La. Civil Procedure Flashcards
What is juridiction?
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.
What is subject matter jurisdiciton?
The legal power and authority of a court to hear a particular class of actions or proceedings based upon the object of the demand, the amount in dispute, or the value of the right asserted. SMJ cannot be conferred by the onsent of the parties; and a judgment rendered by a court without SMJ is void.
What is the jurisdiction of parish courts?
Parish courts have concurrent jurisdiction with the district courts in cases where the amount in dispute or the value of the property involved does not exceed $20,000, with some exceptions.
What is the jurisdiction of the city courts?
City courts have concurrent jurisdiction with the district courts in cases where the amount in dispute/value of prop does not exceed $15,000, with some exceptions.
What is the jurisdiction of the justice of the peace courts?
Concurrent jurisdiction with the district courts in cases where the amount in dispute does not exteed $5,000.
Over what types of cases do the parish/city/justice of the peace courts have no jurisdiction?
Immovable proeprty; right to public office or position; assertion of civil/political rights under the constitution; claims for annulment, divorce, and incidentals; succession or interdiction proceedsings; where the state or parish is defendant; any other exemptions by laws.
What are additional limits on the city courts?
City courts have no jurisdiction over cases involving tutorship, curationship, emancipation, or partition.
What are the additiona limiations on the justice of the peace courts?
No jurisdiction over cases involving tutorship, curationship, emancipation, or partition; adoption; executory proceeding; injunction proceesing; quasi or in rem proceedings.
Can parish, city, or justice of the peace courts hold jury trials?
No.
Can a parish and city court exercise SMJ over an incidential demand when it has SMJ over the main demand?
Yes; it may exercise jurisdiction over any related incidental demand, regardless of the amount in dispute. However, when a compulsory reconventional demand exceeds the court’s jurisdiction, te court shall transfer the entire action to a court of proper jurisdiction.
What is the jurisdiction of district courts?
They have original, general jurisdiction.
What is the jurisdiction of the courts of appeal?
Appeal as of right to any of the FIVE circuit courts of appeal.
What is the juridiction of the Supreme Court of Louisiana?
Original jurisdiction over admission and disciplinary proceedings; appeals of right in constitutional or criminal death penalty cases. All other cases is by write of certiorar or discretionary authority.
What is personal jurisdiction?
The legal power of a court to render a personal judgment against a party, independent of any property owned by him.
How may a court obtain personal jurisdiction?
- Service of proceess upon defendant or his agent; 2. Service of Process upon an attorney at law; 3. Consent to jurisdiction; Long-arm jurisdiction.
When is the Secretary of State implied by law as agent for service of process for the following?
- Non-resident motor vehicle operation; 2. Non-resident watercaft operation; 3. Foreign or alien insurer.
When will the court appoint at attorney at law to represent the defendant?
On petition or ex parte written motion of the plaintiff when the defendant is: 1. A non-resident or absentee not served with process; 2. Minor or incompetent with no representative.
How does the defendant consent to personal jurisdiction?
- May submit to the court’s jurisdiction; 2. Fialure to timely file a declinatory exception for lack of personal jurisdiction.
When may a Louisiana court exercise personal jurisdiction over a non-resident? (eight)
- Specific jurisdiction–if the nonresident acts directly/by an agent as to a cause of action arising from any of the following activities: transacting business in Louisiana; contracting to supply services or things in LA; causing injury or damage by tort committed in LA; tort outside LA, but non-resdient regularly does business or dervices substantial revenue from LA; exercising real reight on ommovable property in LA; non-support of child domiciled in LA to whom support is owed and with whom the nonresident formerly resided in LA; parentage and support of child conceived by nonres while in LA; manufacturing a product or compenent if manufacture could have foreseeen it would eventually find its way into LA by its nature and marketing practices.
What is general jurisdiction?
In addition to the grounds of specific jurisdiction, a Louisiana court may exercise personal jurisdiction over a nonresident on any basis consistent with the Louisiana or U.S. Constitution.
What are the constitutional limits of long-arm personal jurisdiction?
A defendant must: 1. Have minimum contacts with the forum state; such that 2. No offense of traditional notions of fair play and substantial justice. Minimum contacts generally satisfied if defendant directed activities at forum residents.
What happens once minimum contacts has been established?
Burden shifts to Defendant to establish unfairness; e.g., inconvenience or local prejudice. Depends on burden to defendant; state’s interest in the dispute; plaintiff’s interest in obtaining relief; judicial system’s interest in efficient resolution.
What is in rem jurisdiction?
