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
what is intervention
third party enters lawsuit to protect an interest in litigation
what is a third party demand
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
what is the standard for MSJ
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
result if MSJ is granted? not granted?
final appealable judgment if granted; if not granted, no immediate right of appeal
what is partial SJ
SJ granted on a particular issue, theory of recovery, cause of action, or defense in favor of one or more parties
when can MSJ be filed
can be filed by plaintiff after the answer has been filed; defendant’s motion can be filed at any time
when must motions and supporting affidavits be filed for MSJ
65 days prior to trial
when must opposing memo and affidavits be served for MSJ
15 days prior to hearing
when must reply memo be filed and served
5 days prior to hearing
when must hearing for MSJ be set
more than 30 days after filing and more than 30 days before trial
when must judgment on MSJ be rendered
at least 20 days before trial
what support is used for MSJ
pleadings, affidavits, depos, answers to interrogatories, certified medical records, written stipulations, and admissions
what are the requirements for affidavits
- made by competent affiant
- made on personal knowledge
- based on fact admissible at trial
when can plaintiff amend their petition without leave of court
before answer is served, otherwise need leave of court or consent of opposing counsel
when is an answer to an amended petition required
within 10 days after service
when can defendant amend their answer
once within 10 days after the original answer is served, otherwise need leave of court or written permission of adverse party
when is the doctrine of relation back used
it is used when P or D is added after the prescriptive period has passed for an amended or supplemental pleading
when is the doctrine of relation back available
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
what are the requirements for adding a new plaintiff using relation back
- defendant knew or should’ve known of the existence or involvement of the new plaintiff
- the new and old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; and
- there’s no prejudice to defendant in preparing a defense
what are the requirements for adding a new defendant using relation back
- the substituted defendant received notice of suit so there is no prejudice in preparing a defense
- the substituted defendant knew or should’ve known that but for the mistaken identity, he would’ve been sued
