Jurisdiction & Venue & Parties Flashcards
jurisdiction definition
the legal power and authority of a court to hear an action or proceeding involving the legal relations of the parties and to grant the relief to which they are entitled
subject matter jurisdiction
legal authority of the court to hear a case based upon:
the object of demand;
the amount in dispute;
the value of the right asserted
parish and city courts have NO authority over cases involving
title to immovable property
civil or political rights of the plaintiff under the federal or state constitutions
a case where the state, or another political subdivision is a defendant
also:
right to public office or position
annulment of marriage, divorce, separation of property, or alimony
succession, interdiction, recievership, liquidation, habeas corpus proceeding
city courts additionally have no jurisdiction over cases involving 4 things:
tutorship
curatorship
emancipation
partition
do city or parish courts hold bench or jury trials?
only bench trials
personal jurisdiction definition
legal power of a court to render a personal judgment against a party
if defendant has no agent in the state, he has impliedly authorized the secretary of state to be his agent if he is:
a nonresident motor vehicle operator who uses louisiana roads
a nonresident watercraft operator who uses louisiana waterways
a foreign insurer conducting insurance business in louisiana without a certificate
long arm personal jurisdiction exists when the action arises from ___ activities (“specific jurisdiction”)
[contracts]
- transacting any business in louisiana
- contracting to supply services or things in louisiana
[torts]
- causing injury or damage by an offense committed through act or omission in louisiana
- causing injury or damage by an act or omission committed outside louisiana, if the damage occurred in louisiana, because the nonresident regularly does business in louisiana, engages in a persistent course of conduct, or derives substantial revenue from goods or services in louisiana
[other]
- having an interest in immovable property in louisiana
- nonsupport of a child or former/spouse domiciled in louisiana, with whom the defendant formerly resided in louisiana
- child support when child conceived in louisiana
- when product caused damage in louisiana, manufacturer has personal jurisdiction if foreseeable that stream of commerce would eventually place product in louisiana
general personal jurisdiction definition
louisiana court may exercise PJ over a nonresident on any basis consistent with the Louisiana and federal constitutions
example: Chase Bank which has general and pervasive contacts with state, subject to general PJ.
constitutional personal jurisdiction test
2-part test:
(1- plaintiff’s burden) due process requires that in order to subject a non-resident to personal judgment, the defendant must have minimum contacts with the forum state,
(2- defendant’s burden) such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.
factors that go to part 2: burden on defendant, state’s interest in dispute, plaintiff’s interest in obtaining relief, judicial system’s interest in efficient resolution, state’s interest ini substantive social policies
in rem jurisdiction
when a right regarding movable, immovable, corporeal, or incorporeal property located in louisiana is at issue
quasi in rem jurisdiction
a court asserting jurisdiction over a nonresident party, through an attachment to property that is not located within the state.
must also satisfy minimum contacts test
status proceeding personal jurisdiction rules
generally speaking, if a proceeding is abouut STATUS (ie, interdiction, adoption, tutorship, etc) –> then the person whose STATUS is at issue must be domiciled in Louisiana
venue
refers to the parish where the case can be properly brought
most venue rules are permissive, without defendant asserting a declinitory exception, venue objection is waived
however, status proceedings have non-waivable venue
general rules of venue
by type of defendant:
individual =
venue is parish of domicile,
if non-domiciliary then parish of residence
if nonresident with agent, then parish where agent’s address is
if nonresident without agent, then parish of plaintiff’s domicile or where service made
corporations and LLCS =
for louisiana businesses, parish of registered office
foreign but licensed, parish of PPB
foreign and not licensed, parish of plaintiff’s domicile or where service made.
insurers =
louisiana insurers, parish of registered office
foreign = east baton rouge parish
venue when defendants domicile has changed
suit can be filed in either defendant’s old or new domicile
unless defendant has filed a declaration of intent to change domicile
venue when it’s an action to enforce mortgage or privilege
may be brought where all or part of property is located
** joint or solidary obligors venue?
the parish where venue is proper as to one of any joint or solidary obligors will be proper as to all.
