LA Civ Pro Flashcards
Time Limit for Plaintiff to Serve Defendant
90 days from filing the action
Declinatory Exception of Insufficiency of Service of Process
filed by D when he was not served/insufficiency of service
Contradictory Motion to Dismiss for Failure to Request Timely Service
filed by any party when he was not served/insufficiency of service
Motion for a Protective Order
used to prevent abusive discovery practices that seek non-discoverable information that impose an undue burden or expense on the party who receives the discovery request
remedies: prohibit the request altogether, order that discovery only be had under specific conditions, or limit the scope of the request
Objections in a Deposition
CNN
must be stated concisely
must be stated in a non-argumentative and non-suggestive manner
if objection is not made during deposition, objection is still preserved for trial EXCEPT: those that related to errors that could be cured if the objections were made promptly at the deposition (ex: form of the question)
How long does appellant have to post bond for a suspensive appeal after the appeal has been granted by the appellate court?
24 hours after rendition of judgement granting the appeal
Types of Pleadings that Incur Lawyer’s Certification Obligations
petition, answer, exceptions, written motions
Intervention by Third Party
third parties may intervene in a lawsuit to enforce a right related to the pending suit
Reconventionary Demand
same as common law “counterclaim”
Writ of Fieri Facias (FiFa)
used when property is in the hands of a 3rd person must be garnished to satisfy a money judgement
*the first 75% of disposable earnings are exempt from seizure
Procedure to File a Writ of FiFa
(1) file writ in parish where garnishee may be sued
(2) file petition for garnishment and garnishment interrogatories
(3) serve citation, petition, interrogatories, and notice of seizure
(4) garnishee has 30 days to respond to interrogatories
(5) court orders garnishee to deliver property
What should a party file when the party believes that the debtor has money to pay a pending money judgment?
motion for the examination of a judgement debtor
can also include a request that the debtor brings financial records to the exam
Witness Resides >25 Miles Away
party can subpoena for testimony
party must deposit funds with the clerk of court sufficient to cover:
(i) witness’s traveling expenses at $0.20 cents per mile
(ii) witness fee at $25 per day
(iii) hotel/meal fee at $5 per day
1442 Deposition
reasonable notice in writing to all parties in the lawsuit, stating the time and place of the deposition and name of the deponent (or name company as deponent)
and designates matters “with reasonable particularity” listed as those about which they would question a representative of the corporation
corporation must designate one or more representatives to appear at a deposition who can answer the questions
What would defendant file if he believes that the court has no personal jurisdiction?
declinatory exception for lack of personal jurisdiction
*must be filed prior to or in the answer!
Service under Long Arm Statute
use when there is a foreign company with no registered office in LA and who is not registered with the LA Secretary of State
Procedure:
(1) mail citation and petition by certified/registered mail or by actual delivery to the defendant by commercial courier
(2) if service is not able to be made by the above, the court will appoint an attorney to represent the defendant and service will be made on the attorney
Temporary Restraining Order (TRO) Petition Requirements
(1) must assert that the party will suffer irreparable harm if injunctive relief is not granted (irreparable harm = not capable of being compensated by money damages)
(2) must be verified
(3) must contain a certification by the filing attorney verifying the efforts made to provide notice to the opposing party
What are the time limits, standards of review, and ability of judge to evaluate evidence on a motion for new trial?
time limit: must be filed within 7 days, excluding holidays, from mailing or service of notice of judgement
judge draws his own inferences and evaluates evidence without favoring either party
standard: the verdict was clearly contrary to the law and evidence, OR new material evidence (that could not have been obtained before trial) OR evidence of juror bias/bribery such that impartial justice was not done
Motion for a Judgement Notwithstanding the Verdict (JNOV)
time limit: must be filed within 7 days, excluding holidays, from mailing or service of notice of judgement
judge evaluates evidence in light most favorable to opposing party
standard: the facts and inferences point so strongly in favor of the moving party that reasonable persons could not find for opposing party
What motion would a party make who is happy with the verdict but unhappy with the amount of damages awarded?
motion for additur/remittitur
(party is unhappy with $ amount but not verdict)
used as an alternative to a new trial
Requirements:
(1) court must believe a new trial is necessary (verdict was clearly contrary to facts and evidence)
(2) party adversely affected by additur/remittitur must consent
(3) issue of quantum is clearly and fairly separable from other issues in the case
Jury’s Request to View Transcript or Records
Records: judge may allow jury to view records, either in the courtroom or privately in the jury room
Transcript: judge may allow jury to view, but only in the courtroom to have the testimony read to them, and only after giving notice to the parties
Motion for a Directed Verdict
JURY TRIAL ONLY
made by defendant at close of plaintiff’s case based on insufficient evidence given by the plaintiff to establish a prima facie case
standard: facts and inferences are so overwhelmingly in favor of the moving part that reasonable persons could not reach a contrary verdict
What can defendant do to maintain his appeal if his bond is found to be insufficient (or surety is found insolvent)?
