Term
| Is LA a notice or fact pleading state? |
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Definition
| Fact pleading and thus the facts pleaded must be set forth a COA with particularity. Judgment may grant relief even if not prayed for in the pleading |
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Term
| Name the allegations that have to be plead with particularity and those that can be plead generally? |
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Definition
Particulatiry: Fraud or mistake, and state how you were misled
Generally: Malice, intent, knowledge and conditions of the mind. |
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Term
| What must every petition contain: |
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Definition
1. caption
2. concise allegations w/ numbered paragraphs
3. Signature
4. Name and Domicile of all parties
5. COAs and Facts
6. Receipt of Service Designation
7. prayer for judgment |
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Term
| What does an attorney's signature certify? |
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Definition
1. Has read and made a reas. inquiry
2. the pelading is not be being used for improper purpose such as to harass, delay, increase costs
3. it has or is likely to have evidentiary support
4. is warranted by existing lase or a by a non-frivolous argument to change the existing law
5. each denial is warranted by the evidence or reas. based on lack of information |
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Term
| Do you plead a specific amount of damages? |
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Definition
Depends on the type of suit.
You can in suit over a conv. obligation, promissory note, open acct, neg. insturment, alimony, child support tax claim or garnishment.
CANNOT Plead specific damages in tort suit. Use motion to strike and get atty fees and costs. |
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Term
| How long does a plaintiff have to request service? |
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Definition
| 90 days from the commencement of the action and can be waived. |
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Term
| If service was not made within 90 due to bad faith... |
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Definition
| prescription is not interrupted and the interruption will have never have occured |
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Term
| How is service made on a corp? |
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Definition
On its registered agent,
if none -->on any (SAD) officer, director or employee when the corp. regularly conducts business
if still no -->SOS |
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Term
| How is domiciliary service made? |
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Definition
| by leaving the process at the dwelling or usual place of abode with a person of suitable age and discretion. |
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Term
| How is personal service made? |
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Definition
| if the sheriff fails to make service after 10 days and a diligent effort the court may appoint a private person, natural or juridical, to make service. Private person must be a resident over majority |
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Term
| How do you serve non-resident motorist? |
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Definition
| SOS and mailing notice to the defednant certified or registered mail with return receipt request to the address on the accident report |
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Term
| How is long arm service made? |
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Definition
| by mailing the citation and petition by certified or registered mail or actual delivery to the defendant |
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Term
| How is service made on a partnerhship? |
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Definition
| by personal service on a partner or partnership in commendam by personal service on a general partner or if the failes after certifying a diligent effort --> employee |
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Term
| How to serve an unincorporated assn? |
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Definition
| personal service on an agent, managing official or failing that --> any memeber |
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Term
| How to serve foreign or alien insurer without certificate of authority but transacts businesses in the state? |
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Definition
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Term
| How to serve a representative? |
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Definition
personal or domcilary service of the the rep.
If the rep is client's atty, service can be made on the attorney's secretary |
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Term
| When a physican is not a party to a suit, how are they serve? |
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Definition
| by personal service on any clerical employee of the doctor |
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Term
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Definition
| By personal service of agent, if that fails then certify diligent effort to serve agent --> manager, if none, member or employee all of SAD where business is conducted. |
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Term
| What is a sheriff's return? |
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Definition
the affidavit the sheriff returns when service is accomplished, which must be filed to prove service
Assumed prima facie correct |
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Term
| What are the contents of process? |
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Definition
Signature
Date of Issusance
The title of the action
Name of address
title and court's lcoation
Demand |
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Term
| When must a party be joined? |
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Definition
When no complete relief in the person's absence
OR
Interest claimed to subject matter of action such that his absence would impair or impeded his ability to protect that interest or present a substantial risk of incurring multiple or inconsistent obligations |
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Term
| If a compulsory party cannot be joined will the action proceed? |
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Definition
The court will determine that based on several factors:
Extent of prejudice
Can prejudice be lessened or avoided
Adequacy of judgment
Adequacy of remedy |
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Term
| Can an unemanicapted minor or interdict bring a suit? |
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Definition
| No, they lack capacity cutatory and tutors/parents must bring the suits on their behalf. |