The legal power of a court to enforce a right in, to or against property having situs in Louisiana claimed or owned by a nonresident. Situs for immovable and corporeal movables is where the property is physically located.
What is quasi in rem jurisdiction?
The legal power of a court to render a money judgment agaisnt a nonresident not subject to personal jurisdiction if the action is commenced by an attachement of his property in the state. Judgment may only be executed against the attached property. Need minimum contacts for proper quasi in rem jurisdiction. Court must appoint attorney at law (curator ad hoc) to represent the nonresident D.
What is venue?
The parish where an action or proceeding may properly be brought. An obective to venue is made by timely filing a declinatroy exception of improper venue. Objection cannot be raised by court.
Where is venue proper for the following individuals?
- Domiciled in LA–parish of domicile. 2. Resided in LA, but not domiciled–parish of residence; 3. Nonresident with agent for service of process–parish of agent’s P.O. Box address; 4. Nonresident without agent–parish of plaintiff’s domicile or where service is made.
Where is venue proper for corporations and LLCs?
- Domestic to LA–parish of its registered office; 2. Foreign and licensed to do business in the state–parish of its primary business office; 3. Foreign and not licensed to do business in state–parish of plaintiff’s domicile or where service is made.
Where is venue proper for insurers?
- Domestic to LA–parish of its registered office. 2. Foreign or alien–East Baton Rouge.
Where is venue proper for partnerships and unincorporated associations?
Parish of its principal business establishment.
What is the effect of change of venue on the general rules of venue?
1Suit may be filed in the aprish for one year after the change, or in the defendant’s new domicile. Defendant can cut this off by filing a decalration of intent to change domicile.
Where is venue proper for sequestration/action to enforce mortgage or privilege?
May be brought where all or part of the property is located.
Where is venue proper for joint or solidary obligors?
Proper to one, proper to all. In a tort suit, an actiona gainst all joint or solidary obligros may be brought where plaintiff is domiciled if one off the defendants is an insurance company and venue is proper as to that company.
Where will venue be proper for tort suits?
- Where damages were sustained; 2. Where wrongful conduct occurred; 3. Where Defendant is domiciled; 4. Suit to enjoin–where wrongful conduct occurred or will occur.
Where is venue proper for custody and child support?
- To obtain custody–parish of a party or last matrimonial domicile; 2. To change custody–parish where custodial parent domiciled or custody decree rendered or where person seeking cusody is domiciled (if person awarded custody no longer in state; 3. To modify support–parish where the person awarded support is domiciled if the award has been registered if that parish, etc.; 4. To reigster support–parish where the person awarded support is domiciled. Court may transfer to another court where it could have been brought on convenience grounds.
Where is venue proper on an open account or a promissory note?
- Open account: parish where account was created or where the underlying services were performed; 2. Promissory note: Parish where the note was executed or the debtor’s domicile.
Where is venue proper for judicial bond or action against legal surety?
- Where bond filed; 2. Where principal obligor may be sued.
Where is venue proper for an insurance suit?
- Life insurance policy: parish of decedent’s death/where decedent was domiciled; 2. Health and accident policy: where insured was domiciled or where accident or illness occurred; 3. Any other policy: Where loss occurred or insured is domiciled.
Where is venue proper on an action on a contract?
May be brought in a parish where the contract was executed OR where any work or service was to be performed.
Where is venue proper for an action against a person having business office on matter over which that office had supervision?
Where office is located.
Where is venue proper relating o matters of partnership?
- Action against a partner on a partnership obligation: venue is proper where venue is proper to the partnership (means partner may be sued in a parish other than the partnership’s principal business establishment); 2. Actions for dissolution of partnership: venue is proper in the parish where the principal business establishment of the partnership is located.
Where is venue proper for an action against a domestic corporation whose charter has been revoked?
May be brought in any place it could have been brought prior to revocation.
What is the Louisiana Direct Action Statute?
Plaintiff can sue the insurer directly in Louisiana on any liability policy written or delivered in the state/providing coverage for an accident which occurred in the state. Proper venue for such direct actions are: 1. Occurrence of accident; 2. Where Action could be brought against insured/insurer; 3. Insured must also be joined as a D unless–bankrupt; can’t make service of process; claim is between children and parents; insurer is an uninsured motorist carrier; or the insured is deceased.
Where is venue proper under a long-arm statute?
Venue is proper in the parish where plaintiff is domiciled or in any parish of proper venue.
Where is venue proper for a class action?
Should be brought in the parish of proper venue as to the defendant. In action brough against class of defendants, venue is proepr as to any member of the class named as defendant.