defendant may furnish a new or supplemental bond within 4 days, exclusive of holidays, to maintain an appeal
if not, his appeal may be dismissed or converted into a devolutive appeal
Declinatory Exception of Improper Venue
filed by defendant when plaintiff filed in improper venue
must be filed prior to or with the answer (if not, the objection to venue is waived)
Declaratory Judgement
provides a declaration of rights/status/legal relations, under a contract or otherwise
has the force and effect of a final judgement
applies to everyone that is a party to the contract, whether or not joined t the action
Declinatory Exception for Insufficiency of Service of Process
use when service on defendant was insufficient
must be filed PRIOR to entry of default judgement
What would a defendant file when they were not properly served and hadn’t waived service, but a judgment has already been rendered?
petition for nullity of judgment for vices of form
can be brought at any time
Peremptory Exception of Prescription
filed by the defendant when the plaintiff’s cause of action has prescribed
prescription is interrupted when the plaintiff files in a court of competent jurisdiction and venue (but if improper venue - not interrupted)
Joint Petition for Emancipation
can be filed when parent/child both have the same objective in emancipation
Petition for Emancipation Requirements
(1) child’s name, age, domicile, current address
(2) good cause for emancipation
(3) if limited emancipation is sought - which effects of majority are to be conferred
(4) detailed list of minor’s property and location of property
then emancipation hearing will be held (summary proceeding)
Periodic Allowance in Succession: Requirements
heirs are entitled to periodic, interim allowance during the administration of a succession if:
(1) succession is solvent
(2) court determines that allowance is necessary
(3) payments are within the amount eventually due to the heir
Periodic Allowance in Succession: Procedure
(1) heir compels payment by contradictory motion against the succession representative
(2) notice of the petition/motion must be published once
(3) any opposition must be filed within 10 days of publication
Motion for Summary Judgement
use when a party wishes to get dismissed from a lawsuit
standard: no genuine issue of material fact as to one or more of the elements of opposing party’s case
must be supported by affidavits that show:
(a) affiant is competent
(b) affidavit is based on personal knowledge
(c) affidavit attests to facts admissible at trial
movant has burden of proof, if defendant, must disprove at least one element of P’s claim (no factual support) - bc don’t burden of proof at trial to prove case
Work Product Privilege
protects communications involving trial preparation or any other issues in anticipation of litigation
Options to Enforce a Foreign Court Judgement against LA Domiciliary
(1) bring ordinary proceeding against the local debtor to have foreign court judgement recognized and made the judgement of a LA court
OR
(2) Enforcement of Foreign Judgement Act
(i) annex authenticated copy of foreign judgement to an ex party petition in a LA court and file affidavit with last known address of local debtor
(ii) clerk sends notice to local debtor
(iii) foreign court judgement can be executed by local court 30 days after mailing notice
Contradictory Motion
both parties have the opportunity to be heard on an issue, motion contradictory to the thing
Third Party Petition
used by a third party to add/join themselves to a case
Requirements for a Detailed, Descriptive List of Succession Property
(1) sworn and subscribed to by person filling it
(2) show location of all items of succession property
(3) set forth the fair market value of each item as of the date of death of the deceased
Requirements for a Court-Appointed Attorney for an Interdict
(1) represent defendant until discharged by the court
(2) personally visit and discuss the case with the defendant (including facts/law/rights/options for the defendant)
*if attorney fails requirements, proceedings for the interdiction are not invalidated but the attorney might be subject to sanctions
Pleadings Necessary to a 102 Divorce
(1) institute action by filing and serving a petition for divorce (must include allegations of jurisdiction and venue)
(2) parties must live separate and apart for requisite time
(3) plaintiff must file rule to show cause (must include allegations of service of petition, passage of requisite time, and affidavit verifying that the parties have continued to live separate and apart)
(4) rule to show cause must be served on the defendant (unless service is waived)
(5) after the rule to show cause is filed, plaintiff must file another affidavit verifying that the parties have continued to live separate and apart
Ways to Dismiss a Juror for Bias
(1) challenge for cause (anytime before the presentation of evidence, with the court able to try to rehabilitate the juror) (cause can be anything, ie: bias)
(2) peremptory challenge (no cause needed) (only before jury is confirmed)
Certifications Made by an Attorney when Signing a Pleading
that the attorney has Read the pleading in its entirety and that to the Best of his knowledge, information, and belief, formed after reasonable Inquiry, that
(1) pleading is not being filed for an Improper Purpose such as harassment
(2) the lawsuit is Warranted according to existing law or based on a nonfrivolous argument for a change in existing law
(3) the lawsuit has or is likely to have reasonable Evidence
(4) each Denial is Warranted by evidence or reasonably based on lack of information or belief
Joinder Required When…
(1) no complete relief can be given in absent party’s absence, or
(2) absent party’s interest in the subject matter is such that to litigate the case in his absence would cause:
(a) an impairment of his ability to protect his interests
