Procedure 3 Flashcards
• Does a party have a valid basis for removing the case to federal court based on diversity of citizenship? [J15]
o Suits may be removed from state court if:
Jurisdiction would’ve been proper if the first filed in federal court; and
• Complete diversity (No P shares citizenship with any D)
• Proper Amount in Controversy (AIC > $75,000)
Extra requirement – no D may be a citizen of the state where case is filed
o Notice of removal – within 30 days after being served with process in state court
• How should D contest personal jurisdiction and when must such pleading be filed? [F15, J14, J13]
o D must file a (sworn/verified) special appearance, and it must be filed prior to or concurrently with any other pleading, plea, or motion (if not plead first, it is waived)
o Note: a special appearance is only available to nonresidents
• How should a P serve an out-of-state D to ensure there is proper service of process? [J14, J15]
o P could serve the out-of-state D using the Texas long arm statute and serving the Texas Secretary of State
The Secretary of State will send the court clerk a certificate (“Whitney Certificate”), certifying receipt of the petition and citation (process), date of receipt, and the date it forwarded a copy of process to D via certified mail
o NOTE: if accident involves a non-resident operating or allowing its agent to operate a motor vehicle within TX, service is made by serving the chairperson of the Texas Transportation Commission in order to serve the out-of-state D [J14]
• In what counties can a suit be properly filed? [J15, J14, F14, J13, F13]
o Venue is proper in the county:
In which all or a substantial part of the events or omissions giving rise to P’s claim;
If D is a natural person – where D resides at the time the cause of action accrued; or
If D is not a natural person (corp.) – where D’s principal office in the state is
o Venue is proper in the county where the P resided at the time the cause of action accrued only if none of the other venue provisions apply
What must D file to challenge/object to venue and when must it be filed? [F16, J15, F15, J14]
•
o File a motion to transfer venue
o It must be filed before or concurrently with any other motion or responsive pleading (except a special exception) or the objection is waived [due order of pleading rule]
Motion to transfer venue:
•
o D must plead that the county of suit is NOT a county of proper venue, or that a mandatory provision applies, and should be transferred to another specified county of proper venue.
o The court may consider affidavits and all forms of discovery (but not oral testimony). The defendant is NOT required to attach evidence to the motion.
• How should P respond to a motion to transfer venue? [J15]
o Not less than 30 days before the hearing on the motion to transfer venue, P must file response to the motion
o P should respond with prima facie proof by affidavits and other proof that establishes venue is proper in the current county where the suit is filed
• What is the effect of an erroneous ruling on a motion to transfer venue? [F14, J13]
o The erroneous ruling amounts to reversible error, which means the trial court’s judgment would be reversed and the cause would be remanded
• What procedural steps must a P take to initiate a civil suit? [J14]
o P has to file an original petition against the D to initiate the suit.
o The petition must be accompanied by a civil case information sheet
• To avoid entry of a default judgment [J15, F14, F13]:
o The defendant(s) MUST file a written answer before 10am on the first Monday following the expiration of 20 days from date of service
• If D has (or believes he has) an affirmative defense, how and when must it be raised? [J15, F14, F13]
o Affirmative defenses must be raised in D’s answer or amended answer (need not be raised in initial answer) and D’s answer may by amended at any time; but must be amended before trial (and if being amended within 7 days of trial then need leave of court)
• What happens if a D does not raise an affirmative defense? [J14, F14, J13, F13]
o Failure to affirmatively plead it waives the defense and precludes a jury question on the defense.
• What should D file to require P to re-plead her case with more definite and specific factual allegations or damages sought? [J15, F14, J13, F13]
o D should file a special exception (must be written) that points out the defect of P’s petition with particularity and ask that the P plead more specific facts or damages sought
If sustained, P would have the opportunity to amend petition or risk having his claims dismissed
o NOTE: third party D may also use a special exception to compel more specific facts/damages [F13]
• What is the consequence of failing to file a special exception? [J15]
o Failing to file a special exception, in writing, results in waiver of any defect in the petition
May a D add a Responsible Third Party? May it be objected to? [F14, J13, F13]
o Yes, Texas law allows D to add a non-party as a Responsible Third Party (RTP) and have that non party’s negligence to be submitted to the jury (allows jury to consider RTP’s negligence in assigning the percentage of negligence)
RTPs include any person who is alleged to have caused or contributed to causing the harm for which recovery is sought; often used where TRP is immune from suit (workers comp, RTP is bankrupt or insolvent)
The motion may not be objected to because a RTP may be added
RTP is not a party to the suit and will not answer or defend, and no judgment can be entered against them
o Note: this is different than interpleader/third party action – where D asserts that a TPD is responsible for some or all of the damages owed to the plaintiff
If more than 30 days have passed since D filed answer, need leave of court/permission to add TPD