Where is venue proper for a shareholder to bring a derivative action?
To enforce a right of a corporation, the action shall be brought in the parish of proper venue as to the corporation or unincorporated assciation.
Where is venue proper for quasi in rem action?
May be brought in the parish where the attached property is located.
Where is venue proper for actions against the state or political subdivisions?
Shall be brought in the district court where the state capitol or political subdivision is located or the district court having jurisdiction in the parish where the cause of action arises
What is the result of improper venue?
If venue is improper, the suit may be dismissed or in the interest of justice, transferred to a court of proper venue.
What is the result if venue is proper but does not concern an impartial trial?
Even if venue is proper, the case may be transferred if an impartial trial is not possible in that parish.
What is the doctrine of forum non conveniens?
Allows a court to transfer a suit where venue is proper to a parish where suit might have been brought, if necessary for the convenienc of the parties and witnesses and in the interests of justice. However, no suit brought in a parish of plaintiff’s domicile,, in a court of competenet jurisdiction, and where venue is proper, may be transferred for forum non conveniens.
What is the result of filing suit in the wrong venue for prescription purposes?
Filing suit in the wrong venue will serve to interrupt prescription as to those served if service is made within the prescriptive period.
Over what actions can venue not be waived?
- Action to annul judgment–must be brought in the trial court to annul judgment; 2. Successions–must be brought where decedent was domiciled; owned proeprty (mocable or immovable; 3. Annulment/divorce–must be brought where either spouse is domiciled or parish of last matirmonial domicile; 4. Emancipation–must be brought where a party is domiciled; 5. Tutorship–see other card; 6. Interdiction–must be brought where the interdict is domiciled or where he resides.
Where is venue mandatory for tutorship actions?
- Domiciled in LA–parish where surivivng parent is domiciled/where parent having custoday is domiciled/where minor resides. 2. Parents awarded joint custody–court of the parish where divorce was instituted/or where child resides; 3. Not domiciled in LA–parish where immovalbe or movable property of the minor is located.
What are the mandatory grounds for recusal?
A judge shall be recused: 1. A witness; 2. Judge participated in respresentation in the cause; 3. Spouse of party/attorney employed is judge’s immediatey family member; 4. Biased/prejudiced/interested in the cause to such an extent he would be unable to be fair and impartial.
What are the permissive grounds for recusal?
A judge may be recused: 1. Has been associated with attorney during the latter’s employment in the cause (didn’t participate in rep); 2. An attorney in the case represents the judge at the time of hearing; 3. Has performed a judiciala ct in the case in another court; 4. Is related to party/soouse of party within the fourth degree; related to attorney/spouse within the second degree; or a judge’s immediate family member has a substantial economic interest in the case.
What is the procedure for recusing a judge?
- Judge may be recused on own motion or any party; 2. Judge can recuse himself, or refer the motion to another judge; 3. If judge recused as witness, jduge ad hoc will continue to hear case; if judge recused for any other reason the supreme court will appoint a judge from another district to hear the case.
What is contempt?
Contempt is 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.
What is direct contempt? What are the penalties?
Direct contempt is in immediate view and presence of the corut or failure to comply with a summons or subpoena. 1. Penalty may include $100 and one day in jail; 2. Punished immediately following verbal hearing.
What is constructive contempt?
Includes willful disobedience of a court order/deceit by a party or his attorney/improper interference with a juror or witness. 1. Penalty–disobeying a TRO or injunction may get $1000 and one year in jail; 2. Punished following 48 hours notice and hearing.
What are the three types of civil actions?
Personal; real; or mixed.
What are the three kinds of procedure used in civil actions?
Actions employ iehter ordinary, summary, or executory procedure.
May a cuase of action be used as defence even if prescribed?
Yes, may be used as defense if conntected witht eh principal demand.
What is the effect of res judicata on civil actions?
A party shall assert all causes of actions arising out of the transaction or occurrence that is the subject matter of the litigation. (Exception is that divorce proceedings not required to raise claims for spousal and child support in action itself)
Can a cause of action be transmitted? Can creditors sue heirs? Does an action abate upon death of a party?
- Unless it is strictly personal, a cause of action may be transmitted to heirs and legatees. 2. Obligations do not die with you; creditors may sue heirs through succession representation. 3. An action does not abate upon the deaht of the party, unless it is a strictly personal right or obligation.
Can actions be cumulated by a party?
Actions that are of the same type may be cumulated against the same defendant as long as proper venue and jurisdiction exist.
When can a single plaintiff cumulate against a single defendant?
