Louisiana Civil Procedure

Types of Louisiana Courts

• District Courts ≥ $20,000
• Parish Courts < $20,000
• City Courts < $15,000
• Justice of the Peace Courts < $5,000

Louisiana Civil Procedure

Exclusive/Original Jurisdiction of
District Courts 

• Immovables
• Assertion of Constitutional Rights
• Annulment, Divorce, and Incidental Actions related thereto
• State or Parish Defendant

Louisiana Civil Procedure

Jurisdiction over Incidental Demands

If Parish or City (but not JoP) Courts, then court has jurisdiction over main demand regardless of amount in controversy.

Not true for compulsory reconventional demands!

• for non-resident motor vehicle operators
• for non-resident watercraft operators
• for foreign/alien insurers

• Defendant transacts business in LA
• Defendant contracts to supply services/things in LA
• Defendant causes LA injury while in LA
• Defendant causes LA injury while outside LA
• Defendant has an interest in LA immovable
• Defendant owes child/spousal support to LA domiciliary
• Defendant owes child support to child conceived in LA
• Defendant manufactured something that arrived in LA through stream of commerce

• Minimum Contacts:  Defendant "purposefully directed activities at forum residents."

• Fundamental Fairness:  The exercise of jurisdiction does not offend "traditional notions of fair play and substantial justice."  Fairness Factors
• The burden on the defendant
• The State's interest in the dispute
• The plaintiff's interest in obtaining the relief sought
• The judicial system's interest in efficient resolution of the dispute
• The States interest in its own social policies

Applies to movable, immovable, corporeal, and incorporeal property located in LA.

The situs of incorporeal movables such as negotiable instruments and stock certificates is where the obligor (creditor) is located.  For all other incorporeal movables the situs is where the obligee (debtor) is located.

• Adoption
• Emancipation
• Interdiction/Curatorship
• Tutorship
• Custody
• Annulment and Divorce
• Filiation

• LA domiciliaries = parish of domicile
• LA non-domiciliary residents = parish of residence
• Non-resident w/ agent for service = parish of agent's P.O. Box
• Non-resident w/out agent for service = parish of plaintiff's domicile or where service is made

• Domestic Corp. & LLCs = parish of registered office
• Foreign + licensed to do business in LA = PPB
• Foreign + not licensed to do business in LA = parish of plaintiff's domicile or where service is made

• Domestic = parish of registered office
• Foreign/Alien = East Baton Rouge

• Venue = PPB

Venue will be in: 

• Parish of old domicile (for 1 year after change)
• Parish of defendant's new domicile

In a tort suit an action against all joint or solidary obligors may be brought in parish of plaintiff's domicile if:

• One of the defendants is an insurer
• Jurisdiction was obtained over one of the defendants under the Long-Arm Statute

Venue will be proper in any of the following parishes:

• Where the damages where sustained
• Where the wrongful conduct occurred (or may occur
• Where the defendant is domiciled

Parish of

• A party
• Last matrimonial domicile

Louisiana Civil Procedure

Exceptions to General Venue Rules

Custody and Child Support

To Change Custody

Parish where

• Custodial parent is domiciled
• Custody decreed rendered
• If person award custody is no longer domiciled in LA, parish where person seeking custody is domiciled

Louisiana Civil Procedure

Exceptions to General Venue Rules

Custody and Child Support

To Modify Support

• If person awarded support = LA domiciliary AND
• If award registered, parish where 
• Person awarded support is domiciled
• Support award was last registered (if multiple registrations)
• If award unregistered, parish where
• Support award was rendered
• If person awarded support ≠ LA domiciliary, parish where the person is domiciled OR
• If award confirmed, parish where last confirmed
• If award unconfirmed, parish where award was rendered

Louisiana Civil Procedure

Exceptions to General Venue Rules

Custody and Child Support

To Register Support

Parish where person awarded support is domiciled

Louisiana Civil Procedure

Exceptions to General Venue Rules

Custody and Child Support

Discretion of Court to Transfer Proceeding

Louisiana Civil Procedure

Exceptions to General Venue Rules

Insurance Suits

• Life Insurance
• Parish of decedent's death
• Parish of decedent's domicile
• Parish of any beneficiary's domicile
• Health/Accident Insurance
• Parish of insured domicile
• Parish of accident or illness
• Any other insurance
• Parish of insured's domicile
• Parish where loss occurred

Louisiana Civil Procedure

Exceptions to General Venue Rules

Suits Involving Immovable Property

Venue proper:

• Parish in which immovable located
• Parish in which defendant is domiciled

NB:  In all suits involving immovable property a notice of lis pendens must be filed.

Louisiana Civil Procedure

Exceptions to General Venue Rules

Action to Partition Community Property

Venue will be proper

• If spouses own immovable property
• Parish where immovable property located
• If spouses do not own immovable property
• Parish where either party is domiciled.

Louisiana Civil Procedure

Exceptions to General Venue Rules

Action Against Domestic Corporation

Whose Charter Has Been Revoked

Louisiana Civil Procedure

Exceptions to General Venue Rules

Class Actions

In a class action brought on behalf of a class of plaintiffs, venue will be proper in the parish of proper venue as to the defendant.

In a class action brought on behalf of a class of defendants, venue will be proper in any parish of proper venue as to any defendant.

Louisiana Civil Procedure

Change of Venue

Forum Non Conveniens

A proceeding may be transferred if necessary for the convenience of the parties and witnesses and in the interests of justice.

NB:  No suit brought in the parish of plaintiff's domicile, in a court of competent jurisdiction, and where venue is proper may be transferred for forum non conveniens.

Louisiana Civil Procedure

Change of Venue

Prescription

Louisiana Civil Procedure

Exceptions to General Venue Rules

Non-Waivable Venue

Action to Annul Judgment

Venue will be proper only in 

• Parish of decedent's LA domicile
• If no LA domicile, parish where decedent owned LA immovables
• If no LA domicile AND no LA immovables, parish where decedent owned LA movables.

Venue will be proper only in 

• Parish of either spouse's domicile
• Parish of last matrimonial domicile

Venue will be proper only in parish where a party is domiciled

Venue will be proper only in 

• If LA domicile
• Parish of surviving parent's domicile
• Parish of custodian's domicile (if no parents or parents divorced/separated)
• Parish of minor's residence
• If no LA domicile
• Parish of minor's immovable property
• Parish of minor's movable property (if no immovable property)
• If parents have joint custody
• Court of divorce or separation of parents
• Parish of domicile of the minor
• Parish of residence of the minor

Venue will be proper only in 

• Parish of interdict's domicile
• Parish of interdict's residence (if not domiciled)
• Parish where interdict may be found (if not domiciled or a resident)

A judge shall be recused when:

• a witness
• was employed or consulted as an attorney in the cause
• was associated with an attorney employed in the cause AND judge participated in representation
• judge = immediate family member (spouse, parent, child) of party or attorney employed in the cause
• Biased, prejudiced, or interested to such an extent that he would be unable to be fair and impartial in
• the cause or its outcome
• a party
• an attorney
• a witness

Louisiana Civil Procedure

Recusation of Judges

Permissive Grounds

A judge may be recused when he:

• was associated with an attorney employed in the cause
• is currently represented by an attorney in the cause (this must be disclosed)
• has performed a judicial act in the cause in another court
• is related to:
• a party or party's spouse within the 4th degree
• an attorney employed in the cause or such attorney's spouse within the 2nd degree
• if immediate family member residing with judge has significant economic interest in the subject matter of the cause

Louisiana Civil Procedure

Judicial Power

Contempt

Direct Contempt

Definition:  Contemptuous acts done in the presence and immediate view of the court or failure to comply with a summons or subpoena.

• Penalty:  $100 + 1 day in jail
• When Punished:  Immediately after verbal hearing

Louisiana Civil Procedure

Judicial Power

Contempt

Constructive Contempt

Definition:  Willful disobedience of a court order, deceit by a party or his attorney, or improper interference with a juror or witness.

• Penalty:  $1,000 and 1 year in jail
• When Punished:  Punished after 48 hours notice and hearing.

NB:  The court may imprison a person until he performs court order.

Louisiana Civil Procedure

Cumulation of Actions

Actions that are of the same type may be cumulated against the same defendant as long as proper jurisdiction and venue exist.

• Cumulation of Claims:  A plaintiff may cumulate multiple claims against the same defendant (even if based on different theories) if:
• Jurisdiction and venue are proper as to each claim
• All cumulated claims are mutually consistent and employ the same procedure (i.e., ordinary, summary, or executory.
• Cumulation of Parties:  Parties may be joined as plaintiffs or defendants if
• There is a community of interest (same legal and factual issues) between parties
• Jurisdiction and venue are proper as to each claim
• All cumulated claims are mutually consistent and employ the same procedure (i.e., ordinary, summary, or executory.

