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
Authentication of a User Manual Document?
Two ways:
(1) serve a request for production of documents (on a party to the action), asking for the party to produce an authentic copy –> party has to produce copy or object within 30 days of service
(2) serve a request for admissions, asking for party to admit or deny that it received an authentic copy of the document –> party has to respond or object within 30 days of service
Remote Deposition?
yes, by telephone or other remote means so long as either:
parties agree, or
court orders
How to serve (to add) corporate defendant who is located out of state, no offices in state, and not registered with Secretary of State?
LA long arm statute
mailing a certified copy of citation and amended petition by certified or registered mail with return receipt requested, OR
by actual delivery by
service in TN or commercial courier
if none of the above, court must appoint attorney (curator ad hoc) to represent defendant, and service will be made on them
What must be filed after service was made on an out of state defendant?
affidavit of the individual who either:
mailed process to defendant by certified mail with return receipt affixed to the affidavit, or
used a commercial courier to make delivery of process, showing the name of the courier, the date, and address at which process was delivered and attached courier’s confirmation of delivery, or
actually delivered the process to defendant
Lawsuit pending in two jurisdictions, but concluded in one?
Declinatory Exception of Lis Pendens
- has to be filed with or before the answer (waived if not)
Peremptory Exception of Res Judicata
- can be filed at any time
Service on a corporation with a registered agent by serving an employee instead?
Not allowed, service on employee only allowed if no registered agent
How to add defendant after answer has been filed?
must get leave of court to amend complaint
How to add solidary obligor defendant after claim has prescribed?
(1) relation back doctrine (relate back to date of original filing of petition if arising out os are transaction or occurrence)
*Exception: need sufficient identity of interests for added defendant to have received fair notice of the lawsuit (know/should know it would be sued as a result of original)
(2) suits against solidary obligors filed in court of competent jurisdiction and venue interrupts prescription as to all solitary obligors
Class Action Requirements
Absolute Requirements: (Number Classes Teach Pretty Objectively)
(1) Numerosity (so numerous that joinder of all class members is impracticable)
(2) Commonality (questions of fact or law common to the class)
(3) Typicality (claims asserted are typical of the class)
(4) Protection of Class Interests (fairly and adequately protect interests of class)
(5) Objectively Defined Class (in terms of ascertainable criteria)
Additional Requirement:
(1) Separate Actions would Create Risk of Inconsistency/Dispositive
(2) Actions of Party Opposing Class
(3) Predominating Questions of Law or Fact (and class action is most fair and efficient type of adjudication)
Factors:
* Members’ interest in control
* Extent of previously commenced litigation
* Desirability of concentrating litigation
* Possible difficulties in management
* Practical ability of individual class members
* Balance between relief demanded and costs/burdens of litigation
(4) Settlement Request for Certification
Result of Denial of Class Action?
lawsuit continues between only named parties
Stricken demand for class relief?
claim may be reinstated upon a showing of good cause
Dismissal of Class Action: what is the result for class members not party to the action?
notice of dismissal is given by publication in a newsletter in the parish where the action was filed
prescription begins to run again on class members’ claims 30 days after notice is published (NOT counting the day notice was given, starting to run again on the 31st day)
if claims prescribe on a legal holiday, members have until the next day that is not a legal holiday to file
a lawyer’s signature on a discovery response constitutes a certification by the lawyer of what?
that he has read the request, response, or objection and to the best of his knowledge, information and belief, after valid inquiry, that it is:
(1) not for any improper purpose
(2) warranted by existing law or a good faith argument for the change of existing law
(3) consistent with the discovery rules
(4) not unreasonable, unduly burdensome, or expensive given the nature of the litigation
If a civil trial is by a jury of 6/12, how many of the jurors must concur to render a verdict unless the parties stipulate otherwise?