Plaintiff may cumulate against the same defendant two or more actions even though based on different grounds if: 1. Each action is within the court’s jurisdiction and brought in the proper venue; 2. Actions are mutually consistent and same form of procedure.
When can two or more parties be joined in the same suit as plaintiffs or defendants?
- Community of interest between the parties joined; 2. Actions within court’s jurisdiction and proper venue; 3. Actions mutually consistent and same form of procedure.
What is lis pendens?
Suits pending in more than one court on same transaction or occurrence between the same parties in the same capacities. All but the suit filed first must be dismissed, or id the defendant does not not except, the first final judgment shall be conclusive of all. Court may stay proceedigns in second pending outcome in the first.
What is abaondment?
If any stage of a proceeding passes for three years without either party taking any steps, the suit is deemed abandoned and will be dismissed. Do not need formal order, but can move ex parte to get it.
What are “steps” for the purposes of abandondment?
Taking a deposition; serving requests for production of documents or interroagtories or answers to objections are all steps. Not steps: enry or removal of an attorney or record; supporting or opposing the motion for abandonment.
How and when is abaondonment effective?
- Effective without formal order, but on ex parte motion of any party/affidavit/ the trial court shall enter a formal order of dismissal. 2. Order shall be served by the sherrif and sheriff shal execute a petition of service. 3. A motion to set aside a dismissal must be made within 30 days of the sheriff’s service of the order; 4. An appeal of an order of dismissal must be taken with 60 days of the clerk’s mailing of the order.
What are the special abandondment time periods?
- JOP courts–one year. 2. Hurricanes Katrina/Rita–five years.
What is abandonment for the purposes of a succession proceeding?
The exceptions to when an action has been abandoned are a succession proceeding which has been opened; and adminstrator or executor has been appointed; OR a testament has been probated.
When is an appeal abandoned?
An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of appellate court.
What are the prerequisitives for a class action?
One or more members of a class may sue/be sued as representative parties only if: 1. Numerosity; 2. Questions of law or fact common to the class; 3. Typtical claims or defenses; 4. Fair and adequate protection of interests; AND 5. Objectively defined class.
Once the prerequisities for a class action have been met, what are the three kickers?
- Separate action would create risk of inconsistent/dispositive in one case; 2. Party opposing class has refused to act in a manner applicable to the class as a whole; 3. Questions of law or fact common to the members predominate ocer any questions affective only individual members.
What are the factors that indicate the questions of law and fact predominating are common?
- Members interest in control; 2. Extent of previously commenced litigation; 3. Desireability of concentrating litigation; 4. Possible difficulties in managing the class action; 5. Practical ability of individuals to pursue their claims; 6. Balance between the relief demanded and the costs and burdens of class litigation.
Can certification be obtained based on individual members’ proff?
No, a class action shall not be certified for the purpose of adjudicating claims or defenses dependent on their resolution on proof individual to a member of the class..
What is the time allowed for making a motion to certify a class?
Motion to certify must be made within 90 days after service of the initial pleading on all adverse parties. Failure to make the motion allows any adverse party to file a motice of the failure to move for certification.
Does the court need to provide written findings of fact and reasons for its ruling on the motion for class certification?
Yes, if a request is made within ten days of notice of the order of judgment. Suspensive or devolutive appeal may be taken as a matter of right.
What is the requirement for notification to members of a class action?
The best notice practicable is required to be given to all class members, including individual notice to all members who can be identified through reasonable effort. Need to allow time delay during which individual class members can opt out.
Can a certified class action be dismissed or compromised without the approval of the court?
A certified class action shall not be dismissed or compromised without the approval of the court exercising jurisdiction over the class. All parties to the action, including class members, shall be permitted an opportunity to be heard.
Does the court retain jurisdiction over the creation of the settlement fund?
If the compromise provides for the creation of a settlement fund to be disbursed to/among class members, the court shall retain jurisdiction over the compromise.
Is liberative prescription suspended or interrupted upon the filing of the petition?
Liberative prescription is suspended on the filing of the petition as to all class members. Prescription began to run again 30 days from any action on behalf of class members who are excluded/opt out/class has been dismissed.
What is the effect of judgment in a class action?
A judgment on the merits concludes all members of the class, whether joined in the action or not, if the members who were joined fairly insured adequate rep of all members of the class.
What are derivative actions?
May be brought to enforce a right by a shareholder/partner/or member of a corporation or unincorporated association which refuses to enforce its own right.
Can the derivative action be maintained as a class action?
- May be maintained as class action when joinder of all parties is impracticable. 2. One or more members of the class who will fairly ensure the adequate representation of all members may sue or be sued ina derivative class action on behalf of all members.
