Louisiana Procedure Flashcards
Do parish and city courts have an amount in controversy requirement?
Parish courts: have concurrent jurisdiction with the district courts in cases where the amount in controversy doesn’t exceed $20k.
City Courts: have concurrent jurisdiction with the district courts in cases where the amount in controversy doesn’t exceed $15k. When a parish or city court has SMJ over the main demand, it may exercise jurisdiction over any related incidental demand, regardless of the AIC.
BUT, when a compulsory reconventional (arises out of the same transaction or occurrence) demand exceeds the court’s jurisdiction, the court must transfer the entire action to a court of proper jurisdiction.
In what matters do parish, city, and justice of the peace courts have no jurisdiction:
1) A case involving title to IMMOVABLE PROPERTY
2) case in which the plaintiff asserts civil or political rights under the federal or state constitutions
3) a claim for annulment of marriage, divorce, separation of property, or alimony
4) A case in which the state, parish or other political corporation is a defendant
Other matters that our lecturer didn’t highlight: a case involving the right to public office or position; a succession, interdiction, habeas corpus proceeding; any other proceeding excepted from the jurisdiction of the courts by law.
What are the requirements for a jury trial in parish, city, or justice of the peace courts?
There are no jury trials in parish, city, or justice of the peace courts?
When are you entitled to an appeal of parish and city verdicts?
The code of civil procedure permits appeal as of right in any matter to the appropriate circuit court of appeal.
In what ways can the court obtain personal jurisdiction over a party?
Service of process on the defendant or his agent for service of process: agents for service of process may be expressly designated by the defendant or impliedly appointed by law to receive process (secretary of state for nonresident motor vehicle operators)
Consent to jurisdiction: defendant may submit to the court’s jurisdiction (filing an answer) or do so by failure to file a declinatory exception of lack of personal jurisdiction.
Long arm jurisdiction: long arm statutes authorize personal jurisdiction over nonresidents based on certain acts or omissions in the state.
When can the secretary of state be appointed as an agent for service of process?
The secretary of state is impliedly appointed by law as agent for service of process for:
1) non-resident motor vehicle operators
2) non resident operators of watercraft in LA
3) foreign or alien insurers transacting insurance business in LA without a certificate of authority.
When does the Louisiana long-arm statute authorize personal jurisdiction over nonresidents?
A LA court may exercise PJ (specific) over a nonresident who acts directly or by an agent as to a cause of action arising from any of the following activities:
1) transacting business in LA
2) contracting to supply services or things in LA
3) causing injury or damages by an offense or quasi-offense committed through an act or omission
4) Causing injury or damage in LA by an act (or omission) outside LA if the nonresident regularly does business in LA, engages in any other persistent course of conduct in LA, or derives substantial revenue from goods used or consumed or services rendered in LA;
5) Manufacturing a product or component thereof which caused damage or injury in LA
Other less important ones: having an interest or real right on immovable property in LA; nonsupport of a child, parent, spouse domiciled in LA with to whom an obligation of support is owed and with whom the nonresident formerly resided; support of a child who was conceived by the nonresident while in LA.
CATCHALL PROVISION: LA may exercise personal jurisdiction over a non resident on any basis consistent with the LA or US constitutions.
What are the constitutional limitations of long arm PJ?
La may exercise PJ over a nonresident on any basis consistent with the LA or US constitutions. This requires that the defendant have minimum contacts with the forum state such that maintenance of the suit doesn’t offend traditional notions of fair play and substantial justice. The same test is use whether the case involves specific or general PJ.
MINIMUM CONTACTS satisfied if the defendant has purposefully directed activities at the forum residents.
Then look to the fairness factors: burden on the defendant; state’s s interest in the dispute; the plaintiff’s interest in obtaining relief; the judicial system’s interest in efficient resolution; and the state’s interest in substantive social policies.
In rem jurisdiction:
In rem jurisdiction is the legal power of a court to enforce a right in, to, or against property having a situs in LA , claimed or owned by a nonresident.
Situs of incorporeal movables, such as negotiable instruments, is where the instrument is located.
What does venue refer to?
Venue refers to the parish where an action or proceeding may properly be brought.
