Louisiana Procedure Flashcards
(234 cards)
1
Q
Do parish and city courts have an amount in controversy requirement?
A
Parish courts: have concurrent jurisdiction with the district courts in cases where the amount in controversy doesn’t exceed $20k.
City Courts: have concurrent jurisdiction with the district courts in cases where the amount in controversy doesn’t exceed $15k. When a parish or city court has SMJ over the main demand, it may exercise jurisdiction over any related incidental demand, regardless of the AIC.
BUT, when a compulsory reconventional (arises out of the same transaction or occurrence) demand exceeds the court’s jurisdiction, the court must transfer the entire action to a court of proper jurisdiction.
2
Q
In what matters do parish, city, and justice of the peace courts have no jurisdiction:
A
1) A case involving title to IMMOVABLE PROPERTY
2) case in which the plaintiff asserts civil or political rights under the federal or state constitutions
3) a claim for annulment of marriage, divorce, separation of property, or alimony
4) A case in which the state, parish or other political corporation is a defendant
Other matters that our lecturer didn’t highlight: a case involving the right to public office or position; a succession, interdiction, habeas corpus proceeding; any other proceeding excepted from the jurisdiction of the courts by law.
3
Q
What are the requirements for a jury trial in parish, city, or justice of the peace courts?
A
There are no jury trials in parish, city, or justice of the peace courts?
4
Q
When are you entitled to an appeal of parish and city verdicts?
A
The code of civil procedure permits appeal as of right in any matter to the appropriate circuit court of appeal.
5
Q
In what ways can the court obtain personal jurisdiction over a party?
A
Service of process on the defendant or his agent for service of process: agents for service of process may be expressly designated by the defendant or impliedly appointed by law to receive process (secretary of state for nonresident motor vehicle operators)
Consent to jurisdiction: defendant may submit to the court’s jurisdiction (filing an answer) or do so by failure to file a declinatory exception of lack of personal jurisdiction.
Long arm jurisdiction: long arm statutes authorize personal jurisdiction over nonresidents based on certain acts or omissions in the state.
6
Q
When can the secretary of state be appointed as an agent for service of process?
A
The secretary of state is impliedly appointed by law as agent for service of process for:
1) non-resident motor vehicle operators
2) non resident operators of watercraft in LA
3) foreign or alien insurers transacting insurance business in LA without a certificate of authority.
7
Q
When does the Louisiana long-arm statute authorize personal jurisdiction over nonresidents?
A
A LA court may exercise PJ (specific) over a nonresident who acts directly or by an agent as to a cause of action arising from any of the following activities:
1) transacting business in LA
2) contracting to supply services or things in LA
3) causing injury or damages by an offense or quasi-offense committed through an act or omission
4) Causing injury or damage in LA by an act (or omission) outside LA if the nonresident regularly does business in LA, engages in any other persistent course of conduct in LA, or derives substantial revenue from goods used or consumed or services rendered in LA;
5) Manufacturing a product or component thereof which caused damage or injury in LA
Other less important ones: having an interest or real right on immovable property in LA; nonsupport of a child, parent, spouse domiciled in LA with to whom an obligation of support is owed and with whom the nonresident formerly resided; support of a child who was conceived by the nonresident while in LA.
CATCHALL PROVISION: LA may exercise personal jurisdiction over a non resident on any basis consistent with the LA or US constitutions.
8
Q
What are the constitutional limitations of long arm PJ?
A
La may exercise PJ over a nonresident on any basis consistent with the LA or US constitutions. This requires that the defendant have minimum contacts with the forum state such that maintenance of the suit doesn’t offend traditional notions of fair play and substantial justice. The same test is use whether the case involves specific or general PJ.
MINIMUM CONTACTS satisfied if the defendant has purposefully directed activities at the forum residents.
Then look to the fairness factors: burden on the defendant; state’s s interest in the dispute; the plaintiff’s interest in obtaining relief; the judicial system’s interest in efficient resolution; and the state’s interest in substantive social policies.
9
Q
In rem jurisdiction:
A
In rem jurisdiction is the legal power of a court to enforce a right in, to, or against property having a situs in LA , claimed or owned by a nonresident.
Situs of incorporeal movables, such as negotiable instruments, is where the instrument is located.
10
Q
What does venue refer to?
A
Venue refers to the parish where an action or proceeding may properly be brought.
Most venue rules are permissive–waived if not raised prior to making a general appearance or confirmation of a default.
11
Q
What is the proper venue for an individual?
A
1) Domiciled: parish of domicile. EXCEPTION: a suit may be filed in the parish of old domicile for one year after the change domicile, or in defendant’s new domicile.
2) Resides, but not domiciled: parish of residence
3) Nonresident with agent for service of process: parish of agent’s PO BOX
4) Nonresident without agent for service of process: parish of plaintiff’s domicile or where service is made.
12
Q
What is the proper venue for corporations and limited liability companies?
A
1) Domestic: parish of its registered office
2) foreign and licensed to do business in the state: parish of its principle business establishment as designated in application to do business, or, of no designation, parish of PPB.
3) foreign and not licensed to do business in the state: parish of plaintiff’s domicile or where service is made.
13
Q
What is the domicile of a natural person?
A
Place of his habitual residence. A natural person may reside in several places, but can’t have more than one domicile.
When no habitual residence, any place of residence may be one’s domicile at the option of the persons whose interest are affected thereby.
14
Q
Where is venue proper with joint or solidary obligors?
A
The parish where venue is proper as to any one of joint or solidary obligors will be proper to all. In a tort suit, an action against all joint or solidary obligors may be brought where the plaintiff is domiciled if one of the defendants is an insurance company.