What must the court consider before any other proceedings in a derivative action?
Court shall consider if the action may be proeprly maintained as a class action before any further proceedings. 1. If proper, class shall be certified; 2. If not proper, then no certification but all shareholders/partners/members who refuse or fail to join as plaintiffs in the action shall be joined as defendants.
What are the five elements of a proper petition in a derivative action?
- Proper party allegation–that plaintiff was shareholder/partner/member at the time of occurrence/atransactions; 2. Allegations are particular about plaintiff’s efforts to secure enforcement of the right; 3. Joins the corporation as defendant and the obligor against whom the obligation is sought to be enforced; 4. Includes paryer for judgment in favor of the corporation and against the obligor; 5. Be verified by he affidavit of the plaintiff or his counsel.
How is time computed under the La Civ Pro Code?
In all matters under the Code the date of the act/event/or default after which the period begins to run is not counted, and the last day of the period is counted, unless it is a legal holiday.
What is joinder?
Joinder is compulsory; cumulation is permissive. A person shall be joined as a party in the action when: 1. In his absence, complete relief cannot be accorded among the parties; 2. He claims an interest relating to the subject matter of the action, and adjudication would impair or impede hsi ability to protect that interest; substantial risk of leaving those already joined with multiple obligations.
What are the factors to consider whether to proceed when joinder is unavailable?
- Extent of prejudice to those already joined in the action; 2. Extent to which prejudice can be lessened or avoided; 3. Whether judgment rendered in the person’s absence will be adequate; 4. Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
What is required for the capacity to sue?
- An actual interest in the ligitation is required to be a proper plaintiff.
Which persons do not have the capacity to sue?
- Unemancipated minors do not have the capacity to sue and the father (or mother if father is incompetent) must bring suit. 2. Mental incompetents do not have the capacity to sue, but the defendant must object. 3. Interdicts–curator must bring suit for an interdict unless the suit is brought to end the interdiction; 4. Succession representative–proper plainitff in a succession proceeding. Heirs and legatees need not be made parties.
Who is the proper plaintiff in a community property claim?
Either spouse, during the existence of the community, is the proper party plaintiff to sue to enforce a community claim.
What are the proper plaintiffs when doing business under a trade name; an unincorporated assoication; or corporations and partnerships; or pledgee?
- DBA–plaintiff must bring suit in his own name; 2. Officers of an unincorporated association must bring suit for the association; 3. Corporations and partnerships must sue in their own name, except when there are involved in a liquidation, in which case the receiver is the proper party plaintiff; 4. Pledgee of a right is the proper plaintiff to sue to enforce the pledged right.
Who is the proper plaintiff in subrogation action?
If the subrogation is partial, both the subroger and the subogee must sue; if the subrogation of such right is total, the subrogee alone must sue. Same rule for assignees.
What rules apply for proper party defendants?
Generally, same rule applies for parties plaintiffs; remember the implications of the Louisiana Direct Action Statute.
Whos is the proper defendant in suits against unemancipated minors?
- The father; if he is mentally incompetent, the mother. 2. The court-appointed attorney is the proper defendant if the child is in custody of DSS.
Does the partnership also need to be sued as a defendant if the partner is sued personally?
Yes, if the partner is sued personally on a partnership obligation.
Who is the proper defendant when suing an unincorporated association?
An unincorporated associated has capacity to be sued in its own name and its members may be sued jointly on an obligation of the association.
When shall a court appoint an attorney to represent the defendant? (assuming jurisdiction)
- Nonreisdent or absentee who has not been served; 2. Unemancipated minor/mental incompetent without a legal representative; 3. Deceased and no succession representative has been appointed. Attorney must prevent a default from being taken.
Can a party be substituted upon the death of another party?
His legal successor may have himself substituted on ex parte motion. Legal successors mean: 1. Designated survivors (persons who may bring a survival action); 2. Otherwise, the succession reps or heirs or legatees.
Can another party move for substitution? What is the failure to substitute?
Yes on ex parte motion. May result in dismissal of plaintiff’s case or appointment of an attorney to represent legal successor to defendant.
What are the time limits for substitution?
- If name and address of the successor is known and the successor is a resident, substitution must occur within thirty days of the summons; 2. If the name and addy is known, but successor is a nonresident, substitution must occur within 60 days from receipt of summons; 3. If successor is unknown, the summors must be published in two publications not less than 15 dats apart in a newspaper published where the suit is pending and substitution must occur within 60 days of the first publication.
How is litigation commenced in ordinary proceedings?