Most venue rules are permissive–waived if not raised prior to making a general appearance or confirmation of a default.
What is the proper venue for an individual?
1) Domiciled: parish of domicile. EXCEPTION: a suit may be filed in the parish of old domicile for one year after the change domicile, or in defendant’s new domicile.
2) Resides, but not domiciled: parish of residence
3) Nonresident with agent for service of process: parish of agent’s PO BOX
4) Nonresident without agent for service of process: parish of plaintiff’s domicile or where service is made.
What is the proper venue for corporations and limited liability companies?
1) Domestic: parish of its registered office
2) foreign and licensed to do business in the state: parish of its principle business establishment as designated in application to do business, or, of no designation, parish of PPB.
3) foreign and not licensed to do business in the state: parish of plaintiff’s domicile or where service is made.
What is the domicile of a natural person?
Place of his habitual residence. A natural person may reside in several places, but can’t have more than one domicile.
When no habitual residence, any place of residence may be one’s domicile at the option of the persons whose interest are affected thereby.
Where is venue proper with joint or solidary obligors?
The parish where venue is proper as to any one of joint or solidary obligors will be proper to all. In a tort suit, an action against all joint or solidary obligors may be brought where the plaintiff is domiciled if one of the defendants is an insurance company.
Where is venue proper for tort suits?
For tort suits venue is proper in the parish where:
1) the damages were sustained;
2) the wrongful conduct occurred; or
3) the defendant is domiciled.
What are the exceptions to the general rules of venue?
1) Joint or solidary obligors: proper venue for any one of the joint or solidary obligors is proper for all
2) Change of domicile: venue in old domicile for up to one year, in addition to the new domicile
3) tort suits: where the damages were sustained, wrongful conduct occurred, or where the defendant is domiciled.
4) suits to enjoin wrongful conduct: venue proper in the parish where wrongful conduct occurred or may occur.
5) custody and child support: obtain custody–parish of matrimonial domicile; change custody–parish where parent is domiciled; modify child support–parish where the person awarded support is domiciled; to register support the parish where the person awarded support is domiciled.
6) an action on an open account or promissory note: parish where account was created or where the underlying services were performed; where the note was executed or debtor’s domicile
7) insurance suits: INSURANCE POLICIES–parish where insured is domiciled or where the accident occurred; actions on other insurance policies (uninsured motorist policy) brought in the parish where the loss occurred or the insured is domiciled. life insurance policy–parish of decedent’s death, domicile, or where any beneficiary is domiciled.
Where is venue when defendant changes domicile?
2) Change of domicile: venue in old domicile for up to one year, in addition to the new domicile
Where is venue for joint and solidary obligors?
1) Joint or solidary obligors: proper venue for any one of the joint or solidary obligors is proper for all
Where is venue for tort suits?
3) tort suits: where the damages were sustained, wrongful conduct occurred, or where the defendant is domiciled.
Where is venue for suits to enjoin wrongful conduct?
4) suits to enjoin wrongful conduct: venue proper in the parish where wrongful conduct occurred or may occur.
Where is venue in custody and child support cases?
5) custody and child support: obtain custody–parish of matrimonial domicile; change custody–parish where parent is domiciled; modify child support–parish where the person awarded support is domiciled; to register support the parish where the person awarded support is domiciled.
Where does venue lie for cases involving insurance policies?
7) insurance suits: INSURANCE POLICIES–parish where insured is domiciled or where the accident occurred; actions on other insurance policies (uninsured motorist policy) brought in the parish where the loss occurred or the insured is domiciled. life insurance policy–parish of decedent’s death, domicile, or where any beneficiary is domiciled.
Where is venue for actions on a contract?
Brought where the contract was executed, signed, or where any work or service was, or was to be, performed.
Where does venue lie for an action against a person having business office on a matter over which that office had supervision?
Where the office is located?
Where does venue lie for suits involving immovables
Where the immovable is located or where defendant is domiciled. This includes an action arising from breach of lease of immovable property, enforcing of the lessor’s privilege, and partition. A notice of lis pendens should be filed.
How can a plaintiff sue the insurer directly?