5/9
When can plaintiff enforce a signed judgment?
after the time for a suspensive appeal has run, which is 30 days from the time for filing a motion for a new trial or JNOV has elapsed
new trial or JNOV motions must be filed 7 days, exclusive of holidays, from the date of the mailing/service of the notice of signing of judgment
What action may a plaintiff take to enforce a money judgment against a defendant who owns immovable property?
file writ fieri facias
*plaintiff must wait for tolling of time to take suspensive appeal (30 days + 7 days exclusive of holidays for JNOV and new trial motions)
How is a Writ of Fieri Facias executed?
sheriff must:
- seize immovable property anytime within 1 year
- serve written notice of seizure on the debtor
- send Mennonite notices to those who requested them in the mortgage records
- file notice of seizure in the mortgage records
- publish notice of the sale in newspaper twice
- immovable is appraised (bid must be at least 2/3 appraised value)
- if does not sell for at least 2/3 appraised value, second sale is held for whatever price so long as it is enough to cover costs of sale and pay off superior creditors
- sheriff distributes the proceeds paying the highest-ranking creditors first
How does a plaintiff extend the enforceability of a money judgment?
file an ex parte motion in the court in which the judgment was rendered
can revive anytime before it prescribes, 10 years from issuance
filing of the motion interrupts the 10 year prescriptive period
filing must also include affidavit by judgment creditor stating that the original judgment has not been satisfied
In succession proceedings, what facts must be set forth in an affidavit to demonstrate that the daughter is filing in the correct court and for the proper interested person or persons?
competency of affiant
date of decedent’s death and all other facts on which the court’s jurisdiction is based
all facts showing that the daughter is the sole heir
that the succession is relatively free of debt
Under LA law, the daughter must introduce evidence of the assets of the decedent with the court. What are the two ways to accomplish introduction of the evidence and what should be filed to satisfy this requirement?
should file a petition for possession
along with affidavits and official certificates (death certificate, etc)
The assets of a decedent who died without a will have a value of no more than $50,000. Because the decedent owned a small tract of immovable property, there is a need to place in the record the facts of his death and the identity of the persons who will inherit his assets. What filing may the heirs make to accomplish this goal without having to file a judicial proceeding?
heirs can open a small succession when:
- estate valued less than $125,000
- sole heirs are decedents or surviving spouse, and
- decedent was domiciled in LA and died intestate
small successions do not need to be opened judicially
heirs must execute an affidavit that includes:
- dage of decedents death, that he died intestate, and his marital status at time of death
- names and addresses of heirs and their relationship, description of estate property, description of the heirs interest in property inherited, an affirmation by heir-affiant that he/she accepts the succession, and
- affidavit of correctness
Lessee has failed to pay rent for two months, lease is residential oral. What can lessor do?
lessor should deliver written notice to lessee to vacate the premises within 5 days of delivery of the notice
if lessee fails to vacate, lessor should serve a rule to show cause to deliver the premises (rule will be heard no earlier than the 3rd day after service of rule to show cause)
after final judgment is issued, if lessee fails to vacate after 24 hours, the court will issue a warrant directing the sheriff to take possession
4 children all inherited a tract of land of active farmland. How can they get it split up?
file a petition for judicial partition by licitation
proper venue is the parish where the immovable property sits OR where the siblings are domiciled
before parcel is sold at auction, co-owner that didn’t want to sell has first option to buy
parcel will be sold at public auction after advertisement of judicial sale and the proceeds of the sale will be divided equally
Insurer reimbursed homeowner up to limits of policy, homeowner sued manufacturer for excess damages beyond policy limits, insurer filed intervention 2 months in. Prescribed?
no - an incidental demand, including an intervention, is not barred by prescription so long as the claim was not barred on the day the lawsuit was filed AND it was filed within 90 days of service of the main demand
Time deadline for plaintiff to file and serve the motion for summary judgment and all supporting documents?
at least 65 days before trial
Time deadline for filing an opposition motion to a motion for summary judgment?
at least 15 days before the summary judgment hearing
Last day for a court to render a judgment on the motion for summary judgment?
