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Civil Procedure Outline Professor Crawford

I. Actions: CCP 421-428

Under CCP 5051, the articles are to be construed liberally. They are rule of procedure for the implementation of substantive law not an end in and of themselves. CCP 421 A civil action is a demand for the enforcement of a legal right. It is commenced by the filing of a pleading presenting the demand to a court of competent jd. (Only if this is true does it interrupt prescription.) It is the documented presentation of a c/a. Under the 1970 Code, had to allege an amicable demand. The new CCP does not require this. A c/a, on the other hand, is a legal right. CCP 422 Personal, real, mixed actions 1. Personal action one bought to enforce an obligation against the obligor, personally and independently of the property which he may own, claim, or possess. 2. Real action one bought to enforce rights in, to, or upon immov prop. 3. Mixed action one brought to enforce both rights in, to, or upon immov prop, and a related obligation against the owner, claimant, or possessor. Thereof. CCP 423 Implied right to enforce obligation An obligation implies the right to enforce it. Enforcement right may or may not accrue immediately upon creation of the obligation. Ex. If there is a term, does not accrue until term is over (i.e.: promissory note). Ex. If there is a suspensive condition, obligation does not accrue until it is met (i.e.: I agree to purchase if I can get a loan at 81/2%). Cannot enforce obligation until suspensive condition is met.
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Suspensive condition is a defense. If sue before accrual, action is dismissed w/o prejudice. CCP 424 C/A as a defense A person who has a right to enforce an obligation also has a right to use his c/a as a defense. A prescribed obligation arising under LA law may be used as a defense if it is connected with the obligation sought to be enforced by the . There must be a connexity b/w the obligation sued upon and the prescribed one posed as a defense. Ex. X has a tort committed against him by Y. Instead of suing, X forms an agreement with Y which states that Y will mow Xs lawn for 5 years. 2 yrs. Go by, and Y stops mowing the lawn. X can take him to court, but cannot sue on the tort, b/c prescription has run. Can sue on the obligation and can use the tort c/a as a defense. CCP 425 Preclusion by judgment A party shall assert all c/a arising out of the transaction or occurrence that is the subject matter of the litigation. Implements law of res judicata. When a thing is adjudicated, all c/a that could have brought are adjudicated w/ it. LA has compulsory reconventional demand (CCP 1061) Use it or lose it. Once s case goes to judgment, is res jud. This is a warning to s. CCP 426 - Transmission of action and of right to enforce obligation An action to enforce an obligation is the property of the obligee which on his death is transmitted w/ his estate to his heirs, universal legatees, or legatees under a universal title. This presumes that the suit has already been filed. Under CCP 801 heirs can substitute themselves as
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These rules apply also to a right to enforce an obligation, when no action was commenced prior to obligees death CCP 427 Action against obligors heirs or legatees An action to enforce an obligation, if the obligor is dead, may be brought against the heirs, universal legatees, or general legatees, who have accepted the succession. If obligee files and finds out that obligor is dead, heirs who accepted the succession owe him $. This assumes suit has already been filed the action simply goes forward. Rationale person ought to keep their promise. CCP 428 No abatement on death of party An action does not terminate upon death. Exception: Action to enforce an oblig that is strictly personal. Ex. Divorce death is the end of action Guidry v. Theriot CC 2315.1 SA action victim would have pursued himself had he survived. Upon his death, named beneficiaries have a right to come in. Pot of $ remains the same, no matter how many beneficiaries. If he had filed CCP 801 substitution If he had not filed CCP 426, 428 file own suit When the victim died, a WD c/a also arose. WD claim for each c/a. Wife and children can get different amounts. The prescription for both is a year after death. In a SA, if the victim survives long enough to file suit, then he has interrupted prescription. As long as the suit is pending, prescription is interrupted. Beneficiaries can file at any time. The only thing running against them is
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abandonment (CCP 561), which is 3 yrs. If nothing is done during those yrs, the suit is met w/ exception of abandonment and it is dismissed w/ prejudice. Under CC 3463, it is as though the suit were never filed. Lose action by abandonment, and lose c/a by prescription. CCP 561 Discovery is enough of a step in the prosecution to avoid abandonment. A letter to the opponent is not, however, a step toward prosecution. Abandonment is perennial. Happens with the passage of a day. Be careful though kual actions have a 10 yr prescriptive period. The action may be abandoned, but if the c/a survives (prescription has not run), you may file again. If the victim files the SA, then dies, CCP 801 lets the beneficiaries substitute themselves as parties in the action filed by the victim. The beneficiaries in any class to take a SA or WD preclude the beneficiaries in the lower classes. If one party is not served, but the others are, the LASC has held that prescription is interrupted as to the non-served party. The Guidry case held that SA and WD are two separate c/a. Filing suit on one does not interrupt prescription as to the other. Difference b/w prescription and peremption:
Bars action on Your right, but Not c/a itself CC 3458 applies to right created for a certain lifespan. Ex. two yrs for WC. If time Runs and right is nor exercised, It is extinguished. Peremption cannor be interrupted Only way to do it is by filing Evaporation of a right.

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In Louvier, the LASC corrected a mistake made in Guidry (said that the 1 yr prescriptive period runs from date of interruption. This would make it one year after filing. This is wrong). CC 2323 Comparative Fault Available in w/d and s/a. Reduces recovery by beneficiary if the can prove someone else was a % at fault. If you had already filed against other person and lost, it is res judicata as to the s/a, but not as to the w/d b/c the parties are different. Sellers if victim filed and pursed own case and lost the court has decided there is no wrong. This is not a s/a b/s the pursed it during his lifetime. If he dies, Sellers says there is no wrong with which to pursue w/d action. Res jud applies.

A. Parties: CCP 641-771; 801-807


b. The

rules cataloguing parties strive for less confusion in deciding who is the proper party. Statutorily establishes that for a given obligation, there is a specific, named and .

i. Parties CCP 681 Real and actual interest required Persons having an interest can only bring action. Must be obligee. CCP 927 Objections raised by peremptory exceptions (5) if wrong individual has been named, file peremp for no c/a. if not that persons obligee, not entitled to collect. That person does not have to litigate w/ . CCP 682 Individuals having procedural capacity
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must have procedural capacity to sue. 1. competent major 2. competent emancipated minor CCP 683 Unemancipated minor Minor cannot file lawsuit. Proper s are mother and father if still married. Otherwise (parents dead, judicially separated, divorced, or minor is illegitimate), proper is tutor. CCP 684 Mental incompetent; interdict Mental incompetent does not have procedural capacity to sue. Proper is a curator. CCP 685 Succession Proper is the succession representative appointed by the court CCP 686 Marital community Either spouse is the proper . If one spouse is sued, or sues, other spouse needs to be joined as an indispensable party. CCP 687 Person doing business under a trade name Person doing business under a trade name shall sue in his own name to enforce a right created by or arising out of doing of such business. CCP 688 Partnership P/s has the procedural capacity to sue to enforce its rights in the p/s name, and appears through and is represented by an authorized partner. CCP 689 Unincorporated association An unincorp ass has the procedural capacity to sue in its own name, and appears through and is represented by its president or other authorized officer
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CCP 690 Domestic corp; insurer; lim liab co Except as otherwise provided in CCP 692, 693; those mentioned above have the procedural capacity to sue to enforce their rights in the corp or co name. CCP 691 Foreign corp, lim liab co, and insurance corp Except as otherwise provided in CCP 692, 693; those mentioned above have the procedural capacity to sue in corp or co name.

CCP 692 Corp, lim liab co, or p/s in receivership or liquidation Receiver or liquidator appointed by a court for those mentioned above is the proper to sue to enforce a right of those mentioned above or of its receiver or liquidator. CCP 693 Insurer in receivership Receiver appointed by court for a domestic insurer is proper to sue on behalf of the domestic insurer, or of its receiver. Same if the insurer is alien. CCP 694 Agent A has the procedural capacity to sue to enforce the rights of the P, when specifically authorized to do so. P is considered in such an action. CCP 695 Absent or mentally incompetent managing spouse If managing spouse is absent or mentally incompetent, other spouse is the proper to enforce the community right. CCP 696 Pledgor and pledgee
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Pledgee of a real right, or of negotiable instrument or other incorporeal right is proper to sue to enforce the pledged right. Pledgee may enforce the entire right judicially, unless it is an obligation of the pledgor, in which it may be enforced only to the extent of the indebtedness secured by the pledgee. CCP 697 Subrogor and subrogee An incorp right to which a person has been subrogated, either conventionally or by law, shall be enforced judicially by: 1. The subrogor and the subrogee, when the subrogation is partial 2. The subrogee, when the entire right is subrogated

CCP 698 Assignor and assignee Same was CCP 697. CCP 699 Trust estate Trustee is proper to sue to enforce a right of the trust estate. CCP 700 - Authority or qualification of suing in representative capacity When sues as A or as a legal representative to enforce a right of the P, his authority or qualification is presumed, unless challenged by the by timely dilatory exception. When challenged, burden of proof shifts to A to prove authority on the trial of the exception. ii. Parties CCP 731 743 Exactly the same thing as .
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iii. Substitution of Parties CCP 801 Voluntary substitution for deceased party; legal successor If victim files lawsuit and dies b/4 it is adjudicated, named beneficiaries have 3 yrs to come up w/ a motion for substitution into the lawsuit. Works the same if deceased is or . can summon heirs of deceased , may name them in summons and substitute them. Can take default judgment if they dont appear. Often lawyers name wrong party. Cannot use CCP 801 to cure mistake. Must file amended petition under CCP 1151 to change the name. Under CCP 641, there are two types of parties: 1. Indispensable: in absence of these, complete relief cannot be accorded among the parties . Ex: Co-owner of plot of land Beneficiaries of trust Under CCP 642, if an indispensable party cannot be made a party, the court shall determine whether the action shall proceed or be dismissed. 2. Necessary: under CCP 643, all solidary obligors are not necessary. Can collect entire debt from one of them. If dont get them all, suit may go on. Indispensable parties must be in the suit for adjudication. Necessary parties are a balance b/w effective use of the courts time w/o trampling on rights. CCP 644 Party who refuses or fails to sue If refuses to join as , may be joined as and required to assert his rights in the action or be precluded from asserting them.
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Holland v. Holland According to CCP 734, an unopened succession is not an entity. If it is opened, must name succession representative as party to be sued. If you name the heirs as s, then you have a suit against them personally. In this case, the suit was dismissed b/e the succession was not opened, and a succession representative had nor been appointed. LA v. Lamar Ads Definitive case in La over what an indispensable party is. CCP 641(1) did away with the distinctions b/w indispensable and necessary parties when amended. CCP 641, 642 describe parties needed for adjudication. (1) in his absence, complete relief cannot be accorded. I.e.: owner of property If the suit goes forward w/o an indispensable party, the other side may file a CCP 927 peremp exception, which kills the action. If adjudicated, the judgment would be a nullity (CCP 2002). In the case, Justice Tate says that to classify someone as an indispensable party, there must be a strong connection b/w the indispensable party and the action. Absolutely cannot go forward w/o them. In this dispute, the s said that the landowners were indispensable parties. LASC said no. The nature of the involvement of an indispensable party must be indispensable. An indispensable party would be one that, in deciding the action, the ct would adjudicate interests of individuals not present. Tropicana Pools v. Chamberlain How to go forward w/ suit when the indispensable party is in another state? CCP 5091
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La has jd over property w/in its boundaries. If La has jd over person/property of , and is a non-resident, the ct may appoint an atty ad hoc who acts in place of the absent . must serve CCP 5091 atty, and the suit goes forward. In the case, the ct said that a k was a res w/in La boundary. So, since the ct has jd over the res, may sue Ca resident. Crawford says this is a bit of judicial stretching. Calling someone an indispensable party may block the action entirely, hence cts are loath to do it. If the suit goes forward w/o an indispensable party, may bring a CCP 2002 action for nullity. CCP 2002(2) Failure to serve a w/ process. The nullity never prescribes. Invalid as long as it is in the record books. Ebay v. Harvill In a paternity suit against the 2nd husband, the 1st is an indispensable party. His interest must be protected.

A. Petition: CCP 851-865; 891893; 1151-1156 The signing of a petition or a legal document has consequences. Today, lawyers are sanctioned routinely. CCP 863 Signing of pleadings, effect is parallel to Federal Rule 11. CCP 863 A. Every pleading must be signed by at least one attorney of record.
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B. Pleadings need not be verified (statement of truth in front of a notary). The signature itself is certification that: 1) The atty has read the pleading and to the best of his knowledge, formed after reasonable inquiry, it is well grounded in fact. 2) The pleading must have a reasonable shot of making it through the ct. 3) No harassment or delay purposes. C. A pleading not signed is stricken D. If the ct determines that a certification is in violation of this article, the ct shall sanction. 1) Pay other partys reasonable atty fees 2) Pay other partys reasonable expenses incurred b/c of filing the pleading. E. How long does a lawyer have to make reasonable inquiry when the matter comes to you on the last day of the prescriptive period? An atty may file, then have 80 days to dismiss is the suit is non-actionable. CCP 864 An atty may be subject to disciplinary action for the violation of CCP 863. There must be a hearing. CCP 851: Three modes of procedure 1. Ordinary 2. Summary quickly resolved. I.e.: injunction, habeas corpus 3. Executory enforcement of mortgages

CCP 852 Pleadings allowed: petition exception written motion answer No replicatory pleadings allowed (as in old writ pleading system).

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CCP 853 Every pleading needs a caption and a designation of the pleading. CCP 854 No technical form of pleading required. Set up each issue/allegation in a numbered paragraph. Simple and concise. CCP 855 No need to establish or to urge capacity. Lack of it is a defense. CCP 856 In the pleading, an allegation of fraud needs to be made w/ great particularity. Malice and intent (conditions of mind), however, may be alleged generally. Absent torture, there is no way else to do it. This article applies to WC immunity suits. Since WC does not apply to intentional injuries by an emper, the question is how to prove intent? LASC prove intent by examining whether it had happened b/4. May allege general intent. CCP 861 Special damages General damages are those not susceptible of precise evaluation. Special damages are susceptible of precise mathematic evaluation. I.e.: cost of being out of work, cost of auto Must be specifically alleged in court. CCP 893 A. No dollar signs in the petition. No specific amount of damages shall be claimed.

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Exception: if a specific amount will establish the jd of the court or a right to a jury trial. If that is the case, a general allegation that the claim exceeds thee requisite amount is sufficient. B. Does not apply to suits on conventional obligations (ker owes you $ on remainder of the k), promissory notes, open accounts, or child support. R.S. 9:4271 Atty fees are not recoverable unless by statute or k. R.S. 9:2781 All open accounts will bear atty fees. If you file suit to collect money from a client, may collect atty fees. The demand for atty fees must be absolutely accurate. Andrus v. Chrysler An application for rehearing will not be considered in cases where the court has denied a writ application, or where the court has denied and/or granted part of a writ application and the party seeks a rehearing on the part of the order which was denied. No sanctions imposed on b/c the law was not clear. Williams v. Chrysler La has fact pleading. federal cts have)

Must satisfy prima Facie elements of The c/a. Allege facts That, if established, Will allow you to Collect on c/a. Requirements: No conclusory allegations If dont plead it, cant bring it up in court.

Different to notice pleading (which

In an auto accident case, the 3ps the other driver for negligence. But makes mere conclusory statements. As a matter of law in LA, failure to wear a seat belt is not negligence. The ct dismisses the petition. The allegations

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were conclusory, no facts, vague, did not allege facts constituting a c/a for negligence.

i. Pleadings Set up as an adversarial system. I. Petition complaint, demand for relief, allegation. A. Correct parties (CCP 681, 731) B. Allege facts constituting a c/a. In a petition, must plead facts that implement substantially the c/a you are seeking. Ex.: In a tort, must plead breach of duty, rule of law granting legal rights, plead facts that if established in court prove that obligor owes $. If fail to plead facts making up prima facie case, could lead to a peremp of no c/a C. Pray for relief desired (CCP 862) D. Service (CCP 1231) E. Jurisdiction and venue (need not be pleaded) II. Opponent must respond w/in 15 days. 1. Petition filed 2. Defendant answers (has 15 days CCP 1001) If an exception filed prior to the answer and is overruled or referred to the merits, or is sustained and an amendment of the petition is ordered, the answer shall be filed w/in 10 days after the exception is overruled of referred to the merits, or 10 days after service of the amended petition. i. Answer each material allegation (CCP 1003-4) ii. Plead affirmative defenses specially (CCP 1005) Exceptions watch out for waiver under CCP 7 and 928. Exceptions hold off the petition. Declinatory exception (CCP 925)
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Dilatory exception (CCP vagueness) Peremptory exception (kills the petition) CCP 927 a. Prescription b. Res judicata c. Nonjoinder d. No c/a e. No r/a Evidence allowed on all except no c/a.

926

i.e.:

Incidental actions 1. Reconvention (CCP 1061) - counter sues for something. 2. Intervention (CCP 1091) 3. Third party (CCP 1111) 4. Cross-claim (CCP 1071) III. Judgment on pleading or summary judgment (CCP 965966) Judgment on pleading - improperly pleads that he paid . Did not do so w/ peculiarity. comes back w/ fact that improperly pleaded. He admitted the debt, did not plead defense. Judgment w/o a trial. Summary judgment cuts short the trial. For example, if has an umbrella policy alleges the policy doesnt kick in unless has primary coverage of $500,000. He doesnt. moves for summary judgment their policy is not applicable to the case. IV. Default judgment if no answer (CCP 1701) V. Discovery (CCP 1420) VI. Trial establishing of facts through evidence. may move for: VII. New trial (CCP 1971)
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If lose,

JNOV (CCP 1811) ct has power to grant VIII. Judgment (CCP 1911, 1841) IX. Appeal (CCP 2081) Mayer v. Valentine In a WC case, may allege intent (substantially certain something bad would happen) generally. However, must prove it in court. Yousufali v. Southland Can you use gross negligence (dont care) and intent (presence of active desire)? s first petition alleged gross negligence. No c/a. Not enough under WC statute. second petition alleged that everything in the first petition amounted to intent or substantial certainty. App. Ct. held that the petitions adequately alleged an intentional tort. Has sufficiently stated a c/a b/c intent may be alleged generally. Laneaux v. Theriot alleged that used fraud to acquire a piece of land. Court held that there was not enough peculiarity in the pleading to sustain allegation of fraud. did not specify what the false representations were. No facts. TC disallowed evidence of fraud. Washington v. Flonikan falls at a construction site. excepted for vagueness. Ct dismissed amended petition. again amends petition, and ct again dismissed it for no c/a. LASC held that the pleading was specific enough for the to know what he had to defend against. The ct could not dismiss petition on exception for vagueness if its preliminary.
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Let the petition process continue until can amend no more. Then, look at pleading and decide if can win on a no c/a.

B. Cumulation 461-465

of

Actions:

CCP

Purpose: to conserve the time and $ of the court. CCP 461 Cumulation of actions defined Joinder of separate actions in the same judicial demand. Could be different lawsuits, but decides to file them together. CCP 462 Cumulation by single against single may cumulate against the same two or more actions event though based on different grounds if: (1) Each of the actions cumulated is w/I the jd of the court and is brought in the proper venue (correct cumulation is when joins two lawsuits in one each supported by its own factual circumstances; see Abadie); and (2) All of the actions cumulated are mutually consistent and employ the same form of procedure (ordinary, summary, executory) Mutually exclusive or inconsistent actions may be cumulated in the same judicial demand if pleaded in the alternative. CCP 463 Cumulation, plural s or s. Two or more parties may be joined in the same suit if: (1)There is a community of interests b/w the parties joined (all claims need to be connected);
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(2)Each of the proper actions cumulated is w/I the jd of the ct and is brought in the proper venue; and (3)All of the actions cumulated are mutually consistent and employ the same form of procedure Dickson v. Sandefur Court held that the erosion problem of the Red River and the effect it had on local landowners was a community interest b/c all of the parties were fighting about the same issues. The facts and the law were the same w/ every

Harris v. Bardwell injured when boat seat fell off. Sues seller in redhibition and manufacturer in products liability. Court held no cumulation b/c claim based on more than one theory of recovery. The facts for the different theories of recovery are different. The is seeking recovery on more than one grounds for the same accident. Abadie v. Bolton asked for injunction and damages. Court said they were summary and ordinary procedures; no cumulation (based on Pp of God v. Chantilly) App. Ct. reversed. Injunction and damages are both ordinary procedures. Require same form of procedure

C. Class 611

Actions:

CCP

591-597;

Product liability class actions in La 4 theories:


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2. 3. 4. 5.

