Louisiana Civil Procedure Flashcards
Declinatory exceptions
Decline the jurisdiction of a court to hear a case.
- Insufficiency of citation
- Insufficiency of service of process
- Lis Pendens
- Improper venue
- Lack of Personal Jurisdiction
- Lack of SMJ
Execution of foreign judgments
A. Bring an ordinary proceeding and attach foreign judgment to make judgment of LA ct, OR
B: use foreign judgment act
1. File ex parte mtn. with authenticated copy of foreign judgment
- Clerk sends notice to D’s last known address.
- Judgment can be executed 30 days later
Heir is in need of money and succession is solvent. What process?
Seek interim allowance for maintenance during Administration of Succession
- Succession must be solvent
- Party requesting must be in need
- Support must be within amount eventually due.
- Ct. will publish authority to pay allowance, and if no opposition after ten days, allowance paid.
Attys signature on a pleading certifies that:
- Not being brought for an improper purpose
- Warranted by existing law, or a non frivolous extension, modification or reversal thereof
- Has or is likely to have evidentiary support
- Each denial is warranted by the facts or reasonably based on a lack of information
Eviction procedure
- written notice to vacate (5 days to comply)
- Rule to show cause to deliver premises
- If lessee fails to vacate w/in 24 hours of hearing, ct. may issue warrant directing sheriff to take possession.
No suspensive appeal allowed.
Components of a detailed succession list
- Sworn and subscribed by person filing list
- Location of all succession property
- Set FMV of each item as of the date of decedent
Peremptory challenge
Any reason
Challenge for cause
Bias or has formed an opinion about case
Writ of fiere facias (FIFA)
- Sheriff seizes property
- Sheriff notifies debtor of seizure
- Mennonite notices published
- Publish notice of sale (30 & 7 days if immovable, 10 days if movable)
- property appraised
- Sale must get at least 2/3 value or second sale - any price obtained
Garnishment Proceedings
- request writ of fifa in parish of garnishee (bank, employer)
- petition for garnishment and garnishment interrogatories
- serve petition, interrogatories on garnishee
- garnishee should respond within 15 days
- if garnishee admits having property, court orders delivery to pay debt (first 75% of earnings is exempt)
Judgment Debtor Rule
- file an ex parte mtn. for examination of judgment debtor
- serve copy on debtor to request disclosure of assets
- Court orders JD to appear not less than 5 days from service
- JD appears and questioned under oath
- Costs on JD, unless unnecessary
Revive money judgment
Prescribes after 10 years
1. File ex parte motion to revive judgment in court that rendered judgment
- Attach affidavit that original judgment has not been satisfied
102 divorce procedure
- File petition for divorce
- Wait requisite time period of separation
- Rule to show cause
- Attach sheriff’s return and affidavit of mover stating that parties have lived separate and apart for time required and wish to be divorced
End of bench trial and the other party has failed to show a right to relief. What should you file?
Motion for involuntary dismissal
After close of opponent’s case during a jury trial, you feel that they have overwhelmingly failed to carry their burden. What should you file?
Motion for directed verdict
- facts and inferences are so overwhelming in favor of the moving party
- that reasonable persons could not reach a contrary verdict”
Motion for directed verdict
- Jury Trial- At end of opponent’s case
1. facts and inferences are so overwhelming in favor of the moving party
2. that reasonable persons could not reach a contrary verdict”
Judgment notwithstanding the verdict (JNOV -judgment non obstante veredictu)
- After verdict rendered in jury trial- must file w/in 7 days of mailing of judgment
1. after considering all of the evidence in the light most favorable to the non-moving party,
- if the facts and inferences so strongly and overwhelming favor one party
- that reasonable persons could not reach a contrary result,
Interlocutory judgment
- does not determine the merits - can only take appeal if irreparable harm would result from granting the judgment
- seek supervisory writ or appellate review after trial on the merits
Partial final judgment
appealable if court designates it as a final judgment.