Louisiana direct action statute: plaintiff can sue the insurer directly in LA on any liability policy written or delivered in the state or providing coverage for an accident which occurred in the state.
What is the proper venue for suits involving the LA direct action statute?
1) Where the accident occurred
2) where action could be brought against insured or insurer
Under what circumstances should the insured be enjoined in suits according to the LA Direct Action statute?
Insured must be joined as a defendant, unless:
1) in bankruptcy or insolvent
2) service of process cannot be made on the insured
3) the claim is between children and their parents or married people
4) the insurer is an uninsured motorist carrier 5) the insured is deceased
Where is venue proper for general jurisdiction under the LAS?
Where the plaintiff is domiciled or in any parish of proper venue.
Where does venue lie for class actions?
Venue proper as to any member of the class named as a defendant.
Where does venue lie for a derivative action of a shareholder, partner, or member?
Parish of proper venue as to the corporation or unincorporated association.
When should there be a change in venue of a suit?
1) if venue is improper, the suit may be dismissed or, in the interest of justice, transferred to a court of proper venue.
2) Venue proper but concerns of no impartial trial, the suit may be transferred to a parish where no party is domiciled
3) according to the forum non conveniens doctrine
Under what circumstances should a court transfer a case to a different parish under forum non conveniens?
Court can transfer if a case “if necessary for the convenience of the parties and in the interest of justice.”
If there is a more appropriate forum out of the state, the court can dismiss the LA suit on forum non conveniens grounds.
What is the effect on prescription of filing suit in in the wrong venue?
Filing suit in the wrong venue WILL serve to interrupt prescription of service is made within the prescriptive period.
Can venue always be waived?
No. In certain cases, venue is jurisdictional, and cannot be waived prior to the institution of the action.
In what instances is there nonwaivable venue?
1) Action to annul judgement
2) succession
3) annulment or divorce
4) emancipation
5) tutorship
6) interdiction
Where is venue for an action to annul judgment?
Parish of trial court that rendered judgmnt
Where is venue for succession?
Where decedent was domiciled, if not in LA, where decedent owned immovable property, if neither, where decedent owned movable property
Where is venue for a tutorship action?
Domiciled in LA, where surviving parent is domiciled, where parent having custody is domiciled, or where the minor resides
If parents have joint custody: parish where divorce was instituted
Not domiciled in LA: parish where immovable property of the minor is situated, if not, where movable property is located.
Where is venue for interdiction?
Where the interdict is domiciled, if not domiciled, where he resides, if not resides, where he can be found.
When must a judge be recused?
Witness employed as an attorney in the cause of action Is the spouse, parent, child, or immediate family member of a party or attorney employed in the cause.
When may a judge be recused?
- Judge is associated with an attorney during attorney’s employment in the cause;
- attorney in a case represents the judge at the time of the hearing;
- Judge has performed a judicial act in the case in another court;
- or When the judge is more distantly related to the party
What is contempt?
Act or omission tending to interfere with the orderly administration of judtice or impair the dignity of the court or respect for its authority.
When man an individual be liable for direct contempt?
Immediate view and present of the court of the failure to comply with a summons or subpoena.
What is the punishment for direct contempt?
$100 and a day in jail.
What is constructive contempt?
Wilful disobedience of a court order, deceit by a party or his attorney, and improper interference with a juror or witness.
What is the penalty for constructive contempt?
The penalty for disobeying a TRO or injunction may result in $1k fine and 6 months in jail.
THe court may imprison a person until he performs.
Punished following 48 hours notice and hearing.
Under what circumstances may a cause of action be used as a defense?
A cause of action may be used as a defense, even if it prescribed if it is connected with the principal demand.
EXCEPTION: redhibition in connection with enforcement of a negotiable instrument or cause of action under the FCPA.
Res judicata
A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.
Exception: parties in a divorce action not required to raise claims for spousal support and child support in the divorce action.
When may a single plaintiff culminate causes of action against a single defendant?
1) Court of proper jurisdiction and venue
2) culminated actions are mutually consistent and employ the same form of procedure. If language is framed in the alternative, then claims aren’t inconsistent.
When may to or more parties be joined in the same suit as plaintiffs or defendants?