20 days before the trial date
Motion for summary judgment denied, case proceeded to trial (NO JURY). What would defendant file after presentation of plaintiff’s case?
motion to dismiss based on the ground that plaintiff has shown no right to relief (AKA Involuntary Dismissal)
standard: preponderance of the evidence
no special inferences in favor of the plaintiff
**same as directed verdict, but DV is for jury trials
Plaintiff has completed presentation of case to the jury. Defendant believes plaintiff has shown no right to relief and want the case dismissed without defendant having to offer any evidence. What do they to do conclude the trial? And if they do not succeed, what effect does this have on their right to offer further evidence?
motion for a directed verdict on the grounds that plaintiff has shown no right to relief
standard: facts and inferences are so overwhelmingly in favor of the moving party that reasonable minds could not reach a contrary verdict
no effect
Hearing must be held and Judge must decide motion to determine whether expert is qualified by what time?
no later than 30 days before trial
Judge’s ruling on the qualification of an expert must include the following:
findings of fact
conclusions of law
reasons for judgment, and
judge’s decision as to whether or not the expert is qualified to testify
Motion to get rid of unqualified expert with “junk science”? Time deadline for this?
motion to determine whether the expert is qualified and whether methodology is reliable under the rules of evidence (aka a Daubert motion)
made at least 60 days before trial
costs (including court costs, reasonable expert fees, and costs associated with the motion) may be assessed to the losing party in the court’s discretion
Sanctions for failure to comply with discovery request or court order compelling discovery
matter may be deemed proved
evidence of the disobedient party may be excluded
pleadings may be struck
case may be dismissed
default judgment may be entered
costs and attorneys fees may be assessed
ordered in contempt
NO right to a trial by jury when…
no individual claim exceeds $10k
suit on a promissory note (unless forgery, fraud, error, etc is claimed)
summary, executory, probate, etc proceedings
Amendment of petition?
plaintiff can amend without leave of court before answer is served
plaintiff can amend with leave of court or consent of defendant after answer is filed
answer to amended petition is required within 10 days after service
Amendment of answer?
defendant may amend once within 10 days after original answer is served
otherwise, need leave court or written permission of adverse party
Amendment of exceptions?
dilatory and declinatory may be amended prior to hearing with leave of court or written permission of adverse party (but only to “amplify”)
peremptory can be amended at any time
Amendment of petition when adding plaintiffs
(no leave of court if before answer is filed, leave of court or consent if after answer is filed)
AND
defendant knew or should have known of the existence/involvment of the new plaintiff
AND
new and old plaintiffs are sufficiently related so that adding new plaintiff is not “wholly new or unrelated”
AND
no prejudice to defendant
Amendment of answer when adding defendants
(can amend once within 10 days after original answer is served, otherwise need leave of court or consent)
AND
substituted defendant received notice of suit so there is no prejudice in preparing a defense
AND
substituted defendant knew or should have known that but for the mistaken identity, he would have been sued
Scope of Appellate review
factual findings: not disturbed unless manifest error
legal findings: determination of correct/incorrect
Appeal that you take where the judgment CAN be executed while the appeal is pending?
Devolutive
Time limit for devolutive appeal
within 60 days of either:
- time for filing a motion for new trial or JNOV has elapsed (7 days exclusive of legal holidays)
- denial of a timely motion for new trial or JNOV has been mailed
Bond requirement for devolutive appeal
None
Appeal that suspends the execution of judgment during the time the appeal is pending
Suspensive
Time limit for suspensive appeal
within 30 days of either:
- time for filing a motion for new trial or JNOV has elapsed (7 days exclusive of legal holidays)
- denial of a timely motion for a new trial or JNOV is mailed
Bond requirement for suspensive appeals
when judgment is for $ of money, then the bond is equal to that amount of money
otherwise, court will fix security sufficient to assure satisfaction of judgment along with damages for delay resulting from appeal
if appeal bond has NOT been timely filed, trial court can convert the suspensive appeal to a devolutive appeal
Plaintiff/Defendant must request a jury trial by…
within 10 days of the filing of pleadings raising an issue triable by jury (including his complaint/answer)
When does a party have a duty to supplement answers to discovery?
generally no duty to supplement when the answers were complete at time given
Exception: duty to supplement when the identity of a witness becomes known to the responding party after original responses were provided
Method used when you need documents from a nonparty witness
subpoena duces tecum
Plaintiff believes security furnished by defendant for suspensive appeal is insufficient or invalid. What can plaintiff do to challenge validity?
rule to show cause (ruling the defendant into court)
defendants must show why bond should not be decreed insufficient or invalid (D has burden to prove sufficiency/solvency)
Plaintiff wants the court of appeal to modify the trial court’s judgment by increasing the award. The defendant has already filed an appeal. What does plaintiff have to do?