15
Q
Where is venue proper for tort suits?
A
For tort suits venue is proper in the parish where:
1) the damages were sustained;
2) the wrongful conduct occurred; or
3) the defendant is domiciled.
16
Q
What are the exceptions to the general rules of venue?
A
1) Joint or solidary obligors: proper venue for any one of the joint or solidary obligors is proper for all
2) Change of domicile: venue in old domicile for up to one year, in addition to the new domicile
3) tort suits: where the damages were sustained, wrongful conduct occurred, or where the defendant is domiciled.
4) suits to enjoin wrongful conduct: venue proper in the parish where wrongful conduct occurred or may occur.
5) custody and child support: obtain custody–parish of matrimonial domicile; change custody–parish where parent is domiciled; modify child support–parish where the person awarded support is domiciled; to register support the parish where the person awarded support is domiciled.
6) an action on an open account or promissory note: parish where account was created or where the underlying services were performed; where the note was executed or debtor’s domicile
7) insurance suits: INSURANCE POLICIES–parish where insured is domiciled or where the accident occurred; actions on other insurance policies (uninsured motorist policy) brought in the parish where the loss occurred or the insured is domiciled. life insurance policy–parish of decedent’s death, domicile, or where any beneficiary is domiciled.
17
Q
Where is venue when defendant changes domicile?
A
2) Change of domicile: venue in old domicile for up to one year, in addition to the new domicile
18
Q
Where is venue for joint and solidary obligors?
A
1) Joint or solidary obligors: proper venue for any one of the joint or solidary obligors is proper for all
19
Q
Where is venue for tort suits?
A
3) tort suits: where the damages were sustained, wrongful conduct occurred, or where the defendant is domiciled.
20
Q
Where is venue for suits to enjoin wrongful conduct?
A
4) suits to enjoin wrongful conduct: venue proper in the parish where wrongful conduct occurred or may occur.
21
Q
Where is venue in custody and child support cases?
A
5) custody and child support: obtain custody–parish of matrimonial domicile; change custody–parish where parent is domiciled; modify child support–parish where the person awarded support is domiciled; to register support the parish where the person awarded support is domiciled.
22
Q
Where does venue lie for cases involving insurance policies?
A
7) insurance suits: INSURANCE POLICIES–parish where insured is domiciled or where the accident occurred; actions on other insurance policies (uninsured motorist policy) brought in the parish where the loss occurred or the insured is domiciled. life insurance policy–parish of decedent’s death, domicile, or where any beneficiary is domiciled.
23
Q
Where is venue for actions on a contract?
A
Brought where the contract was executed, signed, or where any work or service was, or was to be, performed.
24
Q
Where does venue lie for an action against a person having business office on a matter over which that office had supervision?
A
Where the office is located?
25
Where does venue lie for suits involving immovables
Where the immovable is located or where defendant is domiciled. This includes an action arising from breach of lease of immovable property, enforcing of the lessor's privilege, and partition. A notice of lis pendens should be filed.
26
How can a plaintiff sue the insurer directly?
Louisiana direct action statute: plaintiff can sue the insurer directly in LA on any liability policy written or delivered in the state or providing coverage for an accident which occurred in the state.
27
What is the proper venue for suits involving the LA direct action statute?
1) Where the accident occurred
2) where action could be brought against insured or insurer
28
Under what circumstances should the insured be enjoined in suits according to the LA Direct Action statute?
Insured must be joined as a defendant, unless:
1) in bankruptcy or insolvent
2) service of process cannot be made on the insured
3) the claim is between children and their parents or married people
4) the insurer is an uninsured motorist carrier 5) the insured is deceased
29
Where is venue proper for general jurisdiction under the LAS?
Where the plaintiff is domiciled or in any parish of proper venue.
30
Where does venue lie for class actions?
Venue proper as to any member of the class named as a defendant.
31
Where does venue lie for a derivative action of a shareholder, partner, or member?
Parish of proper venue as to the corporation or unincorporated association.
32
When should there be a change in venue of a suit?
1) if venue is improper, the suit may be dismissed or, in the interest of justice, transferred to a court of proper venue.
2) Venue proper but concerns of no impartial trial, the suit may be transferred to a parish where no party is domiciled
3) according to the forum non conveniens doctrine
33
Under what circumstances should a court transfer a case to a different parish under forum non conveniens?
Court can transfer if a case "if necessary for the convenience of the parties and in the interest of justice."
If there is a more appropriate forum out of the state, the court can dismiss the LA suit on forum non conveniens grounds.
34
What is the effect on prescription of filing suit in in the wrong venue?
Filing suit in the wrong venue WILL serve to interrupt prescription of service is made within the prescriptive period.
35
Can venue always be waived?
No. In certain cases, venue is jurisdictional, and cannot be waived prior to the institution of the action.
36
In what instances is there nonwaivable venue?
1) Action to annul judgement
2) succession
3) annulment or divorce
4) emancipation
5) tutorship
6) interdiction
37
Where is venue for an action to annul judgment?
Parish of trial court that rendered judgmnt
38
Where is venue for succession?
Where decedent was domiciled, if not in LA, where decedent owned immovable property, if neither, where decedent owned movable property
39
Where is venue for a tutorship action?
Domiciled in LA, where surviving parent is domiciled, where parent having custody is domiciled, or where the minor resides
If parents have joint custody: parish where divorce was instituted
Not domiciled in LA: parish where immovable property of the minor is situated, if not, where movable property is located.
40
Where is venue for interdiction?
Where the interdict is domiciled, if not domiciled, where he resides, if not resides, where he can be found.
41
When must a judge be recused?
