Proceedings

Question 1

ordinary proceeding

Answer 1

the normal proceeding in louisiana courts

Question 2

pleadings

Answer 2

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

Question 3

fraud and mistake fact pleading standard

Answer 3

must be pleaded with particularity.

malice, intent, and knowledge may be alleged generally

Question 4

petition form requirements

Answer 4

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

Question 5

**attorney’s signature on pleading rules

Answer 5

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

Question 6

in a tort petition, specify damages?

Answer 6

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

Question 7

service of process

Answer 7

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

Question 8

personal service

Answer 8

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

Question 9

**domiciliary service

Answer 9

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

Question 10

service to corporation

Answer 10

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

Question 11

long arm defendant service

Answer 11

can mail certified or registered mail to defendant
or
by actual delivery commercial courier to defendant

Question 12

nonresident motorists service

Answer 12

serve the secretary of state AND mail notice to defendant by certified or registered mail, to address shown in accident report

Question 13

partnership service

Answer 13

personal service on a partner

Question 14

nonparty physician service

Answer 14

service on nonparty doctor may be made by personal service on any clerical employee of the doctor

Question 15

LLC service

Answer 15

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

Question 16

sheriff’s return of service

Answer 16

this is a short affidavit that the sheriff files once service was made
assumed prima facie correct

Question 17

after original service on defendant then service of additional pleadings

Answer 17

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

Question 18

if a pleading sets a court date, then service must be

Answer 18

by registered or certified mail

or actual delivery by commercial carrier

Question 19

** initiation of default judgement timeline

Answer 19

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

Question 20

default judgement procedure

Answer 20

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

Question 21

proof for confirmation of default judgement for suits on open accounts, promissory notes, or negotiable instruments:

Answer 21

plaintiff submits an affidavit of the correctness of instrument
and proposed judgement
hearing only required if judge wants one

Question 22

contract and tort cases default judgement proof for confirmation

Answer 22

affidavit proof and exhibits may be used unless judge orders oral testimony

Question 23

notice that defendant is entitled in default process

Answer 23

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

Question 24

if party made prior appearance, then notice of default judgement must

Answer 24

receive notice of preliminary default
by certified mail
7 days
before confirmation of default

Question 25

time for defendant’s answer

Answer 25

15 days in district court
10 days in city or parish court
30 days if long arm defendant

Question 26

content of defendant’s answer

Answer 26

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.

Question 27

types of exceptions

Answer 27

declinatory
dilatory
peremptory

Question 28

declinatory exception definition

Answer 28

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

Question 29

if hypo is that there was never serviced requested. as attny for defendant, what do you do?

Answer 29

file a declinatory exception for insufficiency of service of process.

Question 30

if hypo is that long arm personal jurisdiction does not exist, what do you do as defendant attorney?

Answer 30

then, file a declinatory exception for lack of personal jurisdiction

Question 31

effect of not pleading declinatory exception?

Answer 31

waived unless pleading

may file before answer, with answer, or in confirmation of default judgement proceedings

Question 32

dilatory exception definition

Answer 32

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)

Question 33

if dilatory exception is not pleaded before answer, in the answer, or in default proceedings

Answer 33

then the exception is waived

Question 34

peremptory exception

Answer 34

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

Question 35

res judicata definition

Answer 35

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

Question 36

time to plead peremptory exceptions

Answer 36

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

Question 37

evidence on exceptioins

Answer 37

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

Question 38

result of sustaining the exception

Answer 38

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.

Question 39

motion for security for costs

Answer 39

defendant can force plaintiff to post bond for costs they would be liable for if they lose. court proceedings paused until bond posted

Question 40

incidental demands definition

Answer 40

incidental demands may be filed prior to or at the same time the answer is filed.

–> like a counter-claim.

Question 41

if a party does not assert an incidental demand, it’s not lost unless it’s

Answer 41

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.

Question 42

reconventional demand definitiono

Answer 42

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

Question 43

when answer raises a reconventional demand, then what service requirements?

Answer 43

personal service on the plaintiff’s counsel of record. citation is unnecessary

Question 44

reconventional demand: cross-claim definition

Answer 44

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.

Question 45

intervention definition

Answer 45

when third parties enter a lawsuit, they take the lawsuit as they find it.

intervenor must be enforcing related or connected right.

Question 46

third party demand definition

Answer 46

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.

Question 47

prescription in incidental demand

Answer 47

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.

Question 48

4 types of pleadings in louisiana

Answer 48

petition
answer
exceptions
written motions

Question 49

written motions definition

Answer 49

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

Question 50

ex parte motion

Answer 50

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

Question 51

contradictory motion

Answer 51

most motions are contradictory motions.

if the order sought is one to which mover is not clearly entitled, or which request supporting proof

Question 52

motion to strike

Answer 52

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

Question 53

motion for summary judgement definition

Answer 53

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

Question 54

**motion for summary judgement timeline

Answer 54

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

Question 55

burden of proof and admissible proof in motion for summary judgement

Answer 55

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

Question 56

motion for judgement on the pleadings

Answer 56

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.

Question 57

amending petition

Answer 57

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

Question 58

amending answer

Answer 58

defendant can amend answer once within 10 days

otherwise consent or leave of court

Question 59

dilatory and declinatory exceptions amendments?

Answer 59

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

Question 60

peremptory exceptions amendments

Answer 60

may be amended any time

including to add a new peremptory exception

Question 61

relation back definition

Answer 61

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