Louisian requires fact pleading, and thus the facts pleaded in a petition must set forth a cause of action with particularity. Judgment may grant relief even if not prayed for in the pleading and both the trial and appellate court may render any judgment that is just/legal/proper. Note: allegations of fraud/mistake must be pleaded with particularity.
When is a petition filed?
A petiton (or any pleading) is filed when it is faxed to and then received by the clerk (transmits receipt) and if the original signed pleading and fees are frowarded to the clerk within five legal days thereafter. Forwarded if sent within five days, even if not received by the clerk until the sixth day.
What are the seven elements required in a petition?
- Caption; 2. Concise allegations in numbered paragraphs; 3. Signature; 4. Name and domicile of all parties; 5. All causes of actions and material facts of the subject matter of the litigation; 6. Designate an address for receipt of service; 7. Conclude with a prayer for judgment.
What does an attorney’s signature on a pleading indicate?
The he has read it and to the best of his knowledge, information and belief formed after a reasonable inquiry 1. Not being used for improper purpse/harass/delay/increase costs; 2. Is warranted by the existing law/by a nonfrivolous argument for the extension, modification or reversla of existing law; 3. Likely to have evidentiary support; 4. Each defnial is warranted by the evidence or reasonably based on lack of information or belief. Court may impose sanctions for violation.
Should a specific moneyary amount be pled in a petition?
No specific monetary amount may be included in allegations or prayer in an original, amended, or incidental defamand in a tort suit. Allega that claim exceeds or is less than the required amount. 1. A motion to strike is the appropriate remedy for improperly requesting a specific monetary amount of damages. Does not apply to conventional obligations/prom notes/open accounts/alimony or child support–amoutn is reasonably objective.
What are the mechanics of service?
Citation and service thereof are essential in all civil actions except summary and executory proceedings and divorce actions. 1. Defendant may execute a written waiver; 2. Service must be on all named defendants within 90 days of the commencement of the action. When a supplemental pleading is filed naming additional defendants, service of a citation shall be requested within 90 days.
What determines the effective date for request of service?
When made by mail, it must actually be received by the clerk within 90 days. In other words, the date of receipt, not the date of mailing, determines whether there was a timely request for service.
What are the two types of service?
- Personal–made by sheriff, or, if he fails, after 10 days and diligent effort, by a private person appointed by the court. In serving noice of a summary proceeding (need for speed), the corut can appoint a private perosn upon motion without waiting for sheriff. 2. Domicilary–made by leaving the process at the dwelling or usual place of abode of the defendant, with a person of suitable age and discretion who resides in the domicilary establishment.
How is service made on corporations?
Personal service on its registered agent, or, if none, on any officer, director, or employee of suitable age and discretion where the corporation regulary conducts business; failing that, after certifying there was a diligent effort to serve, upon the secretary of state. Serve a bank on its president/cashier/secretary.
How is long-arm service made?
Mailing the citation/petition by certified or registered mail or actual delivery to the defendant.
How is service made on non-resident motorists?
Service is made on the Secretary of State and mailing notice of service to th defendant, certified or registered mial, return receipt requested, to the address shown in the accident report.
How is service made on partnerships?
Personal service is made on a partner/partnership by personal service on a general partner; failing that, on any employee.
How is service made on an unincorporated association or a foreign/alien insurer?
- Unincorporated association–personal service on an agent/managing official/or, failing that, any member; 2. Foreign/alien insurer–serve Secretary of State.
Hos is service made on a representaive?
If a court has appointed a representative for a person, that person is served by personal/domicilary service on the representative. When service is proper on a client’s attorney, service may be made on the attorney’s secretary in the attorney’s office.
How is service made on a non-party physician or a LLC?
- Non-party doc–by personal service on any clerical employee of the doctro; 2. LLC–personal service on an agent; failing that; personal service on any mager; or, if nont; any member; or personal service on any employee of suitable age or discretion where business in conducted; or, long-arm service, if applicable.
What must be filed to prove service?
After service is accomplished, an affidavit (sheriff’s return) must be filed to prove the service. A default judmgnet may not be entered until 30 days after filing sheriff’s return under long arm statute, whereas if the defendant fails to respond, default judgment is entered 15 days after sheriff’s service of process. Sheriff’s return is considered prima facie correct.
What are the required contents of process?
- Certified copy of the petition and citation. 2. Citation must: a. be signed by the clerk of court; b. contain the date of issuance; c. title of the action; d. name of the person to whom it is addressed; e. title and location of the court issuing the process; f. a statement of demand that the defendant make an appearance by filing pleadings, etc., within the specified time.