Composition/manufacture Design Warranty Warning

CCP 591 Prerequisites; maintaining a class A. One of the members of a class can sue or be sued as representative parties if: 1. Numerosity the class is so numerous that joinder is not practicable. 2. Commonality questions of law or fact common to all the class W/ alcohol consumption, for example, there would be different facts in each circumstance. 3. Typicality the claims or defenses of the representative parties are typical of the whole class. 4. The representatives will fairly and adequately represent the interests of the class. The opponents of the class will pry into the backgrounds of the class representative because if the rep is shown not to have a claim against the - NONE OF THE CLASS HAS A CLAIM. 5. The class can be defined objectively in terms of ascertainable criteria, such that the court can determine the constituency of the class for purposes of the conclusiveness of any judgment that could be rendered. Must be able to define the class. Ex.: geographical class (McCastle) or tire buyers (Firestone) B. An action as a class can be maintained only if all the prereqs of A and B are met, and: 1. The prosecution of separate actions by or against individual members would create a risk of: a. Inconsistent or varying judgments which would establish incompatible standards of conduct for the party opposing the class, or

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b. Adjudications w/ individual members of the class would hurt the interests of other members of the class; or 2. The party opposing the class has acted or refused to act on grounds applicable to the class; making appropriate final injunctive relief to the class as a whole; or 3. The court finds that the question of law or fact common to the members of the class predominate over any individual problems and the class action is the superior way to try the case. Factors to decide whether the class action is superior to the individual suit: a. The interests of the members of the class in individually controlling the prosecution of separate actions b. Whether there is any current litigation concerning the controversy already c. The desirability of concentrating the litigation in a particular forum d. Difficulties in management of the class action. e. Practical ability of the individual class members to proceed w/ their individual claim w/o class certification f. Extent to which the relief demanded on behalf or against the class justifies the costs of the class litigation. 4. The parties to a settlement request certification under B(3) for purposes of a settlement, even though the requirements of B(3) might not otherwise be met. This is how you define the settlement class. May settle even though qualifications of B(3) are not met. C. Certification shall not be for the purpose of adjusting claims or defenses dependent for their resolution on proof individual to a member of the class. CCP 592 Class certification; notice; judgment A.

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1. W/in 90 days of service of process; the proponent of the class shall file a motion to certify as a class action. Most of the battle over class actions is here whether to certify as a class or not. 2. If the proponent does not file for certification w/in the 90 day delay period, the other party can file for the demand to be stricken. Reinstated only for good cause. If the demand for class relief is stricken, the action can continue b/w the named parties alone. 3. Must have a hearing b/4 can be certified as a class, a. BUT not before i. All named adverse parties have been served w/ the pleading containing the demand for the class relief or have made an appearance or, w/ respect to unserved s who have not appeared, the proponent of the class has made a due and diligent effort to perfect service of such a pleading; and ii. The parties have had a reasonable opportunity to obtain discovery on class certification issues. b. If the court decides it is proper, the court shall certify the class accordingly. c. In the process of class certification, or at any time thereafter before a decision on the merits of the common issues, the court may alter, amend, or recall its initial ruling on certification and may enlarge, restrict, or otherwise redefine the constituency of the class or the issues to be maintained in the class action. d. No order contemplated in this Subparagraph shall be rendered after a judgment or partial judgment on the merits of common issues has been rendered against the party opposing the class and over such party's objection. B. 1. In any class action maintained under Article 591(B)(3), the court shall direct to the members of the class the
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best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. This notice, however given, shall be given as soon as practicable after certification, but in any event early enough that a delay provided for the class members to exercise an option to be excluded from the class will have expired before commencement of the trial on the merits of the common issues. 2. The notice required by Subparagraph B(1) shall include: a. A general description of the action, including the relief sought, and the names and addresses of the representative parties or, where appropriate, the identity and location of the source from which the names and addresses of the representative parties can be obtained. b. A statement of the right of the person to be excluded from the action by submitting an election form, including the manner and time for exercising the election. c. A statement that the judgment, whether favorable or not, will include all members who do not request exclusion. d. A statement that any member who does not request exclusion may, if the member desires, enter an appearance through counsel at that member's expense. e. A statement advising the class member that the member may be required to take further action as the court deems necessary, such as submitting a proof of claim in order to participate in any recovery had by the class. f. A general description of any counterclaim brought against the class. g. The address of counsel to whom inquiries may be directed. h. Any other information that the court deems appropriate.

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3. Unless the parties agree otherwise, the proponents of the class shall bear the expense of the notification required by this Paragraph. The court may require the party opposing the class to cooperate in securing the names and addresses of the persons within the class defined by the court for the purpose of providing individual notice, but any additional costs reasonably incurred by the party opposing the class in complying with this order shall be paid by the proponent of the class. The court may tax all or part of the expenses incurred for notification as costs. C. The judgment in an action maintained as a class action under Article 591(B)(1) or (B)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under Article 591(B)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in Paragraph B was directed, and who have not requested exclusion, and whom the court finds to be members of the class. Judgment must be careful and describe those in the class for res jud purposes. D. When appropriate an action may be brought or maintained as a class action with respect to particular issues, or a class may be divided into subclasses and each subclass treated as a class, and the provisions of Article 591 and this Article shall then be construed and applied accordingly. E. In the conduct of actions to which Article 591 and this Article apply, the court may make any of the following appropriate orders: 1. Determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument.

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2. Requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to members of the class of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action. 3. Imposing conditions on the representative parties or on intervenors. 4. Requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly. 5. Dealing with similar procedural matters, including but not limited to case management orders providing for consolidation, duties of counsel, the extent and the scheduling of and the delays for pre-certification and post- certification discovery, and other matters which affect the general order of proceedings; however, the court may not order the class-wide trial of issues dependent for their resolution on proof individual to a member of the class, including but not limited to the causation of the member's injuries, the amount of the member's special or general damages, the individual knowledge or reliance of the member, or the applicability to the member of individual claims or defenses. 6. Any of the orders provided in this Paragraph may be combined with an order pursuant to Article 1551, and may be altered or amended as may be desirable from time to time. CCP 593 - Venue A. An action brought on behalf of a class shall be brought in a parish of proper venue as to the defendant.

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B. An action brought against a class shall be brought in a parish of proper venue as to any member of the class named as a defendant. In other words, where you would sue individually. CCP 594 Dismissal or compromise A. (1) An action previously certified as a class action shall not be dismissed or compromised without the approval of the court exercising jurisdiction over the action. (2) Notice of the proposed dismissal of an action previously certified as a class action shall be provided to all members of the class, together with the terms of any proposed compromise that the named parties have entered into. Notice shall be given in such manner as the court directs. B. After notice of the proposed compromise has been provided to the members of the class, the court shall order a hearing to determine whether the proposed compromise is fair, reasonable, and adequate for the class. At such hearing, all parties to the action, including members of the class, shall be permitted an opportunity to be heard. C. The court shall retain the authority to review and approve any amount paid as attorney fees pursuant to the compromise of a class action, notwithstanding any agreement to the contrary. D. Any agreement entered by the parties to a class action that provides for the payment of attorney fees is subject to judicial approval. E. If the terms of the proposed compromise provide for the adjudged creation of a settlement fund to be disbursed to and among members of the class in accordance with the terms thereof, the court having jurisdiction over the class action is empowered to approve the compromise settlement of the class action as a whole and issue a final judgment
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accordingly, following a finding that the compromise is fair, reasonable, and adequate for the class, and to order the distribution of the settlement fund accordingly, without the necessity of prior qualification of representatives of minors, interdicts, successions, or other incompetents or absentees, or prior approval of the terms of the settlement or the distribution thereof by another court; provided, that in such cases the court having jurisdiction over the class action shall include in the orders of settlement and distribution of the settlement fund appropriate provisions to ensure that all funds adjudicated to or for the benefit of such incompetents, successions, or absentees are placed in appropriate safekeeping pending the completion of appointment, qualification, and administrative procedures otherwise applicable in this Code to the interests and property of incompetents, successions, and absentees. In other words, the judge must approve the settlement. CCP 596 Prescription; suspension Liberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members of the class as defined or described therein. Prescription which has been suspended as provided herein, begins to run again: 1. As to any person electing to be excluded from the class, from the submission of that person's election form; 2. As to any person excluded from the class pursuant to Article 592, thirty days after mailing or other delivery or publication of a notice to such person that the class has been restricted or otherwise redefined so as to exclude him; or 3. As to all members, thirty days after mailing or other delivery or publication of a notice to the class that the action has been dismissed, that the demand for class
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relief has been stricken pursuant to Article 592, or that the court has denied a motion to certify the class or has vacated a previous order certifying the class. In other words, as of filing, prescription is suspended. If the suspensive incident is eliminated, prescriptive period at the time of filing renews (does not begin over). If a person opts out, prescription starts running again w/ the prescriptive time at the filing of the suit still in effect. CCP 596 Effect of judgment A definitive judgment on the merits rendered in a class action concludes all members of the class, whether joined in the action or not, if the members who were joined as parties fairly insured adequate representation of all members of the class. In other words, res jud as to the whole class History Originally, in La, class actions required that members of the class be personal holders of a right; co-owners of personal right. This has been done away w/. Stevens applies now right common to all. Now everyone w/ right arising out of the same questions of law or fact. Interpret whether its a class actions according to Fed Rules of CP (23B). Esien (USSC) held that all potential members of a class must receive notice. Deterrence to many class actions b/c of the expense. Williams incorporated this into La Consequences Class actions may be brought by or by . Everyone in class is res jud by judgment. Dilatory, declinator, and peremp exceptions apply the same way as they do in regular actions.
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Cases McCastle v. Rollins The class action was allowed b/c: Joinder is impracticable b/c of numerosity. Allowed joinder of 4000 residents who lived near a hazardous waste disposal facility which had caused all the same symptoms in all the residents. The representative parties are proper champions of the class (typicality). There is a commonality in all of the rights of members of the class (commonality). Most of the claims were small and the class action would allow claims to be heard that would otherwise be too small to fight in court. All of the claims heard together would enforce the seriousness of the problem. The benefits of the case as a class action outweighed the disadvantages. At the time of the opinion, there was virtually no procedure for class actions in La. The arts. In CCP are a codification of the evolution of jurisprudence developed on class actions in La. Important that it is in the CCP applies everywhere in La. Standardized across the state. Saden v. Kirby Property damages were not allowed to be tried as a class action. Court held that the prop damage from the flooding from several sources was not appropriate for a class action. Common problems did not predominate b/c each prop owner would need to prove individual facts. These were really individual lawsuits. Banks v. NY Life

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Court held that a class of insurance purchasers were not an appropriate group to be certified as a class. The issues w/ each separate ins agent that made separate claims to each is too individualized. s claimed fraud and negligent misrep by the s (different agents of NY Life). In determining the fraud issue, the circs surrounding each purchase of insurance from the different agents must be examined. No evidence that the s as a whole committed the same acts to the class B/c the individualized question of causation and injury predominate over the common issues, class cert is not appropriate. Insurance cases as a matter of law cannot be tried as a class action. The issue is individual reliance. No commonality. Ford v. Murphy Oil Court held that La cts were to be guided by the standards for class cert in Fed Rule 23B. More specifically, the court held that the questions of law or fact common to the members of the class must predominate over any questions affecting individual members and that the class action is the superior means for fair and efficient adjudication of the controversy. No certification b/c the class of individuals and prop owners who alleged prop and business losses as a result of emissions from separate chemical plants would have to offer different facts as to what plants emissions caused them specific damages on specific dates. Class actions are generally granted for a single incident. Here, too hard to find that all s caused the same harm to all of the s. too many individual issues.

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A. Substitutions: CCP 801-807 Used when a party dies. Usually occurs in cases of SAs (under CCP 428 if the lawsuit is not over w/ and under CC 2315.1 SA survives in favor of) CCP 801 is the procedure through which the substantive law happens. CCP 426 428 is the substantive law. CCP 426 says that he obligations are transmitted whether you are an obligor or obligee and whether or not a suit was filed. CCP 428 says that if there is an action, the fact that the party dies does not terminate the action unless its strictly personal (i.e.: divorce) CCP 801 Voluntary Substitution for deceased party; legal successor When a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality. As used in Articles 801 through 804, "legal successor" means: (1) The survivors designated in Article 2315.1 of the Civil Code, if the action survives in their favor; and (2) Otherwise, it means the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and legatees of the deceased, if the deceased's succession is not under administration therein. o Ex parte motion is one where you dont face the other side. Legal successor

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may be substituted using this upon proof of quality. CCP 802 Compulsory substitution for deceased party; summons On ex parte written motion of any other party, supported by an affidavit of the truth of the facts alleged, the court may order the issuance of a summons to the legal successor to appear and substitute himself for the deceased party. This summons shall show the title and docket number of the action, and the name and address of the court where the action is pending. o In other words, if the heirs or successors do not come forward, default or dismissal may be filed. CCP 803 Same; service or publication of summons A. When the name and address of the legal successor is known, and he is a resident of the state, he shall be summoned to appear and substitute himself for the deceased party within thirty days of the date the summons is served on him. B. When the name and address of the legal successor is known, but he is a nonresident or absentee, he shall be summoned to appear and substitute himself for the deceased party within sixty days of the receipt of the summons through registered or certified mail. C. If the name or address of the legal successor is unknown, the summons shall be by two publications not less than fifteen days apart in a newspaper published in the parish where the action is pending and in the parish of the domicile of the deceased party, which shall summon him to appear and substitute himself for the deceased party within sixty days of the first publication. The summons shall be addressed to the legal successor by name, if the latter is known; and otherwise shall be addressed to "The legal successor of ____________, deceased".

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o In other words, if you can serve the successors, that is fine. If they are absentees, then serve by registered mail. If you do not know where they are, serve by publication CCP 804 Same; effect or failure of legal successor to appear When the legal successor fails to appear and substitute himself for the deceased party within the delay allowed in the summons, on ex parte written motion of any other party, the court may: (1) Dismiss the action as to the deceased party, with or without prejudice, if the deceased was a plaintiff; or (2) When the legal successor of a deceased defendant has not been served by personal or domiciliary service with summons to appear and substitute, appoint an attorney at law to represent such legal successor, and the action shall be proceeded with contradictorily against the attorney at law. In other words, if the successors dont come in, default or dismissal. One way or another, the case is solved

CCP 805 Legal representative; successor Articles 801 through 804 apply to the substitution of a legal representative of any party other than a deceased person, and to the substitution of the successor of any legal representative appointed by a court of this state, except that the term "legal successor", as used therein, shall be considered as referring to such legal representative, or successor, as the case may be. When an action has been commenced by a proper representative on behalf of an incompetent person and such
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person thereafter becomes competent, the authority of the representative shall continue until substitution is made in accordance with the provisions of this article. o Special provision for q-public matters. The successor is the legal representative. Cases: Austrum v. Baton Rouge Personal injury claim, then the dies. Who goes forward w/ the claim? Under CCP 428 the action does not abate. Under 2315.1, the SA and WD run in favor of the successors (spouse and children) Successors may have themselves substituted by an ex parte motion The other party is entitled to challenge the appropriateness of the substitution if the party so chooses. Notarized document of death and heirship (these are standard docs) is OK as proof of quality)

Gulfco v. Lee Case was tried, submitted to the judge, he handed down his ruling. After the ruling, but before the judgment was entered into the records, the died. The successors of the deceased argued that the judgment was a nullity b/c there could not be a judgment against a deceased person. The court agreed that there could not be a judgment against a deceased, and remanded the case to the lower ct for parties to be substituted for the deceased and the case tried again.

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Saratt v. Capaert Whether the publication of the summons to the minor successors named therein was done in accordance w/ CCP 803? The publications were made 100 days apart CCP 803 requires that the party summon the successors by 2 publications not less than 15 days apart, and shall summon the successors to appear w/in 60 days of the first publication. B/c a notice on Sept. 16 publication summoned the successors to appear 60 days after the first publication of June 3 or August 3, a date that had already past, not valid. The second publication must appear 60 days after the first. Note: Be sure to distinguish b/w substitution and amendment. If your are suing a corp that is not really a corp (sue under wrong name) and then attempt to change the name, it is not a substitution it is really an amendment. Substitutions are only for deceased parties.

B. Prescription: CCP 1151-1156 Prescription = assigns a period of time for the enforcement of a right. CC 3449 Prescription may be renounced only after it has accrued. The person must agree to bring you back to life. If he agrees to renounce while prescription is still running, then it is invalid.
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CC 3452 Prescription must be pleaded. Courts may not supply a plea of prescription. Under CCP 927, the court can recognize some peremp exceptions. Prescription is not one of these that can be recognized by the court. Under CCP 928B a peremp exception (i.e.: prescription) can be pleaded at any stage in court prior to a submission of the case for a decision. Under CCP 2163, a peremp can also be filed all the way through the appellate courts (even LASC) Computation of Time CC 3454 In computing a prescriptive period, the day that marks the commencement of prescription is not counted. Prescription accrues upon the expiration of the last day of the prescriptive period, and if that day is a legal holiday, prescription accrues upon the expiration of the next day that is not a legal holiday. In other words, the day of commencement of prescription is not counted the day the accident happened). Accrues on the last day of the prescriptive period. If that day is a legal holiday, then it is extended to the next day that is not a legal holiday. CC 3455 If the prescriptive period consists of one or more months, prescription accrues upon the expiration of the day of the last month of the period that corresponds with the date of the commencement of prescription, and if there is no corresponding day, prescription accrues upon the expiration of the last day of the period. If you commence Feb. 29, prescription would accrue on Feb. 28 of the next year. Last day of the month.
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CC 3456 If a prescriptive period consists of one or more years, prescription accrues upon the expiration of the day of the last year that corresponds with the date of the commencement of prescription. Tort 1 year Open account 3 years Promissory note 5 years K breach 10 years Professional malpractice 1 year prescriptive 3 year peremptive period CC 3458 Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period. The effect of peremption is to set forth the life span of a right created for a specific period of time. Right must be exercised or it is forever lost. Right is only created for a limited time. Destroys the right (whereas prescription only prevents the enforcement of the right of action) Interruption of a peremptive right will not start the clock back at 0. You only have the time allotted for the exercise of that right so if you timely file and later the case is dismissed w/o prejudice, the peremptive time frame has run you can no longer bring an action to enforce the right. To defeat the harshness of this rule, when you see a dismissal coming, file in another court to make sure the right is still being exercised. Peremption can be pleaded OR supplied by the court of its own motion.