Witness employed as an attorney in the cause of action Is the spouse, parent, child, or immediate family member of a party or attorney employed in the cause.
42
When may a judge be recused?
1. Judge is associated with an attorney during attorney's employment in the cause;
2. attorney in a case represents the judge at the time of the hearing;
3. Judge has performed a judicial act in the case in another court;
4. or When the judge is more distantly related to the party
43
What is contempt?
Act or omission tending to interfere with the orderly administration of judtice or impair the dignity of the court or respect for its authority.
44
When man an individual be liable for direct contempt?
Immediate view and present of the court of the failure to comply with a summons or subpoena.
45
What is the punishment for direct contempt?
$100 and a day in jail.
46
What is constructive contempt?
Wilful disobedience of a court order, deceit by a party or his attorney, and improper interference with a juror or witness.
47
What is the penalty for constructive contempt?
The penalty for disobeying a TRO or injunction may result in $1k fine and 6 months in jail.
THe court may imprison a person until he performs.
Punished following 48 hours notice and hearing.
48
Under what circumstances may a cause of action be used as a defense?
A cause of action may be used as a defense, even if it prescribed if it is connected with the principal demand.
EXCEPTION: redhibition in connection with enforcement of a negotiable instrument or cause of action under the FCPA.
49
Res judicata
A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.
Exception: parties in a divorce action not required to raise claims for spousal support and child support in the divorce action.
50
When may a single plaintiff culminate causes of action against a single defendant?
1) Court of proper jurisdiction and venue
2) culminated actions are mutually consistent and employ the same form of procedure. If language is framed in the alternative, then claims aren't inconsistent.
51
When may to or more parties be joined in the same suit as plaintiffs or defendants?
1) Community of interest (same legal and factual issues)
2) Court has proper jurisdiction and venue
3) all culminated actions are mutually consistent and employ the same form of procedure.
52
What are the requirements for a Declinatory Exception of Lis Pendens?
1. When suit brought in LA court while another is pending in federal court
2. Same transaction or occurrence
3. between same parties in same capacities
4. On motion of party or court on its own motions
5. Ct. may stay all proceedings in 2nd suit until 1st final judgment or discontinued
53
Requirements for abandonment of a court proceeding?
Abandonment – suit deemed abandoned when
1. No step in prosecution or defense
2. 3 years
3. Effective w/out formal order. Could file ex parte motion to dismiss on grounds of abandonment and court enters formal order of dismissal
54
What are steps sufficient to defeat abandonment?
Steps: parties must make steps towards substantive things. Taking a deposition, service requires for production of documents or rogs, answers or objections thereto are steps. Not steps: ministerial; entry or removal of an attorney, supporting/opposing a motion to dismiss.
55
What are the requirements for a class action?
a. Numerosity – the class is so numerous that joinder of all members is impracticable
b. Commonality – questions of law and fat common to the class
c. Typical Claims or Defenses – the c and d of the representatives are typical of c or d of the class
d. Fair and Adequate Protection of Interests – the representative parties will fairly and adequately protect the interests of the class; and
e. Objectively Defined Class - in terms of ascertainable criteria, such that court may determine constituency of class for purposes of conclusiveness of any judgment that may be rendered
56
When must a motion to certify a class be made?
Within 90 days after service of the initial pleading on all adverse parties.
57
What notice is required for class members?
Best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.
58
What is required for a dismissal or compromise of a class action?
No dismissal or compromise without the approval of the court exercising jurisdiction over the class.
The court shall determine whether the proposed compromise is fair, reasonable, and adequate for the class.
59
What should the court do when there are two or more class actions pending in more than one court on the same transaction of the occurrence with the same parties?
Transferred to the district court where the transaction or occurrence happened.
If multiple related transactions, defendant may have all suits transferred to the DC where the first suit was brought.
60
What are the requirements for a derivative action petition?
proper party allegation, allegations that Π attempted to get the managers to enforce the right (demand/demand futiliy); join as Δ the corp., prayer, verified by affidavit.
61
Who can bring a derivative action?
Plaintiff was a shareholder, partner, or member at the time of the occurrence or transaction of which he complains.
62
What is compulsory joinder?
When a person must be joined as a party in the action?
63
When is joinder compulsory?
1. In his absence, complete relief cannot be granted among those already parties
2. If not there, his ability to protect his interest would be impaired or other party would be at substantial risk of incurring multiple or inconsistent obligations
64
What should the court do if a person who must be joined under compulsory joinder cannot be made a party?
The court must determine whether it should be dismissed.
65
What factors does a court consider to determine whether an action should continue despite the absence of a person who must be compulsorily joined?
a. extent to which judgment against the absentee will prejudice him or those already present
b. extent to which prejudice can be lessened or avoided by protective provisions
c. whether judgment rendered in absence is adequate
d. whether Π will have an adequate remedy if action is dismissed
66
Who brings an action on behalf of an unemancipated minor?
Unemancipated minors don't have the capacity to sue.
Father, or the mother if the father is incompetent or absent, must bring the suit.
Mother may represent child if father refuses to do so with the permission of the court.
67
When is litigation initiated?
by the filing of a petition.
68
What do louisiana pleadings require?
Fact pleading. Thus, the facts must set forth a cause of action with particularity. Judgement may grant relief even if not prayed for in the pleading, and both trial and appellate courts may render judgment that is just, legal, and proper.
69
What does an attorney's signature certify?
Attorney's signature signifies that:
1) it is not being used for any improper purpose such has to harass, delay or increase costs
2) that it is warranted by existing law or by a nonfrivolous argument for the extension, modifiation, or reversal of existing law;
3) it has or is likely to have (after investigation or discovery)evidentiary support;
4) and each denial is warranted by the evidene or reasonably based on lak of information or belief
70
With what particularity do you have to plead a damages amount?