Where suit is pending in multiple courts as to the same transaction or occurrence between the same parties in the same capacities, the following must occur:

• If the defendant excepts, all but the first suit must be dismissed
• If the defendant does not except, the first final judgment shall be conclusive of all.

If at any stage of a proceeding 3 years passes without either party taking any steps in its prosecution or defense, the suit is deemed abandoned and will be dismissed.

NB:  For JoP courts, the period is 1 year.

There can be no abandonment of a succession proceeding:

• which has been opened
• in which an administrator or executor has been appointed; or
• in which a testament has been probated

• Numerosity
• Commonality
• Typicality (of claims or defenses)
• Protection of interests that is fair and adequate
• Objectively defined class
• One of the following:
• Separate actions would create a risk of
• inconsistent or varying results
• dispositive individual adjudications
• Party opposing certification acts/refuses to act in a manner applicable to whole class
• There are predominating questions of law or fact common to all class members
• Parties to settlement request class certification

• Individual members' interest in separate actions
• Extent of any litigation already commenced
• Desirability of concentrating the litigation in a particular forum
• Possible difficulties in managing the class action
• Ability of class member to pursue their claims as individual rather than class members
• Balance the relief sought against costs/burdens of class litigation

Louisiana Civil Procedure

Class Actions

Notice Requirement 

Louisiana Civil Procedure

Class Actions

Suspension of Prescription

• Liberative prescription is suspended on the filing of the petition as to all potential class members.
• Liberative prescription begins to run again
• If class not certified = 30 days after notice of denial
• If class certified
• Persons opting out = 30 days from submission of election form.
• Persons excluded by class definition = 30 days after notice of exclusion

NB:  These time delays must be included in the required notice of class certification.

Louisiana Civil Procedure

Derivative Actions

Formal Requirements of the Petition

• Allegation that the plaintiff was a shareholder, partner, or member of the company at the time of the occurrence or transaction complained of
• Allegation with particularity of plaintiff's effort to secure from the managing directors, governors, or trustees the enforcement of the right and the reasons for his failure to secure such enforcement
• Join as defendant the company and the obligor against whom the obligation is sought to be enforced
• Include a prayer for judgment in favor of the company and against the obligor
• Include verification affidavit

Louisiana Civil Procedure

Joinder

A person shall be joined as a party to an action when either:

• No complete relief can be had in his absence; or
• He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either
• impair or impede his ability to protect that interest, or
• leave any of the persons already parties to the action subject to a substantial risk of incurring multiple or inconsistent obligations.

• To what extent a judgment rendered in the person's absence might be prejudicial to him or those already present
• The extent to which such prejudice can be mitigated by protective provisions in the judgment etc.
• Whether a judgment rendered in the person's absence will be adequate
• Whether the plaintiff will have an adequate remedy if the action is dismissed

The following do not have the capacity to be a party plaintiff and must instead sue through another (i.e., father, tutor, or custodian)

• Unemancipated minors
• Mental Incompetents
• Interdicts

Louisiana Civil Procedure

Pleadings

Formal Requirements of a Petition

• Caption
• Concise factual allegations in numbered paragraphs
• Attorney or unrepresented plaintiff signature
• Name and domicile of all parties
• Causes of action and material facts of the transaction or occurrence that is the subject matter of the litigation
• Designate an address (no P.O. Box) for receipt of service
• Prayer for judgment

An attorney's signature on a pleading certifies that he has read it and that to the best of his knowledge, information, or belief formed after reasonable inquiry, he certifies that:

• It is not being used for any improper purpose, such as to harass, delay, or increase costs
• It is warranted by existing law or by non-frivolous arguments for the extension, modification, or reversal of existing law
• It has or is likely to have (after investigation and discovery) evidentiary support
• Each denial is warranted by the evidence reasonably based on lack of information or belief

In a tort suit, no specific monetary amount (an "ad damnum" clause) may be included in allegations or prayer in an original, amended, or incidental demand.

NB:  If it is necessary to satisfy an amount in controversy for jurisdictional purposes, the proper procedure is to allege that the amount in controversy satisfies the relevant requirement.

NB:  The proper remedy for an improperly included ad damnum clause is a motion to strike and attorney's fees for such a motion may be awarded.

Service must be requested on all named defendants within 90 days of

• the commencement of the action
• filing of any supplemental or amended petitions naming additional defendants.

NB:  If service is not timely requested within 90 days of filing and the court finds that the failure to do so was in bad faith, interruption of prescription will be considered never to have occurred. 

• Generally effected by the Sheriff
• If the Sheriff, after five days of diligent effort, fails to make service, a private person may be appointed by the court.

Louisiana Civil Procedure

The Mechanics of Service

Domiciliary Service

Domiciliary service is 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

Louisiana Civil Procedure

The Mechanics of Service

Service on Corporations

Service on a corporation is usually made by person service on

• its registered agent
• if no registered agent, on any officer, director, or employee of suitable age and discretion where the corporation regularly conducts business
• failing that, after certifying diligent effect to serve process, the Secretary of State

Louisiana Civil Procedure

The Mechanics of Service

Long-Arm Service

Long-arm service is effected by mailing the citation and petition by

• certified or registered mail
• actual delivery to the defendant

Louisiana Civil Procedure

The Mechanics of Service

Service on Representatives

If a court has appointed a representative for a person, that person may be served by

• personal service
• domiciliary service

NB:  When service is proper on an attorney, service may be made on the attorney's secretary in the attorney's office.

Louisiana Civil Procedure

The Mechanics of Service

Service on Non-Party Physicians

Louisiana Civil Procedure

The Mechanics of Service

The Sheriff's Return

Louisiana Civil Procedure

The Mechanics of Service

Contents of Process

Process must contain a certified copy of the petition and citation.  The citation must:

• Be signed by the clerk of court
• Contain 
• the date of issuance
• the title of the action
• the name of the person to whom it is addressed
• the title and location of the court issuing the process
• a demand that the defendant make an appearance by filing pleadings, etc. within a specified time or suffer a default judgment

Louisiana Civil Procedure

The Mechanics of Service

After Service of the Original Citation and Petition

Service of Pleadings Requiring No Answer or Appearance

• Mail
• Hand delivery
• Electronic transmission

Louisiana Civil Procedure

The Mechanics of Service

After Service of the Original Citation and Petition

Service of Pleadings Requiring an Answer or Appearance

• Personal service by Sheriff upon
• opponent
• opponent's attorney of record
• clerk of court (if no attorney of record or known address for opponent)

NB:  Personal service upon the partner or office associate of the opponent's attorney of record is valid.

Louisiana Civil Procedure

The Mechanics of Service

After Service of the Original Citation and Petition

Service Upon Attorney of Record After Final Judgment, etc.

Service may not be made upon an opponent's attorney of record after

• Final judgement disposing of all issues
• Delays for appeals have lapsed and no timely appeal has been taken

Louisiana Civil Procedure

The Mechanics of Service

After Service of the Original Citation and Petition

Pleadings Setting a Court Date

Louisiana Civil Procedure

Default Judgments

Time Limits

• Service Within the State
• District Courts:  15 days from service
• Parish/City Court:  10 days from service
• Service Under Long-Arm Statute
• 30 days from filing of Sheriff's Return

• Preliminary default after applicable time period
• Two days later (exclusive of holidays) plaintiff may appear to confirm (prove) the default by presenting a prima facie case.

Thereafter, the default judgment, which is final, will be entered.

NB:  No preliminary default is necessary in Parish/City Courts.

• If originally served personally:  Notice is mailed by clerk of court to defendant's last known address.
• If originally served by domiciliary service:  Notice must be served by Sheriff by either
• Personal service
• Domiciliary service
• If originally served on Secretary of State:  Sheriff must make service on Secretary of State.

Louisiana Civil Procedure

Default Judgments

Notice to Defendant of Entry of Default Judgment

After Appearance by Defendant

If the defendant has appeared prior to default, notice of a preliminary default must be sent 7 days before confirmation of default by certified mail to

• Counsel of record for the defendant (should counsel exist)
• The defendant (if defendant appeared personally unrepresented by counsel)

Louisiana Civil Procedure

The Answer

Time Limits

A defendant has the following time period in which to answer a properly served petition:

• Parish/City Court:  10 days
• District Court:
• 15 days if served within LA
• 30 if served under the long-arm statute
• The State has 30 days to answer

NB:  If the defendant files an exception, the answer will be due 10 after the exception has been overruled.