File an answer to defendant’s appeal within 15 days of the later of the return day or the lodging of record of the appeal
Declinatory Exceptions
declinatory exception for insufficiency of citation
declinatory exception for insufficiency of service of process
declinatory exception for lis pendens
declinatory exception for improper venue
declinatory exception for lack of PJ
declinatory exception for lack of SMJ
Dilatory Exceptions
dilatory exception for prematurity
dilatory exception for want of amicable demand
dilatory exception for unauthorized use of summary proceeding
dilatory exception for nonconformity with formalities of petition
dilatory exception for vagueness or ambiguity in petition
dilatory exception for lack of procedural capacity
Peremptory Exceptions
peremptory exception of prescription
peremptory exception of peremption
peremptory exception of res judicata
peremptory exception of nonjoinder of a necessary party
peremptory exception of no cause of action
peremptory exception of no right of action
peremptory exception of discharge in bankruptcy
Plaintiff’s Reply to Defendant’s Objection to Summary Judgment must be filed…
at least 5 days before the hearing
and plaintiff CANNOT file any additional documents with the reply memorandum!
Filing Requirements for independent executor of a testamentary estate
just the testament naming the person as independent executor
Filing Requirements for closing an independent administration of an estate
inventory/sworn detailed descriptive list of assets and liabilities of the estate, verified by the independent executor
final account
Filing Requirements for closing an independent administration of an estate
inventory/sworn detailed descriptive list of assets and liabilities of the estate, verified by the independent executor
final account
What steps must P follow to get a deposition from W with no subpoena?
reasonable notice in writing to all parties in case
notice must state date/time/place for taking deposition and name and address of deponent
if testimony recorded other than by stenographic means, manner of recording, preserving, and filing the deposition must be designated in the notice
What if W doesn’t show up to deposition, and she wasn’t subpoenaed by P to be there?
D can request the court to order P to pay him reasonable expenses including attorneys’ fees incurred by attending the deposition
since W is a non-party, she must have been compelled to attend by subpoena by P asking court to issue
D wants to argue that a 3rd person was at fault. What steps must they take?
file a 3rd party demand against the 3rd person, alleging fault as the cause of P’s harm.
this allows D to present evidence at trial establishing 3rd party’s fault
incidental demands, including 3rd party demands, must not be barred by prescription at the time the main demand was filed AND must be filed within 90 days of service of main demand
How to serve registered agent?
request sheriff of parish of registered agent to personally serve the registered agent for service of process
When to request jury trial?
within 10 days of filing a pleading that raises an issue triable by jury
How to get access to a thing for discovery purposes?
serve P with a request for production of things
must set forth items to be inspected, describing each with reasonable particularity
must specify a reasonable time, place, and manner of making the inspection and performing the related acts
P would have to serve a written response to the request for production of things within 30 days of being served with the request, stating allowance or objection
How to prohibit inspection based on request for production of things?
motion for a protective order prohibiting inspection
within 30 days of being served with the request for production
Party wants to allege fault?
must plead affirmative defense in its answer
failure to plead will prohibit party from offering evidence of negligence in support of defense
what pleading should D file to have P’s claim dismissed before engaging in discovery?
motion for judgment on the pleadings (court will consider only the pleadings and consider all of D’s allegations not denied by P and all of P’s allegations as true in deciding the motion)
peremptory exception of no cause of action
How to answer interrogatories as a company?
business can specify where in its business records the answer can be found, if the burden of doing so is substantially the same for both parties
must give business records to requesting party in lieu of answering interrogatories
within 30 days of service of interrogatories
How to get a company to answer interrogatories who has refused?
file motion to compel requesting that the court order the D to answer the interrogatory
expenses associated with the motion may be awarded to the prevailing party unless the court finds that the motion was substantially justified or circumstances make the award of expenses unjust
how to get P to submit for a medical exam?
