Proceedings Flashcards
ordinary proceeding
the normal proceeding in louisiana courts
pleadings
requires “fact pleading.”
facts must set forth a cause oof action with particularity
judgement may grant relief even if not prayed for in the pleading
courts may render any judgement that is just, legal, and proper
fraud and mistake fact pleading standard
must be pleaded with particularity.
malice, intent, and knowledge may be alleged generally
petition form requirements
must have a caption
must set forth concise allegations in numbered paragraphs
must be signed by plaintiff or attorney, if retained
must state name and domicile of all parties
set forth all causes of action and material facts of transaction and occurrence that is subject matter of litigation
designate an address (not PO Box) for receipt of service
conclude with prayer for judgement
**attorney’s signature on pleading rules
attorney, by signing pleading, certifies that after reading and belief formed after reasonable inquiry that:
(1) it’s not being used for any improper purpose, such as harass, delay, or increase cost
(2) warranted by existing law, or a non-frivolous argument for the modification or reversal of existing law
(3) has or is likely to have after discovery evidentiary support
(4) each denial is warranted by the evidence or reasonably based on lack of information and belief
attorney may be sanctioned for violation of the rule: include
attorneys fees and expenses incurred because of filing of pleading
applies to all forms of pleadings: petitions answers exceptions and written motions
in a tort petition, specify damages?
no. do not plead specific monetary amount
if it is pled, may be subject to motion to strike.
if motion to strike is necessary, attorneys fees and costs are available
service of process
citation and service are essential in all ordinary proceedings
defendant may waive service in writing
service must be requested on all defendants within 90 days of commencing the action
when service is requested by mail, clerk must receive the request for service within 90 days
personal service
made by one so authorized: usually the sheriff, or if he fails to make service within 10 days of diligent effort, then a private person (Louisiana resident, 18+, not a party) appointed by the court
**domiciliary service
made by leaving the process at the dwelling or usual place of abode of the defendant
with a person of suitable age and discretion
who resides in the domiciliary establishment
service to corporation
made by personal service on its registered agent,
OR if none,
any officer, director or suitable age and discretion employee where the corporation regularly does business
OR
after diligent effort made to do the above, service on secretary of state
long arm defendant service
can mail certified or registered mail to defendant
or
by actual delivery commercial courier to defendant
nonresident motorists service
serve the secretary of state AND mail notice to defendant by certified or registered mail, to address shown in accident report
partnership service
personal service on a partner
nonparty physician service
service on nonparty doctor may be made by personal service on any clerical employee of the doctor
LLC service
made by personal service on an agent
if none,
after certifying there was diligent effort, by personal service on any manager,
then if none,
on personal service on any employee of suitable age and discretion where business is conducted
sheriff’s return of service
this is a short affidavit that the sheriff files once service was made
assumed prima facie correct
after original service on defendant then service of additional pleadings
can be made by mail, hand delivery, or e-mail to opponent or opponent’s attorney
note: service on partner, associate or staff of attorney’s law firm is sufficient
if a pleading sets a court date, then service must be
by registered or certified mail
or actual delivery by commercial carrier
** initiation of default judgement timeline
if defendant fails to answer.
if service was within state, then 15 days from service for district courts; in city or parish courts, 10 days from service
if long arm statute used, then 30 days from filing of affidavit regarding service of petition
default judgement procedure
after applicable time period, then plaintiff seeks “preliminary default” which is a minute entry
then plaintiff waits 2 days exclusive of holidays
then can confirm default judgement
then the default judgement is final
proof for confirmation of default judgement for suits on open accounts, promissory notes, or negotiable instruments:
plaintiff submits an affidavit of the correctness of instrument
and proposed judgement
hearing only required if judge wants one
contract and tort cases default judgement proof for confirmation
affidavit proof and exhibits may be used unless judge orders oral testimony
notice that defendant is entitled in default process
if served personally, then notice of final default judgement must be mailed by the clerk of court to the personal service address
if domiciliary service of original petition, then sheriff must serve by personal or domiciliary service
if original service was on secretary of state, then serve notice to sec of staet
if party made prior appearance, then notice of default judgement must
receive notice of preliminary default
by certified mail
7 days
before confirmation of default
time for defendant’s answer
15 days in district court
10 days in city or parish court
30 days if long arm defendant
content of defendant’s answer
cant just generally deny the petition
must answer to each numbered paragraph and admit or deny or lack sufficient information
most important = must raise any affirmative defense in the answer:
(1) prescription
(2) mitigation of damages
(3) negligence
(4) fault of the plaintiff
(5) duress
(6) error or mistake
(7) estoppel
(8) extinguishment of obligation in any manner
(9) illegality
(10) fraud
note that if defendant raises an affirmative defense, but mistakenly identified it as a reconventional demand, then it’s still ok.