Must show:
- irreparable harm
- No just cause for delay
Motion for a New Trial
- any party can request
- file w/in 7 days of mailing of notice of judgment
- must have hearing to grant new trial SHALL grant -
1. clearly contrary to law and evidence,
2. new evidence discovered,
3. jury bribed or compromised
1, 2, & 3 - verified by affidavit
MAY grant - if good grounds
Standard: similar to JNOV except “the trial judge is free to evaluate the evidence without favoring either party; he may draw his own inferences and conclusions and may evaluate the credibility of the witnesses”
Nullity of judgment
Nullity of Judgment – separate law suit filed in district court; brought at any time for vices of “form or substance” :
(1) incompetent person
(2) improper service/citation
(3) no SMJ except if Δ acquiescedIf fraud or ill practice if brought within 1 year
Should be brought in same court where judgment was rendered
Devolutive Appeal
- does not suspend the effect of the judgment
- do not have to put up security
File requirements: 7 day new trial period + 60 days + possibly 10 days for special circumstances
Suspensive Appeal
- suspends the effect of the judgment
- must put up security TIMELY
File requirements: 7 day new trial period + 30 days (appeal and security due)
- time limit interrupted until security fixed AND if supervisory writ to review security
Supervisory writ
- partial final judgment
- notice intent to file writ with court and serve to opposing party
- Judge will set return date not to exceed 30 days from date of notice
- Court can respond b/f giving other party opportunity to object
When is a writ of attachment necessary?
When D:
1. conceals himself to avoid service of citation.
- converted/about to convert property to place beyond reach of his creditors
- left state permanently before judgment could be executed against him
- non-resident w/ no agent for service of process in the state
Motion for Judgment On Offer of Judgment
- 30 days or more b/f trial
- written offer to settle claims
- 10 days to respond
- If the final judgment obtained by the plaintiff- offeree is at least 25% below/above offeree must pay costs
Pre trial conference
May order a Pre-Trial Conference to consider:
- simplication of issues;
- amendments;
- material issues not controverted;
- limits on expert testimony, scheduling discovery;
- identification of witnesses, documents, exhibits
Personal jurisdiction (4 possibilities)
“legal power and authority of a court to render a personal judgment”
- Presence Within the State
- Domicile Within the State
Domicile = (1) residence and (2) concurrent intent to remain
- Consent
- Long-Arm Statute
Limitations on jurisdiction
- Minimum Contacts with the forum state such that (usually satisfied if Δ purposefully directed activities to forum state)
- maintenance of the suit does not offend traditional notions of fair play and substantial justice
Proper jurisdiction for resident person, company/insurer/LLC, partnership, foreign company, non-resident w/agent, long arm
if Δ dom./resides in LA → parish of dom./residence domestic
co./insurer/LLC → parish of registered office
partnership/unincorporated assoc. → parish of principal place of business
foreign co./LLC licensed in LA → parish of primary business office
foreign co/LLC not licensed in LA or
non-resident with no agent → parish of Π’s domicile or parish were Δ served.
nonresident with agent → parish of POBox of agent
Long-Arm - (1) parish of Π’s domicile (2) any other parish of proper venue
Cumulation of actions - Single Π v. Single Δ
allowed IF:
(1) proper jurisdiction and proper view for all actions
(2) actions mutually consistent
(3) same form of procedure
Cumulation of actions - Multiple Πs or Δs
Allowed if:
(1) community of interests b/w parties joined
(2) proper jurisdiction and proper view for all actions
(3) actions mutually consistent
(4) same form of procedure
Class action requirements
Class Action Requirements: (1) Numerosity – the class is so numerous that joinder of all members is impracticable
(2) Commonality – questions of law and fat common to the class
(3) Typical Claims or Defenses – the c and d of the representatives are typical of c or d of the class
(4) Fair and Adequate Protection of Interests – the representative parties will fairly and adequately protect the interests of the class; and
(5) Objectively Defined Class – the class may be defined objectively in terms of ascertainable criteria
Compulsory Joinder
MUST join parties if: (peremptory exception)
(1) in his absence, complete relief cannot be granted among those already parties
(2) if not there, his ability to protect his interest would be
a: impaired or
b: substantial risk of incurring multiple or inconsistent obligations
Types of service
A. personal (made when citation or process is ‘tendered’)