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CC 3461 Peremption may not be renounced, interrupted, suspended. There is no interruption of peremption.

or

CC 3462 Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period. Prescription is interrupted when the obligee () commences action in a ct of competent jd and venue provided proper party s and s have been named. Interruption brings the clock back to 0. Ex.: if file a $50,000 suit in a ct w/ a $20,000jd limit, then this is not a ct of competent jd and prescription is not interrupted. Its as if suit was never filed. Venue is filing in the proper ct. if you file 3 days b/4 prescription accrues, and it is the wrong venue, then prescription is not interrupted. The only thing that will save you then is if received service of process w/in the prescriptive period. Service of process interrupts prescription even though the process is defective if it is sufficient to inform the person served of the legal demands made upon himBUT the proper person designated by law must be served before service will interrupt the running of prescription. As to joint tortfeasors, of in the first trial had gone against 1 and the case was dismissed but now you want to go against 2, you still have a year left to file suit against 2. Interruption against one tortfeasor interrupts as to all. (CC 2324C) As long as interruption occurs, a full period accrues.
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Connor v. Continental Southern Lines When the has filed the suit in the wrong venue or jd, he MUST perform service correctly w/in the prescriptive period. When serving a corp, the must serve the correct agent as appointed by law. B/c the did not serve the correct agent the claim prescribed. NOTE: CC 2324C states that interruption as to one joint tortfeasor is effective against all tortfeasors. Yet the article holds that joint tortfeasors are not solidary obligors they are joint and several obligors (only liable for their share of the debt). BUT even though the tortfeasors are not liable in solido, interruption against one is good as against all. Examples of solidary obligors who are not tortfeasors: 1. Cosigners of a promissory note 2. Security 3. Signers on a k CC 1793 Any act that interrupts prescription for one of the solidary obligees benefits all the others. As long as the interruption is continuing, prescription will not run against any of the joint obligors. Picone a 15 year interruption was held not to be prejudicial against the other solidary obligors. CC 1797 An obligation may be solidary though it derives from a different source for each obligor. Employer and 3p are the s. Empee cannot sue the emper in tort b/c of WC but he can sue under WC for his meds.

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Empee can also sue the 3p in TORT for what the amount he owes in meds. The emper and 3p are in solido. So if the timely files against the emper, the interruption is also effective toward the 3p (does not matter if the files suit against the 3p late) There is also the example of tortfeasors liability ins and your own UM. They both owe the . Allstate v. Theriot 3p intervener was an injured empee of the emper who was insured by Allstate. The emper had sued the insurance agency to get the recoupment for when the emper had paid the injured empee. The empee than wants to intervene in the action, but the prescriptive period had run. The ct held that there was only one c/a, so Allstates timely suit interrupted prescription for the emper/intervener. Emper and Allstate were solidary obligors b/c both owed the same debt. THIS WAS A SINGLE C/A. Allstates claim against the put emper on notice that a claim was being made for the injuries he had caused and the interveners action arose out of the same transaction Ray v. Alexandria Mall Sets up limits for supplemental petitions and relation back. The s filed timely suit against the s through their insurer and name the as Alexandria Mall rather than Alexandria Mall Co. (it was really a p/s) and the general manager at the mall was served w/ process. later amended the petition to name the p/s and effected service on one of the partners but did this after prescription had run.
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Issue: Whether the case was to be dismissed for failure to file w/I the prescriptive period? NO! Whether the amended petition naming the correct was effective/related back? YES! CCP 1153 Supplemental Petitions When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction or occurrence set forth in the original pleading, the amendment relates back to the date of the filing of the original pleading. Should be interpreted in light of Ray. If you meet the criteria set out below, then amendment relates back to the filing date. But the misnomer must be close enough under Ray for it to relate back or for prescription to be interrupted. Limits: 1. The amended claim must arise out of the same transaction or occurrence set forth in the original pleading. 2. The purported substitute must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits. 3. The purported substitute must know or should have known that but for a mistake concerning the id of the proper party , the action would have been brought against him. 4. The purported substitute must not be a wholly new or unrelated , since this would be tantamount to assertion of a new c/a which would otherwise have been prohibited. Crawford says this is where the gets caught. Must be sure that the new is not a wholly new party to the case and somehow had notice of the pending suit. Key:

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Whether the party named in the amended petition had notice. In Ray, the Mall surely had notice that it was the in a claim against it and had the correctly named it, it would be tried. How can the be put on notice? Any limits? Giroir v. South LA medical Center extreme form of notice. Shows how far the ct will look to find that the newly named had notice. In Giroir, the father filed a timely WD action against the hospital for the negligence of the dr.s that caused his wifes death. later wanted to amend the petition to include his children in the suit, but the prescriptive period had passed. The ct held that under Ray, the was put on notice that the kids were potential unnamed s in the suit. While she was in the hospital, the wife had mentioned to one of the hospital workers that she was scared of dying b/c of the effect it would have on her children. Therefore, the hospital should have known that the children could have been a part of the WD action. Crawford says its not a very strong case. The nurses notes were not even in the record. The case did not distinguish b/w SA (which is one c/a) and WD (not one c/a father filed, should not have interrupted prescription for the children). CC 1799 The interruption of prescription against one solidary obligor is effective against all solidary obligors and their heirs. has the burden of proving solidarity so that prescription is interrupted. CC 3463 An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as
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long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial. Interruption of prescription from filing suit in ct of competent venue and jd continues as long as the suit is pending. BUT the interruption is considered never to have happened if abandons (CCP 561 3 years), voluntarily dismisses, or fails to prosecute. It is as if the lawsuit has never been filed. If you find that your suit was filed in the wrong jd or venue, but that service pf process was w/I the prescriptive period and correct? Crawford suggests that you should file a back-up lawsuit b/4 you vol dismiss.

CC 3464 Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe. Ex.: if ins co sends a letter saying they would work out a payment or settlement. Often done so does not file suit. Then, after prescription has run, ins co thinks they are safe. But cts have held that letter = acknowledgment. Thus, prescription interrupted. Dont confuse acknowledgment w/ renunciation. Renunciation can only happen after prescription has run. Acknowledgment happens while case is pending. CC 3466 If prescription is interrupted, the time that has run is not counted. Prescription commences to run anew from the last day of interruption.

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Time that is interrupted is not counted. Prescription begins to run again on the last day of the interruption. The entire prescriptive period is regenerated as soon as the interrupting incident ends (i.e.: lawsuit dismissed). This is not the same way it works w/ peremption. You preserve the peremptive right by filing it (i.e.: filing lawsuit). Interruption of a peremptive right will not start the clock back at 0. If interruption ends, peremption occurs. CC 3469 Prescription is suspended as between: the spouses during marriage, parents and children during minority, tutors and minors during tutorship, and curators and interdicts during interdiction, and caretakers and minors during minority. A "caretaker" means a person legally obligated to provide or secure adequate care for a child, including a tutor, guardian, or legal custodian. R.S. 9:5628 governs prescription on medical malpractice (1 year from act of malpractice). BUT have contra non valentum if you do not know that you are injured, prescription does not run against you. In that case, you have one year from the time you gain knowledge of the wrongful act. However CNV cannot go past the 3 year barrier. No matter if you do not know, cannot preserve action beyond the 3rd year. Exception: if person conceals wrongdoing, cts have acknowledged that they would break the 3 year barrier. CNV applies to all torts. Does not apply to peremption. B/4 filing a med malpractice lawsuit, must go before a Medical Review Panel (MRP). If file in court first, may be dismissed. The filing b/4 the MRP suspends prescription. Vicknair extreme example of finding notice
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was pregnant woman injured when a fire alarm falsely went off at Hibernia as they were having renovations. She had to run down 12 flights of stairs. filed timely suit against bank. Lower ct found no negligence. then filed suit against Broadmore (co doing the renovations) after the prescriptive period had run. To bring them is, she would have to prove they were in solido w/ bank. SC decided that in order to determine Bs liability, had to retry bank (even though earlier judgment against them was res jud so there would be no effect). SC held that bank was negligent, therefore prescription against B was interrupted when s filed timely against the bank. Taylor Suit by for an accident in Ak against their UM carrier in La. Ak had a 3 year prescriptive period to sue UM. La had a 2 year prescriptive period to sue UM. timely filed suit against in Ak. The suit against the carrier in La was brought after the 2-year prescriptive period had run. Ct held that even though the suit in La was after the prescriptive period, the suit against the carrier in Ak had interrupted prescription. had filed suit in ct of proper jd and venue in Ak. Valid suit in Ak interrupted prescription in La suit when they were solidary obligors. Can there ever be solidary obligors who are not joint tortfeasors? YES! Picone v. Lyons had timely filed suit against several s (empers). 12 years after the case had been continuing, added other s (manufacturers) to the suit. Ct held that the suit against the empers had interrupted the suit against the manufactures b/c the
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emper and manuf were solidary obligors and owed the the same debt. s were all liable for the same injuries to the empee. These were not joint tortfeasors. Not a violation of DP for the other s who are solidary obligors to be added 12 years after the suit. Can 2 pp be solidary obligors even if one is obligated in tort and the other in k? YES! The source of the obligation is irrelevant as long as they are both obligated to the same thing (to repair the same damage). CC 1797. Important Cases Williams Can an emper sued for recovery of WC be solidarily liable w/ a 3p tortfeasor? YES! filed timely suit against emper under WC statute. That filing interrupted prescription against additional tortfeasors. Hoefly had file timely suit against the tortfeasor (who had liability insurance) There is a 1 year prescriptive period against the tortfeasor and a 2 year prescriptive period against the UM. 2 1/2 years into the suit, discovers that the tortfeasor is underinsured and wants to sue his own UM. Ct held this was OK even though it was more than 2 years after the initial action. The UM was solidary obligor w/ the tortfeasor to the extent that they owed the the same debt.

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Rizer Ct held that UM coverage was a conditional obligation b/c suit cannot proceed until it is shown that the other is underinsured. At the outset, there is no right to sue the UM. Punched a hole in Hoefly, but did not overrule if just held that at the outset, a suit against a will not automatically interrupt prescription against the UM.

Solidary obligors: Obligated to the same thing. Payment by one solidary obligor exonerates the other as to a creditor. Each obligated for the entire performance. Notes: Shotts v. Doe Fictitious names can not be used to name s. Levy v. Steele Pendency of a second suit filed before abandonment or vol dismissal continues the interruption of prescription after the first suit is dismissed. Service must be made correctly to interrupt prescription. Ex. of faulty service not sufficient to interrupt prescription: Connor v. Continental Tires Service of process must be made on the agent for service of process of a corp for it to be effective and interrupt prescription. Breaux v. Vicknair Even if service is defective, it can still interrupt prescription if it is sufficient to give notice to the that he has legal demands made on him; when service was faulty but answered suit service was sufficient.

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Findley v. Baton Rouge initially filed suit against BR for damages caused by a pothole in a park owned by BREC; ct found that the suit against the city interrupted suit against BREC b/c the city and BREC are so interrelated. Brooks v. Wiltz suit served on mother of twins when the was not sure what twin was responsible was sufficient to work against both twins; the twin who was subject to the suit was put on notice when the mother was served. Note: For prescription to be interrupted when the wrong has been namedreally , the true s should have been related closely enough to named so as to have been put on notice w/ the faulty petition. Sonnier v. Norwood Construction Co. had filed suit and named wrong . Ct concluded that this was a case of misnomer and that had received sufficient notice of the claim not prejudiced. Prescription was interrupted by the original petition b/c the amendment related back. also testified that he had knowledge of the suit and would not have been in a better position to investigate 4 or 5 weeks earlier.

Prescription Review: 1. sues in wrong venue. Filed and served notice on timely, so prescription has been interrupted. But after the 1st year, gets suit dismissed b/c of venue. Involuntary dismissal. still has an action. From the moment of dismissal, still has another year to come
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2.
3.

4.

5.

6.

back into court. Prescription is regenerated. May also join any other (solido or tortfeasor) who was not in the original suit. Interruption as to one, interrupts as to all. any filing as to one, interrupts as to all. Does not depend on regenerated period. Misnomer does not depend on regeneration. Depends on CC 1153 relating back. This depends on notice and the Ray factors for late added s. Added late s depends on whether during prescriptive period was put on notice that other s might be joining the suit. Depends on notice and relating back (Ray factors). Does not depend on regeneration. The other side must have fair notice of what they are facing. The original petition must put on notice that another might be coming in (Giroid). Allstate if one party, having the right to sue on a c/a does so, interrupts prescription to the benefit of others who also have the right to sue. CC 1793 solidary obligees Williams emper and 3p tortfeasor are solidary so that suit against one interrupts as to the other. CC 1797 solidary obligors CC 2324 When an action is prescribed on its face, has burden of proving that it hasnt prescribed. Must prove 1 and 2 are in solido. If there is no fault on part of 1, then there will be no fault on 2 he will walk b/c the prescriptive period has passed as to him.

R.S 9:5604, 5605 Actions for professional accounting liability. Mimics 5628 (med malpractice) Dealing w/ 3 year peremptive period for malpractice suits. In med mal, CNV can extend the 1 year prescriptive period, but not beyond the 3 year peremptive period. After that, its over. For lawyer mal, it is purportedly the same. May not file after that 3 year period.
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BUTboth the one year and the three year prescriptive periods are peremptive. If the 1st year is peremptive, then dont need the 3 year limit. What will LACS do w/ this? Has been clear that under medical mal, the 1 and 3 year periods are prescriptive (i.e.: if Dr. conceals will bust through 3 years). What about lawyers? Crawford doesnt know. As to CPAs, ins agents - 5604B says time limits are prescriptive.

C. Service of Process: CCP 12011203; 1231-1236; 1261-1265; 1291-1293; 1311-1314; 12:308; 22:985; 22:1253; 13:3471; 13:3476; 13:3479; 13:3483-4; 13:3201-3207 Adversarial system depends on notice to the . No service of process=no notice. CCP 1201 Citation; waiver; delay
A. Citation and service thereof are essential in all civil actions except summary and executory proceedings and divorce actions under Civil Code Article 102. Without them all proceedings are absolutely null. B. The defendant may expressly waive citation and service thereof by any written waiver made part of the record. C. Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver. Citation + service is essential. Procedures are absolutely null w/o it. Under CCP 2002A(2) Final judgment is null if

against a who has not been served w/ process. Imprescriptible

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CCP 1202 What is the appropriate FORM OF CITATION


The citation must be signed by the clerk of the court issuing it with an expression of his official capacity and under the seal of his office; must be accompanied by a certified copy of the petition, exclusive of exhibits, even if made a part thereof; and must contain the following: (1) The date of issuance; (2) The title of the cause; (3) The name of the person to whom it is addressed; (4) The title and location of the court issuing it; and (5) A statement that the person cited must either comply with the demand contained in the petition or make an appearance, either by filing a pleading or otherwise, in the court issuing the citation within the delay provided in Article 1001 under penalty of default. SoP is: 1. Citation (order from the ct to answer suit) and 2. Certified copy of the petition

CCP 1231 Types of Service


Service of citation or other process may be either personal or domiciliary, and except as otherwise provided by law, each has the same effect. Service, whether personal or domiciliary, may be made at any time of day or night, including Sundays and holidays.

CCP 1232 Personal Service


Personal service is made when a proper officer tenders the citation or other process to the person to be served. CCP 1291, 322, 13:7421 provisions about who the

proper serving official is. Proper officer tenders the documents to the person served. Tenders - does not have to take it. Ex.: throwing it at s feet if he at first does not accept it is OK. Server must then fill return that he has tendered process.

CCP 1233 Where make personal service?


Personal service may be made anywhere the officer making the service may lawfully go to reach the person to be served. Server cannot fraudulently entice in order to serve

him process (Pennoyer)

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CCP 1234 Domiciliary Service


Domiciliary service is made when a proper officer leaves the citation or other process at the dwelling house or usual place of abode of the person to be served with a person of suitable age and discretion residing in the domiciliary establishment.

Dwelling house = home UPA = apt. complex, motel-by-month. If is there just overnight, this is not OK. Suitable age and discretion = cannot serve a 3 year old. Hold hearing to find out if person is suitable age and discretion. Put person on stand. Might have a problem w/ retards no discretion. CCP 1913
A. Notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all cases. B. Notice of the signing of a default judgment against a defendant on whom citation was not served personally, or on whom citation was served through the secretary of state, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service, or in the case of a defendant originally served through the secretary of state, by service on the secretary of state. C. Except as otherwise provided by Article 3307, in every contested case, notice of the signing of a final judgment, including a partial final judgment under Article 1915, shall be mailed by the clerk of court of the parish where the case was tried to the counsel of record for each party, and to each party not represented by counsel. D. The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed. Notice of signing of default judgment against a on

whom citation was not served personally, shall be served on by personal or domiciliary service. Only applies if was not served personally (i.e.: domiciliary service)

CCP 1235 Service on Representative

A. Service is made on a person who is represented by another by appointment of court, operation of law, or mandate, through personal or domiciliary service on such representative.

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B. Service on an attorney, as a representative of a client, is proper when the attorney's secretary is served in the attorney's office. C. For the purposes of this Article "secretary" shall be defined as the person assigned to a particular attorney and who is charged with the performance of that part of the attorney's business concerned with the keeping of records, the sending and receiving of correspondence, and the preparation and monitoring of the attorney's appointments calendar. Ind or corp may be served through a representative. Service on attorney as representative of client is

proper when secretary is served. Secretary must be assigned to particular attorney.

CCP 1236 service on Clerical Empees of Dr.s


Service on any physician, when not a party to an action, may be made at his or her office through personal service on any clerical employee of such physician. When a Dr. is sued or subpoenaed, you may effect

service on his office on any clerical empee, when the Dr. is not a party to the suit.

CCP 1237 Service on an Ind in Multiple Capacities


In cases wherein an individual is named in pleadings in more than one capacity, personal service on that individual is sufficient to constitute service of process on that individual in all capacities, including but not limited to as an individual, tutor, or a representative of a legal or quasi legal entity, when it is clear from the pleadings or service instructions the capacities in which the individual is being served. Ex.: if father sues as administrator of sons estate

and also in his ind capacity, service on one covers both capacities.

CCP 1261 General Corp Coverage (Domestic or Foreign)


Service of citation or other process on a domestic or foreign corporation is made by personal service on any one of its agents for service of process. B. If the corporation has failed to designate an agent for service of process, if there is no registered agent by reason of death, resignation, or removal, or if the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent, service of the citation or other process may be made by any of the following methods: (1) By personal service on any officer, or director, or on any person named as such in the last report filed with the secretary of state. Paoli/Vasquez Page 53 Fall 2000

(2) By personal service on any employee of suitable age and discretion at any place where the business of the corporation is regularly conducted. (3) By service of process under the provisions of R.S. 13:3204, if the corporation is subject to the provisions of R.S. 13:3201. C. Service of citation or other process on a bank is made pursuant to R.S. 6:285(C). If doing business in LA, there must be docs on record

that designate agent to receive service of process. Domestic corp often agent is lawyer who filed incorp docs. Foreign corps several commissioned agents for service of process Ex.: CT Corp). You must serve the agent. If the corp has not designated an agent, or if the server is unable to find agent, may effect SoP by: 1. personal service on empee of suitable age/discretion at place of business. 2. personal service on any officer or director named w/ the SoS.

CCP 1266
A. Service of citation or other process on a domestic or foreign limited liability company is made by personal service on any one of its agents for service of process. B. If the limited liability company has failed to designate an agent for service of process, if there is no registered agent by reason of death, resignation, or removal, or if the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent, service of the citation or other process may be made by any of the following methods: (1) Personal service on any manager if the management of the limited liability company is vested in one or more managers or if management is not so vested in managers, then on any member. (2) Personal service on any employee of suitable age and discretion at any place where the business of the limited liability company is regularly conducted. (3) Service of process under the provisions of R.S. 13:3204, if the limited liability company is subject to the provisions of R.S. 13:3201. (4) Service of process on an attorney appointed to represent the limited liability company under Article 5091 if the person attempting to make service certifies that he is unable, after due diligence, to make service on a manager, member, or employee as provided in Subparagraphs (1) and (2). Paoli/Vasquez Page 54 Fall 2000

For a LLC, the same applies as in CCP 1261. Valid service go by the rules. Find something in the article that you have done.

CCP 1262
If the officer making service certifies that he is unable, after diligent effort, to have service made as provided in Article 1261, then the service may be made personally on the secretary of state, or on a person in his office designated to receive service of process on corporations. The secretary of state shall forward this citation to the corporation at its last known address. If you cannot serve anyone under CCP 1261, as a last

resort, serve the SoS. Server sends it to the SoS and certifies that on his return. Sometimes must get a court order b/4 service on the SoS.

