pleadings – laccp Flashcards
what is the attorney certifying by signing pleadings (“I’m winning evidentiary deals”)
- pleadings are not for an improper purpose, such as to delay, harass, or increase costs
- warranted on existing law or nonfrivolous argument based on the reversal, modification, or extension of existing law
- based on evidence or likely to have evidentiary support
- denials are based on lack of knowledge or belief or warranted by the evidence
what does the attorney’s signature on a pleading apply to?
- petitions
- written motions
- answers
- exceptions
when does service need to be requested
within 90 days of commencement of the action (on all named defendants)
how is personal service made
tender process to the person to be served
how is domiciliary service made
service on a person of suitable age and discretion at the dwelling house or usual place of abode of the person to be served
how is service made upon corporations
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
how is service made with long arm service
should be made by mailing the citation and petition by certified or registered mail or by actual delivery to the defendant by commercial carrier
what must defendant do in the answer
admit or deny allegations of plaintiff contained in each paragraph of the petition and all allegations not denied are deemed admitted
what must defendant do for denials in an answer
no general denials–must address issues specifically
what types of defenses must defendant bring in his answer and what penalty does defendant face if he does not bring those defenses forth
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
if a defendant raises an exception, when is an answer required
until 15 days after the exception has been overruled
what is a declinatory exception generally
exceptor declines the jurisdiction of the court
what is a dilatory exception generally
exception interposed to delay. objections here are to the form of the proceeding or for more information
what is a peremptory exception generally
an exception which if granted will result in dismissal of the case
what is a dilatory exception generally
exception interposed to delay. objections here are to the form of the proceeding or for more information
when does a defendant waive declinatory exceptions
except lack of SMJ and non-waivable status venue, objections that are not pleaded are deemed waived
when does a defendant waive dilatory exceptions
all exceptions must be made timely and in one motion or they are deemed waived
who else can raise a peremptory exception outside of defendant
court on its own motion
when must declinatory and dilatory exceptions be raised
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
when must a peremptory exception be raised
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
when must incidental demands be filed
prior to or at the same time the answer is filed
what are the various types of incidental demands
- reconventional demand
- crossclaim
- intervention
- third party demand
what types of claims can be brought forth as reconventional demands
any claim, whether related to the primary action or not
how can a party assert a cross-claim
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
