pleadings – laccp

Question 1

what is the attorney certifying by signing pleadings (“I’m winning evidentiary deals”)

Answer 1

1. pleadings are not for an improper purpose, such as to delay, harass, or increase costs
2. warranted on existing law or nonfrivolous argument based on the reversal, modification, or extension of existing law
3. based on evidence or likely to have evidentiary support
4. denials are based on lack of knowledge or belief or warranted by the evidence

Question 2

what does the attorney’s signature on a pleading apply to?

Answer 2

1. petitions
2. written motions
3. answers
4. exceptions

Question 3

when does service need to be requested

Answer 3

within 90 days of commencement of the action (on all named defendants)

Question 4

how is personal service made

Answer 4

tender process to the person to be served

Question 5

how is domiciliary service made

Answer 5

service on a person of suitable age and discretion at the dwelling house or usual place of abode of the person to be served

Question 6

how is service made upon corporations

Answer 6

service is mad by person service on its registered agent

if none, any officer, director, or employee of suitable age and discretion where the corporation regularly conducts business

failing that, after certifying there was a diligent effort to serve, service should be made upon the SOS

Question 7

how is service made with long arm service

Answer 7

should be made by mailing the citation and petition by certified or registered mail or by actual delivery to the defendant by commercial carrier

Question 8

what must defendant do in the answer

Answer 8

admit or deny allegations of plaintiff contained in each paragraph of the petition and all allegations not denied are deemed admitted

Question 9

what must defendant do for denials in an answer

Answer 9

no general denials–must address issues specifically

Question 10

what types of defenses must defendant bring in his answer and what penalty does defendant face if he does not bring those defenses forth

Answer 10

affirmative defenses (have seen negligence or fault of the plaintiff and others mostly)

failure to timely plead will result in being prohibited from offering evidence in support of that defense

Question 11

if a defendant raises an exception, when is an answer required

Answer 11

until 15 days after the exception has been overruled

Question 12

what is a declinatory exception generally

Answer 12

exceptor declines the jurisdiction of the court

Question 13

what is a dilatory exception generally

Answer 13

exception interposed to delay. objections here are to the form of the proceeding or for more information

Question 13

what is a peremptory exception generally

Answer 13

an exception which if granted will result in dismissal of the case

Question 14

what is a dilatory exception generally

Answer 14

exception interposed to delay. objections here are to the form of the proceeding or for more information

Question 15

when does a defendant waive declinatory exceptions

Answer 15

except lack of SMJ and non-waivable status venue, objections that are not pleaded are deemed waived

Question 16

when does a defendant waive dilatory exceptions

Answer 16

all exceptions must be made timely and in one motion or they are deemed waived

Question 17

who else can raise a peremptory exception outside of defendant

Answer 17

court on its own motion

Question 18

when must declinatory and dilatory exceptions be raised

Answer 18

prior to or in the answer or prior to the signing of a final judgment. when both are pleaded, they must be filed at the same time

Question 19

when must a peremptory exception be raised

Answer 19

can 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

Question 20

when must incidental demands be filed

Answer 20

prior to or at the same time the answer is filed

Question 21

what are the various types of incidental demands

Answer 21

1. reconventional demand
2. crossclaim
3. intervention
4. third party demand

Question 22

what types of claims can be brought forth as reconventional demands

Answer 22

any claim, whether related to the primary action or not

Question 23

how can a party assert a cross-claim

Answer 23

party can assert a demand against a co-party as long as the demand arose out of the same transaction or occurrence that is the subject matter of the original action or of a reconventional demand

Question 24

what is intervention

Answer 24

third party enters lawsuit to protect an interest in litigation

Question 25

what is a third party demand

Answer 25

defendant or defendant in reconvention may bring into the lawsuit one who is or may be liable to him in indemnity or contribution for all or part of the principal demand

Question 26

what is the standard for MSJ

Answer 26

based on a claim that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law

Question 27

result if MSJ is granted? not granted?

Answer 27

final appealable judgment if granted; if not granted, no immediate right of appeal

Question 28

what is partial SJ

Answer 28

SJ granted on a particular issue, theory of recovery, cause of action, or defense in favor of one or more parties

Question 29

when can MSJ be filed

Answer 29

can be filed by plaintiff after the answer has been filed; defendant’s motion can be filed at any time

Question 30

when must motions and supporting affidavits be filed for MSJ

Answer 30

65 days prior to trial

Question 31

when must opposing memo and affidavits be served for MSJ

Answer 31

15 days prior to hearing

Question 32

when must reply memo be filed and served

Answer 32

5 days prior to hearing

Question 33

when must hearing for MSJ be set

Answer 33

more than 30 days after filing and more than 30 days before trial

Question 34

when must judgment on MSJ be rendered

Answer 34

at least 20 days before trial

Question 35

what support is used for MSJ

Answer 35

pleadings, affidavits, depos, answers to interrogatories, certified medical records, written stipulations, and admissions

Question 36

what are the requirements for affidavits

Answer 36

1. made by competent affiant
2. made on personal knowledge
3. based on fact admissible at trial

Question 37

when can plaintiff amend their petition without leave of court

Answer 37

before answer is served, otherwise need leave of court or consent of opposing counsel

Question 38

when is an answer to an amended petition required

Answer 38

within 10 days after service

Question 39

when can defendant amend their answer

Answer 39

once within 10 days after the original answer is served, otherwise need leave of court or written permission of adverse party

Question 40

when is the doctrine of relation back used

Answer 40

it is used when P or D is added after the prescriptive period has passed for an amended or supplemental pleading

Question 41

when is the doctrine of relation back available

Answer 41

if action or defense asserted in amended petition or answer arises from conduct, transaction, or occurrence set forth in the original pleading, the amended petition “relates back” to the original filing date

Question 42

what are the requirements for adding a new plaintiff using relation back

Answer 42

1. defendant knew or should’ve known of the existence or involvement of the new plaintiff
2. the new and old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; and
3. there’s no prejudice to defendant in preparing a defense

Question 43

what are the requirements for adding a new defendant using relation back

Answer 43

1. the substituted defendant received notice of suit so there is no prejudice in preparing a defense
2. the substituted defendant knew or should’ve known that but for the mistaken identity, he would’ve been sued