types of exceptions
declinatory
dilatory
peremptory
declinatory exception definition
the exceptor declines the jurisdiction of the court
procedural deficiencies that may trigger this exception =
(1) insufficiency of service of process
* * most often tested – includes the failure to request service within 90 days; also improper service.
(2) lis pendens
(3) improper venue
(4) lack of personal jurisdiction
(5) lack of subject matter jurisdiction
(6) insufficiency of citation
if hypo is that there was never serviced requested. as attny for defendant, what do you do?
file a declinatory exception for insufficiency of service of process.
if hypo is that long arm personal jurisdiction does not exist, what do you do as defendant attorney?
then, file a declinatory exception for lack of personal jurisdiction
effect of not pleading declinatory exception?
waived unless pleading
may file before answer, with answer, or in confirmation of default judgement proceedings
dilatory exception definition
an exception interposed to delay
the objections are to the form of the proceeding or for more information
include =
(1) want of amicable demand = its a prereq that you make an amicable demand in some suits (unpaid obligation, contract claims, etc) before filling a lawsuit, so if no demand made, may file this exception
(2) vagueness or ambiguity in the petition = when reading the petition, you dont understand the claims asserted
(3) lack of procedural capacity = usually this is when minor child files a lawsuit in own name
(4) improper cumulation of actions (includes improper joinder of parties)
if dilatory exception is not pleaded before answer, in the answer, or in default proceedings
then the exception is waived
peremptory exception
if granted, tends to result in the dismissal of the suit.
(1) prescription
(2) peremption
(3) res judicata
(4) nonjoinder of mandatory parties
(5) no cause of action –> this is like 12b6
(6) no right of action or no interest in the plaintiff to institute suit –> this is like standing
(7) discharge in bankruptcy
note: court can raise all these except prescription on own motion
res judicata definition
requires parties to bring all causes of action between the parties related to the transaction or occurrence at issue, or those claims are barred
issue preclusion also exists – if an issue was central to a judgement already made, then that issue will not be re-litigated
time to plead peremptory exceptions
as opposed to dilatory and declinatory exceptions, which must be pleaded before/in answer or during default confirmation period, prior to the signing of a finial default judgement
peremptory exceptions may be pleaded at any time in trial or appellate prior to submission of the case for decision, if proof of the objection appears of record
think of hypo: you are the attorney reviewing a trial court file, realize that your client had a exception of prescription that was not raised in the trial court = you can still raise the issue
evidence on exceptioins
for declinatory or dilatoory exceptions, evidence may be introduced to support or controvert any of the objections pleaded when the grounds do not appear in the petition.
for peremptory exceptions, if pleaded at or before trial, evidence may be introduced to support or controvert. if pleaded in trial court, after trial but before submission for a decision, plaintiff may introduce evidence, but defendant may only offer evidence to rebut plaintiff’s evidence.
no evidence allowed in related to an exception of no cause of action
result of sustaining the exception
court will allow plaintiff to amend the pleadings or transfer the case
if not possible to cure, or if plaintiff refuses to comply, court will dismiss the action.
motion for security for costs
defendant can force plaintiff to post bond for costs they would be liable for if they lose. court proceedings paused until bond posted
incidental demands definition
incidental demands may be filed prior to or at the same time the answer is filed.