• No General Denials:  The defendant must answer individually each issue raised in the petition.
• Affirmative Defenses:  Any affirmative defenses must be raised in the answer or will be deemed to have been waived.

• Declinatory Exceptions
• Dilatory Exceptions
• Peremptory Exceptions

Louisiana Civil Procedure

Exceptions

Declinatory Exceptions

Definition

Declinatory Exceptions are exceptions in which the exceptor moves the court to decline the exercise of jurisdiction.

NB:  The effect of a failure to raise a declinatory exception (except lack of SMJ and non-waiveable "status" venue) either before or in an answer is that they are waived.

Louisiana Civil Procedure

Exceptions

Declinatory Exceptions

Grounds

• Insufficiency of citation
• Insufficiency of service of process
• Lis pendens
• Improper venue
• Lack of subject matter jurisdiction
• Lack of personal jurisdiction

Louisiana Civil Procedure

Exceptions

Dilatory Exceptions

Definition

Dilatory Exceptions are exceptions which, if raised, will delay the proceedings.

NB:  The effect of not raising a dilatory exception either before or in the answer is that they are waived.

Louisiana Civil Procedure

Exceptions

Dilatory Exceptions

Grounds

• Prematurity
• Want of amicable domicile
• Unauthorized use of summary proceeding
• Nonconformity with the formalities of the petition
• Vagueness or ambiguity in the petition
• Lack of procedural capacity
• Improper cumulation of actions/parties
• Discussion

Louisiana Civil Procedure

Exceptions

Peremptory Exceptions

Definition

Peremptory Exceptions are exceptions which, if granted, will result in dismissal of the suit.

NB:  Peremptory exceptions may be pleaded at any time in either trial or appellate court prior to the submission of the case for decision.

Louisiana Civil Procedure

Exceptions

Peremptory Exceptions

Grounds

• Prescription
• Peremption
• Res judicata
• Non-joinder of a party
• No cause of action
• No interest in the plaintiff to institute suit (i.e., capacity)
• Discharge in bankruptcy

Louisiana Civil Procedure

Exceptions

Peremptory Exceptions

As to Res Judicata

A valid and final judgment is conclusive between the parties as to any issue litigated and determined if its determination was essential to the judgment.

However, a prior judgment does not bar a subsequent action by the plaintiff when:

• Exceptional circumstances justify relief from res judicata
• The first action was dismissed without prejudice
• The judgment in the first action reserved the right of plaintiff to bring a subsequent action

Louisiana Civil Procedure

Exceptions

Time for Pleading Exceptions

• Declinatory and Dilatory:  Declinatory and dilatory exceptions must be raised prior to or in the answer or prior to confirmation of a default judgment.
• When both are pleaded, they must be filed at the same time.
• Peremptory:  Peremptory exceptions may be pleaded at any time in either trial or appellate court prior to submission of the case for decision.

Louisiana Civil Procedure

Exceptions

Evidence on Trial of Exceptions

Louisiana Civil Procedure

Exceptions

The Result of Sustaining an Exception

• Declinatory
• Amend the pleadings
• Transfer the case
• Dismiss the action, claim, demand, issue or theory subject to the exception
• If for failure to timely effect service, court may order service
• Dilatory
• Impose court costs (for Lack of Amicable Demand)
• Amend the pleadings
• Dismiss the action, claim, demand, issue or theory subject to the exception
• Peremptory
• Amend the pleadings
• Dismiss the action, claim, demand, issue or theory subject to the exception

Louisiana Civil Procedure

Exceptions

Peremptory Exception of No Cause of Action in Multi-Claim Litigation

In considering an exception of No Cause of Action in a multi-claim litigation, the court must first determine:

• Whether the petition asserts several demands or theories of recovery based on a single cause of action arising out of one transaction or occurrence
• If so, the court should overrule the exception of no cause of action if it finds the petition states a cause of action as to any demand or theory of recovery.
• Whether the petition asserts several separate and distinct causes of action arising out of separate and distinct transactions or occurrences.
• If so, the court should maintain the exception in part, but the partial judgment rendered will not be a partial final judgment which is appealable in the absence of irreparable injury.
• It is an interlocutory judgment reviewable only by
• supervisory writs during trial or
•  on appeal only after trial on the merits 

Louisiana Civil Procedure

Incidental Demands

Generally

Time of Filing

• Before answer:  may be filed at any time without leave of court
• With answer:  may be filed without leave of court
• After answer:  may be filed only with leave of court

NB:  An answer must be filed to an incidental demand just as if it were an original petition

Louisiana Civil Procedure

Incidental Demands

Generally

Jurisdiction over Incidental Demands

• Reconventional Demands
• Cross-Claims
• Intervention

Louisiana Civil Procedure

Incidental Demands

Reconventional Demands

• Permissive Reconventional Demands:  A reconventional demand may include any claim that a defendant has against the plaintiff, whether related to the main demand or not.
• Compulsory Reconventional Demands:  The defendant in the main demand must assert in reconvention all causes of action, arising out of the same transaction or occurrence, that he may have against the plaintiff.

Louisiana Civil Procedure

Incidental Demands

Cross-Claims

Generally

A party may assert a demand against a co-party provided the demand arose out of

• a transaction or occurrence that is the subject matter of the main demand
• a reconventional demand

NB:  Parties other than those to a main demand or a reconventional demand may be joined pursuant to a cross-claim. 

Louisiana Civil Procedure

Incidental Demands

Intervention

Where third parties enter a lawsuit, they must:

• take the lawsuit as they find it
• be enforcing a related or connected right by
• joining with the plaintiff(s) in demanding the same or similar relief
• joining with the defendant(s) in resisting the claims asserted against the defendant(s)
• opposing both the plaintiff(s) and the defendant(s)

Louisiana Civil Procedure

Incidental Demands

Generally

Prescription

An incidental demand is not barred by prescription so long as it

• was not barred at the time the main demand was filed, and
• is filed within 90 days of service of the main demand
• for third-party defendants, within 90 days of service of the third party demand

Louisiana Civil Procedure

Motions

Types of Motions

• Motion for Judgment on the Pleadings
• Motion for Summary Judgment
• Motion to Strike
• Special Motion to Strike

Louisiana Civil Procedure

Motions

Motion for Judgment on the Pleadings

May be used by any party after the answer has been filed.  In deciding the motion, the court will

• Look only at the pleadings
• Consider all of movant's undenied allegations
• Consider all of non-movant's allegations as true

Louisiana Civil Procedure

Motions

Motion for Summary Judgment

Definition

A motion for summary judgment is based on a claim that

• there is no genuine issue of material fact and 
• the movant is entitled to judgment as a matter of law.

Louisiana Civil Procedure

Motions

Motion for Summary Judgment

Partial Summary Judgement

A summary judgment may be rendered on a particular issue, theory of recovery, cause of action, or defense in favor of one or more parties, even though granting summary judgment does not dispose of the entire case.

Louisiana Civil Procedure

Motions

Motion for Summary Judgment

Time for Filing Motion

• Plaintiff as movant:  A motion for summary judgment may be filed by the plaintiff after the defendant has filed an answer.
• Defendant as movant:  A defendant may file a motion for summary judgment at any time.
• The motion and supporting affidavits must be served at least 15 days prior to the hearing date.
• Opposing memorandum and supporting affidavits must be served at least 8 days prior to the hearing date.

Louisiana Civil Procedure

Motions

Motion for Summary Judgment

Content of Supporting and Opposing Affidavits

Affidavits (supporting or opposing) require:

• Competent affiant
• On personal knowledge
• Facts admissible at trial

NB:  The affidavits of experts are permitted.

Louisiana Civil Procedure

Motions

Motion for Summary Judgment

Burden of Proof

The burden of proof remains with the movant.  

However, if the movant will not bear the burden of proof at trial, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense.  Rather, such movant need only point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense.  

Thereafter, if the adverse party fails to produce support sufficient to establish that he will be able to satisfy his evidentiary burden or proof at trial, there is no genuine issue of material fact and the motion for summary judgment should be granted.

Louisiana Civil Procedure

Motions

Motion to Strike

The court may

• on it own motion or a motion from any party
• after notice and hearing

strike from a pleading

• any insufficient demand or defense
• any matter that is
• redundant
• immaterial
• impertinent
• scandalous

Louisiana Civil Procedure

Motions

Special Motion to Strike 

Louisiana Civil Procedure

Amended and Supplemental Pleadings

Amended Petitions

• Before answer filed:  Plaintiff may amend without leave of court.
• After answer filed:  Plaintiff must obtain
• Leave of court, or
• Consent of opposing counsel

Louisiana Civil Procedure

Amended and Supplemental Pleadings

Amended Answers

The defendant may amend once within 10 days after service of the original answer.  Otherwise, the defendant must have 

• Leave of court, or
• Consent of the plaintiff

Louisiana Civil Procedure

Amended and Supplemental Pleadings

Amended Exceptions

• Declinatory and Dilatory Exceptions:  may be amended only
• prior to hearing 
• with leave of court
• to amplify exceptions already pleaded
• Peremptory Exceptions:  Peremptory exceptions may be amended at any time.