No specific monetary amount may be included in allegations or in prayer in an original, amended, or incidental demand in a tort suit.
BUT, this doesn't apply to conventional obligations, promissory notes, open accounts, negotiable instruments, child support, tax claims....
71
When is service requested on named defendants?
Within 90 days of the commencement of the action.
72
What happens if service isn't required within 90 days of filing?
If service isn't timely requested within 90 days of filing, and the court finds the failure to do so was due to bad faith, interruption of prescription with be considered to never have occurred.
73
How do you serve a natural person?
Made by one so authorized, generally the sheriff, or if he fails after 10 days and diligent effort, a private natural or juridical person appointed by the court.
74
How do you do domiciliary service?
Leaving the process at the (must do all the folowing)
1) usual place of abode
2) with a person of suitable age and discretion; and
3) who resides in the domiciliary establishment
75
How do you serve a corporation?
Service of process on a corporation is made by
1) personal on its registered agent
2) if no registered agent, on any officer, director, or employee of suitable age and discretion where the corporation regularly conducts business;
3) failing that, after certifying there was a diligent effort, service should be made upon the secretary of state
76
How is long arm service performed?
By mailing citation and petition by certified or registered mail, OR actual delivery to the defendant by commercial courier.
77
What is service on a representative?
If the court has appointed a representative for a person, that person is served by personal or domiciliary service on the representative.
When service is proper on a client's attorney, service may be made on the attorney's secretary.
78
How is personal service performed in a summary proceeding or subpoenas related to a summary proceeding?
The court can appoint a private person upon notice, without first requesting the sheriff to attempt service.
79
How is service performed on nonparty physicians?
Personal service on any clerical employeeof the doctor.
80
How is service performed on an LLC?
1) on an agent;
2) failing that, after certifying there was a diligen effort to serve the agent by personal service on any manager; or
3) if non, any member; or personal service on any employee of suitable age and discretion where business is conducted; or long arm service if applicable
81
What are the contents of process?
1) signature
2) date of issuance
3) title of the action
4) name of addressee
5) title and court's location
6) demand that the defendant make an appearance by filing pleadings
82
How may service be made after service of the original citation and petition?
Service of a pleading that doesn't require an answer may be made by mailing, or sending by electronic means the pleading to the opponent or the opponent's attorney of record.
83
When may a default judgment be entered?
May be entered against the defendant if he fails to respond timely.
84
What are the time limits for responding to a petition?
Service within the state: 15 days from the service of the petition where service is effected within the state, 10 days for city or parish courts.
When long arm statute is used: 30 days from the filing of affidavit regarding service of petition where the long arm statute has been used to gain personal jurisdiction.
85
What is the procedure for obtaining a default judgemnt?
Once time period elapses, plaintiff has a preliinary default entered into the record.
After two days exclusive of holidays, plaitiff may appear and prove the default by presenting a prima facie case.
The evidence is admitted into the record.
Default judgment is entered.
Note: no preliminary default is necessary in parish and city court. If defendant fails to answer or respond, default is confirmed on the 11th day.
86
How must the state be notified of a default judgment?
Plaintiff must send certified copy of the preliminary default to the state's agent for service of process by registered/certified mail and file an affidavit in the record stating the date of mailing.
If no answer is filed during the 15 days following receipt of notice, preliminary default can be confirmed.
87
Again, how long do defendants get to answer a petition?
15 (in state) or 30 days (under long arm statute) to file his answer in district court. The state has 30 days to answer.
88
What are in the contents of an answer?
1) no general denials;
2) whether the defendant admits or denies the allegations of the plaintiff contained in each paragraph of the petitions.
3) affirmative defenses.
When a defendant fails to timely plead an affirmative defense in his answer, he's prohibited from offering evidence in support of that defense.
89
How may a defendant object to a petition without an answer?
Defendant can file an exception.
90
When must a defendant file an answer after an exception.
10 days after the exception has been overruled.
91
What are the types of exceptions?
1) declinatory: jurisdictional
2) dilatory: procedural issue
3) peremptory: dismissal
92
What are the common declinatory exceptions?
1) insufficiency of service of process
2) lis pendens
3) improper venue
4) lack of personal jurisdiction
5) lack of subject matter jurisdction
93
What is the effect of not raising declinatory exceptions?
Except lack of subject matter jurisdiction and non-waivable status venue, declinatory exceptions are waived unless pleaded.
94
What are the common dilatory exceptions?
1) want of amical demand (pay up or we'll sue)
2) unauthorized use of summary proceeding
3) vagueness or ambiguity in the petition;
4) lack of procedural capacity
5) improper cumulation of actions including improper joinder of parties
95
What are the common peremptory exceptions?
1) prescription
2) peremption
3) res judicata
4) non joinder of a party under articles 641 and 642 (compulsory joinder)
5) no cause of action;
6) no right of action or no interest in the plaintiff to institute suit (e.g., wrong person in hierarchy in wrongful death case)
96
When is a plaintiff barred from asserting a claim because of res judicata?
Plaintiff must assert all causes of action existing at the time of final judgment arising out of the same transaction or occurrence.
97
When is a court prohibited from rendering judgment on an issue because of res judicata?
When in a previous action between the parties, an issue's determination was essential to the the final judgment.
98
What is the time period for pleading exceptions?
Declinatory and dilatory exceptions must be raised prior to or in the answer or prior to confirmation of a default judgment.
Peremptory exceptions may be pleaded at any time in trial or appellate court prior to submission of the case for decision.