CCP 1263
Service of citation or other process on a partnership is made by personal service on a partner. When the officer certifies that he is unable, after diligent effort, to make service in this manner, he may make personal service on any employee of suitable age and discretion at any place where the business of the partnership is regularly conducted.

CCP 1264
Service on an unincorporated association is made by personal service on the agent appointed, if any, or in his absence, upon a managing official, at any place where the business of the association is regularly conducted. In the absence of all officials from the place where the business of the association is regularly conducted, service of citation or other process may be made by personal service upon any member of the association.

CCP 1265
Service of citation or other process on any political subdivision, public corporation, or state, parochial or municipal board or commission is made at its office by personal service upon the chief executive officer thereof, or in his absence upon any employee thereof of suitable age and discretion. A public officer, sued as such, may be served at his office either personally, or in his absence, by service upon any of his employees of suitable age and discretion. If the political entity or public officer has no established office, then Paoli/Vasquez Page 55 Fall 2000

service may be made at any place where the chief executive officer of the political entity or the public officer to be served may be found.

Who can serve? CCP 1291 Service by the Sheriff


Except as otherwise provided by law, service shall be made by the sheriff of the parish where service is to be made or of the parish where the action is pending. Must be an official designated by law. Must be made by the sheriff in the parish whre the

is. Authority is territorial. Exception: CCP 1293 service by a private person. Must be appointed by the court.

CCP 1292 Sheriffs Return


The sheriff shall endorse on a copy of the citation or other process the date, place, and method of service and sufficient other data to show service in compliance with law. He shall sign and return the copy promptly after the service to the clerk of court who issued it. The return, when received by the clerk, shall form part of the record, and shall be considered prima facie correct. The court, at any time and upon such terms as are just, may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

Its like a receipt. Goes in the record w/ citation and certified copy of the petition. Establishes that service of process was made. Only way to dispute this is by convincing evidence that the return was not correct in a motion to overturn SoP. Huge presumption in favor of the return. 13:3471 Supplementary Rules of SoP
The following rules supplement those governing the service of citation and other legal process in a civil action or proceeding contained in the Code of Civil Procedure: (1)(a) If the foreign corporation or the foreign limited liability company is not one required by law to appoint an agent for the service of process, but has engaged in a business activity in this state, service of process in an action or proceeding on a cause of action resulting from such business activity in this state, or for any taxes due or other obligations arising therefrom, may be Paoli/Vasquez Page 56 Fall 2000

made on any employee or agent of the corporation or limited liability company of suitable age and discretion found in the state. (b) If such employees or agents are no longer in the state, or cannot be found after diligent effort, the officer charged with the duty of making the service shall make his return to the court, stating the efforts made by him to secure service and the reason why he was unable to do so. Thereupon the court shall order that service shall be made on the secretary of state, or on some other individual in his office whom the secretary of state may designate to receive service of process. (c) The secretary of state shall ascertain the domiciliary post office address of the corporation, or limited liability company and shall send the original papers served to the corporation or limited liability company by registered mail, with return receipt requested, or by commercial courier as defined in R.S. 13:3204(D), when the corporation or person to be served is located outside of this state. The secretary of state shall retain in his office true copies of these papers, on which he shall note the date, the manner and other particulars of the service, and of the disposition made of the original papers. If cannot find the empee, give SoS 2 copies. SoS will mail copy by registered mail, and keep the

original on file.

(2) In an action or proceeding brought in a parish other than that of the domicile of a defendant, citation and all other legal process may be served on this defendant in the parish where the action or proceeding was brought, if the defendant can be served therein. Otherwise, the process may be sent by the clerk of the court from which it issued to any parish where the defendant may be found, and service may be made by the sheriff or a constable of the latter parish. If the is not in the parish where the action is filed,

the clerk must send the service to the s parish and service is made by a sheriff in that parish.

(3) When an action or proceeding is brought in the parish of the domicile of a defendant, and the latter is absent therefrom, service may be made on him in any parish of the state where he may be found. (4) An acceptance of service shall be dated, and if no date is shown thereon, the acceptance takes effect from the date of its filing in court. No acceptance of service shall affect the delays allowed by law or by the local rules of court. (5) The return of the serving officer on any citation or other legal process is conclusive, unless directly attacked. Such an Paoli/Vasquez Page 57 Fall 2000

attack may be made by rule in the action or proceeding, if made prior to judgment. If made after judgment, the return may be attacked only in a direct action to annul the judgment, which may be brought in the original action or proceeding. If the defendant was actually served, the court may correct an error in the return by an amendment thereof, on a rule brought against and tried contradictorily with the defendant who was served, or any other party who may be affected by the amendment. (6) Service of process on an inmate of a public institution may be made by the sheriff or any constable of the parish where the institution is situated. (7) Service of process by a sheriff or constable shall be returned into the court which issued the process as soon as possible after the service is made. In addition thereto, the serving officer shall keep a complete record thereof in a book specially provided for that purpose. If the original return is lost or destroyed, the entries in this book shall be received and recognized in lieu thereof, subject to the provisions of R.S. 13:3471(5). (8) Subsequent to service of the original petition in any civil action or proceeding, service of pleadings, documents, or notices that may be served by mail or delivery on an attorney of record may also be made by delivering a copy to the attorney by means of a telephonic facsimile communication device, if the attorney maintains such device at his office and the device is operating at the time service is made. When service is made as provided herein, the party or attorney making the service shall file in the record a certificate showing service was made by telephonic facsimile communication device.

Return of a serving officer is conclusive unless directly attacked. After the judgment is rendered, can only be attacked in an action to annul judgment. Prior to judgment, and be attacked by rule in action or proceeding. CCP 1293
When the sheriff has not made service within five days after receipt of the process or when a return has been made certifying that the sheriff has been unable to make service, on motion of a party the court may appoint any person not a party over the age of majority, and residing within the state, to make service of process in the same manner as is required of sheriffs. Service of process made in this manner must be proved like any other fact in the case.

Requires a court order. SoP must be proved.


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Put individual on the stand ask him under oath what he did. Must state that he served .

CCP 1311

A copy of any written instrument which is an exhibit to a pleading need not be served upon the adverse party unless the party who files the pleading expressly prays for such service. Exhibits to pleadings dont need to be served on the

adverse party unless the party who files the pleading specifically requests them.

How to serve amendments

CCP 1312 Service of Pleadings Subsequent to Petition; Exceptions Except as otherwise provided in the second paragraph hereof, every pleading subsequent to the original petition shall be served on the adverse party as provided by Article 1313 or 1314, whichever is applicable. No service on the adverse party need be made of a motion or petition for an appeal, of a petition for the examination of a judgment debtor, of a petition for the issuance of garnishment interrogatories in the execution of a final judgment, or of any pleading not required by law to be in writing. CCP 1313 Service by mail, delivery, or fax A. Except as otherwise provided by law, every pleading subsequent to the original petition, and every pleading which under an express provision of law may be served as provided in this Article, may be served either by the sheriff or by: (1) Mailing a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party at his last known address, this service being complete upon mailing. (2) Delivering a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party. (3) Delivering a copy thereof to the clerk of court, if there is no counsel of record and the address of the adverse party is not known. (4) Facsimile transmission of a copy thereof to the counsel of record at his number designated for facsimile transmission, or if there is no counsel of record, to the adverse party at his number designated for facsimile transmission, this service being complete upon receipt of the transmission. B. When service is made by mail, delivery, or facsimile transmission, the party or counsel making the service shall file in the record a certificate of the manner in which service was

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made. C. Notwithstanding Paragraph A of this Article, if a pleading or order sets a court date, then service shall be made by registered or certified mail or as provided in Article 1314. Sets out the proposition that after the serving of the

petition, all pleadings may be served on attys by mail, delivery, fax, unless it sets out a contradictory hearing or a court date. Then it must be served personally or by certified mail. Pleadings that must be made by personal service: 1. Reconventional demand 2. Intervention 3. Cross claim 4. 3p demand 5. Rule to show cause 6. Habeas corpus Ex. if you file an exception of vagueness, you must serve it by sheriff or 1. Certify it; mail it to lawyer or adverse party himself if there is no lawyer. 2. Deliver it to lawyer, if there is none, then to adverse party. 3. Deliver copy to clerk of court, if there is no lawyer and adverse partys address is not known 4. May send it by fax. Service complete upon receipt of transmission. Must be served by sheriff or registered/certified mail if pleading requires a court appearance. (CCP 1314).

CCP 1314 Same; Service by Sheriff A. A pleading which is required to be served, but which may not be served under Article 1313, shall be served by the sheriff by either of the following: (1) Service on the adverse party in any manner permitted under Articles 1231 through 1265. (2)(a) Personal service on the counsel of record of the adverse party or delivery of a copy of the pleading to the clerk of court, if there is no counsel of record and the address of the adverse party is not known. (b) Except as otherwise provided in Article 2293, service may not be made on the counsel of record after a final judgment terminating or disposing of all issues litigated has been rendered, the delays for appeal Paoli/Vasquez Page 60 Fall 2000

have lapsed, and no timely appeal has been taken. B. Personal service on a partner or office associate of a counsel of record, in the office of such counsel of record shall constitute valid service under Paragraph A of this Article.

12:308 Registered Agent on a Foreign Corp


A. Each foreign corporation authorized to transact business in this state shall have and continuously maintain in this state: (1) At least one registered agent, which agent may be either (a) an individual resident in this state whose business office is identical with the corporation's registered office, (b) an individual attorney or a partnership which is authorized to practice law in this state, or (c) a domestic corporation, or a foreign corporation authorized to transact business in this state, which has a business office identical with such registered office, which is authorized by its articles or certificate of incorporation to act as the agent of a corporation for service of process, and which has on file with the secretary of state both a certificate or amended certificate setting forth the names of at least two individuals in such office, each of whom is authorized to receive any process served on it as such agent and a notarized affidavit of acknowledgement and acceptance signed by each registered agent. The failure to attach a notarized affidavit of acknowledgement and acceptance as required by this Section shall not be a defense to proper service of process on the corporation. (2) A registered office, which may, but need not, be the same as its business office in this state. B. A foreign corporation authorized to transact business in this state may change its registered office, its registered agent, or its principal business establishment in this state, upon filing in the office of the secretary of state a statement setting forth: (1) The name of the corporation. (2) If the address of its registered office is to be changed, the address to which the registered office is to be changed. (3) If its registered agent is to be changed, the name of its successor registered agent. Attached thereto shall be a notarized affidavit of acknowledgement and acceptance signed by the successor registered agent. (4) If its registered agent is an individual or a corporation, that the address of its registered office and the address of the business office of its registered agent, as changed, will be identical. (5) If the address of the principal business establishment is to be changed, the address to which such principal business establishment is to be changed. The statement shall be executed by the corporation by its president or a

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vice president, and acknowledged by him and delivered to the secretary of state. If only the address of the registered office is changed, the statement need only be executed by the registered agent. If the secretary of state finds that the statement conforms to the provisions of this Chapter, he shall file the statement in his office, and upon such filing, the change of address of the registered office, or the appointment of a new registered agent, as the case may be, shall become effective. C. A similar statement executed by the registered agent shall be filed in like manner within thirty days after any change in the name of a corporate or partnership registered agent. D. Any registered agent of a foreign corporation may resign as such agent upon filing a written notice of his resignation, executed in duplicate, with the secretary of state, who shall forthwith mail a copy thereof to the corporation at its principal office in the state or country under the laws of which it is incorporated. The appointment of such agent shall terminate upon the expiration of thirty days after receipt of such notice by the secretary of state. If the registered agent resigns, or if for any other reason the corporation ceases to maintain a registered agent, a successor agent shall be appointed, under the procedure set forth in Subsection (B) of this section, within thirty days after termination of the tenure of the former agent. E. If the corporation's registered office should be vacated, a new office shall be designated, under the procedure set forth in Subsection (B) of this section, within thirty days. If such designation is not made, the office of the secretary of state may thereafter be treated as the registered office of the corporation by any person other than the corporation itself. F. Every corporation shall keep at its principal place of business in or outside the state, records in written form or in any other form capable of being converted into written form within a reasonable time, showing correct accounts of its properties and business transactions in this state. These records shall include accounts of its assets and liabilities, receipts and disbursements, and gains and losses and, if the corporation is engaged in this state in a business which will subject it to liability for state severance taxes, a complete account of all severances produced from its operations in this state. Such records may be in written form or in any other form capable of being converted into written form within a reasonable time.

Foreign corps certified to do business in LA must designate registered office and A(1) registered agent on who SoP can be made. There is a declining hierarchy in case agent, for example, dies. (Ex. SoS)

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SoS office puts out a book of agents for foreign corps. If agent has changed, SoS has a computerized system that can tell you who current agent is. 22:985 SoP on Insurance Companies
Every foreign or alien insurer shall appoint the secretary of state to be its true and lawful attorney in this state upon whom, or some other person in his office during his absence he may designate, all lawful process in any action or proceeding against such insurer may be served, which shall constitute service on such insurer. Such appointment shall continue in force so long as any contract or other liability of such insurer in this state shall remain outstanding. Whenever such process shall be served upon the secretary of state, he shall forthwith forward a copy of the process by prepaid registered mail or by commercial courier as defined in R.S. 13:3204(D), when the person to be served is located outside of this state, per Louisiana State Law Institute to the person designated for the purpose by the insurer. Insurance companies are same thing as 13:308. If ins co is not authorized to do business in La but

does so anyway? Then they consent to be served through SoS.

13:3471 see above Ordinary corps that are not authorized, but transact business anyway, then SoP may be served on any empee or agent. If cannot find anyone, ct will order SoP on SoS. This is paralleled to 22:985 Sheriff is authorized to act only w/in own parish (CCP 322, 1291). Sheriff can, however, go into another parish to serve process. Very rarely happens usually he mails it to sheriff of other parish, and he serves process. 13:3472 Service on a Foreign Corp through SoS May serve SoS anywhere in the state. If not in office, may serve assistant SOS or some other individual in the office designated to receive service in his absence.

13:3473
Paoli/Vasquez Page 63 Fall 2000

The repealed section was derived from Acts 1918, No. 179, 4 and was amended by Acts 1960, No. 32, 1 to require the secretary of state to provide a list of agents for service of process on foreign corporations. See, now, generally, R.S. 12:104. SoS provides a list of agents for SoP on foreign corps

w/ agents in the state and delivers it to clerk of court and sheriff every August..

13:3475
A. The service of the process authorized by R.S. 13:3474 shall be made by serving a copy of the petition and citation on the secretary of state, or his successor in office, and such service shall be sufficient service upon the defendant, the nonresident, the executors or administrators of the deceased nonresident, if there be such, and if not, then against his heirs or legatees, or the nonresident liability insurer of the vehicle, as the case may be; provided that notice of such service, together with a copy of the petition and citation, is forthwith sent by the plaintiff by registered mail or certified mail with receipt requested, or is actually delivered to the defendant and the defendant's returned receipt, in case notice is sent by registered or certified mail, or affidavit of the party delivering the petition and citation in case notice is made by actual delivery, is filed in the proceedings before judgment can be entered against the defendant. The court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action. B. For purposes of this Section, the return receipt indicating that the registered or certified mail was actually delivered, refused, or unclaimed, is satisfactory proof of service of process if mailed to the defendant's address as indicated on the defendant's safety responsibility personal accident report, SR10, or if such report was not timely filed with the Department of Public Safety and Corrections, if mailed to the defendant's address as indicated on the accident report filed with the department by the law enforcement officer who responded to the accident. Routine for SoS

13:3479
The operation, navigation or maintenance by a non-resident or nonresidents of a boat, ship, barge or other water craft in the state, either in person or through others, and the acceptance thereby by such nonresident or non- residents of the protection of the laws of the state for such water craft, or the operation, navigation or maintenance by a nonresident or non-residents of a boat, ship, barge or other water craft in the state, either in person or through others, other than under the laws of the state, shall be deemed equivalent to an appointment by each Paoli/Vasquez Page 64 Fall 2000

such non-resident of the Secretary of State, or his successor in office or some other person in his office during his absence he may designate, to be the true and lawful attorney of each such non- resident for service of process, upon whom may be served all lawful process in any suit, action or proceeding against such non-resident or non-residents growing out of any accident or collision in which such non-resident or non- residents may be involved while, either in person or through others, operating, navigating or maintaining a boat, ship, barge or other water craft in the state; and such acceptance or such operating, navigating or maintaining in the state of such water craft shall be a signification of each such nonresident's agreement that any such process against him which is so served shall be of the same legal force and effect as if served on him personally. If you use our waterways, we have IPJ, and

consents to SoP on SoS. Statute does not mention liability carrier, but if there is operation have coverage.

13:3474 The acceptance by non-residents of the rights and privileges conferred by existing laws to operate motor vehicles on the public highways of the state of Louisiana, or the operation by a non-resident or his authorized agent, employee or person for whom he is legally responsible of a motor vehicle within the state of Louisiana, shall be deemed equivalent to an appointment by such non- resident of the secretary of state of Louisiana or his successor in office, to be his true and lawful attorney for service of process, as well as the attorney for service of process of the public liability and property damage insurer of the vehicle, if such insurer be a non-resident not authorized to do business in the state, upon whom or such insurer, may be served all lawful process in any action or proceeding against the non-resident, or such insurer, growing out of any accident or collision in which the non-resident may be involved while operating a motor vehicle in this state, or while same is operated by his authorized agent or employee. In the event of the death of such nonresident before service of process upon him, any action or proceeding growing out of such accident or collision may be instituted against the executors or administrators of such deceased non-resident, if there be such, and if not, then against his heirs or legatees, and service may be made upon them as provided in R.S. 13:3475. Process against the defendant or defendants, the non-resident, his executors or administrators, if there be such, and if not, then against his heirs or legatees, or the liability insurer of such vehicle, as the case may be, shall be of the same legal force and validity as if served upon such defendant personally.

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This is like the watercraft statute, but on land. If you dont want to use the longarm statute, use this. By using our hwys, have consented to jd in La w/ SoP on SoS for and his ins co. Roper v. Dailey Crawford says this is a close call. At the 1st hearing, the court held that the had not rebutted the presumption that service was made correctly. At the 2nd hearing, the ct held that the had proved faulty service. had testimony that he was not properly served. Further, the sheriff could not remember serving him (although Crawford says that they do hundreds of these and that is why the presumption is so strong). Case illustrates that it is possible to rebut the presumption that service is correct, although it takes more than testimony. 13:3204 Service of Process
A. A certified copy of the citation and of the petition in a suit under R.S. 13:3201 shall be sent by counsel for the plaintiff, or by the plaintiff if not represented by counsel, to the defendant by registered or certified mail, or actually delivered to the defendant by commercial courier, when the person to be served is located outside of this state or by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general, limited, or small claims jurisdiction. B. If service of process cannot be made on the nonresident by registered or certified mail or by actual delivery, the court shall order that service of process be made on an attorney at law appointed to represent the defendant pursuant to Code of Civil Procedure Article 5091. C. Service of process so made has the same legal force and validity as personal service on the defendant in this state. D. For purposes of this Section, a "commercial courier" is any foreign or domestic business entity having as its primary purpose the delivery of letters and parcels of any type, and which: (1) Acquires a signed receipt from the addressee, or the addressee's agent, of the letter or parcel upon completion of delivery.

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(2) Has no direct or indirect interest in the outcome of the matter to which the letter or parcel concerns.

A. Basic way of serving certified mail. If it comes back, then no service of process. B. can order that ct use a CCP 5091 atty. Ex. files suit for adjudication of ownership of immov prop. La has jd over the subject matter, but owners are out of state. Must chase them down? No! CCP 5091 says that if the ct has jd over the subject matter, may appoint a special atty serve him. he represents absentees. Most common use of CCP 5091 atty divorce. La has jd over the status of marriage.