Louisiana Civil Procedure

Amended and Supplemental Pleadings

Relation Back

Definition

Louisiana Civil Procedure

Amended and Supplemental Pleadings

Relation Back

Requirements for Adding Plaintiffs or Defendants

• Adding Plaintiffs
• The defendant knew or should have known of the existence or involvement of the new plaintiff
• The new and old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated, and
• There is no prejudice to the defendant in preparing a defense
• Adding Defendants
• The substituted defendant received notice of the suit so that there is no prejudice in preparing a defense, and
• The substituted defendant knew or should have known that, but for the mistaken identity, he would have been sued.

Louisiana Civil Procedure

Discovery

Subpoenas

Witnesses Residing/Working in Louisiana

• In-State Witnesses:  Witnesses who reside or work in Louisiana may be subpoenaed to attend trial or hearing anywhere in the State.
• Out-of-State Witnesses:  The party making out the subpoena is required to pay expenses for witnesses residing and employed outside of the parish more than 25 miles from the courthouse:
• $.25 per mile for travel
• $25 per day (for lost wages?)
• $5 for hotel and meals

Louisiana Civil Procedure

Discovery

Liberal Discovery Rules

Louisiana has liberal discovery rules.  Parties may obtain discovery regarding any matter

• not privileged 
• which is relevant to the subject matter involved in the pending action.

NB:  The information sought in discovery need not even itself be admissible, so long as it is reasonably calculated to lead to the discovery or admissible evidence.

Louisiana Civil Procedure

Discovery

Protective Orders

Notwithstanding Louisiana's liberal discovery rules, protective orders are available to prevent

• annoyance
• embarrassment 
• oppression
• undue burden or expense

The remedies offered by a protective order may include:

• prohibiting discovery
• limiting the terms of discovery
• time
• place
• method
• subject matter
• order that trade secrets or confidential information may not be disclosed or designating the form of its disclosure

Louisiana Civil Procedure

Discovery

Types of Discovery

• Depositions
• Interrogatories
• Requests for production
• Physical and mental examinations
• Requests for release of medical records
• Requests for admissions

Louisiana Civil Procedure

Discovery

Depositions

Objections in Depositions Generally

A party may instruct a deponent not to answer only when necessary to

• preserve a privilege
• enforce a limitation on evidence imposed by the court, prevent harassing or repetitious questions, or
• prevent questions which seek information that is neither admissible at trial nor reasonably calculated to lead to the discovery of admissible evidence.

Louisiana Civil Procedure

Discovery

Depositions

Objections in Depositions Waived If Not Raised

Objections that could cure the problem, such as objections to the form of the question or responsiveness of the answer, are waived if not made during the questioning.

Other objections, such as relevancy, are not waived.

Louisiana Civil Procedure

Discovery

Depositions

Motion to Suppress the Deposition

Erros and irregularities in the manner in which testimony is transcribed or the deposition is

• prepared
• signed
• certified
• sealed
• endorsed 
• transmitted
• otherwise handled by the officer

are waived unless a motion to suppress the deposition is made promptly after the defect is, or with diligence should have been, discovered.

Louisiana Civil Procedure

Discovery

Depositions

Motion to Terminate

A party or deponent may move to terminate the deposition upon showing it is being conducted

• in bad faith
• to annoy
• to embarrass
• to oppress

the deponent or party.  The court may terminate or limit scope and manner of the taking of the deposition.  If the deposition is terminated, it can be resumed only on court order.

Louisiana Civil Procedure

Discovery

Depositions

Preservation of Testimony

Louisiana Civil Procedure

Discovery

Depositions

Use at Trial

• The deposition of a party (or corporate representative of a party) may be used at trial for any purpose.
• The deposition of a witness may be used for any purpose at trial if:
• the witness is unavailable to testify (because of death or otherwise)
• the witness resides more than 100 miles from the courthouse
• the witness is out of state (unless his absence was procured by the party offering the deposition, or
• in exception circumstances
• The deposition of an expert may be used by any party for any purpose
• Party offering the expert's deposition must give opposing counsel notice 10 days prior to the intended use.
• Objecting party must pay reasonable expert fees in advance.
• The court may still permit use of the deposition over the objection.
• No attorney of record may be deposed except
• under extraordinary circumstances
• by order or the court, and
• after contradictory hearing.

Louisiana Civil Procedure

Discovery

Depositions

Letters Rogatory

Definition

Louisiana Civil Procedure

Discovery

Depositions

Letters Rogatory

Procedure

• Apply to Louisiana court for issuance of letters rogatory addressed to the appropriate authority
• Provide reasonable notice to all parties stating
• the time and place of the deposition
• the names and address of all deponents (or, if name unknown, general description of person likely to be deposed)

Louisiana Civil Procedure

Discovery

Interrogatories

Limits

• Number:  35 interrogatories total (including subparts) (may obtain leave of court for more)
• Time
• Plaintiff/Defendant:  15 days from service of interrogatories
• Defendant:  30 days from service of petition (whichever longer)
• State:  30 days from service of interrogatories

Louisiana Civil Procedure

Discovery

Requests for Production of Documents and Things or Entry Upon Land

Time Limits

• Plaintiff/Defendant:  15 days from service of interrogatories
• Defendant:  30 days from service of petition (whichever longer)
• State:  30 days from service of interrogatories

Louisiana Civil Procedure

Discovery

Requests for Production of Documents and Things or Entry Upon Land

Form May Be Specified

Louisiana Civil Procedure

Discovery

Requests for Production of Documents and Things or Entry Upon Land

Electronically Stored Information (ESI)

If the responding party fails to produce the requested ESI, the court may

• grant a motion to compel
• order the responding party to afford the requesting party access to the responding party's computers to retrieve the information.

Louisiana Civil Procedure

Discovery

Compelling Physical or Mental Examinations

• An adverse party may be compelled to undergo an exam only if a physical or mental condition of the party is at issue in the litigation.
• Such exams may be conducted by
• MDs 
• Vocational rehabilitation experts
• Licensed Clinical Psychologists
• A party who has compelled an examination must, upon request, deliver to any party a copy of the report thereof.
• By requesting such a report, the party examined waives existing or future doctor-patient privilege pertaining to the disputed condition.

Louisiana Civil Procedure

Discovery

Requests for Admission of Facts or Genuineness of Documents

• Conclusive Presumption:  If no answer is made within 15 days, the fact is considered conclusively proven or the document is considered conclusively genuine.
• Insufficient Answers:  If the responding party answers insufficiently, the requesting party may move to determine sufficiency.
• If Requesting Party Forced to Prove:  If the requesting party is forced to prove a fact denied, he may recover costs and attorneys' fees.

Louisiana Civil Procedure

Discovery

Compelling Discovery & Sanctions

Where a party fails to comply with a discovery request, the court may compel such discovery.  Failure to comply with the order to compel may be sanctioned as follows:

• The matter may be deemed proved
• Evidence of the non-producing party may be excluded
• The court may strike pleadings
• The court may dismiss the case
• The court may enter a default judgment against non-producing party
• Costs and fees may be assessed
• Contempt

Louisiana Civil Procedure

Discovery

Work-Product Privilege

Writings and ESI (but no other tangible things) prepared by a party or his attorney or agent in anticipation of litigation or in preparation for trial are not discoverable unless denial will cause, to the party seeking discovery

• unfair prejudice
• undue hardship
• injustice

Louisiana Civil Procedure

Discovery

Testifying Experts

An testifying expert may be ordered to provide a report prior to his testimony.  Such report must include

• expert's opinions
• reasons therefor
• data/information relied upon
• exhibits
• expert's qualifications
• publications for the previous 10 years
• amount of compensation for expert services
• cases testified in as an expert for the previous 4 years

Time limits:  90 days for direct testimony; 30 days for rebuttal.