99
What claims must a party assert against the other party?
A party must assert all causes of action arising out of the same transaction or occurrence that is the subject matter of the litigation.
100
What evidence may be used in a peremptory exception
If pleaded at or prior to the trial: may introduce to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. If pleaded in the trial court, after trial of the case, but before submission for a decision: plaintiff may introduce evidence in opposition, but defendant can only offer evidence to rebut plaintiff's evidence. No evidence can be offered to support or controvert an exceptio of no cause of action. Only look at whether the petition fails to state a cause of action.
101
What is the effect when a peremptory exception is sustained?
The action, demand, issue, or theory will be dismissed UNLESS the ground can be cured through amendment, or plaintiff fails to comply.
102
When may an incidental demand be filed?
May be filed prior to or at the same time the answer is filed.
103
What is an incidental demand?
Civil law equivalent to common law counterclaims.
104
When does a party that doesn't assert an incidental demand lose his right of action?
1) Compulsory reconventional demand: arises out of the same transaction or occurrence of main demand 2) Defendant in reconvention will lose his right or cause of action against a third person who is liable to him for all of the principal demand if such third person that he had a means of defeating the action which were not used because the defendant didn't join him or neglected to appraise him that suit had been brought.
105
What types of claims can be included in a reconventional demand?
Any claim, whether related to the primary action or not.
106
When must an incidental demand be filed?
Prior to or at the same time the answer is filed. Leave of court is required to file an incidental demand after the answer to the main demand is filed.
107
When may the defendant in the principal action file a cause of action after the answer?
With leave of court.
108
How is service of a reconventional demand made?
Personal service made with plaintiff's counsel of record. Citation is unnecessary.
109
When may a party assert a cross-claim against a co-party?
If it arouse out of the same transaction or occurrence that is the subject matter of the original action or of a reconventional demand.
110
What are some common examples of intervenors?
Insurers for indemnity; physicians' fees; attorneys' fees; heirs intervening in an action against the executor of a succession; holders of vendor's privilege intervening in mortgage foreclosure.
111
What are the rules for prescription with incidental demands?
It's not barred for prescription so long as it was not barred at the time of the main demand AND it is filed within 90 days of service of the main demand.
112
When can a party file an ex parte motion?
if the order sought is one to which mover is clearly entitled without supporting proof; or contradictory if the order sought is or which the mover is not clearly entitled, or which requires supporting proof.
113
When is a summary judgment granted?
When there is no material fact at issue and the mover is entitled to judgment as a matter of law. (no genuine issue of material fact)
114
When can a motion be filed?
Plaintiff: after the answer has been filed. Defendant: at any time.
115
When must a motion be served?
At least 15 days prior to a hearing. Opposing memos and affidavits must be at least 8 days before hearing.
116
What are the requirements for an affidavit?
1) competent affiant 2) person knowledge; and 3) Based on facts admissible at trial (e.g., no inadmissible hearsay).
117
When may a motion for judgment on the pleadings be filed?
By either party at any time after the answer has been filed.
118
When may petitioner amend the petition?
Before the answer is filed without leave of court. Otherwise, need leave of court.
119
When is answer required to an amended petition?
within 10 days
120
When may the defendant amend his answer?
Defendant may amend his answer once within 10 days after the original answer is served, otherwise need leave of court or written permission.
121
When does the amended pleading relate back to the original's filing date?
If the action or defense asserted in the amended petition or answer arises from the conduct, transaction, or occurrence set forth in the original pleading. There are additional requirements for adding plaintiffs and defendants. For adding additional plaintiffs: 1) Defendant knew or should have known of the existence or involvement of the new plaintiff 2) the new and old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; and 3) there is no prejudice to defendant in preparing a defense For adding additional defendants: 1) the substituted defendant received notice of the suit so there is no prejudice in preparing a defense; and 2) the substituted defendant knew or should have known that but for the mistaken identity, he would have been sued.
122
What is a subpoena?
Requires the object of the subpoena to attend a hearing, trial, or deposition.
123
What is a subpoena duces tecum?
Compels a witness to bring certain documents, tangible things, or electronically stored information with him.
124
How long does a recipient of a subpoena have to object?
The recipient may, within 15 days after service, or prior to the time specified for compliance, if less than 15 days after service, object in writing.
125
What can the requesting party do if the recipient doesn't respond?
Move to compel and for sanctions.
126
What is the scope of discovery?
Any matter not privileged with is relevant to the subject matter involved in the pending action. It doesn't have to be admissible, so long as the information is reasonably calculated to lead to the discovery of admissible evidence.
127
When are protective orders issued?
Prevent annoyance, embarrassment, oppression, or undue burden or expense.
128
What's the effect of a protective order?
Includes: 1) prohibiting discovery 2) limiting terms of discovery; or 3) ordering that trade secret or confidential information may not be disclosed or designating the form.
129
How must objections in a deposition be made?
Concisely and in a non-argumentative and non-suggestive manner.
130
When may a party instruct a deponent not to answer a question in a deposition?
Can instruct only: 1) when necessary to preserve a privilege; 2) to enforce a limitation on evidence imposed by the court; 3) prevent harassing or repetitious questions; or 4) to prevent questions which seek information that is neither admissible at trial nor reasonably calculated to lead to the discovery of admissible evidence.
131
When may a party terminate a deposition?
A deponent or party may move to terminate the deposition upon showing that it is being conducted in bad faith or to annoy, embarrass, or oppress the deponent or a party. If the deposition is terminated, it can be resumed only on court order.
132
When may deposition testimony be used in trial?