How is service made of a pleading that requires no appearance or answer?
- Mailing; 2. Hand delivering; 3. Sending by electronic means the pleading to the opponent or the opponent’s attorney of record. A certificate of service mustbe filed inoto the record.
How is service made of a pleading that does require an appearance or answer?
- Must be served by the sheriff upon the opponent, their attorney of record, or the clerk of court in the absence of an attorney of record or known address of the opponent. Personal service upon the partner/office associate of the opponent’s attorney of record is valid service. If a pleading or order sets a court date, then service must be by registered or certified mail.
When may defualt judgment be entered against the defendant, and what are the time limits?
Default judgment may be entered against the defendant if he fails to respond timely. 1. Service within the state–15 days from the service of the petition where service effected within the state; 10 days for city or parish courts. 2. When long-arm statute is used–30 days from filing of affidavit regarding service of petition where the long-arm statute has been used to gain personal jurisdiction.
What is the procedure for entering a default judgment?
Once the applicable time period elapses, plaintiff has a preliminary default entered in the minutes of the record. 1. After two days exclusive of holidays, the plaintiff may appear and confirm the default by presenting a prima facie case. A default judgment is then entered; it is a final judgment.
What can be presented during a hearing for entering a default judgment?
- In suits on open account, NSF checks/prom notes/negot. Instruments are submitted with affidavit of correctness; 2. Conventional and delictual obligations, affidavit proof with exhibits can also be used unless the judge orders oral testimony. 3. In personal injury cases, doctor’s narrative may be used in lieu of testimony; 4. For divorce, no hearing required unless court orders.
Is preliminary default required in city or parish courts?
No, if defendant fails to answer or respond within 10 days, default is confimed on the eleventh day.
How does one give notice to defendant?
- Personal service–notice of default must be mailed by clerk of court to personal service address/last known address; 2. Domicilary service–notice of default must be served by personal/domicilary service; 3. Divorce–no notice of signing of defalut judgment need to be sent to defendant who acknowledges the receipt of petition by affdavit.
When is notice of preliminary default required?
- Notice of preliminary default must be sent by certified mail to counsel of record for defendant, or, if none, to defendant seven days before confirmation of default if defendant made appearance of record in the case. 2. Plaintiff must send a certified copy of the prelim default to the state’s agent for service of process by registered/certified mail and file an affidavit in the record stating date of mailing. No answer is filed 15 dats following receipt of notice, prelim default can be confirmed.
How long does a defendant have to answer?
- Defendant as 15 or 30 (under long arm statute) to file his answer in district court (10 days in city or parish court). The state has 30 days to answer. 2. If citation is served through secretary of state, all defendants have 15 days.
How long does a defendant have to answer when an exception is filed?
If an exception is filed prior to the answer, then an answer is not required until 10 days after the exception is overruled or referred to the merits, or if the exception is sustained, ten days after the amended petition.
What are the contents of the answer?
The answer either admits or denies the allegations of the plaintiff contained in each paragraph of the petition and all allegations not denied (except as to damages) are deemed admitted. Can also deny by stating that he lacks knowledge/infomration sufficient to form a belief in the truth of the allegation. General denials are not used.
What affirmative defenses need to be used in the answer?
- Failure of consideration; mitigation of damages; negligence or fault of the plaintiff and others; duress; error or mistake; estoppel; extinguishment of obligation in any manner; illegality; and fraud must be raised in the answer.
What are the three types of exceptions?
- Declinatory; 2. Dilatory; 3. Peremptory.
What is a declinatory exception?
- This means that the exception declines the jurisdiction of the court. 2. Can be raised on the following grounds: insufficiency of the citation; insufficiency of service of process; lis pendens; improper venue; lack of personal or subjet matter jurisdiction.
What is the effect of failing to raise declinatory exceptions?
Objections which may be raised through a declinatory exception, except lack of subject matter jurisdiction and non-waivable status venue, are wavied unless pleaded. Do not need to plead in any particular order.
What are dilatory exceptions?
An exception interposed to delay. The grounds for a dilatory exception are: prematurity; want of amicable demand; unauthroized use of summary proceeding; nonconformity with the formalities of the petition; vaugeness/ambiguity in the petition; lack of procedural capacity; improper cumulation of actions; discussion.
What is the effect of not raising dilatory exceptions?
All dilatory exceptions must be made timely, and in one motion or they are deemd waived.
What is a peremptory exception?
An exception wich it granted will result in dismissal of the suit. Grounds: prescription; peremption; res judicata; nonjoinder of a party; no cause of action; no right of action/interest of plaintiff to institute suit; discharge in bankruptcy. Prescription must be affirmatively alleged.