NB:  Except upon showing of exceptional circumstances under which it is impracticable to obtain the facts or opinions on the same subject by other means, drafts of expert reports and communications with experts are NOT discoverable. This includes

• Expert's mental impressions
• Experts opinions
• Trial strategy of the attorney who retained the expert

Louisiana Civil Procedure

Discovery

Non-Testifying Experts

Louisiana Civil Procedure

Discovery

Qualification of Expert Witnesses under

Louisiana Code of Evidence Articles 702-705

• Timing of Motion/Hearing:
• Motion must be filed at least 60 days prior to trial
• Contradictory hearing must be held at least 30 days prior to trial
• Requirements of the Ruling:  A ruling from the bench must recite the findings of "fact, conclusions of law, and reasons for judgment," which must include:
• The requirements of evidence articles 702-705
• Evidence presented at the hearing
• The judge's decision as to whether the expert will be allowed to testify
• Reasons for the decision

Louisiana Civil Procedure

Discovery

Duty to Supplement Responses

Generally, there is no duty to supplement discovery responses.  However, the following exceptions exist:

• Questions of identity
• Information rendering previous responses incorrect or inaccurate
• Court order requiring supplementation
• Agreement of the parties requiring supplementation

Louisiana Civil Procedure

Discovery

Subpoena Duces Tecum Requiring Production of Personal Financial Records

Louisiana Civil Procedure

Discovery

Deposition of Corporations and Other Entities

Louisiana Civil Procedure

Motion for Judgment on Offer of Judgment

Louisiana Civil Procedure

Trial

Consolidation of Trials

Trials involving common issues of law and fact may be consolidated, unless to do so would

• Cause jury confusion 
• Prevent a fair and impartial trial
• Give one party an undue advantage
• Prejudice the rights of any party

Louisiana Civil Procedure

Trial

Separate Trials on Separate Issues

Louisiana Civil Procedure

Trial

Continuances

Discretionary Grounds

Louisiana Civil Procedure

Trial

Continuances

Peremptory (i.e., mandatory) Grounds

• The requesting party is unable, with due diligence, to obtain material evidence
• A material witness has absented himself (without the contrivance of the requesting party)
• The opposing party may prevent the continuance by requiring the party to disclose under oath the testimony expected of the absent witness; if the opposing party stipulates, the motion for continuance will be denied.

Louisiana Civil Procedure

Trial

Live Testimony by Video

The court may order, upon a showing of appropriate safeguards, live testimony by teleconference, video link or other visual remote technology if

• the witness is beyond the subpoena power of the court or
• compelling circumstances are shown.

The order may be entered:

• at pretrial conference
• after hearing at least 10 days prior to trial
• any other time that does not prejudice the parties

Louisiana Civil Procedure

Trial

Voluntary Dismissal

Louisiana Civil Procedure

Trial

Involuntary Dismissal

Grounds for involuntary dismissal:

• Failure of plaintiff to appear for trial.
• If pending settlement claimed as reason, either party may reinstate within 60 days of receipt of notice of dismissal.
• Failure of plaintiff to timely serve defendant with notice and citation, unless good cause can be shown by why service could not be requested.
• Dismissal on this ground results in dismissal without prejudice)
• In a judge-trial, any party may move for involuntary dismissal after the close of the plaintiff's case on the ground that upon the facts and the law, plaintiff has shown no right to relief.

Louisiana Civil Procedure

Trial

Right to Trial by Jury

There is a right to trial by jury except in the following:

• No individual plaintiff's claim exceeds $50,000
• Suits on promissory notes where no vice of consent is alleged
• Proceeding to review administrative action
• Suits in admiralty
• Suits against political subdivisions (but where the State is a defendant, a jury trial may be had)
• The following actions proceedings:
• Summary
• Executory
• Probate
• Partition
• Mandamus
• Habeas corpus
• Quo warranto
• Injunction
• Concursus
• Worker's compensation
• Status actions:
• Emancipation
• Tutorship
• Interdiction
• Curatorship
• Family matters:
• Annulment
• Divorce
• Custody
• Visitation
• Alimony
• Child Support
• Legitimacy
• Filiation
• Annulment

Louisiana Civil Procedure

Trial

Requesting a Jury

• Either party may request
• Request must be made within 10 days of the pleading that raises a jury-triable issue
• Bond and $150 jury filing fee must be paid according to court's order
• Denial of jury request subject to review on supervisory writs.

Louisiana Civil Procedure

Trial

Challenges to Juror Selection

Peremptory Challenges

• 12-Member Jury
• 6 peremptory challenges
• 4 additional (if multiple parties)
• 6-Member Jury
• 3 peremptory challenges
• 2 additional (if multiple parties)

Louisiana Civil Procedure

Trial

Challenges to Juror Selection for Cause

• Juror lacks legal qualification
• 18 years old
• U.S. Citizen
• Louisiana resident
• Ability to read and write
• No felony conviction
• Juror has formed an opinion
• Juror not otherwise impartial
• Juror has relationship with party or attorney that would influence Juror.
• Juror has previously served on juror hearing same or similar case
• Juror "takes the Fifth" during voir dire.

Louisiana Civil Procedure

Trial

Challenges After Jury Selection

• No peremptory challenges after selection.
• Challenges for cause may be exercised after selection up to the taking of evidence.

Louisiana Civil Procedure

Trial

Juror Notes and Review of Evidence

• Jurors may take notes and my use them during deliberation
• Jurors may review testimony or evidence in open court after notice to the parties.

Louisiana Civil Procedure

Trial

Jury Size

• Usually 12 (9 required for verdict)
• Sometimes 6 (5 required for verdict)
• Any other numbers stipulated by the parties

Louisiana Civil Procedure

Verdicts/Judgments

Directed Verdicts

• A motion for a directed verdict may be made at the close of any party's case.
• Standard for Granting:  The facts and inferences are so overwhelmingly in favor or the moving party that reasonable persons could not reach a contrary verdict.
• Denial of one motion does not preclude the same motion on the same grounds at a later time.

Louisiana Civil Procedure

Trial

Judgment Notstanding the Verdict ("JNOV")

• Standard for Granting:  same as for directed verdicts
• Time for Making Motion
• If verdict:  within 7 days (exclusive of holidays) from mailing or service of notice of signing of judgment
• If no verdict:  within 7 days of jury discharge

Louisiana Civil Procedure

Trial

Remittur and Additur

• Remittur (decreasing) and additur (increasing) of an award for damages are alternatives to a new trial on the issue of quantum of damages.
• Standard for Granting:  
• the verdict is clearly contrary to the weight of the evidence,
• a new trial could be granted on that basis alone
• the issue of quantum of damages is clearly separable from other issues.
• Requirements:
• Court must believe new trial warranted
• Party entitled to new trial consents

Louisiana Civil Procedure

Judgments

Types of Judgments

• Interlocutory judgments:  An interlocutory judgment does not determine the merits.
• Final judgments:  A final judgment is a judgment of the merits, either of the entire case or individual issues.

Louisiana Civil Procedure

Judgments

Formal Requirements for Final Judgment

• Judge must sign
• Clerk must 
• Mail notice of signing to all
• counsel of record
• unrepresented parties
• File a certificate of mailing in the record

Louisiana Civil Procedure

Judgments

Amendment of Final Judgments

A final judgment may be amended at any time to correct errors of

• calculation
• phraseology

NB:  The substance of a final judgment may not be amended.

Louisiana Civil Procedure

Judgments

Partial Final Judgments under Article 1915(A)

• Judgment dismissing less than all parties
• Judgement on the pleadings
• Partial summary judgment
• Judgment on main or incidental demand where two have been tried separately
• Judgment on the issue of liability

Louisiana Civil Procedure

Judgments

Partial Final Judgments under Article 1915(B)

A partial judgment is not final (and therefore not subject to immediate appeal) unless designated by the judge as a final judgment after an express determination that there is no just reason for delay.

Louisiana Civil Procedure

Judgments

Findings of Fact and Reasons for Judgment

• Upon Request:  In a judge trial, the court must issue written findings of fact and reasons for judgment, if requested to do so by a party within 10 days of the mailing of notice of the signing of the judgment.
• Tort Cases:  In a judge trial in a tort case, the judge must issue written finds of fact, whether or not requested.

Louisiana Civil Procedure

Judgments

Timing of Judgment in Jury Case

After a jury trial the court must, within 10 days,

• prepare and sign a judgment in accordance with the verdict, or
• order counsel to prepare and submit a judgment for signature.

