Pleadings Flashcards
Attorney Signature
An attorney’s signature on a pleading is a certification that he has read it and that to the best of his knowledge, information and belief formed after a reasonable inquiry, he certifies that:
It is not being used for any improper purpose such as to harass, delay, or increase costs;
It is warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law;
It has or is likely to have (after investigation or discovery) evidentiary support; and
Each denial is warranted by the evidence or reasonably based on lack of information or belief
Service - Generally
Service has to be requested on all named defendants within 90 days of commencement of the action or within 90 days of a supplemental or amended petition naming additional defendants (not naming additional plaintiffs or causes of action, only defendants)
Domicillary Service
Domiciliary service is made by leaving the process at the dwelling or usual place of abode of the defendant with a person of suitable age and discretion (SAD) who resides in the “domiciliary establishment.”
Long-Arm Service
Long-Arm service is made by certified or registered mail or actual delivery by commercial courier
Corporations
Service on a corporation is made by personal service on the registered agent for service of process, or if none, by personal service on an officer, director, or employee of suitable age and discretion where corporation regularly conducts business; or long-arm service, if applicable.
Failing that, after certifying that there was a diligent effort to servem then service may be made upon the SOS who will forward to the defendant.
LLCs
Service on a LLC is made by personal service on an agent of the LLC
Failing that, after certifying there was a diligent effort to serve the agent, then service may be made by personal service on any manager, member; or employee of suitable age and discretion where business is conducted; or long-arm service if applicable
The Answer
Defendant has 15 days to file his answer in district court.
Defendant has 30 days to file his answer if suit brought under the long-arm statute.
Defendant has 10 days to file an answer if suit is brought in city or parish court unless citation is served through the secretary of state in which case all defendants have 15 days.
The state has 30 days to answer.
Default Judgments
A default judgment may be entered against the defendant if he fails to respond timely
Time Limits
- Within LA: 21 days from service of petition where effected, 10 days for city or parish courts
- Long Arm Statute: 30 days from filing of affidavit re: service of petition where long arm statute used to gain PJ.
Procedure
- Once the applicable time elapses, P may have default judgment by presenting a prima facie case
- Evidence must be entered into record
- Default judgment entered
Affirmative Defenses
The affirmative defenses which must be included in the Answer or they are waived include the following:
- Failure of consideration
- Mitigation of damages
- Negligence or fault of the plaintiff and others,
- Duress
- Error
- Mistake
- Estoppel
- Extinguishment of obligation in any manner,
- llegality
- Fraud
Declinatory Exceptions
The declinatory exceptions include following:
Insufficiency of citation.
Insufficiency of service of process.
Lis pendens.
Improper venue.
Lack of personal jurisdiction.
Lack of subject matter jurisdiction.
Dilatory Exceptions
The dilatory exceptions include the following:
Prematurity (e.g., filing for divorce before the applicable time period has elapsed).
Want of amicable demand.
Unauthorized use of summary proceeding.
Nonconformity with the formalities of the petition.
Vagueness or ambiguity in the petition.
Lack of procedural capacity.
Improper cumulation of actions.
Discussion.
Peremtory Exceptions
The peremptory exceptions include the following:
Prescription
Peremption
Res judicata
Nonjoinder of a party
No cause of action
No right of action or no interest in the plaintiff to institute suit
Discharge in bankruptcy.
Time for Pleading Exceptions
Declinatory and dilatory exceptions 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.
Peremptory exceptions may be pleaded at any time in either trial or appellate court prior to submission of the case for decision. The appellate court may consider if proof of the objection appears on the record.
Summary Judgment
To succeed: The movant must demonstrate that there is “no genuine issue of material fact for the court to decide that the movant is entitled as a matter of law”
The motion and accompanying affidavits must be served at least 65 days before trial
The motion must be served upon the opposing party at least 15 days prior to the date set for the hearing of the motion.
The moving party has the burden of proof.
- However, if the movant does not have the burden of proof at trial, the movant only needs to make a prima facie showing that the adverse party lacks factual support for any one or more essential elements of the adverse party’s claim or defense.
Affidavits (supporting or opposing) must be:
- Made by competent affiant
- Made on personal knowledge, and
- Based on facts admissible at trial
Motion for Judgment on the Pleadings
After Answer: Any party may move for judgment on the pleadings after the answer is filed.
Court looks only at the pleadings themeselves, and considers all of the mover’s undenied allegations, and all of the opponent’s allegation’s as true.