note: in a tort suit, an action against any or all joint or solidary obligors may be brought where the plaintiff is domiciled IF one of the defendants is an insurance company
OR
if one defendant has personal jurisdiction because of long-arm jurisdiction
tort suit venue rules
venue is proper in the parish where the damages were sustained the wrongful conduct occurred or the defendant is domiciled
suit to enjoin wrongful conduct venue
venue is proper in the parish where
the wrongful conduct occurred
or may occur
action on open account or promissory note venue
open account = parish where account was created, or where underlying services were performed, or debtor’s domicile
promissory note = where note was executed, or debtor’s domicile
insurance suits venue
action on insurance policy is where insured is domiciled
OR
where accident or illness occurred
this translates to:
uninsured motorist policy suit brought in parish where loss occurred or where insured (plaintiff) is domiciled
contract-based scenario venue rules
venue is proper in parish where contract was executed/signed
OR
where any work or service was or was to be performed
venue in suit involving immovable property
generally, can bring in the parish where that immovable property is located
plaintiff versus insurer suit venue
this is the Direct Action Statute,
plaintiff can sue insurer directly on any liability policy
written or delivered in the state OR providing coverage for an accident which occurred in the state
venue is = parish where accident occurred, or any parish where suit can be brought against insured or insurer, including EBR
venue where one defendant is long arm defendant
plaintiff’s parish of domicile
derivative action venue
venue is proper where venue is proper for corporation
venue conflict rules
if there is a rule regarding venue that refers to basically, status, successions, or community property, that is mandatory, and trumps all the other “permissive” venue rules about everything else.
if venue is improper, suit is
dismissed
or if justice requires, then transferred to a court of proper venue
if suit cannot be decided with justice in original venue, then can be transferred under
forum non conveniens theory.
allows court to transfer to another parish where venue would be proper if the interest of justice requires it
however, if suit originally and properly filed in plaintiff’s domicile, may not be transferred under forum non conveniens
nonwaivable venue rules
mostly, this is status proceedings -- successions annulment/divorce emancipation tutorship interdiction
mandatory recusation of judges
if judge is a witness
if judge has been employed or consulted as an attorney in the case
if the judge is the spouse of a party, an attorney employed in the case, or the judge’s parent, child, or immediate family member is a party or attorney
is biased prejudiced or interested in the case to such an extent that he would be unable to be fair and impartial
permissive recusation of judges
if has been associated with attorney during the attorney’s employment in the cause
attorney in the case represents the judge during the time of the hearing
he has performed a judicial act in the case in another court
he is related to a party of spouse of a party within the 4th degree; an attorney employed in case within 2nd degree, or if any of judge’s householders have a substantial economic interest in the matter
contempt definition
court has general contempt power to address any act or omission tending to obstruct or interfere with the orderly administration of justice or impair the dignity of the court or respect for its authority
direct - in view of court, penalty $100 and one day in jail
OR
constructive - disobeying TRO, deceit by party or attorney, intentional disobedience of court order, interference with juror or witness – $1000 and 6 months in jail
**obligations of attorney as officer of the court
as an officer of the court, an attorney must conduct himself with decorum consistent with the dignity and authority of the court,
treat all participants with due respect,
not interrupt opposing counsel or impede orderly judicial business,
not encourage false evidence or deceive the court
these actions are punishable as contempt of court
3 types of actions in louisiana courts
ordinary
summary
executory
prescribed actions can still be asserted as a
defense to an action
res judicata definition
a party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation
2 types of cumulation of actions
ie, joinder
cumulation by single plaintiff against single defendant
cumulation of plural plaintiffs or defendants
rules for cumulation with 1 plaintiff and 1 defendant
plaintiff may cumulate against same D even if the actions are based on unrelated grounds, as long as
each cumulated action is within court’s jurisdiction and brought in proper venue
AND
cumulated actions are mutually consistent and same kind of procedure
rules for cumulation with plural plaintiffs or plural defendant
multiple plaintiffs or defendants join in same lawsuit when
(i) there is a community of interest (ie, same factual/legal issues) between parties joined
(ii) each cumulated action is within the court’s jurisdiction and brought in the proper venue
(iii) all cumulated actions are mutually consistent and same form of procedure
lis pendens
(1) occurs when you have similar/same lawsuits filed in different jurisdictions
when 2 or more suits pending on same transaction or occurrence, between same parties, then all but the first filed must be dismissed
if defendant does not except to multiple suits – then first judgement rendered shall be conclusive of all
OR
(2) when suit brought in Louisiana, when same transaction or occurrence being litigated in another state or federal court – court can stay Louisiana action while other action pending
abandonment of suit
if any any stage of proceeding, 3 years passes without either party taking any step in the prosecution or defense of the case, the suit is deemed abandoned and dismissed
example: you represent P in case filed at some date, last action was MSJ that was denied, 3+ years ago. case is deemed abandoned.