B. domiciliary - requirements:(1) dwelling or usual abode (2) suitable age and discretion (3) residing in the domiciliary establishment
Default judgment
Preliminary Default -
a. if Δ is properly served and
b. fails to respond within 15/30 answer period,
c. Preliminary default entered
d. Confirmed after 2 days
Answer to citation/petition for damages
Time to respond: 15 days after service of citation, or 30 days for long-arm
Form: short, concise terms of material fact (1) admit (2) deny – issue is “joined” upon denial; 1:1 denials (no general denials)(3) deny for lack of sufficient information Affirmative Defenses: must be included, or waived
Peremptory Exceptions
- result in a dismissal of the suit
(1) prescription
(2) res judicata
(3) compulsory nonjoinder
(4) no coa (no claim)
(5) no right of action (standing)
can be plead at any time prior to submission of case for decision AND the appellate court can consider peremptory exceptions on appeal if evidence is in the record
Dilatory Exceptions
- retards the progress of the action (1) prematurity
(2) nonconformity of petition
(3) vagueness or ambiguity of the petition
(4) lack of procedural capacity
(5) improper cumulation/joinder
(6) discussion
Declinatory exceptions
- to decline jurisdiction (1) insufficiency of citation (2) insufficiency of service of process (3) lis pendens (4) improper venue (5) lack of personal jurisdiction (6) lack of SMJ
Reconventional demand
D MAY file any action against PL (even unrelated);
D. MUST file action out of “same transaction or occurrence”
Cross Claim
- demand against co-party arising out of “same transaction or occurrence,” or
- relating to property that is the subject matter of the main action
Intervention
3P having an interest; can be with Π, Δ, or against both
Judgment on the pleadings
TIMING → after the answer is filed
– both parties must wait!
No evidence taken* All facts pleaded are accepted as true!
Motion for Summary Judgment
MSJ granted when evidence shows 1. no genuine issue as to material fact, and
2. the mover is entitled to judgment as a matter of law” Burden of Proof
– D. need only point to the lack of support for an essential element of Pl.’s claim.
What should be attached to a Motion for Summary Judgment
- Affidavits of
a. competent affiants
b. attesting to personal knowledge
c. that would be admissible at trial - Annex any relevant documents in support (depositions, reports, etc.)
Amended and Supplemental Pleadings
Amended and Supplemental Pleadings —
1. Π can amend w/o leave of court anytime and as many times as want b/f answer is served
- Δ can amend once w/o leave of court any time within 10 days of being served; otherwise, need leave or consent
Types of discovery
- Subpoenas - incl. SDT for records only
- Depositions
- Interrogatories
- Request for Production
- Request for admissions
- Physical or mental examination
- Request for release of medical records
Specific Personal Jurisdiction (under long arm statute)
Cause of action must arise out of:
- Transacting business in LA
- K to supply services or things in LA
- Commit a tort in LA
- Commit tort outside of LA, but injury/damages in LA
- Manufacture a product
- Immovable property or support of child
Affirmative Defenses
- Failure of consideration
- Extinguishment of an obligation
- Fraud
- Third party fault
- error or mistake
- Duress
- Estoppel
- Illegality
Reasons for judgment
Must be supplied by court 10 days after mailing of the notice of judgment
Writ of Distringas
Refusal of seller to deliver after court order
By contradictory motion:
- Writ to distrain property
- Get an order finding seller in contempt
- Judgment for damages sustained
May also seek specific performance
In forma pauperis
Ex parte motion accompanied by affidavits from 3rd parties attesting to inability to pay court costs
Emancipation
On Joint petition in parish of domicile of child/parent. The Petition must set forth:
1. Minor’s name, domicile, age and address
- Why good cause exists for emancipation
- Whether requesting limited or full emancipation
- Descriptive list of minor’s property
Prevent a continuance (witness unavailable)
disclose under oath the expected testimony of the absent witness and if the defendant admits the witness would so testify, the case can proceed.
Petition requirements (7)
- Caption
- Concise allegations in # paragraphs
- Causes of action and facts
- Name and domicile of parties
- Receipt of service
- Prayer
- Signature
Joinder Not Feasible - proceed or dismiss factors
When Joinder Not Feasible, court may … proceed or dismiss depending on following factors:
(1) extent to which judgment against the absentee will prejudice him or those already present
(2) extent to which prejudice can be lessoned or avoided by protective provisions
(3) whether judgment rendered in absence is adequate
(4) whether Π will have an adequate remedy if action is dismissed