Can a court raise a peremptory exception on its own?
Yes, either at the trial or appellate level, may recognize other peremptory exceptions and dismiss the case.
What is res judicata?
A valid and final judgment is conclusive between the same parties; 1. In favor of plainitff–all causes of action are extinguished and merged in the judgment; 2. In favor of defendant–all causes of actions are extinguished and judgment bars a subseuent action action in those causes of action; 3. In any event, judgment is conclusive in any subsequent action between them.
What are exceptions to res judicata?
- Exceptional circumstances; 2. First action dismissed without prejudice; 3. Judgment reserved the right of the plaintiff to bring another action.
What is the effect of preclusion by judgment?
A party shall assert all causes of actions arising out of the transaction or occurrence that is the subject matter of the litigation. (Exception is that divorce proceedings not required to raise claims for spousal and child support in action itself)
What is the time for pleading exceptions?
- Declinatory and dilatory–must be raised prior to or in the answer or prior to confirmation of a default judgment. When both exceptions are pleaded, they must be filed at the same time. 2. Peremptory–May be pleaded at any time in either trial or appellate court prior to submission of the case for decision. Appellate court may consider if proof of the objection appears of record.
What happens if peremptory exception if filed after answer but before trial?
It shall be tried and disposed of either in advance of or on the trial of the case.
What is a peremptory exception is filed after trial?
The court may rule at any time unless the party against whom it is pleaded desires and is entitled to introduce evidence thereone.
When may an appellate court consider peremptories?
The appellate court may consider peremptories filed before the case was submitted and may remand for trial of exception of prescription.
Can all exceptions be pled simulatenously?
Yes. When any of the three exceptions are pleaded before ot with the answer, they SHALL be tried and decided in advance of the case.
What evidence may be used to support exceptions?
- Declinatory and dilatory–evidence may be introduced to support or controvery any of the objections pledaded when the grounds thereof do not appear from the petition/citation/return thereon. 2. Peremptory–if pleaded at or prior to the trial, evidence may be introduced to support or controvery any of the objection pleaded, when the grounds thereof do not appear from the petition.
What happens if plaintiff introduces evidence in opposition to an exception after trial, but prior to submission?
Plaintiff may do so, but defendant may only offer evidence to rebut plaintiff’s evidence. No evidence may be offered at any time to support/controvery an exception of no cause of action.
What is the result of sustaining a declinatory exception?
If possible, amend the pleadings or transfer the case; depending on the grounds; if failure to timely request service is sustained, court may dismiss/order that service be effected within a specified time.
What is the result of sustaining a dilatory exception?
If want of amicable demand is sustained, impose court costs on plaintiff; if other grounds sustained, amend the pleadings; or, if plaintiff fails to comply, dismiss the action, claim, demand, issue or theory subject to the exception.
What is the result of sustaining a peremptory exception?
When a peremptory exception is sustained, unless the ground can be cured through amendment or plaintiff fails to comply, the action/demand/issue/or theory will be dismissed.
What is a motion for security for costs?
Defendant by ex parte motion may require plaintiff to give bond/other security in amount set by court, and proceedings stop until security is finished.
What are incidental demands?
May be filed prior to or at the same time the answer is filed; leave of court is required to file an incidental demand after answer to the main demand is filed. An answer must be filed to an incidental demand, just as if it were an original petition.
When will a court have jurisdiction over an incidental demand? Where is venue proper?
If the court woul dhave valid jurisdiction over the incidental demand were it filed separately, it will have jurisdiction over the incidental action. Venue proper to the primary demand will be proper to the incidental demand. Defendant to incidental may only object to venue if it is improper as to principal demand. Intervenotr may not object to venue.
What happens if the primary claim is dismissed?
This will not result in dismissal of the incidental demand.
Does a person lose his right of action if he fails to assert it in an incidental demand?
No, except when: 1. Compulsory reconventional demand; 2. A defendant or defendant in reconvention will lose his right against a third person if the third person can prove that he had meands of defeating the action which were not used because the defendant did not join him or neglected to apprise him that suit had been brought.
What is the jurisdiction of parish and city courts over incidental demands?
If they have jurisdiction over the main demand it may exercise SMJ over any related incidental demand regardless of amount except that when a compulsory reconventional demand exceeds jurisdiction, the court shall transfer the action to the district court.
What are the types of incidental demands?
- Reconventional demand; 2. Cross claim; 3. Internetion; 4. Third party demand; 5. Prescription.