things like taking deposition, interrogatories – this constitutes a step. however, entering or removing attorney of record is not a step.
party can contest the dismissal within 30 days with motion to set aside dismissal, or appeal of dismissal within 60 days.
class action prerequisites
numerosity = class so numerous that joinder of all plaintiffs is impracticable commonality = questions of fact or law common to the class typicality = claims or defenses of representative parties are typical of claims/defenses of the class fairness = representatives will fairly and adequately protect interests of the class objectively defined = class may be defined objectively in term of ascertainable criteria
also need to show = questions of law and fact common to the class PREDOMINATE over any individual considerations regarding the class member's interest means = members dont have much interest in controlling their personal action; litigation has already commenced by individual members; class members dont really have a practical ability to pursue their claims individually OR parties have attempted to settle as a class settlement even though common question requirements may not otherwise be met
motion to certify the class timing
motion to certify the class must be made within 90 days of service of initial pleading of all adverse parties
notice to class members in class action
in a common question class action, best notice practicable must be given to all class members must include a time delay in which individual class members may opt out before commencement of trial
once class certified, court must review all dismissal and compromise offers. requirements =
terms of settlement must be given to all members of class court must hold hearing to determine whether settlement is fair, reasonable, and adequate
prescription with class action
prescription is suspended as to all class action begins running 30 days after individual's opting out form returned OR persons excluded from class 30 days after notice of exclusion OR for all class members within 30 days of denial of class certification, when all appeals finalized
special lis pendens rules for class actions
(1) when 2 or more class actions pending in more than one court, defendant can have all suits transferred to district court where accident/occurrence occurred (2) when suit has multiple transactions or occurrences in multiple locations, then defendant can have all suits transferred to parish where first suit was filed.
derivative action definition
suit brought by shareholder to enforce the rights of a corporation when the corporation itself refuses to enforce their own right
for derivative action to proceed as a class action
then if joinder is impracticable (ie, numerosity requirement met) AND the representative parties will adequately represent the interests of the class then court will maintain as class action
derivative action petition requirements
allege that party was shareholder at time of transaction complained of
alleges with particularity the efforts of plaintiff to secure action from directors, and reasons for his failure to secure such action
that the defendant corporation and the defendant obligor are joined in the suit
prayer for judgement in favor of corporation against obligor
verified by affidavit of plaintiff or counsel
computation of time rule
the date of the act, event, or default is not counted. start counting the next day.
the last day of the period is counted, unless legal holiday (including weekends)
compulsory joinder is required when
no complete relief in person’s absence
OR
they claim an interest relating to subject matter of lawsuit and so situated that adjudication without t hem, may impede or impair that interest or it leaves a substantial risk of incurring multiple or inconsistent outcomes
factors to consider when determining whether to
dismiss a case because of the lack of compulsory joinder party
(1) to what extent a judgement rendered in that party’s absence might be prejudicial to him or those already present
(2) can prejudice be lessened or avoided by drafting around in judgement
(3) whether judgement rendered in party’s absence will be adequate
(4) whether plaintiff will have an adequate remedy if action is dismissed for nonjoinder
who has capacity to file the lawsuit? “parties plaintiff”
(1) unemancipated minor lacks capacity to sue. all persons having parental authority over that minor must be joined as plaintiff. with court permission, one parent alone may represent minor if other parents refuse to do so.
(2) mental incompetents do not have capacity to sue, but defendant must object. these individuals must sue through a curator appointed by court
(3) interdicts cannot sue, curator must bring suit unless suit is to end interdiction
what if party dies during pendency of action?
then successor of decedent may be substituted through ex parte motion
same people who may be substituted = those who can bring a survival action: ie, (1) surviving spouse and children; if not (2) then parents, if none then (3) siblings; if none, then (4) grandparents
failure to substitute may cause dismissal of claim
time period = substitution must occur within 30 days of receipt of summons, if successor and address known, or within 60 days if successor is nonresident
