Limitations of Actions (Laches, SoL, New Parties) Flashcards
What is laches
an equitable defense
applies if a party waited too long to bring the claim and it would be unfair to permit the claim to be brought now
What must be shows to bar a claim with the affirmative defense of laches? (2)
-the delay worked to the disadvantage of the def (ie evidence lost, witnesses are dead or don’t remember)
-the delay warrants the presumption that the party has waived or abandoned the claim
What factors will courts consider for laches?
how much time has elapsed, what is the effect of the delay on the other party’s ability to defend, has there been any loss of evidence, what are the particular circumstances of the case
What does laches apply to?
to equitable claims to which no particular sol applies
What must the plaintiff know for laches?
must have knowledge of his rights for laches to operate
What does a legal disability do for laches?
excuses a delay in enforcing an equitable right
What does tolling mean?
tolling stops the running of the Sol
What tolls the sol?
the commencement of the action tolls the sol, not service on the defendant
What is the general rule for the sol when it comes to adding a new party?
the sol is not tolled as to a new party or new cause of action until an amended pleading that adds the new party or cause of action is filed with leave of court
When adding a party, the filing relates back to the initial filing of the action if the following (4) conditions are met:
-the claim asserted in the amended pleading arose out of the same conduct, transaction, or occurrence set forth in the original pleading
-the party being added or its agent received notice of the action within the limitations period
-the party will not be prejudiced in maintaining a defense on the merits, and
-the party knew or should have known that, but for the mistake concerning the identity of the proper party, the action would have been brought against the new party initially
When adding a new claim against the initial defendant, the filing relates back to the initial filing of the action if the following (3) conditions are met:
-the new claim or defense asserted in the amended pleading arose out of the same transaction, conduct, or occurrence set forth in the original pleading
-the amending party was reasonable diligent in asserting the amended claim or defense, and
-parties opposing the amendment will not be substantially prejudiced in litigating on the merits as a result of the timing of the amendment
similar trade name
when the party asserting a claim has sued a def whose trade or corp name is similar to that of another entity that should have been sued, the sol is tolled as of the initial filing if such correct party or its agent had actual notice of the claim prior to the expiration of the sol for filing the claim
