice

Joinder of parties

A
  1. Claim is made arising out of the same series of occurrences or transactions, and
  2. There is a question of fact or law common to all parties.
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7
Q

Indiana Practice

Joinder of claims

A
  • Join claims between parties, and all claims arising out of a single transaction.
  • Only one claim must arise out of a single transaction to join multiple defendants
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8
Q

Indiana Practice

Compulsory counterclaim

A

A claim that arises out of the same transaction or occurrence as plaintiff’s claim; unless

  • claim already subject of pending action
  • claim requires the presence of third parties not subject to jur., or
  • plaintiff brought suit by process where court did not acquire per. jur. over def. and def. not asserting another counterclaim.
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9
Q

Indiana Practice

Impleader

A

A device whereby a def. may bring in a person liable to him for plaintiff’s claim.
- claim for relief must be contingent on plaintiff’s recovery against def.

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10
Q

Indiana Practice

Interpleader

A
  • Naming of parties who may hold property or owe obligation to prevent multiple liability.
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11
Q

Indiana Practice
Discovery
Supplementing

A

No duty to supplement with after acquired information.

  • Duty to supplement when
  • Identity and location of persons having knowledge of discoverable info.
  • identity and substance of experts to be called
  • if learn response was incorrect when made.
  • If learn response is no longer true, and a failure to amend is a knowing concealment.
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12
Q

Indiana Practice
Depositions
Procedure

A
  • Noticing counsel examines as at trial
  • Objection
    a. Evidence taken subject to objection
    b. Objections to competency, relevancy, or materiality are not waived by not making them.
    c. Objections to matter easily remediable at deposition (form of question) are waived if not made
    d. Privilege is waived if not made prior to furnishing the information
    e. To qualifications of officer must be waived before dep. or shortly in
  • Failure to comply with discovery requests can result in the party paying legal costs for failure.
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13
Q

Indiana Practice

Interrogatories

A
  • Party may serve on ANY other PARTY
  • Must answer in 30 days
  • If a search for the answer would burden either party the same, party may allow the questioner to search records (give location)
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14
Q

Indiana Practice
Discovery
Court Supervision

A
  • Except where Court order required (physical examination)
  • Before file motion, must
    a. Make good faith effort to agree
    b. Certify that such effort made
  • Court may protect against
  • annoyance, embarrassment, oppression, undue burden or expense
  • Limited when
    a. discovery is unreason cum or dup
    b. obtainable from more conv. source
    c. party had ample opp to obtain
    d. unduly burdensome or expensive, considering
    I. needs of case
    ii. amount in controversy
    iii. limits on parties resources
    iv. importance of issue at stake
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15
Q

Indiana Practice

Deposition’s use

A
  • By any party to contradict or impeach
  • By adverse party for any purpose if of a party that is an entity (not individual).
  • unless, witness can’t be found
  • If part offered, other may introduce, any part which ought in fairness to be considered with the other part.
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16
Q

Indiana Practice

Summary Judgment

A
  • Granted if appears no genuine issue of material fact and entitled to JMOL
  • Any time after 20 days from start, and not so late to delay trial
  • 30 days to respond
  • Affidavits must:
  • be made with per knowledge
  • set forth admissible facts
  • show that affiant is competent to testify
17
Q

Indiana Practice

Right to jury trial

A
  • right in all actions considered actions at law
  • Must file timely written demand within 10 days after first response or waive
  • Challenges
  • May challenge for cause - (bias, etc)
  • Three peremptory challenges (neutral)
18
Q

Indiana Practice

Judgment on evidence

A
  • If evidence could not support one finding, court must take from jury
  • Party may move for judg on evidence
    a. after party having burden presents
    b. after all parties present
    c. after all evidence presented
    d. in motion to correct errors
19
Q

Indiana Practice

Interlocutory Appeals

A
  • Orders immediately appealable
    a. For payment of money
    b. to compel execution of any document
    c. delivery of evidence of debt, documents or things
    d. For sale or delivery of possession of real property
    e. Preliminary injunction rulings
    f. Appointing or not of a receiver
    g. Venue challenges
20
Q