D.Default Judgment; CCP 10011002; 1701-1704; 1913 CCP 1001 Delay for Answering
A defendant shall file his answer within fifteen days after service of citation upon him, except as otherwise provided by law. When an exception is filed prior to answer and is overruled or referred to the merits, or is sustained and an amendment of the petition ordered, the answer shall be filed within ten days after the exception is overruled or referred to the merits, or ten days after service of the amended petition. The court may grant additional time for answering. After citation has been served, has 15 days to

answer. The has the 15th day to answer, so if it falls on a Monday, go to ct to get prelim DJ on Tuesday. The date of service is not included. In the computation of time, may begin on a holiday, and count holidays in the middle, but if it ends on a holiday, then you must skip to the next non-holiday day. Ex. Served Fri ---------- 14th day/Fri --------- 15th day/Mon ---------
file prelim DJ on Tues.

There are different provisions for state (30 days), towns, municipalities, long arm s (30 days).
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If files an exception w/in 15 days, this is just as good as an answer. When the ct rules on it, if adverse to , then the has another 10 days to answer. Article only refers to exceptions. If files a motion for summary judgment, cases in La have held that he must file w/ it a motion to extend the time for answer. CCP 1001 only allows extra time for exceptions.

CCP 1002 Answer filed prior to confirmation of default

Notwithstanding the provisions of Article 1001, the defendant may file his answer at any time prior to confirmation of a default judgment against him.

CCP 1701 Judgment by default

A. If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes. B. When a defendant in an action for divorce under Civil Code Article 103(1), by sworn affidavit, acknowledges receipt of a certified copy of the petition and waives formal citation, service of process, all legal delays, notice of trial, and appearance at trial, a judgment of default may be entered against the defendant the day on which the affidavit is filed. The affidavit of the defendant may be prepared or notarized by any notary public. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes. If fails to answer w/in time allowed, a prelim DJ is

entered against him. The has the 15th day to answer, so if it falls on a Monday, go to ct to get prelim DJ on Tuesday. Stamped by clerk (no answer, date). CCP 1701B only applies to CC 103 divorces. Proceedings necessary for a CC 103 divorce: Lawyer draws up petition. One spouse prepares affidavit for the other to sign: 1. Have received petition.
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2. Waive SoP, citation. 3. Waive all legal delays (CCP 1001) 4. Waive notice of trial 5. Waive appearance at trial. Take the petition and the affidavit, file it at the courthouse. At the moment you file, go the CoC w/ the file and he will enter a DJ (may be same day that pet and aff are filed). Any notary public may do the affidavit. Prelim DJ may be oral. Or, may be mailed (non-hearing). Under CCP 1702E, if non-hearing, shall submit another affidavit saying that all in the petition is true. Takes place of witnesses. This is a 4-day divorce.

CCP 1702 Confirmation of DJ

A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default. B. (1) When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment. (2) When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment. (3) When the sum due is on an open account or a promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required. C. In those proceedings in which the sum due is on an open account or a promissory note, other negotiable instrument, or other conventional

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obligation, or a deficiency judgment derived therefrom, including those proceedings in which one or more mortgages, pledges, or other security for said open account, promissory note, negotiable instrument, conventional obligation, or deficiency judgment derived therefrom is sought to be enforced, maintained, or recognized, or in which the amount sought is that authorized by R.S. 9:2782 for a check dishonored for nonsufficient funds, a hearing in open court shall not be required unless the judge, in his discretion, directs that such a hearing be held. The plaintiff shall submit to the court the proof required by law and the original and not less than one copy of the proposed final judgment. The judge shall, within seventy-two hours of receipt of such submission from the clerk of court, sign the judgment or direct that a hearing be held. The clerk of court shall certify that no answer or other pleading has been filed by the defendant. The minute clerk shall make an entry showing the dates of receipt of proof, review of the record, and rendition of the judgment. A certified copy of the signed judgment shall be sent to the plaintiff by the clerk of court. D. When the demand is based upon a claim for a personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony. E. Notwithstanding any other provisions of law to the contrary, when the demand is for divorce under Civil Code Article 103(1), whether or not the demand contains a claim for relief incidental or ancillary thereto, a hearing in open court shall not be required unless the judge, in his discretion, directs that a hearing be held. The plaintiff shall submit to the court an affidavit specifically attesting to and testifying as to the truth of all of the factual allegations contained in the petition, and shall submit the original and not less than one copy of the proposed final judgment. If no answer or other pleading has been filed by the defendant, the judge shall, after two days, exclusive of holidays, of entry of a preliminary default, render and sign the judgment or direct that a hearing be held. The minutes shall reflect rendition and signing of the judgment.

Second DJ Must be 2 days after prelim DJ (exclusive of holidays). Ex.Prelim DJ/Tues ------ Wed/4th of July----- Th and F are the 2 clear days must come into court w/ necessary proof of his case. Must be confirmed by proof of demand sufficient to establish a prima facie case. Its like trying a case w/o the . B(1) - If a demand is based on a conventional obligation (k), affidavits and exhibits shall be
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------ Conf DJ/Mon

admissible. You put in writing what would ordinarily come from the witness stand, take it to ct and get a DJ. No testimony, appearance not required, if no appearance, submit certificate (CCP 1702.1). B(2) if a demand is based on a tort need testimony of , corroboration, affidavits. must appear. Special proof provisions in B(3) when sum due on an open account, an affidavit of the correctness thereof shall be pima facie proof. Case law modifies this by requiring not only an affidavit, but also an itemized s/ment of accounts (bills, invoices). No testimony, appearance not required, if no appearance, submit certificate (CCP 1702.1). It is a confirmation of the prelim default. Ct must be satisfied w/ offer of proof. Lawyers will often have DJ prepared, judge just signs it. CCP 1702E in action for CC 103 divorce, hearing not required. must submit another affidavit saying that all in the petition is true.

CCP 1702.1 Confirmation of DJ w/o hearing in open ct; required info; certifications
A. When the plaintiff seeks to confirm a default judgment as provided in Article 1702(B)(1) and (C), along with any proof required by law, he or his attorney shall include, in an itemized form with the motion and judgment, a certification that the suit is on an open account, promissory note, or other negotiable instrument, on a conventional obligation, or on a check dishonored for nonsufficient funds, and that the necessary invoices and affidavit, note and affidavit, or check or certified reproduction thereof are attached. If attorney fees are sought under R.S. 9:2781 or 2782, the attorney shall certify that fact and that a copy of the demand letter and the return receipt showing the date received by the debtor are attached and that the number of days required by R.S. 9:2781(A) or 2782(A), respectively, have elapsed before suit was filed. B. The certification shall indicate the type of service made on the defendant, the date of service, and the date a preliminary default was entered, and shall also include a certification by the clerk that the record was examined by the clerk, including therein the date of the

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examination and a statement that no answer or other opposition has been filed.

CCP 1703 Scope of judgment


A judgment by default shall not be different in kind from that demanded in the petition. The amount of damages awarded shall be the amount proven to be properly due as a remedy.

CCP 1704 Confirmation of DJ in suits against the state or pol subdivision.


A. Notwithstanding any other provision of law to the contrary, prior to confirmation of a judgment of default against the state or any of its departments, offices, boards, commissions, agencies, or instrumentalities, a certified copy of the minute entry constituting the judgment entered pursuant to Article 1701, together with a certified copy of the petition or other demand, shall be sent by the plaintiff or his counsel to the attorney general by registered or certified mail, or shall be served by the sheriff personally upon the attorney general or the first assistant attorney general at the office of the attorney general. If the minute entry and the petition are served on the attorney general by mail, the person mailing such items shall execute and file in the record an affidavit stating that these items have been enclosed in an envelope properly addressed to the attorney general with sufficient postage affixed, and stating the date on which such envelope was deposited in the United States mails. In addition the return receipt shall be attached to the affidavit which was filed in the record. B. If no answer is filed during the fifteen days immediately following the date on which the attorney general or the first assistant attorney general received notice of the default as provided in Subsection A of this Section, a judgment by default entered against the state or any of its departments, offices, boards, commissions, agencies, or instrumentalities may be confirmed by proof as required by Article 1702. C. Notwithstanding any other provision of law to the contrary, prior to confirmation of a judgment of default against a political subdivision of the state or any of its departments, offices, boards, commissions, agencies, or instrumentalities, a certified copy of the minute entry constituting the judgment entered pursuant to Article 1701, together with a certified copy of the petition or other demand, shall be sent by the plaintiff or his counsel by registered or certified mail to the proper agent or person for service of process at the office of that agent or person. The person mailing such items shall execute and file in the record an affidavit stating that these items have been enclosed in an envelope properly addressed to the proper agent or person for service of process, with sufficient postage affixed, and stating the date on which such envelope was deposited in the United States mails. In addition the

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return receipt shall be attached to the affidavit which was filed in the record. D. If no answer is filed during the fifteen days immediately following the date on which the agent or person for service of process received notice of the default as provided in Paragraph C of this Article, a judgment by default entered against the political subdivision of the state or any of its departments, offices, boards, commissions, agencies, or instrumentalities may be confirmed by proof as required by Article 1702.

CCP 1913 Notice of Judgment


A. Notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all cases. B. Notice of the signing of a default judgment against a defendant on whom citation was not served personally, or on whom citation was served through the secretary of state, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service, or in the case of a defendant originally served through the secretary of state, by service on the secretary of state. C. Except as otherwise provided by Article 3307, in every contested case, notice of the signing of a final judgment, including a partial final judgment under Article 1915, shall be mailed by the clerk of court of the parish where the case was tried to the counsel of record for each party, and to each party not represented by counsel. D. The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.

Notice of DJ must be made by personal or domiciliary service if original service was domiciliary. This is only in reference to confirmation of default. Do not have to give notice of prelim DJ. Under 13:2781, may collect atty fees for open accounts. Atty fees may only be collected by k or by statute. Otherwise, cannot do it. Cts are very nitpicky about this so go by the book. must have a paragraph reciting the necessary facts and the demand should be recited in the prayer. Must have an affidavit attached to the petition and an itemized s/ment of account attached. How DJ works:
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Make SoP, lets say its domiciliary. After 15 days, no answer. Go to ct during motion hour and get a prelim DJ (clerk will stamp it). Under CCP 2002(2), a final judgment is null if rendered against a who has not been served w/ process or against a whom valid DJ not taken. This is imprescriptable. If you get a DJ prematurely, CCP 2002(2) applies. If everything is OK in the record, and you move to get a confirmation of the DJ, then the judge will usually sign your judgment 2 days after the prelim DJ. The 2nd DJ is final pending suspensive appeal. There must be 2 days b/w the prelim DJ and the confirm DJ. DO IT BY THE BOOK. How to do DJ: File petition serve under CCP 1001 15 days no answer, no exception day after the 15 days, get a CCP 1701 prelim DJ (stamp no answer, date by CoC) 2 days after that (excluding holidays), get a CCP 1702 conf DJ come to ct w/ evidence sufficient to prove prima facie case judgment signed. If initial suit was domiciliary CCP 1702 conf DJ must be served on by personal or domiciliary service. If initial suit was personal trial delays start running from time of conf DJ. suspensive appeal delays start running, and after they are up, can execute on his judgment.

Special Requirements for Service/Notice: 1. CCP 1704

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a. Suits against the state No confirmation of DJ until a certified copy of minute entry of prelim DJ and a certified copy of petition sent by to Atty General by certified mail or by sheriff. If mailed, shall file in the record an affidavit stating that these items have been mailed. Atty General has 15 days from that point (receiving notice of DJ) to answer. If no answer, then DJ may be confirmed. b. Suits against political subdivision Same as against the state, but use an officer of the political entity instead of the Atty General. 2. 13:3205 DJ; proof of SoP No conf DJ against nonres until 30 days after recordation of affidavit in record of individual who mailed or delivered process. 3. 13:3471 Supplementary rules of SoP If serve ins co through SoS, no conf DJ until 30 days after affidavit of person who served process is in the record. Cases: Cabral v. National Fire DJ against the was reversed b/c the did not present a prima facie case of the elements of his claim. (CCP 1720A). did not prove his entitlements to damages from the when he failed to show that the primary insured or UM of the non-owned vehicle of the was insufficient to satisfy his damages. This was a delictual obligation that need the s testimony (CCP 1702B(2)).

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provided no evidence as to the insurance of the vehicle. In UM cases, the burden of proof is on the . Policy of insurance must be in evidence.

Cardone v. G&R Prelim DJ was taken prematurely. Under CCP 1001, cannot end 15-day count on a holiday. May begin on a holiday and count them in b/w, however. Judgment was a nullity. must start at square one. Halliday v. Waterworks App.Ct overturned DJ. s testimony did not prove prima facie case of negligence. Only told her side if the story. White Plumbing v. Baricev No itemized account. (CCP 1702B(3)). No affidavit or testimony as to the correctness of the open account. DJ overturned. American v. Crasto Under CCP 1702C, may get DJ by mail. Only on open accounts, promissory notes. DJ w/o a hearing, but if the judge wishes a hearing, it is w/in his discretion to do so. If he does not wish it, may submit proof by mail. If use the non-hearing method, must comply w/ CCP 1702.1: 1. Must be a suit on an open acct, etc w/necessary proof. 2. Atty fees must be certified to, and must attach copy of demand letter and return receipt showing

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that the necessary days have elapsed since filing suit. 3. Cert from lawyer of type of service, date of service, date of prelim DJ 4. Cert form CoC that he: a. Examined the record. b. Date of examination c. Statement that no answer or other opposition was filed Unless all of this is submitted, DJ may be annulled. In the case, DJ was annulled b/c the record did not include an itemized cert in the record. There was also no cert filed by the CoC. Williams v. Williams modified divorce judgment while was in the military service. Did not attach an affidavit of non-military service. The default judgment was annulled. Cts require that the include an affidavit that the is not in the military. Sessions & Fishman v. Liquid Air DJ set aside b/c the did not include an itemized statement of accounts. The DJ (w/o a hearing) was no good b/c did not meet the cert requirements of CCP 1702.1. Needed invoices and affidavits b/c it was a non-hearing. Must be offered and accepted into evidence. Even though CCP 1702B(3) requires only an affidavit, the jurisprudence requires an affidavit and an itemized statement of accounts. Suit on an open account, requirements of proof in CCP 1702(3). W/o a hearing, requirements in CCP 1702.1. In addition to the proof required by law, requires the necessary invoices and affidavits. This is a statutory requirement.

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Request for atty fees, requirements in 2781. For the ct to validly sign conf of DJ, must give them evidence to prove your case. Evidence must be offered and accepted. Offering evid is not just handing over all the stuff to the CoC. General treatment of offering of evidence does this.

E. Declaratory 1871-1883

Judgments:

CCP

CCP 1871 Declaratory Judgments; scope


Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The declaration shall have the force and effect of a final judgment or decree. CCP 1871 creates the c/a. The right is the right to have the right declared. Device to let pp find out where they stand before

they take a fatal step. If your are opposing a declaratory judgment, may file a peremp no c/a. The phrase whether or not further relief could be claimed was added b/c cts were refusing to grant declaratory judgments when there was any other way for to get relief.

Requirements: 1. Justiciable controversy (adversarial interest) controversy about to burst open. There should be 2

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2.

3. 4. 5.

sides. Action must exhibit all the usual conditions, except that injury may not have happened yet. Standing the individual must be affected by the right. Party has an interest in resolving the dispute. Where a tangible interest of the will be affected if not given. Jurisdiction NO ADVISORY OPINIONS Need a tangible interest.

Examples: (1) X ks w/ Y to supply him w/ gas for $30. X now has to pay $50 for the gas it sells to Y. What can X do? Can he also charge Y $50? X should ask for a declaratory judgment. X should get a declaratory judgment before he makes any new demands on Y. (2) C wants to build a store on the property he bought. The agreement that he had w/ the buyer said that the land was zoned for business BUT it is not really zoned for such use. C no longer wants the land. C should file a declaratory action BEFORE he breaches the k of sale. (3) Executor of estate should file declaratory judgment when several different heirs claim title to certain land. CCP 1872 Interested parties may obtain declaration of rights, status, or other legal relations
A person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

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CCP 1873 Construction of a k


A contract may be construed either before or after there has been a breach thereof.

CCP 1874 Interested party may obtain declaration of rights; purpose


A person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, lunatic, or insolvent, may have a declaration of rights or legal relations in respect thereto: (1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin or others; (2) To direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; or (3) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.

CCP 1875 Powers enumerated nit exclusive


The enumeration in Articles 1872 through 1874 does not limit or restrict the exercise of the general powers conferred in Article 1871 in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.

CCP 1876 Ct may refuse to grant declaratory judgments


The court may refuse to render a declaratory judgment or decree where such judgment or decree, if rendered, would not terminate the uncertainty or controversy giving rise to the proceeding.

CCP 1877 Review of judgments and decrees


All orders, judgments, and decrees under Articles 1871 through 1883 may be reviewed as other orders, judgments, and decrees. Declaratory judgments, or the refusal to give one are

appealable.

CCP 1878 Supplemental relief


Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application is considered sufficient, the court, on reasonable notice, shall require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith

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This procedure is a contradictory motion. Summary proceeding. If a ct grants a declaratory action that jury in a will should go to T. T should then file under CCP 1878 for supplemental relief to get the declaratory judgment enforced.

CCP 1879 Trial and determination of issue of fact


When a proceeding under Articles 1871 through 1883 involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.

CCP 1880 - Parties


When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In a proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard. If the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard. All parties affected must be joined. If challenge the constitutionality of an article, Atty

Gen must be named as a party. He has an interest in upholding the statute.

CCP 1881 - Construction


Articles 1871 through 1883 are declared to be remedial. Their purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and they are to be liberally construed and administered.

Cases: Auto Dealers v. LA The state set up differing rules as to how small/individual dealers and big auto dealers could do business. Small auto dealers filed for declaratory judgment.
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Ct held that s had a competitive injury as the act specifically addressed the business practices of small dealers. s also demonstrated substantial economic injury form the act.

F. General Waiver: 1673 CCP 6

Appearance CCP 6,7,928,

and 1671-

A. Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. The exercise of this jurisdiction requires: (1) The service of process on the defendant, or on his agent for the service of process, or the express waiver of citation and service under Article 1201. (2) The service of process on the attorney at law appointed by the court to defend an action or proceeding brought against an absent or incompetent defendant who is domiciled in this state. (3) The submission of the party to the jurisdiction of the court by commencing an action or by the waiver of objection to jurisdiction by failure to timely file the declinatory exception. B. In addition to the provisions of Paragraph A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and with the Constitution of the United States.

Statement that gives La cts power to render binding judgments. What makes this really binding is FF&C of the Constitution. Can create jd by 1. Commencing an action (SoP) or by 2. The waiver of objection to jd by failure to timely file declinatory objection. CCP 928
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<Text of par. A effective until July 1, 2000> A. The declinatory exception and the dilatory exception shall be pleaded prior to or in the answer, or prior to the confirmation of a default judgment. When both exceptions are pleaded, they shall be filed at the same time, and may be incorporated in the same pleading. When filed at the same time or in the same pleading, these exceptions need not be pleaded in the alternative or in a particular order. <Text of par. A effective July 1, 2000> A. The declinatory exception and the dilatory exception shall be pleaded prior to or in the answer and, prior to or along with the filing of any pleading seeking relief other than entry or removal of the name of an attorney as counsel of record, extension of time within which to plead, security for costs, or dissolution of an attachment issued on the ground of the nonresidence of the defendant, and in any event, prior to the confirmation of a default judgment. When both exceptions are pleaded, they shall be filed at the same time, and may be incorporated in the same pleading. When filed at the same time or in the same pleading, these exceptions need not be pleaded in the alternative or in a particular order. B. The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision and may be filed with the declinatory exception or with the dilatory exception, or both. Declinatory and dilatory shall be pleaded prior to or

in answer. CCP 928 is a good codification of what was set forth in Bickam. As long as declinatory filed prior to or w/ answer, you have not volunteered to jd. under CCP 2. If you have the declinatory umbrella, it does not matter what you do thereafter. Can file any one of the peremp exceptions and you still have not submitted to jd. If the declinatory is not filed prior to or w/ answer, then you have volunteered into the court. W/o any fear of volunteering jd, you can: 1. Change lawyers 2. Get time extension 3. Get dissolution of attachment.