1) Community of interest (same legal and factual issues)
2) Court has proper jurisdiction and venue
3) all culminated actions are mutually consistent and employ the same form of procedure.
What are the requirements for a Declinatory Exception of Lis Pendens?
- When suit brought in LA court while another is pending in federal court
- Same transaction or occurrence
- between same parties in same capacities
- On motion of party or court on its own motions
- Ct. may stay all proceedings in 2nd suit until 1st final judgment or discontinued
Requirements for abandonment of a court proceeding?
Abandonment – suit deemed abandoned when
- No step in prosecution or defense
- 3 years
- Effective w/out formal order. Could file ex parte motion to dismiss on grounds of abandonment and court enters formal order of dismissal
What are steps sufficient to defeat abandonment?
Steps: parties must make steps towards substantive things. Taking a deposition, service requires for production of documents or rogs, answers or objections thereto are steps. Not steps: ministerial; entry or removal of an attorney, supporting/opposing a motion to dismiss.
What are the requirements for a class action?
a. Numerosity – the class is so numerous that joinder of all members is impracticable
b. Commonality – questions of law and fat common to the class
c. Typical Claims or Defenses – the c and d of the representatives are typical of c or d of the class
d. Fair and Adequate Protection of Interests – the representative parties will fairly and adequately protect the interests of the class; and
e. Objectively Defined Class - in terms of ascertainable criteria, such that court may determine constituency of class for purposes of conclusiveness of any judgment that may be rendered
When must a motion to certify a class be made?
Within 90 days after service of the initial pleading on all adverse parties.
What notice is required for class members?
Best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.
What is required for a dismissal or compromise of a class action?
No dismissal or compromise without the approval of the court exercising jurisdiction over the class.
The court shall determine whether the proposed compromise is fair, reasonable, and adequate for the class.
What should the court do when there are two or more class actions pending in more than one court on the same transaction of the occurrence with the same parties?
Transferred to the district court where the transaction or occurrence happened.
If multiple related transactions, defendant may have all suits transferred to the DC where the first suit was brought.
What are the requirements for a derivative action petition?
proper party allegation, allegations that Π attempted to get the managers to enforce the right (demand/demand futiliy); join as Δ the corp., prayer, verified by affidavit.
Who can bring a derivative action?
Plaintiff was a shareholder, partner, or member at the time of the occurrence or transaction of which he complains.
What is compulsory joinder?
When a person must be joined as a party in the action?
When is joinder compulsory?
- In his absence, complete relief cannot be granted among those already parties
- If not there, his ability to protect his interest would be impaired or other party would be at substantial risk of incurring multiple or inconsistent obligations
What should the court do if a person who must be joined under compulsory joinder cannot be made a party?
The court must determine whether it should be dismissed.
What factors does a court consider to determine whether an action should continue despite the absence of a person who must be compulsorily joined?
a. extent to which judgment against the absentee will prejudice him or those already present
b. extent to which prejudice can be lessened or avoided by protective provisions
c. whether judgment rendered in absence is adequate
d. whether Π will have an adequate remedy if action is dismissed
Who brings an action on behalf of an unemancipated minor?
Unemancipated minors don’t have the capacity to sue.
Father, or the mother if the father is incompetent or absent, must bring the suit.
Mother may represent child if father refuses to do so with the permission of the court.
When is litigation initiated?
by the filing of a petition.
What do louisiana pleadings require?
Fact pleading. Thus, the facts must set forth a cause of action with particularity. Judgement may grant relief even if not prayed for in the pleading, and both trial and appellate courts may render judgment that is just, legal, and proper.
What does an attorney’s signature certify?
Attorney’s signature signifies that:
1) it is not being used for any improper purpose such has to harass, delay or increase costs
2) that it is warranted by existing law or by a nonfrivolous argument for the extension, modifiation, or reversal of existing law;
3) it has or is likely to have (after investigation or discovery)evidentiary support;
4) and each denial is warranted by the evidene or reasonably based on lak of information or belief
With what particularity do you have to plead a damages amount?
No specific monetary amount may be included in allegations or in prayer in an original, amended, or incidental demand in a tort suit.