(b) parties would be at risk of incurring multiple obligations
Exception: the court has discretion to continue the case without the joinder of a person even if he can’t be joined based on factors:
(a) extent of prejudice
(b) extent prejudice can be lessened
(c) adequacy of judgment in the absence of the person
(d) adequacy of remedy for the plaintiff if the suit is dismissed for nonjoinder
Derivative Suit Class Certification Requirements
(1) numerosity
(2) fair and adequate protection of class’s interests
Petition Requires:
(1) proper party allegation (plaintiff was a shareholder at the time of the act)
(2) allegations of wrongdoing with particularity
(3) proper joining of corporation
(4) prayer for relief
(5) verification by plaintiff or counsel of facts by affidavit
Class Action Requirements
All of the following:
(1) numerosity (such that joinder is impracticable)
(2) questions of law and fact common to the class
(3) typical claims and defenses representative of the class
(4) fair and adequate protection of class’s interests
(5) objectively defined class
PLUS one of the following:
(1) separate actions would create risk of inconsistency or dispositive adjudication
(2) defendant acted in a way applicable to the whole
(3) predominating questions of law or fact common to the class
(4) certification for purposes of settlement
Lis Pendens
two or more suits pending in different courts concerning the same parties and the same transaction/occurrence
all but the first case filed must be dismissed, unless defendant does not except (in which case, the first court that reaches final judgement is conclusive)
if judgement is pending in different states, LA court can stay proceedings pending outcome of the other case
Cumulation of Parties/Actions
two or more plaintiffs or defendants may be joined to a case OR two actions of the same type are put together
Requirements:
(1) community of interest (same legal/factual issues) between parties joined; and
(2) each cumulated action is within the court’s jurisdiction and brought in the proper venue; and
(3) all cumulated actions are mutually consistent and employ the same form of procedure
Res Judicata
party shall assert all causes of action arising out of the same transaction or occurrence, otherwise, the causes of action are waived
Exception: child/spousal support in a divorce action
Attorney’s Obligations to the Court
(1) decorum consistent with the dignity and authority of the court
(2) treat others in court with due respect
(3) not to interrupt opposing counsel or impede proceedings
(4) not knowingly encourage or produce false evidence
Forum Non Conveniens
venue is proper for a suit but court is allowed to transfer action if
(a) necessary for convenience of the parties, and
(b) in the interest of justice
*if filed in plaintiff’s domicile, action can’t be transferred unless venue is improper
Notice of Lis Pendens
notice of pendency of state/federal court action affecting immovable property
filed in mortgage records in parish where immovable property is located
provides notice to 3rd persons
Subject Matter Jurisdiction
legal power of a court to hear a case based on:
(a) object of demand
(b) amount in dispute, or
(c) value of amount asserted
Trial Courts of Limited Jurisdiction
NO JURY TRIALS
justice of the peace (<5k)
city (<15k)
parish (<20k)
no jurisdiction over:
(1) title to immovable property
(2) state/federal constitution issues
(3) state or parish is defendant
(4) divorce/alimony/separation of property
(5) succession/interdiction
Incidental Jurisdiction
when parish/city court has SMJ over main demand, it may exercise incidental jurisdiction over an incidental demand
Exception: where there is a compulsory reconvention demand that exceeds parish/city court jurisdiction, court must transfer
Personal Jurisdiction
Types:
(1) service of process on defendant/agent/attorney
(2) consent to jurisdiction
(3) long-arm jurisdiction (specific or general, applying International Shoe)
(4) in rem jurisdiction
(5) quasi in rem jurisdiction
(6) jurisdiction over status
Consent to Jurisdiction
defendant can either submit to court’s jurisdiction or fail to file timely declinatory exception for lack of personal jurisdiction
In Rem Jurisdiction
PJ over property through jurisdiction over property owned by a nonresident in Louisiana
property can be movable/immovable/corporeal/incorporeal
Quasi In Rem Jurisdiction
PJ over a person through jurisdiction over their ownership of LA property
limited to value of attached property
limited by international shoe (minimum contacts + traditional notions of fair play and substantial justice)
Long Arm Jurisdiction
PJ over nonresidents
(1) specific jurisdiction, or
(2) general jurisdiction
apply international shoe:
plaintiff has the burden to prove minimum contacts (defendant has purposefully directed activities at forum residents)
if plaintiff proves minimum contacts, burden shifts to defendant to prove that maintenance of the suit in this forum would offend traditional notions of fair play and substantial justice
Long Arm Jurisdiction: Specific Jurisdiction
PJ over nonresident for cause of action arising from:
(1) transacting business in LA
(2) contracting to supply services/things in LA
(3) causing injury/damage by offense committed by act in LA
(4) causing injury/damage by act/omission outside of LA if nonresident regularly solicits business in LA, engages in persistent conduct in LA, or derives substantial revenue from LA
(5) interest in using/possessing a real right in immovable property
(6) child/spousal support to a spouse domiciled in LA with whom the nonresident lived
(7) child support of child conceived in LA
(8) manufacturing product caused damage/injury in LA and if manufacturer could have foreseen that produce would end up in LA
Proper Venue for Solidary Obligors?
where venue is proper to one, venue is proper to all