Indiana Practice

Res judicata

A
  • Final judgment on the merits
    a. Must be final
    b. must be on merits
    c. same cause of action must be the issue
  • Collateral estoppel (issue preclusion)
  • Bars action as to issues litigated that were essential to the judgment.
21
Q

Indiana Practice

Preliminary injunction

A
  • Notice must be given and adverse party opportunity to be heard
  • Standard to meet:
    a. Has substantial likelihood of success on the merits
    b. remedy at law inadequate and will suffer irreparable harm w/o
    c. threatened injury to plaintiff outweighs the harm that may be caused by inj.
    d. inj. is in public interest
22
Q

Indiana Practice

Appellate Procedure

A
  • Must file notice of appeal w/ trial court clerk w/n 30 days after judgment; or
  • for on motion to correct error; w/n 30 days after ruling on a motion to correct error;
  • Motion to correct error is deemed denied; if
    a. court fails to set hearing for 45 days
    b. fails to rule w/n 30 days after heard
    c. fails to rule w/n 45 days after filed if no hearing required
23
Q

Indiana Practice

Relief from judgment

A

-

24
Q

Indiana Practice
Venue
Preferred Venue

A
  • A party may object to venue and have case transferred to preferred venue
  • preferred venue - Nine ways
    1. Defendant’s residence
    2. The land or part of it is, or where chattels are located or regularly kept
    3. Where accident occurred
    4. Principal office of org. or where office to which claim relates
    5. Stipulation
    7. Where person held if release sought
    8. Statutory prescribed county
    9. County of property subject to in rem
25
Q

Indiana Practice
Venue
Finding not in preferred
- Forum non conveniens

A
  • Court must transfer, may not dismiss

- Court has discretion to transfer; for, ease of access to evidence, local type action, courts more familiar with law

26
Q

Indiana Practice

Answer

A
  • Must answer w/n 20 days after service, or

- 10 days after ruling on Rule 12 motion

27
Q

Indiana Practice

Notice pleading requirement

A
  • Give fair notice of claim and grounds on which it rests.
  • To survive - must contain factual allegations which are enough to raise a right to relief above the speculative level. Assumes all allegations true.
28
Q

IN Practice
Discovery
Scope

A
  • Any matter related to the subject matter of the action.

- If reasonably calculated to lead to admissible

29
Q

IN Practice
Discovery
Work Product

A
  • Applies to
    a. documents and thing prepared in anticipation of litigation by or for a party or a party’s representative
  • May obtain, if substantial need
  • Attorney opinions, conclusions, legal theories, protected
30
Q

IN Practice
Discovery
interogatories

A
  • May be served on another party.

- Answers due in 30 days

31
Q

IN Practice
Discovery
Production

A
  • Can ask to produce or to inspect

- If serving on a non-party, must serve request on all parties 15 days prior to the service on the nonparty.

32
Q

IN Practice
Discovery
Limiting discovery

A
  • On motion for protective order, may if:
    a. unreasonably cumulative or duplicative, or can get from more convenient source
    b. party has had ample opportunity to obtain
    c. unduly burdensome or expensive considering needs of case, amount in controversy, limits on the parties resources, importance of issues at stake
33
Q

IN Practice

Dismissal

A
  • Plaintiff may dismiss before an answer or motion for S.J.
  • By stipulation
  • w/o prejudice unless same claim previously vol dismissed in any court.
34
Q

IN Practice

Summary judgment

A
  • Granted if from evidence appears no genuine issue of material fact and entitled to JMOL
  • after 20 days of commence and at any time as not to delay trial
35
Q

IN Practice
change of venue
To preferred venue

A
  • If not in a preferred, may object in a pleading or motion to dismiss. If court finds not in preferred, MUST transfer to preferred, first chosen by first party to object
  • Filing party must pay costs and fees for contesting venue
36
Q

IN Practice
change of venue
For fair trial

A
  • Only if:
    a. county in which the action is pending is a party; or
    b. shows unlikely to get fair trial because of prejudice or bias with regard to the party or claim or defense
  • Procedure - Motion specifically stating grounds, no later than 10 days after issues closed on merits (usually an answer closes); or 30 days after filing if no answer required - only one allowed
37
Q

IN Practice

change of judge

A
  • entitled to one change of judge.

- file application requesting change; no cause required; generally w/n 10 days after issues closed on the merits

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