Louisiana Civil Procedure

Judgments

Timing of Judgment after Compromise

Louisiana Civil Procedure

Judgments

Declaratory Judgment

Definition

Louisiana Civil Procedure

Post-Judgment Motions

Motion for a New Trial

• A motion for a new trial may be granted
• on contradictory motion
• on the court's own motion
• as to any or all parties or issues
• Grounds:
• Peremptory
• The verdict was clearly contrary to the law and evidence
• The discovery of new evidence which could not have been discovered with due diligence before the end of trial
• A juror was bribed or compromised
• Discretionary:  Good grounds therefor
• Filing:  Within 7 days, exclusive of holidays, from mailing of service of signing of judgment (same for parish/city courts)
• Standard:  Same as for Directed Verdicts & JNOV

Louisiana Civil Procedure

Post-Judgment Motions

Action of Nullity for Vices of Form

A final judgment shall be annulled for vices of form at any time (including on appeal) if

• rendered against one who
• is incompetent and not represented
• is not properly served 
• has not waived an objection to jurisdiction
• is not subject to a default judgment
• the judgment was rendered by a court lacking subject matter jurisdiction

• A final judgment obtained by fraud or ill practices may be annulled if suit to annul is brought within 1 year of discovery of fraud of ill practices.  
• Such suit can only be brought in the trial court entering judgment sought to be annulled.
• Reasonable attorneys' fees and costs may be awarded to the prevailing party.

A devolutive appeal permits execution of the judgment during pendency of the appeal.

Time limits:  A devolutive appeal must be taken within 60 days of 

• elapse of time period for making a motion for either 
• new trial
• JNOV, or
• entry of the denial of a timely motion for either
• new trial
• JNOV
• commencement of delay
• interruption because of removal to federal court

Louisiana Civil Procedure

Appeals

Suspensive Appeals

A suspensive appeal suspends execution of the judgment during the pendency of appeal.

Time Limits:  A suspensive appeal must be taken within 30 days of

• elapse of the time for filing a motion for
• new trial
• JNOV
• Denial of a timely motion for 
• new trial 
• JNOV
• Interruption because of removal to federal court
• Interruption until security fixed
• Interruption because of supervisory writ to review security

Louisiana Civil Procedure

Appeals

Bond

For a suspensive (but not devolutive) appeal from a money judgment, security shall be fixed in an amount equal to

• the amount of such judgment, and
• interest until such time as the security is furnished
• (exclusive of costs)

Louisiana Civil Procedure

Appeals

Retention by Trial Court of Jurisdiction for Limited Purposes

After entry of final judgment and during the pendency of any appeals, the trial court retains jurisdiction to:

• Correct misstatements in the record
• Test the solvency of the surety on the appeal bond
• Give effect to its judgment
• Impose penalties for failing to pay costs for preparation of the record on appeal
• Tax costs and expert witness fees

Louisiana Civil Procedure

Appeals

Dismissal of Appeals

An appeal will not be dismissed because the record is incomplete, missing, or in error, no matter who is responsible.  Nor will an appeal be dismissed for any other irregularity, error, or defect, unless it is imputable to the appellant.

Notwithstanding the above, an appeal may be dismissed at any time on any of the following grounds:

• Consent of the parties
• Lack of appellate jurisdiction
• No right of appeal
• Abandonment 

Louisiana Civil Procedure

Appeals

Appeals from Injunctive Relief

• No appeals from TROs
• Preliminary Restraining Orders:  15 days from entry of the order
• No suspensive appeals; only devolutive

Louisiana Civil Procedure

Judgments

Execution of Money Judgments

Procedure

• Wait for lapse of time to take a suspensive appeal (30 days)
• Obtain a writ of fieri facias directing the sheriff to seize (within 1 year) and sell defendant's property.
• Sheriff may seize the property at any time after service of notice to 
• the defendant (personal or domiciliary)
• recorder of mortgages
• all who have filed requests for notice (Mennonite notice)
• anyone designated by the parties in interest
• After proper seizure, the sheriff may sell the property by public auction after notice thereof in local newspaper
• Movables: 10 days before auction 
• Immovables:  Two ads; 30 days and 7 days before auction
• Debtor may choose order of items to be auctioned
• The property must bring at least 2/3's of its appraised value at initial auction or no sale.  (However, at 2nd action it may be sold for any price.)

• Obtain a writ of fieri facias in the parish of proper venue as to the garnishee (bank or employer).
• File petition for garnishment and garnishment interrogatories
• Serve notice on garnishee
• Garnishee must answer interrogatories in 15 days.
• Garnishee must deliver debtor's property to the sheriff.  (However, first 75% of disposal income is exempt from seizure.)

An unpaid judgment creditor may serve a Judgment Debtor Rule on the debtor and require him to disclose his assets (to facilitate either execution or garnishment).

• File motion for examination of judgment debtor including request to bring financial records in court rendered judgment to be executed
• Court orders judgment debtor to appear for in court examination not less that 5 days from date of service of Rule.
• Judgment debtor appears for examination; failure to appear is contempt

• First 75% of disposable income
• Tools
• Instruments
• Books
• One utility trailer
• One firearm (max. value of $500) necessary to perform one's profession
• $7500 equity in one car
• Personal servitude of habitation
• Wedding/engagement rings up to $5,000
• Federal earned income tax credit

A money judgment may be revived at any time before it prescribes (10 years) by an interested party by

• filing an ex parte motion brought in the court in which the judgment was rendered.
• including an affidavit that the judgment has not been satisfied
• (no notice is required to judgment debtor)

• Writ of possession:  A judgment of possession is executed by a writ of possess which 
• directs the sheriff to deliver movable property to the judgment creditor
• compels the party in possession of immovable property to vacate
• Writ of distringas:  If a judgment orders delivery of a thing which the sheriff cannot seize because the defendant has concealed or removed it from the jurisdiction or a judgment orders the defendant to do or refrain from doing an act and he refuses or neglects to comply, a writ of distringas can be used to
• distrain the property of the defendant
• hold the defendant in contempt
• award damages to the party entitled to performance
• Specific performance:  If a judgment is for specific performance and the defendant fails to comply, the court may direct the sheriff or some other person to perform the act with the same effect as if done by the defendant and at the defendant's expense.

A plaintiff can, under the "Enforcement of Foreign Judgments Act," seek execution of a foreign judgment by ordinary process.  To do so, a judgment creditor

• Annex an authenticated copy of the foreign judgment to an ex parte petition filed with an affidavit listing last know address of judgment creditor and debtor.
• Clerk mails notice to judgment debtor
• Judgment executed as LA judgment 30 days after mailing notice.

Summary proceedings are those which are conducted with rapidity, within the delays allowed by the court, and without citation or observance of all the formalities required in ordinary proceedings.  Summary proceedings are available only for the following actions:

• Incidental actions
• Application for a new trial
• Exceptions, contrary motions, rules to show cause
• Action against surety on a judicial bond
• Homologation of judicial partition
• Tableau of Distribution
• Account Filed by Legal Representative
• Habeas corpus proceeding
• Mandamus proceeding
• Quo warranto proceeding
• Rank of mortgages
• Child custody
• Alimony
• Child support
• Action to annul a probated testament
• Action for a written accounting
• Action for dissolution of a compromise
• Action for specific performance of a compromise

Summary proceedings are commenced by

• contradictory motion
• rule to show cause
• petition (if habeas corpus, mandamus, or quo warrant proceeding)

Under the rules of executory proceedings, there can be rapid foreclosure and certain property may be sold without obtaining a personal judgment against the debtor.  Venue is in the parish where the property is located or where venue is proper under Article 42.

Executory process is available for seizure of property subject to

• mortgage
• privilege executed by authentic act
• Chapter 9 security agreement containing a confession of judgment clause

• Filing of petition
• Execution of writ of seizure and sale
• Service by sheriff of Mennonite notices
• Service by judgment creditor of notice to all junior lienholders
• Auction (same as in ordinary proceedings)

• Injunction:  An injunction may be granted upon a showing that
• the debt is extinguished
• the debt is unenforceable
• proper executory procedure has not been followed
• Suspensive Appeal:  A suspensive appeal (requiring a bond to be posted) may be taken by the debtor within 15 days of the signing of the order directing issuance of the writ of seizure and sale

Under the Deficiency Judgment act, 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.

Although the initial sale must have been pursuant to an executory proceeding, if the sale of the property is insufficient to satisfy the debt, the deficiency judgment may only be be satisfied through an ordinary proceeding

Louisiana Civil Procedure

Special Proceedings

Attachment

A writ of attachment may be obtained when:

• the plaintiff claims an interest in property
• the defendant is 
• concealing himself to avoid service of citation, or
• disposing of or granting a security interest in property 
• to 
• give an unfair privilege to one creditor or
• place the property beyond the reach of his creditors, or
• is leaving the state to avoid execution of judgment.

Louisiana Civil Procedure

Special Proceedings

Sequestration

A writ of sequestration may be obtained when

• the plaintiff claims to 
• own, 
• possess, or 
• have a 
• privilege, 
• mortgage, or 
• security interest in 
• the property seized, and
• the property is within the power of the defendant to 
• conceal, dispose of, 
• waste, or remove 
• the property from the parish.