1) Impeachment 2) when used by adverse party for any purpose 3) use of deposition of a witness if witness should die or otherwise be unavailable, if the witness resides more than 100 miles from the courthouse or is out of state, or in exceptional circumstances 4) deposition of an expert may be used by any party for any purpose.
133
In what mediums may a deposition be taken?
1) oral examination 2) electronic means if parties agree or court ordered 3) written questions to be answered before an officer
134
How do you take a deposition in another state or foreign jurisdiction?
Letters rogatory.
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What is the procedure for letters rogatory?
1) reasonable notice in writing stating time and place of deposition and names and addresses of deponents 2) application to court for issuance of letters rogatory 3) letters rogatory are issued to the appropriate authority in the foreign jurisdiction requesting the deponent to answer the letters rogatory
136
Upon whom may interrogatories be served?
Any party.
137
What is the time limit to answer or object to an interrogatory?
Interrogatories must be answered under oath, or objected to, within 15 days of service. (Defendant has 30 days from service of petition, and state always has 30).
138
What is the limit on the amount of interrogatories?
35, unless obtain leave of court.
139
What may a party do instead of answering letters rogatory?
Where answers to interrogatories can be obtained from the business records,including electronically stored information, of a party, that party can specify where in the records the answers may be found (if the burden is substantially similar for both parties) and make the records available in lieu of answering interrogatories.
140
Upon who can an RFP be served?
Upon any party. FOr a non party you need a subpoena duces tecum.
141
What is the time limit for responding or objecting to an RFP?
15 days. Defendant has 30 days from service of the petition.
142
What should a party do if electronically stored information isn't produced in compliance with the RFP?
move to compel
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When does a party not have to produce electronically stored information?
If it's not reasonably accessible because of undue burden or cost. But, upon such a showing, the court may still order discovery from such sources if the requesting party shows good cause.
144
When may a court compel an adverse party to undergo a mental exam?
Only if the physical or mental condition of the party is at issue.
145
Upon whom can an RFA be served?
Upon an adverse party.
146
What happens if no answer is made within 15 days?
The fact is considered conclusively proved or the documents is considered conclusive genuine.
147
How may a party respond to an RFP.
Object, deny, or state that the information is privileged. Party can't say insufficient information unless reasonable inquiry has been made.
148
When may a party seek sanctions in discovery?
Once a party fails to comply with a discovery request, the other party can apply to the court for an order compelling such discovery. If the party doesn't comply with that court order, it may be sanctioned.
149
What sanctions are available against attorneys who fail to comply with a court discovery order?
1) matter prived 2) exclusion of evidence 3) striking dismissing, or entering default 4) costs and fees 5) ordering contempt (constructive contempt for failure to follow a court order) Note: absent exceptional circumstances, no sanctions may be imposed for ESI lost from routine good faith operation of electronic information systems.
150
What is the effect of inadvertent disclosure?
Not a waiver if reasonably prompt notice of the inadvertence of the disclosure is given to the recipient.
151
What must an expert report include?
1) expert's opinions and reasons therefore and any data or information upon which those opinions are based 2) exhibits, qualifications, publications of previous 10 years, compensation for expert services, and cases in the last 4 years in which he has testified as an expert
152
When must an expert report be filed?
At least 90 days before trial or if used for rebuttal only, within 30 days after the opposing side's expert report is disclosed.
153
Are drafts reports and communications discoverable?
Not unless exceptional circumstances.
154
What may an opposing party do to determine the reliability of an expert?
Not later than 60 days before trial, a motion for a pretrial hearing to determine whether a witness qualifies as a expert or whether his methodologies are reliable under articles 702 and 705 of the Code of Evidence.
155
Do parties have a duty to supplement?
No. There's no duty to supplement responses which were complete when made except: 1) questions of identity 2) information making previous response incorrect; 3) by order or agreement of parties
156
What motion do you file to settle before trial?
Motion for judgment on offer of judgment.
157
What is a deposition of a corporation called?
1442 deposition.
158
What is the procedure for a motion for order of judgment?
20 days before trial party may make a written offer to settle all trials. If the offer is accepted any party may move for judgment on the offer within 10 days after service.
159
In what situation will the court order the offeree to pay the offeror's costs?
If the final judgment is 25% less than the amount offered in the motion for judgement offered by the defendant offeror; or If the final judgement is 25% greater than the amount of the offer of judgment made by the plaintiff-offeror.
160
When may the court grant a continuance?
If there is good ground therefore.
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When MUST the court grant a continuance?
If the party is unable, with due diligence, to obtain material evidence (potentially dispositive); or A material witness has absented himself without the contrivance of the party requesting the continuance.
162
WHen will the court allow live trial testimony by video?
if the witness is beyond the subpoena power of the court with when compelling circumstances are shown. The order for live trial testimony by video maybe entered at a pretrial conference, or in exceptional circumstances, after a hearing at least 10 days prior to trial or at another time if it doesn't prejudice the parties.
163
If evidence is inadmissible, how may a party put the evidence in the record for appeal?
Offer of proof or proffer.
164
When may plaintiff obtain a voluntary dismissal without prejudice?
Prior to any appearance of record by the defendant. The court may decile to grant dismissal except with prejudice.
165
When may the court grant involuntary dismissal during trial?
1) plaintiff fails to appear at trial 2) non jury trial: after close of plaintiff's case upon the ground that upon the facts and law, plaintiff has shown no right to relief.
166
What is the standard for granting an involuntary dismissal?
The court must evaluate plaintiff's evidence without applying any specifial inference in favor of the plaintiff.
167
When must a request for a jury be made?
Within 10 days of the filing of a pleadings that raise an issue triable by a jury.