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If you ask for substantive relief declinatory, have volunteered jd. CCP 1671

w/o

pleading

A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to any appearance of record by the defendant. If the application is made after such appearance, the court may refuse to grant the judgment of dismissal except with prejudice. CCP 1672 A. (1) A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice. (2) The court, on its own motion, may dismiss an action without prejudice when all the parties thereto fail to appear on the day set for trial; however, when a case has been dismissed pursuant to this provision and it is claimed that there is a pending settlement, either party may reinstate the suit within sixty days of receipt of the notice of dismissal, and any cause of action which had not prescribed when the case was originally filed shall be fully reinstated as though the case had never been dismissed. B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence. C. A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C), upon contradictory motion of that person or any party or upon the court's own motion, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

CCP 1673
A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial. A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action.

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G.Answer: CCP 1001-1006 REMEMBER: LA HAS FACT PLEADING NOT NOTICE PLEADING CCP 1001 Delay for answering See above. Delay for answering 15 days w/in SoP. If exception filed, answer shall be filed 10 days after overruling or referred to on the merits, or 10 days after the service of the amended citation (if objection is sustained). Ct may grant extra time to answer. CCP 1002 answer filed prior to confirmation of default
Notwithstanding the provisions of Article 1001, the defendant may file his answer at any time prior to confirmation of a default judgment against him.

CCP 1003 Form of answer


The answer shall comply with Articles 853, 854, and 863 and, whenever applicable, with Articles 855 through 861. It shall admit or deny the allegations of the petition as required by Article 1004, state in short and concise terms the material facts upon which the defenses to the action asserted are based, and shall set forth all affirmative defenses as required by Article 1005. It shall also contain a prayer for the relief sought. Relief may be prayed for in the alternative. must admit or deny every allegation of s

petition. If does not deny it, it is admitted. can admit in part and deny in part.

CCP 1004 Denials


The answer shall admit or deny the allegations of fact contained in each paragraph of the petition, and all such allegations, other than those as to the amount of damages, are admitted if not denied in the answer. If the defendant is without knowledge or information sufficient to justify a belief as to the truth of an allegation of fact made in the petition, he Paoli/Vasquez Page 85 Fall 2000

shall so state and this shall have the effect of a denial. Denials shall fairly meet the substance of the allegations denied. When the defendant intends in good faith to deny only a part of or to qualify an allegation of fact, he shall admit so much of it as is true and material and shall deny or qualify the remainder. If something is not in the pleading, the court will not

hear it. No evidence will be introduced at trial that is not in the petition. CCP 1005
The answer shall set forth affirmatively arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, division, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, transaction or compromise, and any other matter constituting an affirmative defense. If a party has mistakenly designated an affirmative defense as an incidental demand, or an incidental demand as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation. These are the facts outside of those of the . These outside facts establish a defense that will

relieve or limit your liability. Most common aff defense is comparative fault. Aff defenses must be pleaded w/ particularity. Sudden emergency is not an aff defense. However if you create your own emergency, cannot use it as a defense.

CCP 1006
An answer may set forth two or more defenses in the alternative, even though the factual or legal bases thereof may be inconsistent or mutually exclusive. All allegations in such cases are made subject to the obligations set forth in Article 863.

Cases: Vernon supplied souvenirs to companies w/ their name on them. Sued personally for the souvenirs supplied. denies in his answer.
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On the stand, alleged that he personally did not buy the pens, his corp did. Is this an aff defense? The test is whether if brings in facts outside of s petition. alleged he sold goods. denied. should have been on notice that was planning to say that he did not buy the pens. This was not an aff defense the evidence was allowed. Allstate Credit Bankruptcy is an aff defense. Bates Ker sues homeowner for breach of k. denies. His defense is that the ker did not perform the work adequately. Is this an aff defense? Ct said NO. alleged performance, denied, was on notice. Evidence was allowed in court. If you deny the facts in the petition, whatever you use as evidence in court to support your denial is not an aff defense. Antley Ker ordered Ready-Mix from co. Refused to pay. Ker sued the co alleged defective Ready-Mix (foreign materials). Co. denied allegations and put on evidence that the ker had let the foreign materials in. Proved denial by alleging that ker let them in.

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Not an aff defense b/c co denied the fact that ReadyMix had arrived w/ foreign materials. Summerll specially. Unconstitutionality must be pleaded

Brannon sudden unconsciousness is an affirmative defense. Must be proved by clear and convincing evidence. Trahan v. Gerber Foods sued for tort (negligence in letting glass get into baby food). argued that it could not be their fault b/c of several reasons including manufacturing process and lid sealing process. argued that the TC was wrong in admitting that evidence b/c it amounted to claim that injury was caused by fault of a 3p which is an aff defense that was not plead in the answer. Ct held that evidence was merely a rebuttal of s allegation of negligent manufacturing. Evidence was deemed admissible. Through s general denial, could have anticipated that the would rebut the allegation of negligent manufacturing w/ evidence of nonnegligent manufacturing. If there is the slightest doubt, plead it! If the appellate ct should decide its an aff defense, and you have not plead it, your client loses. Paxton v. Ballard A factual allegation of negligence is adequate as an aff defense of contributory negligence. Now, if the pleads enough facts to allege cont negl, does not need to use the actual words contributory negligence.
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charged the w/ negligence and set forth facts necessary for the charge. The plea put on notice that the was alleging cont negl. Paxton overruled the rule that cont negl must be specifically pleaded. Now, if pleading can be fairly read to read that you are pleading aff defense of cont negl, this is enough. Cont negl is still an aff defense, however. Bold caption your aff defenses. Webster v. Rushing sued for the amount due to him for handling a loan. wanted to prove that to collect a loan, you must be a registered loan agent and was not. argued that this was an aff defense not specifically pleaded. Ct held that this was an aff defense. loses, he did not plead this in his answer. Purpose of pleading an aff defense is to give fair and adequate notice of the nature of the defense so that the is not surprised. Here, no mention of the defense was made in the answer or pretrial order. CCP 1005 list is not exclusive. Test of aff defense: Confession and Avoidance Yes, I did what was alleging, but At what point are you pleading comp fault and at what point are you pleading 100% negligence? This is important b/c comp negl is an aff defense, and total negl is not. If you deny s allegation of negligence and say that he caused it this is total negligence. Causey can pursue 100% total negligence w/o pursuing comp negl.
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Totally different arguments. Sessions v. Taddonio filed suit to collect atty fees. filed general denial. At trial asserted that an atty at the firm had indicated to her that the fees had been paid. argued that s argument was an aff defense. Ct agreed. did not put on enough notice. No evidence of s allegations allowed in.

H.Exceptions: CCP 921-934 and IPJ: CCP 1-6; 13:3201, et seq Note: It makes a difference what the exception is classified as b/c La has stage preclusion. Dilatory and declinatory exceptions must be filed prior to or w/ answer. Peremp exception can be filed at any time. Purpose of doing this is so the case wont get strung out. CCP 921 Exception defined
An exception is a means of defense, other than a denial or avoidance of the demand, used by the defendant, whether in the principal or an incidental action, to retard, dismiss, or defeat the demand brought against him.

CCP 922 Kinds of exceptions

Three exceptions and no others shall be allowed: the declinatory exception, the dilatory exception, and the peremptory exception.

CCP 923 Functions of exceptions

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The function of the declinatory exception is to decline the jurisdiction of the court, while the dilatory exception merely retards the progress of the action, but neither exception tends to defeat the action. The function of the peremptory exception is to have the plaintiff's action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.

Party will be allowed to amend pleading if he can do so in g/f. CCP 924 Form of exceptions
All exceptions shall comply with Articles 853, 854, and 863, and, whenever applicable, with Articles 855 through 861. They shall set forth the name and surname of the exceptor, shall state with particularity the objections urged and the grounds thereof, and shall contain a prayer for the relief sought.

CCP 925 Objections raised by declinatory exception; waiver


A. The objections which may be raised through the declinatory exception include but are not limited to the following: (1) Insufficiency of citation. (2) Insufficiency of service of process. (3) Lis pendens. (4) Improper venue. (5) The court's lack of jurisdiction over the person of the defendant. (6) The court's lack of jurisdiction over the subject matter of the action (not waived even if not pleaded). B. When two or more of these objections are pleaded in the declinatory exception, they need not be pleaded in the alternative or in any particular order. C. All objections which may be raised through the declinatory exception, except the court's lack of jurisdiction over the subject matter of the action, are waived unless pleaded therein.

CCP 926 Objections raised by dilatory exception; waiver


A. The objections which may be raised through the dilatory exception include but are not limited to the following: (1) Prematurity. Ex.: file action on promissory not b/4 its due. (2) Want of amicable demand (this has virtually been eliminated). (3) Unauthorized use of summary proceeding. Ex.: Dispute w/ a ker. He wants to get paid wand decides to file suit. Your lawyer files a rule to show cause why ker should not be paid. But kual action cannot be tried by summary proceedings. s lawyer will file an exception.

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(4) Nonconformity of the petition with any of the requirements of Article 891. (5) Vagueness of ambiguity of the petition. See Washington v. Fleniken (6) Lack of procedural capacity. Ex.: underage . (7) Improper cumulation of actions, including improper joinder of parties. Ex.: if there is no proper venue b/w parties. (8) Discussion (this has been repealed). B. All objections which may be raised through the dilatory exception are waived unless pleaded therein. Used to retard the action until it can be shaped up

for to respond to.

CCP 927 Objections raised by peremptory exception

A. The objections which may be raised through the peremptory exception include but are not limited to the following: (1) Prescription. (2) Res judicata. (3) Nonjoinder of a party under Articles 641 and 642. (4) No cause of action. (5) No right of action, or no interest in the plaintiff to institute the suit. B. The court cannot supply the objections of prescription and res judicata, which must be specially pleaded. The nonjoinder of a party, or the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, may be noticed by either the trial or appellate court of its own motion.

Peremps kill the action May be plead at any time the case is alive, even up to the Ct. App. Plea of prescription will be remanded if all the facts are not in the record. (4) no c/a if p proves all elements in his claim, there is still no legal right against . Decided on the face of the pleadings, no evidence allowed. (5) no r/a - must be the obligee of the legal right. When you use this exception, you are saying that the wrong is suing. Hypo: Gulf Furniture sues J for nonpayment. You are s lawyer. He says I never heard of them. Can

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you use a no r/a? NO! This is not appropriate here b/c GF is the correct , they just got the wrong . Use a peremp exception of wrong . The list is illustrative, so you can do it. Entitled to put on evidence. Why not SJ? Takes more time and a lot more work.

CCP 928 Time of pleading exceptions See above Dec and dil shall be pleaded prior to or in answer and prior to or along w/ the filing of any pleading other than freebies changing lawyers, extension of time w/in which to plead, security for costs, dissolution of attachment on the grounds of nonresidence of the . Suit will not go forward until all exceptions are disposed of. In any event shall pleaded prior to conf of DJ. When plead both types of exc, shall be pleaded at the same time or in the same pleading. Do not have to be in any particular order. All dec and dil abjections must be pleaded at the same time. If not plead together, the one plead afterward is waived. If file answer before dec and dil, they are waived. W/ the exception, file a motion and order setting them for hearing. s are mostly the ones to do this b/c want to get the case moving along. Cannot amend the pleadings to add a new objection under the guise of amplifying one already there. Peremps can be filed at any time at any stage in the proceeding in the trial court prior to submission of the case for decision and may be filed w/ the dec and dil. Lists of exc are illustrative.

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CCP 929 Time of trial of exceptions


A. The declinatory exception, the dilatory exception, and the peremptory exception when pleaded before or in the answer shall be tried and decided in advance of the trial of the case. B. If the peremptory exception has been filed after the answer, but at or prior to the trial of the case, it shall be tried and disposed of either in advance of or on the trial of the case. If the peremptory exception has been pleaded after the trial of the case, the court may rule thereon at any time unless the party against whom it has been pleaded desires and is entitled to introduce evidence thereon. In the latter event, the peremptory exception shall be tried specially.

CCP 930 Evidence on trial of declinatory and dilatory exceptions


On the trial of the declinatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition, the citation, or return thereon. On the trial of the dilatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.

CCP 931 Evidence on trial of peremptory exception


On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. When the peremptory exception is pleaded in the trial court after the trial of the case, but prior to a submission for a decision, the plaintiff may introduce evidence in opposition thereto, but the defendant may introduce no evidence except to rebut that offered by plaintiff. No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.

CCP 1634 - Cross-examination of a party or person identified with a party


A party or a person identified with a party may be called as a witness and examined by the adverse party in accordance with Louisiana Code of Evidence Articles 607 and 611.

A party may cross examine the other sides witness they present evidence for your side. Ex.: for a car crash suit, would call driver CCP 932 Effect of sustaining declinatory exception

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When the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if the plaintiff fails to comply with an order requiring such removal, the action shall be dismissed; except that if it has been brought in a court of improper jurisdiction or venue, the court may transfer the action to a proper court in the interest of justice.

When ct upholds the exc, typically is given additional time to correct if he can do so validly (ex.: if he can do so w/o alleging the same facts).

How do exceptions work? The petition is served. files his exceptions. sets the exc for a hearing. notified by motion to set for trial. At the hearing, evidence will be heard as if it is a trial. The only exception is for peremp of no c/a, where no evidence is heard. You simply read the petition, stipulates that all the facts of the petition are true, but there is no legal right anyway. Lawyers often file nor c/a and no r/a exceptions together. But Crawford says they are vastly different b/c no r/a allows evidence and no c/a does not. If s lawyer is not careful and doesnt abject, the receipt of evidence for both will be allowed by the TC. The judge will not interfere b/c both parties are adequately represented. The no c/a w/ evidence is like a SJ. Not supposed to do this. Pleading form for exceptions (pg. 201) Very much like a petition. May be mailed or faxed unless there is a ct appointment, then sheriff must serve or cert mail (CCP 1313, 1314). Note: All exceptions allow evidence except peremp of no c/a.

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May call witnesses, etc CCP 1634 may cross-examine a witness for the opposing party.

Cases: Halbert v. Klauer The petition cites that the entered an agreement w/ the that as its agent, he would receive a commission should he bring about the sale of a certain pipe to the . argues that the sale was consummated and that the owes the commission. The filed an answer and denied the indebtedness and argues that no commission was due of the sale until the account was entirely paid and b/c the account was not fully paid yet, no commission was due. asserted in his answer that the suit was premature. asserted that the had not properly raised the issue as an exception but only set up in his answer that alternatively, the s demands were premature. Issue: Was this a dil exc of prematurity or a peremp exc of no c/a? Ct held that this was an obligation subject to a suspensive condition (dependent on an uncertain event). If it was possible that the condition may never be filled, this would be a peremp exc of no c/a. The obligation of the was a suspensive condition and was not to take effect until the happening of an uncertain event.

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The execution of the conditional obligation can not be executed or enforced until the occurrence of the event. If the execution of a conditional obligation is demanded before the condition is fulfilled, the action is premature and the action will be dismissed leaving the obligee the right to assert his claim in due time. If an obligation sought to be enforced is existent and certain and the term stipulated for its fulfillment has not matured, Prematurity must be plead in the petition. BUT. if the obligation depends on the happening of an uncertain event, the issue of prematurity belongs in the merits of the case. Soit was proper for the to argue prematurity in his answer. Note: In class, Crawford discussed the case in a different way. He said: Pematurity can be a dil or peremp exc depending on the nature of the obligation. An obligation dependent on uncertain event not really an obligation use peremp exc of no c/a. An oblig dependent on certain event is an obligation use a dil exc of prematurity. sued. alleged that he was not due the commission until customer paid in full. Is the exc dilatory or peremp? If dilatory waived unless pleaded w/ answer. If peremp may file until the LASC. Cannot be waived. Ct. decided it was peremp. Washington v. Flenniken filed a suit against for damages sustained when fell at s construction site.
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s filed exception of vagueness . filed a more specific petition and the argued again that it was too vague. TC kept upholding exc of vagueness and ended up dismissing the suit entirely. Issue: Whether on appeal the app ct can review an interlocutory judgment of a trial ct sustaining an exc of vagueness? YES!! If so, was the TC ruling correct? NO!! the petition was sufficiently specific. The purpose of the exc of vagueness is to place on notice of the nature of the c/a and include sufficient substantial particulars to enable the to prepare their defense. Ultimate goal: to get well-pleaded facts. The s petition fairly informed the of the nature of the c/a and includes sufficient substantial particulars to enable the to prepare their defense. If you have pleaded all the facts, and petition is still vague, must file no c/a. If the vagueness cannot be cured, however, it is a peremp exception of no c/a. Or, TC can do it of their own initiative. Stegg v. Lawyers Ins Co sues to enjoin from furnishing ins at a lower rate than allowed by law. AC held that the s were entitled to secure a legal determination of the legality of the lower rates b/c of the inadequacy of administrative remedies. s argued that there was an exception of prematurity b/c of the failure to exhaust admin remedies. Issue: In what ways can the allege the failure of to exhaust admin remedies? 1. Dilatory exc prematurity 2. No c/a peremp exc. If face of the petition shows that arbitration was ked for, can file exc of no c/a and annex a copy of the k.
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3. Aff defense at trial (CCP 1005). 4. Deny in answer. At trial, ask for judgment. Ct held that the defense that is not entitled to judicial relief may be raised by the merits by options 1, 2, or 3. When the issue is raised by exc of prematurity, the has the initial burden of proving that the admin remedy is available. Then the burden shifts to the to show that the admin remedy is not adequate. Nicosia v. Guillory Minor filed lawsuit against the . filed reconventional demand against minor. Minor becomes a major. When the ct granted the reconventional demand against the minor, the minor alleged that it was not proper b/c he was a minor when he filed suit. Minor filed dil exc of lack of procedural capacity. Issue: whether the failure of the minor to file exc b/4 the answer waived the exc? YES! Ct held that the minor was personally served and his procedural capacity to be sued in the recon demand was waived by the answer filed on his behalf. thus waived the dil exc b/c he did not argue lack of capacity earlier. BUT, ct points out that if the was still a minor when the judgment was rendered, it would be null. In that case, file a motion for the ct to appoint a tutor-ad-hoc. Then judgment will be valid. Jackson v. Dickens appeals from a judgment of Fam Ct declaring him the father of s child. B/4 the trial, the had filed a decl exc of no of jurisdiction over the SMJ and one he called a no r/a which contested his procedural capacity to be sued.

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Ct held that the no r/a was really a decl exc to procedural capacity. Ct decides to treat the exc as dilatory b/c that is what it really was dont go by title. Differentiates no r/a from lack of procedural capacity. No r/a = refers exclusively to whether person bringing the action is the owner of said action really wanted to say that was not properly qualified tutor. This goes to her procedural capacity, not to her right to sue. Foster v. Breaux (Troublesome Case) suit was dismissed on a peremp exc of prescription. sued for damages alleging slander (1 yr prescription). filed exc of prescription, but did not file decl exc b/c at the time of the case, the filed the peremp first, the decl would be waived. Issue: when a suit is filed in a ct of improper venue w/in the prescriptive period but service is made after it, may the urge it is prescribed for that reason? If the has previously waived his right to object to the venue as improper? NO! Prescription is interrupted by the mere filing of suit in competent ct w/in the prescriptive period BUT only by the service of citation if filed in incompetent ct (improper venue). When the filed the prescription exc, he waived his decl exc of venue. If the could not object to venue, the action was in an OK venue when filed and prescription was interrupted. Note that CCP 928 would change the holding in this case. B/c of that, you must file your decl exc FIRST. But it is still good law.