P must have a claim for personal injury damages, including alleged physical pain and suffering, and have placed his physical condition at risk
motion to compel P to submit to a physical or mental exam conducted by a medical doctor, vocational rehabilitation expert, or licensed clinical psychologist
if exam is ordered, D must deliver copy of exam report if requested by P
if P requests report, he will have waived any past or future patient-phycisian privilege pertaining to disputed conditions and will be required to send reports of any exams about the conditions to D
Subpoenaing a Witness for Deposition
if not a party, must be subpoenaed
only in parish where works or resides
serve notice of deposition on D which would be sufficient authorization for court to enter subpoena, served on W within a reasonable time
Work Product
not discoverable unless denial would cause unfair prejudice, undue hardship, or injustice
How can P add defendant?
amend petition with leave of court after answer has been served
granted by court unless it would unduly prejudice D
prescription is interrupted as to all joint and solidary obligors when original suit is filed (relation back)
when must P disclose identity of retained expert and provide expert report?
90 days before trial
when must D disclose identity of rebuttal experts and provide rebuttal expert reports?
within 30 days after P provides expert reports
form requirements for a testifying expert’s report, and what information must be included in or with the report?
report must be written and signed by expert
report must include expert’s opinions and reasons and any data on which opinions are based
report must include exhibits, expert’s qualifications, publications of previous 10 years, compensation for providing expert services, and all cases in the proceeding 4 years in which they have testified as an expert
Venue for modification of child support?
parish where person awarded support is domiciled IF the award has been registered in that parish
parish where award was rendered if not registered in the parish
court can transfer the custody or support proceeding to another court where the proceeding may have been brought
NOT MANDATORY VENUE
Nonwaivable venue?
action to annul a judgment (in parish where judgment was rendered)
successions (where decedent was domiciled –> owned immovable property –> owned movable property)
annulment of divorce (where either spouse is domiciled OR parish of last matrimonial domicile)
emancipation (where party is domiciled)
tutorship (parish of surviving parent, or where parent having custody is domiciled if parents are divorced, or where minor resides)
interdiction (where interdict is domiciled/resides)
Affidavit Requirements
competent affiant
made on personal knowledge
based on facts admissible at trial
Instructing a party not to answer an objection?
necessary to preserve a privilege
enforce a limitation on evidence imposed by the court
prevent harassing or repetitious questions
prevent questions which seek information neither admissible at trial nor reasonably calculated to lead to the discovery of admissible evidence
Writ of Distringas
use after final judgment, when defendant is hiding the object of the judgment
Deposition of a witness can be used at trial if…
witness resides more than 100 miles away/out of state
witness is dead/unavailable
Use of a Deposition of an Expert at Trial
can be used by any party for any purpose after giving opposing party notice and 10 days to object
objecting party must pay advance reasonable fees
court may overrule objection if justice requires
Time limit to answer or object to interrogatories?
30 days from date of service (15 for family cases)
Number limit of interrogatories?
35 (unless leave of court is obtained)
Time limit to answer or object to request for production of documents and things, or entry upon land?
30 days from date of service
When can a party compel a physical or mental examination?
only if the physical or mental condition of the party is at issue
exam done by a medical doctor, vocational rehabilitation expert, or licensed clinical psychologist
must deliver a copy to other parties if requested (but party then thereby waives patient-physician privilege)
Request for Release of Medical Records
party can serve on another party to sign a release
party has 30 days from service to sign or object
copy of released records should also be sent to party
How do you get a party to admit a fact or admit the genuineness of a document?
request for admission of facts or genuineness of documents?
can only be served on a PARTY
if not answered within 30 days, the fact is considered conclusively proved/genuine
if a party is forced to prove a fact denied, costs and attorney’s fees can be recovered unless the court finds that:
(1) request was objectionable
(2) admission sought was not substantially important
(3) party failing to admit reasonably believed he would prevail, or
(4) there was other good reason not to admit
work product privilege only applies to…
writings or electronically stored info of a party/his attorney in anticipation of litigation or in preparation for trial
does NOT apply to video tapes
Non-Testifying Experts
facts/opinions are only discoverable under exceptional circumstances (unless examining physician)
Exceptions to Duty to Supplement
(1) questions of identity/location of people with knowledge of discoverable matters
(2) information that renders a previous response incorrect
(3) court order or agreement of the parties