168
What are peremptory jury challenges?
Jury challenges where you don't need a reason, although you can't act unconstitutionally.
169
How many peremptory challenges are you allowed:
Jury of 12, 6 peremptory challenges, up to 4 additional if multiple parties Jury of 6, 3 peremptory challenges, 2 additional if multiple parties
170
When may a juror be challenged for cause?
1) juror lacks legal qualification (18+, US citizen, read and write, no felony conviction); 2) juror has formed an opinion or is otherwise not impartial; 3) relations between the juror and the party or attorney would influence the juror; 4) the juror has been on a jury hearing the same case or one arising out of the same facts (not just similar); or 5) the juror takes the 5th on voir dire
171
What is the standard for entering a directed verdict?
The facts and inferences are so overwhelmingly in favor of the moving party that reasonable persons could not reach a contrary verdict.
172
When may directed verdicts be made?
By motion at the close of the other side's case.
173
When must a JNOV be made?
Within 7 days, exclusive of holidays, from mailing or service (if required) of notice of signing of judgment; if there is no verdict, within 7 days of jury discharge.
174
What is the standard for granting a JNOV?
After considering all the evidence in the light most favorable to the non-moving party, if the facts and inferences so strongly and overwhelmingly favor one party that reasonable persons could not reach a contrary result.
175
When may a final judgment be amended by the trial court?
Upon motion of the court or any party, a final judgment may be amended by the trial court at any time to correct errors of calculation or to alter the phraseology BUT NOT THE SUBSTANCE.
176
What are partial final judgements?
Final judgments rendered by the court even though the successful party is not granted all the relief prayed for or all the issues haven't been adjudicated with the court 1) dismisses less than all the parties 2) grants a motion for judgment on the pleadings 3) summary judgment
177
When does a partial judgment constitute a final judgment
Only when designated as a final judgment by the court after an express determination that the re is no just reason for delay.
178
What must the court issue within wo days if requested by another party within 10 yas of the mailing of the notice of signing of judgment?
Findings of fact and reasons for judgment. EXCEPTION: in nonjury personal injury cases, the court shall issue findings of fact, but not reasons, for judgment, whether or not requested by a party to do so.
179
What is the post final judgment procedure?
FInal judgments must be signed by the judge. The clerk must mail the notice of signing of judgment to all counsel of record and each unrepresented party and file a certificate of mailing in the record. Party can request findings for fact and reason for judgment within 10 days of the mailing of the notice of signing of judgment.
180
When should a motion for a new trial be granted?
1) verdict contrary to the law and evidence 2) discovery of new evidence which could not have been discovered with due diligence before or during trial; or 3) when a juror was bribed or compromised Affidavit required for 2 and 3.
181
What is the standard for granting a new trial?
The htrial judge is free to evaluate the evidence without favoring either party; he may draw his own inferences and conclusions; the motion is granted if the verdict is contrary to the law and evidence.
182
What can a party do to correct a judgment?
File an action of nullity.
183
What are the types of actions for nullity?
Annulment for vices of form Annulment for vices of substance.
184
Under what circumstances should a final judgment be annulled for fices of form?
1) Judgment rendered against an incompetent not represented as required by law 2) against one not properly served and who has not waived an objection to jurisdiction; 3) against one whom a valid judgment of default has not been taken; or 4) if the judgment was rendered by the court lacking subject matter juridsction
185
When when an action for annulment of fives br brough?
Any time, including on appeal.
186
When can a party receive an annulment for vices of substance?
When the final judgement was obtained by fraud or ill practices.
187
What is the proper court for an an action to annul?
The trial court where judgment was rendered.
188
What is the scope of review on appeal?
Fact findings are reviewed for manifest error. Law findings for whether they were correct or incorrect.
189
When does a party have an appeal of right?
A law or ordinance has been declared unconstitutional.
190
What is the procedure for an appeal?
Writ of cert: filed within 30 days of mailing of notice of judgment or within 30 days of mailing notice of denial of a timely filed application for rehearing. Supervisory and original writs: based on SC's constitutional authority. Within reasonable time set by the trial court.
191
How many juries must concur for a verdict?
Juries comprised of 12 jurors 9 jurors must concur for a verdict. If 6 jurors, 5 must concur for a verdict.
192
What is the time period for taking a devolutive appeal?
Within 60 days of when the time for filing a motion for a new trial or JNOV has elapsed or is entered.
193
What is the time period for taking a suspensive appeal?
Within 30 days of when the time for filing a motion for a new trial or JNOV has elapsed or entered.
194
What is the remedy for a premature appeal order?
Order is premature if granted before the court disposes of all timely filed motions for new trial or JNOV. The order becomes effective upon the denial of such motions.
195
What is a devolutive appeal?
An appeal where the trial court's judgment will not be stayed during the appeal.
196
What is the general procedure during the appeals process?
Order of appeal; Return day; Answer to appeal Dismissal of appeal; Application for rehearing;
197
What is the return day?
The day by which the record must be logged in the court of appeal.
198
When is the return date?
30 days from the date estimated costs are paid, if no testimony is to be transcribed, or 45 days from the date such costs are paid, of testimony is transcribed, unless the trial court fixes a lesser period. Only one extension is allowed and it can't exceed 30 days.
199
When does an appellee need to answer an appeal?
He doesn't need to answer an appeal unless he desires that the judgment be modified, revised, or reversed in part, or unless he demands damages against the appellant.
200
What is the time period for filing an answer to an appeal?
15 days from the later of the return day of the actual lodging return day of the actual lodging of the record of appeal.
201
Under what circumstances will an appeal not be dismissed?