 Louisiana Civil Procedure

Special Proceedings

Injunctions

• Temporary Restraining Orders (TROs)
• granted without notice or contradictory hearing  
• expires by its terms (not to exceed 10 days)
• Preliminary Injunctions
• requires notice, hearing, and trial on the merits
• hearing must be schedule not less than 2 days nor more than 10 days from service of notice.
• Permanent Injunctions: only after full trial on the merits
• Appeals
• from TRO:  None
• from Preliminary Injunction:  within 15 days of written judgment
• from Permanent Injunction:  according to normal appellate procedures

Louisiana Civil Procedure

Special Proceedings

Real Actions

Petitory Actions

A petitory action is one in which the plaintiff seeks a judgment declaring that he is the owner of the property.

Requirements

• Plaintiff not in possession at time of filing suit
• The defendant must be in possession or assert that he owns the property

Venue = situs of property

Plaintiff's burden of proof:

• If defendant in possession:  Plaintiff must prove title good against the world (i.e., that he acquired ownership from previous owner or through acquisitive prescription)
• If defendant not in possession:  Plaintiff need only prove better title than defendant.

Louisiana Civil Procedure

Special Proceedings

Real Actions

Possessory Actions

A possessory action is used when the plaintiff is in possession, but is being disturbed either by the defendant's physical acts or in law (recordation).

Plaintiff's burden of proof:

• Plaintiff had possession of the immovable or real right therein when disturbed
• He and his ancestors in title had quiet, uninterrupted possession for more than a year immediately prior to the disturbance, unless evicted by force or fraud
• the disturbance was one 
• in fact (eviction or force) or 
• in law (execution, recordation, or registry of an instrument asserting ownership)
• the action was instituted within one year of disturbance

Louisiana Civil Procedure

Special Proceedings

Hypothecary Actions

Louisiana Civil Procedure

Special Proceedings

Real Actions

Lis Pendens

Gives third parties notice of pending litigation affecting immovable property.

• Written notice required
• Filing notice:  The notice must be filed with the Recorder of Mortgages for the parish where the property is situated and may be reinscribed by filing effective notice; otherwise, notice expires in 10 years.
• Judgment Ordering Canellation

Louisiana Civil Procedure

Special Proceedings

Succession and Probate Proceedings

Jurisdiction

• If decedent LA domiciliary:  all successions must be opened parish of decedent's domicile
• If decedent not LA domiciliary:  succession may be opened in
• any parish where decedent owned immovable property
• if none, any parish where the decedent's movables are located

Louisiana Civil Procedure

Special Proceedings

Succession and Probate Proceedings

Procedure

• Petition:  Any person may file a petition praying that a testament be probated and executed
• Affidavit:  An affidavit must be attached to the petition to prove:
• death
• domicile
• heirship
• The Testament:  The testament must be attached to the petition.
• Lost Will:  If the will cannot be found, a petition for a search may be filed.  If the will still cannot be found, the succession passes by intestacy
• If these formalities are observed, the testament will be recorded, filed, and executed.

Louisiana Civil Procedure

Special Proceedings

Succession and Probate Proceedings

Annulment

• Plaintiff always has the burden of proving the invalidity of
• a notarial testament
• a nuncupative testament by public act
• a statutory testament
• For other testaments, the defendant has the burden of proof for 3 months; after that, the plaintiff has the burden of proof.

Louisiana Civil Procedure

Special Proceedings

Succession and Probate Proceedings

Videotaped Testaments

Videotaped testaments are evidence (not proof!) of the following (provided the testator's sworn oath is recorded on the videotape):

• Proper execution of the testament
• The testator's intentions
• The testator's mental state or capacity
• The testament's authenticity
• Other matters the court deems to be relevant.

Louisiana Civil Procedure

Special Proceedings

Succession and Probate Proceedings

Simple Possession without Administration

Intestate Procedure

• File verified petition for possession with affidavit of death, domicile, heirship.
• Prepare an sworn descriptive list of assets and liabilities.
• Judgment of possession then granted ex parte.

For a testate proceeding, the will must first be probated:

• An ex parte petition for possession is filed by the legatees if
• all legatees are either competent or acting through qualified legal representatives
• all residual legatees accept the succession, and
• no creditor has demanded administration
• An sworn descriptive list of assets and liabilities is then prepared.
• If no creditor requires administration, the petition will be granted.

• Generally, the testament will name an executor.
• If that executor is disqualified or if no executor is named, the court will appoint a dative testamentary executor.

Louisiana Civil Procedure

Special Proceedings

Succession and Probate Proceedings

Administration of Successions

Qualifications of Executors

An executor cannot be:

• less than 18 years of age
• interdicted
• a convicted felon
• a non-resident who fails to appoint a resident agent
• a person of bad moral character

Louisiana Civil Procedure

Special Proceedings

Succession and Probate Proceedings

Administration of Successions

Court Appointment of an Executor

When the court must appoint an executor, preference is given in the following order:

• The best qualified among
• the surviving spouse
• competent heirs or legatees
• their representatives
• The best qualified of the persons nominated by the foregoing
• The best qualified creditor of the decedent or his estate
• An owner in indivision with the decedent

Louisiana Civil Procedure

Special Proceedings

Succession and Probate Proceedings

Administration of Successions

Duties and Powers of the Executor

• Duty to create and file a sworn descriptive list of succession assets
• Duty to create and file a tableau of distribution (a list of charges and debts on the succession which the executor proposes to pay) for homolgation (a judgment authorizing such payment)
• Full power over property during the period of administration
• The executor is a fiduciary of the heirs and must collect, preserve, and manage succession property as a prudent administrator
• The duty to file a final account

Louisiana Civil Procedure

Special Proceedings

Succession and Probate Proceedings

Administration of Successions

Compensation of the Executor

• Compensation:  The default is 2-1/2% of the value of the succession
• The testament may specify more
• The court may order more
• The executor and the heirs may agree on more

Louisiana Civil Procedure

Special Proceedings

Succession and Probate Proceedings

Administration of Successions

Interim Allowance to Heirs for Maintenance During Administration

An heir, surviving spouse, or legatee is entitled to a reasonable period allowance for his maintenance during the administration of the succession, provided:

• the succession is sufficiently solvent
• the court concludes that such an allowance is necessary
• the advances are within the amount eventually due the heir, spouse, or legatee.

Procedure:

• Either the executor files a petition requesting authority to pay  an allowance, or an heir, spouse, or legatee files a contradictory motion to compel.
• Notice of either must be published once and state that any opposition must be filed within 10 days from the date of publication.

Louisiana Civil Procedure

Special Proceedings

Succession and Probate Proceedings

Administration of Successions

Suspension of Prescription as to Creditor Claims

A creditor may suspend prescription against his claim for up to 10 years by

• delivering a formal written proof of claim to the executor
• personally
• by registered or certified mail, or
• filing it in the succession.

Louisiana Civil Procedure

Special Proceedings

Succession and Probate Proceedings

Administration of Successions

Enforcement of Creditor Claims Against the Succession

Louisiana Civil Procedure

Special Proceedings

Succession and Probate Proceedings

Administration of Successions

When Heirs and Legatees May Be Put in Possession

Heirs and legatees may be put in possession

• after contradictory hearing, or
• after homologation of a final tableau of distribution

Louisiana Civil Procedure

Special Proceedings

Succession and Probate Proceedings

Small Successions

Requirements

The rules governing small successions apply to any estate

• that will pass in intestacy
• valued at $75,000
• with no immovable property (other than "small succession immovable property"), and
• Small succession immovable property is property that is
• a single lot (or contiguous lots)
• on which a single building and ancillaries stands
• with no more than four dwelling units with primary use as residence
• on a portion of which the decedent resided, and
• any cemetery places
• the sole heirs are
• descendants
• ascendants
• siblings (and their descendants)
• surviving spouse

Louisiana Civil Procedure

Special Proceedings

Succession and Probate Proceedings

Administration of Successions

Small Successions

Procedure

A major heir and the surviving spouse (if any) must execute an affidavit setting forth

• the date of the decedent's death
• that the decedent died intestate
• the marital status of the decedent
• the names and addresses of heirs
• the relationship of the heirs to the decedent
• the decedent left no immovable property (other than small succession immovable property)
• a statement that the 
• an heir cannot be found after due diligence, or
• notice was given by mail of the affiant's intent to file the affidavit and there has been no objection
• a description of the property (sufficient to identify the property for transfer) and its value
• a description of the heirs' interest in property inherited
• an affirmation by the heir affiant that he accepts the succession
• an affirmation, under penalty of perjury, of correctness by both affiants

Louisiana Civil Procedure

Special Proceedings

Partition

Partition is done in an ordinary proceeding.