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The upshot: if files in wrong venue and serves after prescription has run, and answers, then the decl exc is waived. can no longer protest venue, thus it is OK, and prescription has not yet run. Mayeaux v. Martin Same facts as in Foster. Ct held the opposite, however! Suit was filed in improper venue, SoP made to s after prescription had run. Assuming that s argument is correct, and that s peremp exc of prescription waived their right to decl exc of improper venue, the waiver did not have the effect of making Rapides Parish a ct of proper venue. Did not change the circs that action had prescribed b/4 any such waiver took place. s, by waiving decl, did not renounce their right to plead prescription. Patterson v. Weber Marine filed suit w/in prescriptive period but in improper venue and failed to serve w/in prescriptive period. answered. Issue: whether the venue is proper even though filed in the wrong parish? YES!! Ct held that waived his right to plead improper venue b/c no decl exception was filed prior to the DJ. So when the later plead prescription, venue was proper b/c the decl exc had been waived. Notes: a. Safe thing to do is to file decl exc of improper venue FIRST, then file peremp of prescription. b. Cannot transfer out of an improper venue and avoid prescription. c. The difference b/w aff defense and exception? i. Aff defense: matters that brings into the case.
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ii.

Exceptions: pick at what has brought into the case.

Browne v. Witten Once succession exists and administration begins, the only person authorized to bring the suit is the executor. There is no r/a for any other individual. Bielkiewicz v. Rudisill s sued for personal injury sustained while riding a motorcycle driven by . TC dismissed b/c peremp exc and held that the release form executed by s constitutes a compromise or voluntary recession that barred the claim. Issue: Can the defense that an obligation has been extinguished by a voluntary release be raised be peremp exc? NO! must it be raised by aff defense? Is parole evidence admissible that the signed release through error? Whether res jud is an aff defense or a peremp exc? Ct held that the extinguishments of an obligation CANNOT be raised by peremp exc. Must be raised as an aff defense. Res jud is a peremp exc.

Duplain v. Wiltz argues that there is no r/a b/c she is not the owner of the property in which the was injured. Issue: Whether this is a no c/a or a no r/a? Ct held that the had a right to recover damages. She was the owner of that right, the obligee. This is really a no c/a. could not admit evidence.
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KOK v. Harris issue over a claim of damages for the intentional infliction of emotional distress regarding funeral arrangements. TC held that there was no c/a. alleged that following the death of KOK , the funeral was scheduled for the next day, and that the s could not get there quick enough. s argued no r/a. Issue: whether the s have a r/a or c/a? The peremp exc of no r/a is the issue of whether the belongs to a class for which the law grants a remedy. The s have a r/a but not a c/a. Babineaux v. SE Drilling Corp If the does not object, evidence is admissible for a no c/a. The ct cannot recognize it of its own motion it must be plead. Everything on Wheels v. Subaru Can there be a no c/a on part of a petition? If more than one c/a is alleged, and 1 of them is subject to a no c/a, can the ct grant a partial co c/a? Ct can grant a partial no c/a. Whether the party opposing the exception must appeal form the judgment partially maintaining the exc in order to prevent the judgment form acquiring the authority of the thing adjudged? Prior to this Subaru, the rule was that if a petition had more than one c/a, and exc of no c/a had to knock them al out. Rationale: App Cts wanted the whole case to come up on appeal, they would then make a decision as to the whole case. Opposed to piecemeal appeals.

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Subaru changed this and reversed one of the most sacred rules in La. Now, partial no c/a are allowed. You can file an exc of no c/a to one, and leave the others alone. If there are more than one severable c/a in petition, may pick one and level a c/a against that one. This was later codified in CCP 1915. CCP 1915 - Partial final judgment; partial judgment; partial exception; partial summary judgment
A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court: (1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors. (2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969. (3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E). (4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038. (5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury. (6) Imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864. B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay. (2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate Paoli/Vasquez Page 104 Fall 2000

appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties. C. If an appeal is taken from any judgment rendered under the provisions of this Article, the trial court shall retain jurisdiction to adjudicate the remaining issues in the case.

CCP 1915A gives the final judgment (except of appeal). Under A, the ruling will take a specific party out of the litigation. Appealable w/o being designated as such. Under B, a partial judgment must be designated as final. Not appealable unless it is final. This is important b/c once it is designated as a final judgment, the clock begins running on the time allowed for appeal. Patterson v. Weber Marine See above. Crawford says this case and Foster are error.

Service On Gives Jurisdiction CCP 6 Louisiana has jurisdiction over: 1. Domiciliaries 2. Immov prop 3. quasi in rem prop in state (not necessarily immov). If there is sufficient connexity b/w prop and action, may get q-r jd. 4. Status (CCP 10) marriage, adoption, affiliation 5. SoP w/I borders of state Burnam (USSC) sufficient to establish jd, even if dont have sufficient minimum contacts.

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6. Non-residents (long-arm) At what point non-res have made themselves subject to IPJ in La Minimum contacts and TNFPSJ There have been several codified minimum contacts. 1. 13:3201: Long Arm Statute
A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident: (1) Transacting any business in this state. (2) Contracting to supply services or things in this state. (3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state. (4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state. (5) Having an interest in, using or possessing a real right on immovable property in this state. (6) Non-support of a child, parent, or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state. (7) Parentage and support of a child who was conceived by the nonresident while he resided in or was in this state. (8) Manufacturing of a product or component thereof which caused damage or injury in this state, if at the time of placing the product into the stream of commerce, the manufacturer could have foreseen, realized, expected, or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer's marketing practices. B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

Minimum contacts: what is sufficient connection w/ La to be min contact? Why do you need A when B says exercise jd until the limits of the Constitution? B/c all the jurisprudence is in A. If you are under A (1-8) then there is no new law to be made, this has

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all been litigated b/4 its a sure thing. If you do not fall in that category, then go to B. A (1-8) allow you to get jd through conduct. (6) makes non-support an act of conferring jd. This is personal jd and will allow a money judgment. May be exercised anywhere (FF&C). Under Federal jurisprudence, can use long arm to bring in liability insurer. Can get him under B. Adoption of B made 3201 a one step process. Figure out min contacts and fair notice. Do not have to ask if La asked for jd under A (1-8). FF&C keeps La honest about its jd.

2. 12:308: Foreign Corp Consents to be sued in La by appointment of agent for SoP. 3. 22:985: Foreign Ins Co All appoint SoS for SoP. 4. 22:1253: Foreign Ins Co Not Auth To Do Business In La Still can be sued and impliedly appoint SoS. 5. 13:3471: Foreign Corp Not Authorized To Do Business In La SoS. 6. 13:3474: Non-res Motorists If you drive on La hwys you have also consented to jd in La w/ SoP on SoS. This also means that La has jd over the ins co. 7. 13:3479: Non-res Watercraft SoS CCP 1 Jd defined
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Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled. Js is the power of a court to adjudicate.

CCP 2 Jd over SM

Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. Jd over SM. LA Const tells LASC what jd has over rights, appeals,

and writs. Same thing to CoA and DCs. Lower cts city cts regulated by Lege. claims cts, parish cts.

Ex.: small

CCP 3 Same; cannot be conferred by consent


The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties. A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void.

Jd cannot be conferred by consent of the parties. If the ct does not have jd, null judgment (CCP 2002(3) null if ct has no SMJ over suit). Hypo: if went to city ct and sued for $25000. the jd of the court is only $20000. Lege gave them no power to hear a case over that amount. Under CCP 925(6), file a declinatory objection b/c ct lacks jd over the SM. If you have waived your decl exc, then under CCP 3 and CCP 2002, you can stand up in ct and make a motion for lack of jd. Hypo: S and J go to city ct of EBRP to secure a divorce. But city ct is specifically excluded from a number of SMJ including divorce. The division of property would be null. CCP 4841 SMJ
A. The subject matter jurisdiction of parish courts and city courts is limited by the amount in dispute and by the nature of the proceeding, as provided in this Chapter.

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B. For the purposes of this Chapter, the amount in dispute is determined by the amount demanded, including damages pursuant to Civil Code Articles 2315.3 and 2315.4, or value asserted in good faith by the plaintiff, but does not include interest, court costs, attorney fees, or penalties, whether provided by agreement or by law. C. If the demand asserted in an amended or supplemental pleading exceeds the jurisdiction of the court, the court shall transfer the action to a court of proper jurisdiction. Most prevalent area: lack of SMJ amount in dispute. City ct has a limit of $20000. Hypo: sues for car accident punitive damages

b/c a DWI is involved. Amount in dispute according to B. is determined by the amount demanded including damages pursuant to 2315.3 and 2315.4 or value asserted in g/f. does not include atty fees, interest, penalty, ct costs.

According to CCP 893A, you may not plead $ in your petition unless the suit falls under B (suit on a conventional obligation, promissory note, open account, or other negotiable instrument, for alimony or child support, on a tax claim, or in a garnishment proceeding). If a specific amount of damages is necessary to establish jd of the ct, a general allegation that the claim exceeds or is less than requisite amount. This, however, is subject to interrogatory be the opposing party to check specifics of the amount sought in damages. Stipulations here are very important b/c you may get what you ask for and not more. You must calculate the amount in dispute to check if you fall w/in city ct. CCP 4847 Limitations upon jd
A. Except as otherwise provided by law, a parish court or city court has no jurisdiction in any of the following cases or proceedings: (1) A case involving title to immovable property. (2) A case involving the right to public office or position. (3) A case in which the plaintiff asserts civil or political rights under the federal or state constitutions. (4) A claim for annulment of marriage, divorce, separation of property, or alimony. (5) A succession, interdiction, receivership, liquidation, habeas Paoli/Vasquez Page 109 Fall 2000

corpus, or quo warranto proceeding. (6) A case in which the state, or a parish, municipal, or other political corporation is a defendant. (7) Any other case or proceeding excepted from the jurisdiction of these courts by law. B. In addition, city courts shall not have jurisdiction in tutorship, curatorship, emancipation, and partition proceedings.

CCP 5 Same; effect of reduction of claim


When a plaintiff reduces his claim on a single cause of action to bring it within the jurisdiction of a court and judgment is rendered thereon, he remits the portion of his claim for which he did not pray for judgment, and is precluded thereafter from demanding it judicially.

CCP 425 Preclusion by judgment


A. A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation. B.Paragraph A of this Article shall not apply to an action for divorce under Civil Code Article 102 or 103, an action for determination of incidental matters under Civil Code Article 105, an action for contributions to a spouse's education or training under Civil Code Article 121, and an action for partition of community property and settlement of claims between spouses under R.S. 9:2801. This article elaborates on CCP 5 b/c CCP 5 is a form

of res jud but on a different basis. Hypo: sues under 2315 for negligence. Break up damages into elements: personal injury, medical expenses, prop damage. All claims = $300k. to get $ fast to fix car, atty suggests suing in city ct for collision. Ask for $10,000. CCP 5 says that when reduces claim to a single c/a to bring it w/in cts jd and judgment rendered, he remits the portion he did not pray for in judgment and is res jud from bringing it again. When goes to DC, he will be encountered w/ peremp exc of res jud. CCP 425 says that a party shall assert all c/a arising out of transaction or occurrence. When you come into ct, anything connected to trans/occ has to be pleaded if not = res jud.

CCP 6 Jd over the person


A. Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or Paoli/Vasquez Page 110 Fall 2000

proceeding. The exercise of this jurisdiction requires: (1) The service of process on the defendant, or on his agent for the service of process, or the express waiver of citation and service under Article 1201. (2) The service of process on the attorney at law appointed by the court to defend an action or proceeding brought against an absent or incompetent defendant who is domiciled in this state. (3) The submission of the party to the jurisdiction of the court by commencing an action or by the waiver of objection to jurisdiction by failure to timely file the declinatory exception. B. In addition to the provisions of Paragraph A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and with the Constitution of the United States. Jd over the person Get jd by valid SoP

CCP 8 Jd over property; in rem


A court which is otherwise competent under the laws of this state has jurisdiction to enforce a right in, to, or against property having a situs in this state, claimed or owned by a nonresident.

Action against a thing. No jd in city cts. Adjudicating a thing property in the state. Under CCP 5091, the non-res may not be subject to IPJ, but atty can be appointed b/c its a valid proceeding to adjudicate immov prop w/in La.

CCP 9 Same; q in rem; attachment


A court which is otherwise competent under the laws of this state has jurisdiction to render a money judgment against a nonresident if the action is commenced by an attachment of his property in this state. Unless the nonresident subjects himself personally to the jurisdiction of the court, the judgment may be executed only against the property attached.

Hypo: is ker in La. Buys big machines from Tx and one of the machines fails. went to Tx to buy them, so its unlikely that long arm applies to give jd. finds out that someone else has bought the machines. Q in rem = a ct
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of La has jd to render $ judgment over non-res if action commenced by attachment of his prop in state. can attach machines and bring suit. The judgment is a writ to authorize sheriff to sell machines and the $ goes to apply the judgment. No FF&C in TX b/c not personal jd. In filing one of these q in rem suits, pray for entire judgment, if not, you are in danger of remitter. Shaffer v. Heitner (USSC): there has to be a logical connexity b/w property seized and c/a asserted. Need minimum contacts. CCP 10 Jd over status
A. A court which is otherwise competent under the laws of this state has jurisdiction of the following actions or proceedings only under the following conditions: (1) An adoption proceeding if the surrendering parent of the child, a prospective adoptive parent, the adoptive parent or parents, or any parent of the child is domiciled in Louisiana, if the child to be adopted is born in Louisiana, or if the child is in the custody of the Department of Social Services. (2) An emancipation proceeding if the minor is domiciled in this state. (3) An interdiction proceeding if the person sought to be interdicted is domiciled in this state, or is in this state and has property herein.

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(4) A tutorship or curatorship proceeding if the minor, interdict, or absentee, as the case may be, is domiciled in this state or has property herein. (5) A proceeding to obtain the legal custody of a minor if he is domiciled in, or is in, this state. (6) An action to annul a marriage if one or both of the parties are domiciled in this state. (7) An action of divorce, if, at the time of filing, one or both of the spouses are domiciled in this state. (8) Unless otherwise provided by law, an action to establish parentage and support or to disavow parentage if the child is domiciled in or is in this state, and was either born in this state, born out of state while its mother was domiciled in this state, or acknowledged in this state. However, regardless of the location of the child or its place of birth, an action to disavow may be brought if the person seeking to disavow was domiciled in this state at the time of conception and birth and is presumed to be its parent under the laws of this state B. For purposes of Subparagraphs (6) and (7) of Paragraph A of this Article, if a spouse has established and maintained a residence in a parish of this state for a period of six months, there shall be a rebuttable presumption that he has a domicile in this state in the parish of such residence.

CCP 10 very specific over status that La has jd over. SC has decided that La must have a basis of jd in order to dissolve a marriage. (7) divorce if at the time of the filing, one or both are domiciled w/in this state

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Par B contains a rebuttable presumption of domicile connected w/ (6) annulment and (7) divorce. How to show in a default divorce that domicile is in La? He spouse must show that she has established residence here for 6 months. This establishes domicile if it is not rebutted. If W moved to La form NY and has been here for 6 months, Par. B says she can divorce her husband, who is still in NY, even though the marriage took place in NY. Need evidence that she has been here for 6 months. Appoint a CCP 5091 atty to represent the spouse. Easiest way to do it is a default divorce. CCP 5091 atty will contact spouse and ask him if he wants to contest divorce. If spouse wants to contest domicile, can put on evidence that W is still domiciled in NY. What if the ct decides for W and gives her a default judgment of divorce? Now hubby wants to contest. He must hire the CCP 5091 atty as atty in fact b/c after the atty is through w/ official duties, he is not responsible anymore. The CCP 5091 atty will file for a new trial on the basis that domicile evidence is not correct. If the TC is convinced that the prior decision was right and does not pay attention to Hs evidence, CCP 3942 comes into play. Article says that an appeal from a judgment of divorce shall be taken w/in 30 days. Par. B says that the appeal shall suspend the execution of the judgment. Cases: Caldas v. Zucarello (jd) Suit for alimony. Wife seeks personal judgment against husband and wants to appoint a CCP 5091 atty.
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May do so when you have personal jd over person, prop of , or over the status involved. Ct held that was no longer a domiciliary of La. No personal jd = no appointment of 5091 atty. You cannot get jd over the appointment of a 5091 atty, you must have jd to appoint him. CCP 5091 atty for s outside of La when La has jd over the person, prop, status of . Furnishes mode of SoP. Most common in divorce cases when spouse is absent. Must have jd to start w/. do not acquire jd through the appointment of CCP 5091 atty. Use CCP 5251 when trying to figure out the definition of absentee in CCP 5091.
(1) "Absentee" means a person who is either a nonresident of this state, or a person who is domiciled in but has departed from this state, and who has not appointed an agent for the service of process in this state in the manner directed by law; or a person whose whereabouts are unknown, or who cannot be found and served after a diligent effort, though he may be domiciled or actually present in the state; or a person who may be dead, though the fact of his death is not known, and if dead his heirs are unknown.

Regions v. Regions (Jd) Acquire domicile instantaneously through presence and intent. Must acquire true domicile elsewhere to get rid of La domicile. There can be only one. Ct holds that is still domiciled in La. Never changed his domicile. May appoint a 5091 atty to represent him in an action for alimony even though its a personal judgment. You do mot need an absentee spouse to terminate a marriage, but to get alimony, you need personal jd. Imperial v. Hardy (Jd/Domestic) If come into La and participate in a divorce proceeding forever after, La has jd over you for all
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matters related to the divorce. Even incidental matters that require a personal judgment. This would have changed the outcome in Caldas. Petroleum Helicoptors v. Avco (Jd) La co sued a Ca manufacturer for prop damages sustained when the heli sunk into the coastal waters of La alleged that the accident was caused in part by a defect in the heli float that had been made by the manufacturer and sold by it in NJ to a TX co. Whether long arm statute permits the state to assert jd over Garrett ( who supplied the heli flotation devices from NJ plant)? Ct held that La cts were entitled to exercise IPJ to the extent of the federal Constitution. The fed appellate cts certified the issue of whether state law would permit the extension of jd in this case to the LASC. There were sufficient contacts to meet the federal requirements of DP so there were enough contacts to meet the state IPJ requirements. Now the test for IPJ in La is whether the Fed Const permits the extension of IPJ b/c B allows jd as far as the Constitution allows. Test is coextensive w/ the Const. Current test for IPJ under 3201: 1. when the s conduct falls w/I the federal Const. requirements, there is no need to inquire into whether s fall w/I the reach of the La long-arm statute. 2. the sole inquiry into whether there is jd over nonres is a one step analysis of the const. DP requirements. 3. if the assertion of jd meets the const requirements of DP, the assertion of jd is authorized under the La long arm statute.

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Superior v. Associated (Jd) (Tx corp) w/ PPB in La consented to buy steel casing for oil wells from (Co corp not authorized to do business in La). then resold the casings to a Tx co. The casing was shipped from s warehouse in Tx directly to the in Tx. was notified that the casings were defective. admitted it was doing business in La and had made previous transactions w/ pp in the state, but this particular sale was negotiated by telephone and never entered into La. Issue: Whether the La cts exercise of IPJ over s by the long arm statute violated the s const. rights? Applied the one step inquiry into whether the exercise of IPJ offends the federal requirements of DP. Held that purposefully availed himself of activities toward the forum state. Surveys federal jurisprudence (pgs 57-58 otle). Fox v. Board of Supervisors (Jd) St. Olaf kid got injured playing rugby at LSU. The ct held that the school was not subject to IPJ in La. It was not a school in La, and the rugby team was a separate organization. However, the ins co of the was held to La IPJ b/c it was authorized to do business here.