When the record is missing, incomplete, or in error, no matter who is responsible. Because of any other irregularity, error, or defect, unless it is imputable to the appellant.
202
When must a motion to dismiss an appeal be filed?
Within 3 days, exclusive of holidays, of the return day or the lodging of the record.
203
What type of relief can you never appeal?
No appeal is allowed from a temporary restraining order.
204
When must you file an appeal from an order regarding a preliminary injunction?
Within 15 days from the order. There is no suspension of a preliminary or final injunction unless the court orders.
205
When must an appeal from a parish court or city court?
WIthin 10 days from the date of the judgement or from the service of judgment, if necessary.
206
How do you execute a money judgment?
Initiated by filing a writ of fifa. Notice of the sale of the judgment debtor's property must be given in an ad in the local newspaper. If the sale involves movable property, notice must be placed in an ad at least 10 days before the sale. If the sale involves immovable property, two ads are required. The first ad must be placed at least 30 days before the sale and the second at least 7 days before the sale. If the sale is insufficient, it goes for a second sale.
207
What is a writ of fifa?
Directs the sheriff to seize and sell the defendant's property.
208
How much must a judgment debtor's property bring for a sale to be valid?
In the first sale: 2/3 of its appraised value or there is no sale. At second auction: the property may be sold for whatever price it brings unless that price is insufficient to pay sheriff's fees and superior interests.
209
What is garnishment?
Used to seize property that is in the hands of third parties.
210
What is the judgment debtor rule?
Motion for the examination of a judgment debtor that requires the judgment debtor to disclose her assets.
211
How can you get recognition of a foreign judgment?
Ordinary process; or The enforcement of foreign judgments act.
212
What are smmary proceedings?
Those which are conducted with rapidity, within the delays allowed by the court, without citation and observance of all the formalities required in ordinary proceedings.
213
What are the types of matters which are heard as a summary proceeding?
1) Incidental questions arising in the course of judicial proceedings 2) child custody, alimony, child support 3) actions to annul probated testament; 4) application for a new trial 5) application for a written accounting
214
What summary proceedings must be commenced by petition?
1) Habeus corpus 2) mandamus 3) quo warranto
215
What is executory process?
Under the rules of executory process, there can be a rapid foreclosure and certain property may be sold without obtaining a personal judgment against the debtor.
216
What are the prerequisites to utilizing executory process?
Must have a mortgage or privilege executed by an authentic act; and Mortgage or privilege must contain a confession of judgement clause.
217
When can a debtor enjoin an executory proceeding?
Only upon the following grounds 1) the debt has been extinguished; 2) the debt is unenforceable 3) proper executory process procedure hasn't been followed.
218
What is a deficiency judgment?
A deficiency judgment is obtained by suit to collect the balance due if the proceeds from the sale of the debtor's property in an executory proceeding are insufficient to satisfy the debt.
219
How does a creditor begin a deficiency judgment:
Obtain a deficiency judgment by: converting the executory proceeding into an ordinary proceeding; or File a separate suit.
220
When can a writ of attachment be obtained?
When the plaintiff claims an interest in property and defendant is: concealing himself to avoid service of citation; disposing of or granting a security interest in property to give unfair privilege to one creditor or to place it beyond the reach of his creditors; Is leaving the state to avoid execution of a judgment.
221
When may a writ of sequestration be obtained?
When the plaintiff claims to own, possess, or have a privilege, mortgage, or security interest on the property seized, and it's within the power of the defendant to conceal, dispose, waste, or remove the property from the parish.
222
When is a plaintiff entitled to an injunction?
Upon a showing of irreparable harm: loss that's not compensable by the award of money damages.
223
When can you get a TRO?
Maybe granted without notice and expires by its terms, not to exceed 10 days. Requires a verified petition.
224
What is the process for obtaining a preliminary injunction?
Notice, hearing, and trial on the merits. Hearing must not be less than 2 days no more than 10 days from service of notice.
225
What is a petitory action?
One in which the plaintiff seeks a judgment declaring that she is the owner of the property.
226
What are the requirements for a petitory action?
1) the plaintiff must not have possession at the time of filing the suit, and 2) the defendant must be in possession or assert that he owns the property. If defendant in possession, the plaintiff must prove that she has good title against the world.
227
What is the plaintiff's burden of proof in a petitory action?
If defendant in possession: that he acquired ownership from a previous owner or by acquisitive prescription If defendant not in possession: he has better title than defendantDefenant in possession
228
What is a possessory action?
Used when plaintiff is in possession, but is being disturbed.
229
What is the burden of proof for the plaintiff in a possessory action?
1) he has possession of the immovable or real right when the disturbance occurs; 2) he and his ancestors in quiet title had uninterrupted possession for more than a year prior to the disturbance, unless evicted by force or fraud; 3) the disturbance was one in fact or in law; and 4) he instituted the action within one year of disturbance.
230
How long does the loser of a possessory action have to file an appeal?
30 days in which to take a devolutive appeal.
231
What is a notice of pendency of action?
Special type of notice of lis pendens applicable in a LA court (state or federal) affecting title to, or asserting a mortgage or privilege on immovable property. The purpose is to give 3rd parties notice of the pending action.
232
What is required in a notice of pendency action?
Plaintiff must file a written notice, signed y the party or counsel filing the notice, setting forth the names of the persons against whom it is to be effective, the court, title, docket #, filing date, and object of the demand in which the action is pending.
233
Where must a notice of pendency action be filed?
With the recorder of mortgages of parish where property is located.
234
When does the notice of pendency action expire?
10 years mut may be reinscribed by filing the notice. A reinscription filed before 10 years continues the effect for 5 years from the reinscription.