Venue is where all of part of any immovable being partitioned is located; or, if only movables, where any movable being partitioned is located.

Louisiana Civil Procedure

Special Proceedings

Annulment and Divorce

Venue

Venue is proper in:

• The parish of either spouse
• The parish of the last matrimonial domicile

Louisiana Civil Procedure

Special Proceedings

Annulment and Divorce

Appeals

All divorces and an actions incidental thereto may be appealed up to 30 days after notice of the signing of the judgment of divorce:

• Suspensive appeal
• annulment
• divorce
• partition of community property
• settlement of claims arising from marriage
• Devolutive appeal
• custody
• alimony

Louisiana Civil Procedure

Special Proceedings

Annulment and Divorce

Requirement of Living Separate and Apart

• 365 Days
• Minor children of the marriage
• 180 Days
• No minor children of the marriage
• Physical/Sexual abuse of minor children/spouse
• Injunction/protective order in favor of petitioning spouse in place at time of filing of petition for divorce

Louisiana Civil Procedure

Special Proceedings

Annulment and Divorce

Default Judgment of Divorce

Plaintiff must provide:

• proof that spouses have lived separate and apart for the required period of time
• certification of the type and date of service on the defendant spouse
• certification of the preliminary default date
• certification by the clerk
• that the the clerk has examined the record
• the date of that examination
• that no answer or opposition has been filed

Louisiana Civil Procedure

Special Proceedings

Annulment and Divorce

Summary of Article 102 Divorce Procedure

• Verified petition for divorce
• Service on defendant spouse within 90 days
• Sheriff's Return or waiver or service
• Wait 365/180 days
• File rule to show cause and affidavit
• Service on defendant
• Sheriff's Return or waiver
• Entry of judgment of divorce

Louisiana Civil Procedure

Special Proceedings

Annulment and Divorce

Requirements for Article 103 Divorce

• Spouses have already lived separate and apart for the requisite length of time (365/180)
• Defendant spouse has committed adultery
• Defendant spouse has been convicted of a felony and sentenced to death or imprisonment at hard labor

Louisiana Civil Procedure

Special Proceedings

Tutorship

Venue

• Parish of surviving parent (if one parent dead)
• Parish of custodial parent (if parents divorced or separated)
• Parish where divorce or judicial separate granted (if joint custody)
• Parish where minor domiciled or resides

Louisiana Civil Procedure

Special Proceedings

Tutorship

Powers of Tutor

• Can buy and sell property on behalf of tutee
• Tutor is a fiduciary of the tutee and therefore
• May not contract with the tutee, and
• Must act as a prudent administrator of the tutee's property
• Unless natural tutor, most post security in an amount equal to the value of the tutee's property.

Louisiana Civil Procedure

Special Proceedings

Tutorship

Procedure for Appointment of Tutor

• File petition in court of proper venue
• Take oath as tutor
• Cause a sworn descriptive list of tutee's property to be taken by a notary
• Furnish security (unless natural tutor)
• Appoint undertutor to act for the tutee whenever the tutee's interest is opposed to that of the tutor

Louisiana Civil Procedure

Special Proceedings

Tutorship

Procedure for Removal of Tutor

Any interested party or the court on its own motion may file a motion to remove a tutor when the tutor has:

• mismanaged the property of the tutee
• become disqualified
• become incapable of discharging his duties.

Louisiana Civil Procedure

Special Proceedings

Emancipation

The Proper Petitioner and Venue

A petition for emancipation may be filed by any of the following:

• The minor (16 or older)
• The parents or a tutor
• Both the minor (16 or older) and his parents or tutor by joint petition.

Louisiana Civil Procedure

Special Proceedings

Emancipation

Procedure

• File petition verified by all petitioners containing:
• Name, domicile, age, current addresses of the minor and parents or tutor (if known)
• Show why good cause exists for emancipation
• If limited emancipation sought, the legal effects of the limited emancipation sought
• Descriptive list and location of minor's property (if known)
• Emancipation hearing (attending by minor unless good cause shown why not)
• Judgment of emancipation
• If limited emancipation, judgment must state legal effects of limited emancipation

Louisiana Civil Procedure

Special Proceedings

Emancipation

Post-Emancipation Issues

• Appeal:  only devolutive appeals (60 days)
• Modification/Termination:  On motion of court or any person for good cause shown.  Modification/termination do not affect validity of acts prior to termination
• Recordation
• Every judgment granting/modifying/terminating emancipation must be recorded by the clerk of court in the conveyance records of the parish where rendered.
• Within 15 days of signing of judgment, the petitioner(s) must cause the judgment to be recorded in the conveyance records of every parish wherein the emancipated minor owns immovable property.

Louisiana Civil Procedure

Special Proceedings

Interdiction & Curatorship

Venue

Venue is proper in

• parish of interdict's domicile
• parish of interdict's residents if no LA domicile
• parish where interdict may be found if no LA residence

Louisiana Civil Procedure

Special Proceedings

Interdiction & Curatorship

Procedure for Interdiction

• File petition for interdiction
• Name, domicile, age, address or petitioner, defendant, and proposed curator.
• Qualifications of the proposed curator
• Reasons for interdiction
• Extent of interdiction (full or limited)
• Name and address of following relatives in order
• defendant's spouse and adult children.
• If none, defendant's parents and siblings.
• If none, nearest adult relatives.
• Name and address of any prior legal representative/curator
• Serve notice to interested persons
• Personal service to defendant
• Certified mail to other persons listed in the petition
• If defendant fails to appear, the court will appoint an attorney
• Court may compel examination of the defendant by a court-appointed examiner who must submit a written report not less than 7 days prior to hearing.
• Hearing in summary proceeding at which defendant must be present (unless good cause is shown why  not)

Louisiana Civil Procedure

Special Proceedings

Interdiction & Curatorship

Post-Judgment Issues

• Appeal:  Must be taken within 30 days of delay for
• new trial 
• JNOV
• denial of such motions
• Modification/Termination:  The court may grant a motion sua sponte or by any person (including the interdict) to modify/terminate the interdiction upon proof by a preponderance of the evidence that the interdiction is
• excessive
• insufficient 
• unwarranted by changed circumstances

Louisiana Civil Procedure

Special Proceedings

Interdiction & Curatorship

Procedure for Temporary & Preliminary Interdiction

• Temporary Interdiction (similar to TRO)
• Verified petition showing irreparable harm to defendant or his property
• Supporting affidavit by licensed physician or psychologist
• Notice to the defendant (or good cause why notice is unnecessary)
• Appointment of attorney for defendant (if none of his own)
• Preliminary Interdiction (After entry of temporary interdiction order):
• Adversarial hearing not more than 20 days from scheduling order
• Personal service on defendant and attorney not less that 3 days prior to adversarial hearing

Louisiana Civil Procedure

Special Proceedings

Interdiction & Curatorship

Procedure for Appointment of Curator & Undercurator

• Qualification
• Oath
• Security
• Sworn descriptive list detailing fair market value of interdict's property
• Appointment of undercurator (same as above)

Louisiana Civil Procedure

Special Proceedings

Eviction

Procedure

• Written notice to vacate by personal service (or attached to door or premises if lessee cannot be found) within 5 days of cessation of right of occupancy
• Hearing on rule to show cause to deliver premises no earlier than 3 days after service 
• Judgment on rule to show cause to deliver premises
• Personal service (or attached to door or premises if lessee cannot be found) of rule to show cause to deliver premises
• Post-Judgment
• Immediate repossession of premises by lessor after reasonable belief that the premises have been abandoned, or
• If lessee fails to vacate, the court must issue a warrant directing the sheriff to take possession.  (The sheriff may break down the door to do so.)
• Appeals:  No suspensive appeal, unless
• the lessee contested the rule to show cause to deliver premises, and
• posted appeal bond within 24 hours of judgment of eviction

Louisiana Civil Procedure

Special Proceedings

Extraordinary Remedies

• Habeas Corpus:  a writ commanding a person who has another in his custody to produce him in court and state the authority for the custody (e.g., adoption issues)
• Venue
• Parish where defendant domiciled
• Parish where detainee held in custody
• Mandamus:  A writ directing 
• a public officer to perform a ministerial duty required by law or 
• a corporation to 
• perform a duty required by charter, bylaws, or law, or
• recognize the rights of its members or shareholders
• Quo Warrant:  A writ directing an individual to show by what authority he claims to hold public or corporate office.

Louisiana Civil Procedure

Special Proceedings

Procedure for Proceeding In Forma Pauperis

• Request to proceed in forma pauperis by ex parte motion or in first pleading
• Affidavits of litigant and third person (not defendant's counsel) attesting to inability to pay
• Opportunity by opposing party to traverse (but only once)