BUT, this doesn’t apply to conventional obligations, promissory notes, open accounts, negotiable instruments, child support, tax claims….
When is service requested on named defendants?
Within 90 days of the commencement of the action.
What happens if service isn’t required within 90 days of filing?
If service isn’t timely requested within 90 days of filing, and the court finds the failure to do so was due to bad faith, interruption of prescription with be considered to never have occurred.
How do you serve a natural person?
Made by one so authorized, generally the sheriff, or if he fails after 10 days and diligent effort, a private natural or juridical person appointed by the court.
How do you do domiciliary service?
Leaving the process at the (must do all the folowing)
1) usual place of abode
2) with a person of suitable age and discretion; and
3) who resides in the domiciliary establishment
How do you serve a corporation?
Service of process on a corporation is made by
1) personal on its registered agent
2) if no registered agent, on any officer, director, or employee of suitable age and discretion where the corporation regularly conducts business;
3) failing that, after certifying there was a diligent effort, service should be made upon the secretary of state
How is long arm service performed?
By mailing citation and petition by certified or registered mail, OR actual delivery to the defendant by commercial courier.
What is service on a representative?
If the court has appointed a representative for a person, that person is served by personal or domiciliary service on the representative.
When service is proper on a client’s attorney, service may be made on the attorney’s secretary.
How is personal service performed in a summary proceeding or subpoenas related to a summary proceeding?
The court can appoint a private person upon notice, without first requesting the sheriff to attempt service.
How is service performed on nonparty physicians?
Personal service on any clerical employeeof the doctor.
How is service performed on an LLC?
1) on an agent;
2) failing that, after certifying there was a diligen effort to serve the agent by personal service on any manager; or
3) if non, any member; or personal service on any employee of suitable age and discretion where business is conducted; or long arm service if applicable
What are the contents of process?
1) signature
2) date of issuance
3) title of the action
4) name of addressee
5) title and court’s location
6) demand that the defendant make an appearance by filing pleadings
How may service be made after service of the original citation and petition?
Service of a pleading that doesn’t require an answer may be made by mailing, or sending by electronic means the pleading to the opponent or the opponent’s attorney of record.
When may a default judgment be entered?
May be entered against the defendant if he fails to respond timely.
What are the time limits for responding to a petition?
Service within the state: 15 days from the service of the petition where service is effected within the state, 10 days for city or parish courts.
When long arm statute is used: 30 days from the filing of affidavit regarding service of petition where the long arm statute has been used to gain personal jurisdiction.
What is the procedure for obtaining a default judgemnt?
Once time period elapses, plaintiff has a preliinary default entered into the record.
After two days exclusive of holidays, plaitiff may appear and prove the default by presenting a prima facie case.
The evidence is admitted into the record.
Default judgment is entered.
Note: no preliminary default is necessary in parish and city court. If defendant fails to answer or respond, default is confirmed on the 11th day.
How must the state be notified of a default judgment?
Plaintiff must send certified copy of the preliminary default to the state’s agent for service of process by registered/certified mail and file an affidavit in the record stating the date of mailing.
If no answer is filed during the 15 days following receipt of notice, preliminary default can be confirmed.
Again, how long do defendants get to answer a petition?
15 (in state) or 30 days (under long arm statute) to file his answer in district court. The state has 30 days to answer.
What are in the contents of an answer?
1) no general denials;
2) whether the defendant admits or denies the allegations of the plaintiff contained in each paragraph of the petitions.
3) affirmative defenses.
When a defendant fails to timely plead an affirmative defense in his answer, he’s prohibited from offering evidence in support of that defense.
How may a defendant object to a petition without an answer?
Defendant can file an exception.
When must a defendant file an answer after an exception.
10 days after the exception has been overruled.
What are the types of exceptions?
1) declinatory: jurisdictional
2) dilatory: procedural issue
3) peremptory: dismissal
What are the common declinatory exceptions?
1) insufficiency of service of process
2) lis pendens
3) improper venue
4) lack of personal jurisdiction
5) lack of subject matter jurisdction
What is the effect of not raising declinatory exceptions?
Except lack of subject matter jurisdiction and non-waivable status venue, declinatory exceptions are waived unless pleaded.