–> like a counter-claim.
if a party does not assert an incidental demand, it’s not lost unless it’s
a compulsory reconventional demand
OR
a defendant’s action against a third party, if third party can prove that he had means of defeating the action which was not used because the defendant did not join him or neglected to hell him that the suit had been brought.
reconventional demand definitiono
need not be related to primary action. if it does arise out of the main action, it is a compulsory reconventional demand and must be raised or is lost
when answer raises a reconventional demand, then what service requirements?
personal service on the plaintiff’s counsel of record. citation is unnecessary
reconventional demand: cross-claim definition
a party may assert a demand against a co-party (usually co-defendant) provided the demand arises out of the original action’s subject matter.
citation is unnecessary, personal service by sheriff on counsel of record
persons other than those parties to original lawsuit (third-party defendants) may be made parties to a cross-claim.
intervention definition
when third parties enter a lawsuit, they take the lawsuit as they find it.
intervenor must be enforcing related or connected right.
third party demand definition
defendant or defendant in reconvention may bring into the lawsuit one who is or may be liable to him in indemnity or contribution to all or part of the principal demand.
ex: A sues B to rear-end collision. B sues mechanic he took the car to the week before. B is a third party demand defendant.
prescription in incidental demand
if incidental demand has not prescribed at the time that original demand was filed, then the defendant has 90 days from service of the original demand to assert the claim, even if prescription would have accrued in that period.
for third party defendants, 90 days from service of third party demand.
4 types of pleadings in louisiana
petition
answer
exceptions
written motions
written motions definition
a motion is an application to the court for an order
must be made in writing unless they are presented in some other pleading, made during trial, or made in open court
ex parte motion
is one made without notice to other party
entitled to make ex parte motion if order sought is one to which the mover is clearly entitled without supporting proof
ex: notice to enroll as attorney
contradictory motion
most motions are contradictory motions.
if the order sought is one to which mover is not clearly entitled, or which request supporting proof
motion to strike
may be made at any time, by any party or by court on own motion.
may strike from a pleading any insufficient demand, or any redundant, immaterial, impertinent, or scandalous matter
motion for summary judgement definition
trial by affidavit. occurs after case has had some discovery, information emerges. to dispose of case before trial, move for summary judgement.
standard = no genuine issue of material fact AND mover is entitled to judgement as a matter of law
may be given in part
**motion for summary judgement timeline
after answer has been filed, plaintiff may move
defendant may move at any time
motion and supporting affidavits must be filed at least 65 days before trial
opposing memo and affidavits must be served at least 15 days before hearing
hearing on motion must be set more than 30 days after filing motion and more than 30 days before trial.
judgement must be entered 20 days before trial
burden of proof and admissible proof in motion for summary judgement
BOP remains with the movant
however if movant doesnt have the BOP at trial, may simply point out absence of proof for 1+ essential elements
if adverse party fails to produce factual support sufficient to establish that
he will be able to satisfy his evidentiary BOP at trial, there is genuine issue of material fact.
allowable evidence = only documents that may be filed in support or contradiction of the motion - pleadings - affidavits (most impt): must be made by competent affiant, be made on personal knowledge, and based on facts admissible at trial. - depositions - interrogatory answers - memoranda - certified medical record - written stipulation - admissions
motion for judgement on the pleadings
this would happen after petition and answer, if party thinks that the case can be resolved there.
court looks only at pleadings themselves, and assumes that all mover’s undenied allegations and ALL opponent’s allegations are true.
amending petition
plaintiff can amend petition without leave of court before answer is served
otherwise, leave of court or consent required.
answer to amended petition required within 10 days
amending answer
defendant can amend answer once within 10 days
otherwise consent or leave of court
dilatory and declinatory exceptions amendments?
may be amended only to “amplify” prior to hearing with leave of court or written permission of adverse party
can’t add new exceptions, but can elaborate on those youve already asserted
peremptory exceptions amendments
may be amended any time
including to add a new peremptory exception
relation back definition
if amendment of petition is happening after claim has prescribed, allowable if the new claim relates back to original conduct/transaction/occurrence set forth in original pleading
ex: plaintiff sues corporation, but later finds out it’s a partnership. they need to amend to correct the type of juridical entity.
NOTE there is more here but im confused