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Term
| When will the court appoint an attorney? |
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Definition
1. A non resident or absentee who has not been served.
2. unemanicapted minor or incompetent without a legal representative
3. deceased and no succession representative has been apointed. |
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Term
| If a party dies who are is legal successors |
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Definition
1. The survivors under 2315
2. succession reps/ or heirs or legatees |
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Term
| What are the time limits for party substitution? |
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Definition
within 30 days of service of summons if adress know and successor is a resident
60 days from recipt of the summons by certified mail if successor known, but s a non resident or absentee
if unknown, summons published in two publications not less than 15 days apart in a news paper published in the parish where the suit is pending and substitution must occur 50 days after the first publication. |
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Term
| When can a default judgment be rendered when service was performed in the state? |
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Definition
15 days from SERVICE of the petition where service is the state
10 days for parish court |
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Term
| When can a default judgment be rendered when service was performed by longarm? |
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Definition
| 30 days from filing of affidavit regarding service of peition |
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Term
| What is procedure for default judgment |
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Definition
1. Wait the appropriate time period depending on service
2. Once period has elapsed π has a preliminary default entered into the minutes
3. After 2 days the π may appear and confirm the default, which is final judgment |
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Term
| How is notice of prelim judgment given if served personally? |
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Definition
| mailed by COC to personal service or last known address |
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Term
| How is notice of prelim judgment given if dom. service used? |
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Definition
| served by sheriff by pers. or dom. service |
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Term
| How is notice of prelim judgment given if appearance was made? |
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Definition
| sent by certified mail to counsel of record for ∆ or if none, to ∆ 7 days before confirmation of default |
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Term
| How is notice of prelim judgment given if ∆ is state? |
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Definition
| certified coy of prelim default to the state's agent for service of process by registered or certified mail and file and affidavit in the record stating the date of mailing, if no answer after 15 days following recipt of notice, prelim default can be confirmed. |
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Term
| How long does ∆ have to answer? |
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Definition
In state - 15 days
Long arm - 30 days
State - 30 days |
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Term
| What happens if an exception is filed prior to the answer? |
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Definition
| Then the answer is not required until 10 days after the exception is overruled or referred on the merits, or if sustained, 10 days after the amended petition. |
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Term
| What are the affirmative defenses and when must they be raised? |
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Definition
failure of consideration
mitigation of damages
duress, error, mistake
illegaility
fraud
In the answer, if you forget you are prohibited from supporting them in your arguments. |
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Term
| What are the three types of exceptions? |
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Definition
Declinatory declines the jx of the court
Dilatory seeks to interposed dealy
Peremptory if granted would dismiss the suit. |
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Term
| When must declinatory and dilatory exceptions be raised? |
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Definition
| must be raised prior to in the answer |
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Term
| When can premptiory exception be pleased? |
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Definition
| At any time, even on appeal if there is an objection in the record. |
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Term
| Does an incidental demand have to be related to the main demand? |
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Definition
| No, it can be completely unrealted |
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Term
| If a COA comes up after the answer is filed, can it be raised? |
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Definition
| Yes, with leave of court it may be presented as a reconventional demand |
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Term
| What is particular about service for a reconventional demand? |
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Definition
| Do not have to serve the ciation and personal serv must be made on plaintiff's counsel |
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Term
| Who can be made a party to a cross-claim and how are they served? |
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Definition
Person not a party to the oringial action
Served on counsel with no citation |
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Term
| Presciption for incidental demand |
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Definition
| Not barred by rx so long as it was not barred at the time the main demand was filed and is filed withing 90 days of service of the main demand |
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Term
Motion to strike
Who can make it?
What does it do? |
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Definition
On its own motion of that of any party
strike from a pleading any insufficient deman, defense or any redundant, immaterial, impertinent or scandalous matter |
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Term
| When is a motion for summary judgment granted? |
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Definition
| "No genuine issue of material fact and mover ie entitled to judgment as a matter or law" |
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Term
| When can a motion for summary judgment be filed? |
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Definition
π after answer is filed
∆ may file at anytime
Must be served at least 15 days prior to hearing
Opposing memo and affidavit must be served 8 days before hearing. |
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Term
| Who has the burden of proof for a motion for summary judgment? |
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Definition
| BOP is on the movant, unless the burden at trial would be on the non-movant, then the movant shows absence of any of the elements in order to meet their burden. |
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Term
| What are the requirements for an affidavit? |
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Definition
1. Compentnet affiant
2. On personal knowledge
3. Facts admissible at trial |
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Term
| If the summary judgment motion is denied,... |
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Definition
| the court should provide reasons for the denial sua sponte or upon request within ten days of rendition. |
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Term
| What is a motion for judgment on the pleading? |
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Definition
| May be used by any party after the answer has been filed. Court looks only at the pleadings and considers all of the mover's undeined allegation and all of the opponent's allegations as true. |
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Term
| What is a special motion to strike? |
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Definition
| Look for someone exercising free speech |
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Term
| When can a petition be amended? When is an answer to an amended petition due? |
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Definition
π may amend without leave of ct before the answer is served
Otherwise, leave of court or consent of opposing counsel is required
An answer to the amended peition is required within 10 days or within 15 of the orig. whichever is longer |
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Term
| When can an answer be amended? |
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Definition
| Within 10 days of the original answer being served. |
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