Note Cases (pgs 246-248) These are cases on 3201 menu items. (4) Offense or q-offense in state Gets a lot of action Can get jd over a Tx resident who crashes in La But instead of this, use Nonres Motorist Statute this gives you jd over their insurer too. (5) Stream of commerce theory
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(6) Real right (7) Can be a CC obligation of support only. Does not need to be a judgment of support. Aetna v. Continental (Jd) Whether there was jd over a product manufacturers insurance co if the manuf comes in and does harm in La? YES!! There were enough minimum contacts and the exercise of jd was fair. A liability ins co is liable under specific jd for providing liability coverage for products coming into LA. They knew the product would go all over the country had to be ready to follow it. Burnham (Jd) Ct holds that there is IPJ over an individual who is served in the state even if it is only a transient presence. Presence in the state is sufficient for IPJ. If you can serve the in the state, you can exercise IPJ. Watch out cannot entrap him. Aguilera v. MMC (Jd) 2 types of jd: 1. General jd if corp is doing substantial business in the state. Continuous and systematic contacts w/ the state. Need to also ascertain whether the exercise of IPJ is fair. The c/a need not arise out of the specific contact. 2. Specific jd there is no general presence but the has taken some specific act that could confer jd.
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When dealing with spe jd must ask whether there are: a. Minimum contacts b. TNFPSJ C/a arises out of or related to the s contacts w/ the state. The ct held that the test of fairness should apply to both general and specific jurisdiction. Ruckstool Cigarette smoker sued filter manufacturer. Case discusses minimum contacts and TNFPSJ There is no burden of travel w/ modern conveniences. Moore v. Gov. Roemer (SMJ) Lege passed a statute that took WC out of city cts and required that they be heard by an administrative body first. Issue: Whether all civil and criminal matters (La Const) includes WC claims? YES!!! The cts have original SMJ over all civil and criminal matters UNLESS otherwise authorized by the Constitution. No exceptions unless specified by the Const itself. The powers of the Lege to create administrative adjudication in matters involving public rights such as WC claims is not similar to the powers administrated by the DEQ (in which there can be an administrative hearing w/ appellate review). American Waste & Pollution v. DEQ (SMJ) Lege allowed final decisions of the DEQ in a permit or enforcement action to bypass the DC and go directly to the 1st Cir Ct App. Ct of App held that the act was unconstitutional b/c it was against policy of the Const that gave DC original SMJ in all civil and criminal matters.

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Issue: Whether is was proper for the Lege to delegate q-judicial power to the executive branch (DEQ) in cases dealing w/ air or water quality? YES!!!! These are not traditionally civil matters. Ct reasoned that the issuance of environmental permits is a power that vests in the executive and not the judicial branch. In this case, the Lege has properly given the administrative body the power to exercise q-judicial authority. Power over the environmental quality has traditionally been in the executive branch. DEQ determinations are not civil matters w/in the meaning of the Const and are not q/in the scope of the DC grant of original SMJ. Waste and water disposal were never intended to be w/in the judicial branch. Leblanc v. Davis (SMJ) Religious quarrel b/w members of an organization. Usually ecclesiastical matters are matters of religious belief and ct will not involve themselves. What if the Church bypasses a rule that says if you get a certain % of votes you can fire the pastor? The ct here said OK to jd b/c this was a business matter and w/in civil matters in the La Const. Fine line b/w faith matters and civil matters. Dehaven v. Dehaven (SMJ) Jefferson Parish and BR have the only Fam Cts in the state. The const allows for the establishment of Fam Cts. Community prop settlements are considered a matter for DCs and not Fam Cts. Gowins v. Gowins (Domestic) CCP 6 establishes what you have to do to get jd over the person.

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BUT, you may get a divorce w/o having personal jd over absentee spouse. CCP 10 spouse domiciled in La can file for divorce. To get absent spouse into ct, appoint a CCP 5091 atty to represent him. CCP 5091 says that if the state has jd over the status involved, appoint atty to represent absent party. This functions as providing SoP, proper notice. For incidental matters such as alimony, child support, etc need a personal judgment against the spouse. In the case, W filed a petition to divide up her fmr Hs military retirement pay. H argues that there is no La domicile and that the action must be brought in Al. But in all prior pleadings, H had consented to the characterization of a La domiciliary. Issue: Whether La had IPJ over the H in the action to partition his military retirement pay? Ct held that the Hs response in prior pleadings was equivalent to a judicial confession. 1. He had come into ct to file the pleadings. Under CCP 6(3) this is jd by submission of party to jd by commencing action. 2. He alleged he was a domiciliary of La in the pleadings. Highest sort of evidence. Lewis v. Lewis (Domestic) Under old divorce law, had to get a separation form bed/board, then divorce. Can get separation as a matter of status jd. For APL, however, need a personal judgment. had in La only a separation judgment and gets a divorce in Tx. Under La law, w/ actual divorce, APL is terminated. Issue: Does have a right to APL after the Tx divorce?

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If Tx had jd over the marriage, w/ the divorce, La law says APL must be terminated. Only way to fight this is to show that Tx did not have jd. Notes: Parental obligation of support: 13:3201 confers personal jd by virtue of a persons conduct. (6) Have personal jd w/ non-support of a child, parent, or spouse or a former spouse domiciled in this state to whom obligation of support is owed and w/ whom the non-res party formerly resided in this state. This gives La personal jd over the absent spouse. Hypo: H here in La. W takes off to Tx. He files a petition for divorce. In it, sets up the fact that she is not supporting by alimony or child support. H is going after the status of marriage. Appoints a CCP 5091 atty. She is a non-res w/ an obligation of support. Appointment of atty for divorce will not carry w/ it personal jd + notice necessary for 3201(6). Must follow 3204 SoP. A. Registered/certified mail or common courier or individual designated by the ct. B. If A. doesnt work, then SoP on CCP 5091 atty. There are 2 actions here: 1. Divorce 2. Personal action for nonpayment of $ Cannot use divorce CCP 5091 atty for personal action. Must go by 3204. Uniform Child Custody Jd Act 13:1702 Prior to this, any ct where child was present could adjudicate as to that child. Led to kidnapping b/c w/ mere presence, the ct could adjudicate as to that child (i.e.: custody). UCCJA prevents this. 1707 - Jd may be declined by reason of conduct.
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Takes care of kidnapping problem. In case of a wrongfully taken child, ct may decline jd Unless required in best interests of the child Ex: if he is beaten, then kidnapping is OK. Ct where child is present may have jd if they are so inclined. 1702(1) home state requires 6 months. 1702 ct of this state competent to decide child custody, has jd if: 1. This state is home state of the child at the time of the commencement of the proceeding, or had been childs home state w/in 6 months b/4 commencement of the proceeding and the child is absent form this state OR 2. Best interest of child 3. Child physically present and i. Abandoned ii. Abused 1703-1712 are procedural. 1703 notice to other party 1704 how to serve notice 1705 simultaneous proceedings in other states 1706 inconvenient forum, should hear it somewhere else. 1711 res jud 1712 recognition of out of state custody.

Important reminder: Physical presence is not enough under UCCJA.

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I. Venue: CCP 41-45; 71-85; 121124 In general: CCP 42 Home Base Rule. must be sued at his home base. CCP 71-86 Exceptions to general venue rules. Direct action statute makes insurer and insured liable in solido. CCP 121 Improper venue: you can get a transfer. Be careful w/ prescription. If you screw up venue prescription runs as if it had not been interrupted. CC 3462 prescription interrupted by: iv. Filing in ct w/ jd and venue. If improper venue, prescription is interrupted only as to s served w/ process w/in prescriptive period. CCP 121 comment a suit may be transferred to a proper venue, but the transfer will not overrule the prior running of prescription. 3201 long arm: has no fixed venue in La. s venue and domicile controls. Green v. Engolio was injured in Iberville. domiciled there. thought Gulf Coast was s insurer, so he filed suit in EBRP as per CCP 42(7) w/in the prescriptive period. But this was not s insurer, Globe was. The accident took place 10/12. Atty files in BR on 10/13 b/c 10/12 was a holiday. GC asks who the is. No relationship b/w GC and the . Process was served on on 10/21. No venue on in BR b/c had the wrong ins co, so gets a dismissal b/c of prescription. Ct held that is several s are solidary obligors, the suit may continue in a venue proper to one who has

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compromised the claim or has been dismissed after a trial on the merits. This case was neither of those exceptions. One of the alleged solidary obligors (GC) was dismissed form the action b/4 a trial on the merits b/c there was no legal relationship b/w the alleged solidary obligors. To hold that prescription was interrupted as to the other by the mere filing of the suit is absurd! Such a holding would allow the to subject a to a trial in an improper venue by the simple expedient of joining a party totally devoid of interest in the matter by alleging that the party was solidary.

CCP 41 - Definition
Venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject.

CCP 42 General rules


The general rules of venue are that an action against: (1) An individual who is domiciled in the state shall be brought in the parish of his domicile; or if he resides but is not domiciled in the state, in the parish of his residence. (2) A domestic corporation, a domestic insurer, or a domestic limited liability company shall be brought in the parish where its registered office is located. (3) A domestic partnership, or a domestic unincorporated association, shall be brought in the parish where its principal business establishment is located. (4) A foreign corporation or foreign limited liability company licensed to do business in this state shall be brought in the parish where its primary place of business in the state is located or in the parish designated as its principal business establishment in its application to do business in the state. (5) A foreign corporation or a foreign limited liability company not licensed to do business in the state, or a nonresident who has not appointed an agent for the service of process in the manner provided by law, other than a foreign or alien insurer, shall be brought in a parish where the process may be, and subsequently is, served on the defendant. (6) A nonresident, other than a foreign corporation or a foreign or alien insurer, who has appointed an agent for the service of process in the

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manner provided by law, shall be brought in the parish of the designated post office address of an agent for the service of process. (7) A foreign or alien insurer shall be brought in the parish of East Baton Rouge.

Difference b/w (3) and (4): (3) where is principal business establishment located? What if the place has various establishments? (4) You have to designate a PBE on the application. Makes it much easier to sue. CCP 43 Exceptions to the general rules
The general rules of venue provided in Article 42 are subject to the exceptions provided in Articles 71 through 85 and otherwise provided by law.

CCP 44 Waiver of objections to venue


An objection to the venue may not be waived prior to the institution of the action. The venue provided in Articles 2006, 2811, 2812, 3941, 3991, 4031 through 4034, 4541, and 4542 may not be waived. Except as otherwise provided in this article or by other law, any objection to the venue, including one based on any article in this Chapter, is waived by the failure of the defendant to plead the declinatory exception timely as provided in Article 928. Objection to venue cannot be waived prior to

institution of action. You cannot k or promise away your venue. Examples: if these lawsuits are not brought in the proper venue, judgment is null. a. CCP 2006: nullity of action b. CCP 2811-2812: successions c. CCP 3941: ct where action brought, nullity of judgment of ct of improper venue.

CCP 45 Conflict b/w two or more articles in Chapter


The following rules determine the proper venue in cases where two or more articles in this Chapter may conflict: (1) Article 78, 79, 80, 81, 82, or 83 governs the venue exclusively, if this article conflicts with any of Articles 42 and 71 through 77;

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(2) If there is a conflict between two or more Articles 78 through 83, the plaintiff may bring the action in any venue provided by any applicable article; and (3) If Article 78, 79, 80, 81, 82, or 83 is not applicable, and there is a conflict between two or more of Articles 42 and 71 through 77, the plaintiff may bring the action in any venue provided by any applicable article.

CCP 71 Action against individual who has changed domicile


An action against an individual who has changed his domicile from one parish to another may be brought in either parish for a period of one year from the date of the change, unless he has filed a declaration of intention to change his domicile, in the manner provided by law

CCP 72 Certain actions involving property


An action in which a sequestration is sought, or an action to enforce a mortgage or privilege by an ordinary proceeding, may be brought in the parish where the property, or any portion thereof, is situated.

CCP 73 Actions against joint or solidary obligors


A. An action against joint or solidary obligors may be brought in a parish of proper venue, under Article 42 only, as to any obligor who is made a defendant provided that an action for the recovery of damages for an offense or quasi- offense against joint or solidary obligors may be brought in the parish where the plaintiff is domiciled if the parish of plaintiff's domicile would be a parish of proper venue against any defendant under either Article 76 or R.S. 13:3203. B. If the action against this defendant is compromised prior to judgment, or dismissed after a trial on the merits, the venue shall remain proper as to the other defendants, unless the joinder was made for the sole purpose of establishing venue as to the other defendants.

You can bring all joint tortfeasors/solidary obligors into the venue of any one of them so long as it is CCP 42 venue. Hypo: there are 4 obligors on a promissory note. One of them is domiciled in Lafayette. I can bring in the other 3 under CCP 73 provided one of them has venue according to CCP 42 resident obligor. Once the lawsuit starts, resident obligor files and wins a peremp exc of no c/a. the lawsuit against the other 3 still remains good unless it can be shown that the knew the res obligor would be out and he brought the suit just to get the others.
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Note: tortfeasors are no longer solidary but joint and several. Action against them can be filed at the home base of any! Hypo: Under CC 2324: tortfeasors are joint/several. Intersectional collision. All 3 are proximate cause of s injuries. The direct action statute says that a liability insurer is in solido w/ insured. Each tortfeasor has a different insurance. Under DAS can make them all liable under CCP 73 and CCP 42 venues. There are 2 possibilities: 1. Bring suit against the insurer under CCP 42 in BR. 2. Bring suit under CCP 42 in the parish of other s and join insurance companies in that action. Hypo: Accident in home. Ins co disputes liability. sues ins co and ker. Under CCP 73, and pull them in s venue b/c of CCP 76 and joinder.

CCP 74 Action on offense or q-offense


An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained. An action to enjoin the commission of an offense or quasi offense may be brought in the parish where the wrongful conduct occurred or may occur. As used herein, the words "offense or quasi offense" include a nuisance and a violation of Article 667 of the Civil Code.

CCP 74.1 Action to establish or disavow filiation


An action to establish filiation and support of a child may be brought in the parish: (1) of the domicile of the child, (2) where conception occurred, (3) where either parent resided at the time of conception, (4) where an act of acknowledgement of the child occurred, or (5) where the birth of the child occurred. An action to disavow filiation may be brought in the parish of the child's birth, or where either parent resided at the time of that birth.

CCP 74.2 Custody proceedings; support; FNC


A. A proceeding to obtain the legal custody of a minor or to establish an obligation of support may be brought in the parish where a party is Paoli/Vasquez Page 128 Fall 2000

domiciled or in the parish of the last matrimonial domicile. B. A proceeding for change of custody may be brought in the parish where the person awarded custody is domiciled or in the parish where the custody decree was rendered. If the person awarded custody is no longer domiciled in the state, the proceeding for change of custody may be brought in the parish where the person seeking a change of custody is domiciled or in the parish where the custody decree was rendered. C. A proceeding for modification of support may be brought in any of the following: (1) The parish where the person awarded support is domiciled. (2) The parish where the support award was rendered if it has not been registered and confirmed in another court of this state, pursuant to the provisions of Article 2785 et seq. (3) The parish where the support award was last registered if registered in multiple courts of this state. (4) Any of the following, if the person awarded support is no longer domiciled in the state: (a) The parish where the other person is domiciled. (b) The parish where the support award was rendered if not confirmed in another court of this state pursuant to Article 2785 et seq. (c) The parish where the support order was last confirmed pursuant to the provisions of Article 2785 et seq. D. A proceeding to register a child support, medical support, and income assignment order, or any such order issued by a court of this state for modification, may be brought in the parish where the person awarded support is domiciled. E. For the convenience of the parties and the witnesses and in the interest of justice, a court, upon contradictory motion or upon its own motion after notice and hearing, may transfer the custody or support proceeding to another court where the proceeding might have been brought.

CCP 74.3 Marriage of persons related by adoption


Persons related by adoption seeking judicial authorization to marry in accordance with Civil Code Article 90 shall request authorization of the district court in the parish of either party's domicile.

CCP 75 Action on judicial bond


A. An action against the principal or surety, or both, on a bond filed in a judicial proceeding may be brought in the court where the bond was filed. B. An action against a legal surety may be brought in any parish where the principal obligor may be sued.

CCP 76 Action on insurance policy


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An action on a life insurance policy may be brought in the parish where the deceased died, the parish where he was domiciled, or the parish where any beneficiary is domiciled. An action on a health and accident insurance policy may be brought in the parish where the insured is domiciled, or in the parish where the accident or illness occurred. An action on any other type of insurance policy may be brought in the parish where the loss occurred or the insured is domiciled. This is for when you sue your own policy.

CCP 76.1 Action on k


An action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.

This is split off from 9:2771. never intended to be an independent venue article. Standard venue for action on a k was CCP 42. but now, CCP 76.1 stands.\ Several Ct o App. Have held that this does not apply to promissory notes. Must use CCP 42. applied quite frequently on building ks and student loans CCP 77 Action against person doing business in another parish
An action against a person having a business office or establishment in a parish other than that where he may be sued under Article 42 only, on a matter over which this office or establishment had supervision, may be brought in the parish where this office or establishment is located.

CCP 78 Action against partners of existing partnership


Except as provided in Article 79, an action against a partner of an existing partnership on an obligation of the latter, or on an obligation growing out of the partnership, shall be brought in any parish of proper venue as to the partnership.

CCP 79 Action to dissolve partnership


An action for the dissolution of a partnership shall be brought in the parish where it has or had its principal business establishment.

CCP 80 Action involving immov prop


A. The following actions may be brought in the parish where the immovable property is situated or in the parish where the defendant in the action is domiciled: Paoli/Vasquez Page 130 Fall 2000

(1) An action to assert an interest in immovable property, or a right in, to, or against immovable property, except as otherwise provided in Article 72; (2) An action to partition immovable property, except as otherwise provided in Articles 81, 82, and 83; and (3) An action arising from the breach of a lease of immovable property, including the enforcing of a lessor's privilege or seeking the payment of rent. The venue authorized by this Subparagraph shall be in addition to any other venue provided by law for such action. B. If the immovable property, consisting of one or more tracts, is situated in more than one parish, the action may be brought in any of these parishes. C. Any action by the sheriff after rendition of judgment shall be by the sheriff of the parish in which the immovable property is situated; however, if the immovable property, consisting of one or more tracts, is situated in more than one parish, the action may be brought by the sheriff of any of the parishes in which a portion of the immovable property is situated. D. Any action to revoke a donation of immovable property shall be brought in the parish in which the property is located. If the property is located in more than one parish, the action may be brought in any one of them. When such an action is filed a notice of pendency shall be filed in accordance with the provisions of Article 3751. Traditionally, the action had to be brought where the

prop was located. Now where the prop is located or where the resides. Basic Rule: you must be suing on an interest. Ex.: to become part owner, complete owner, sold prop and reserved mineral royalty rights. Be careful!! SEE Hawthorne v. Continental CCP 80 did not apply b/c it was a k about the property. Did not involve a real interest in property. For these cases, go to CCP 42.

CCP 81 Action involving succession


When a succession has been opened judicially, until rendition of the judgment of possession, the following actions shall be brought in the court in which the succession proceeding is pending: (1) A personal action by a creditor of the deceased; but an action brought against the deceased prior to his death may be prosecuted

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against his succession representative in the court in which it was brought; (2) An action to partition the succession; (3) An action to annul the testament of the deceased; and (4) An action to assert a right to the succession of the deceased, either under his testament or by effect of law.

CCP 82 Action to partition community property


A. Except as otherwise provided in this Article, an action to partition community property and to settle the claims between the parties arising from either a matrimonial regime or from co-ownership of former community property shall be brought either as an incident of the action which would result in the termination of the community property regime or as a separate action in the parish where the judgment terminating the community property regime was rendered. B. If the spouses own community immovable property, the action to partition the community property, movable and immovable, and to settle the claims between the parties arising either from a matrimonial regime or from co-ownership of former community property may be brought in the parish in which any of the community immovable property is situated. C. If the spouses do not own community immovable property, the action to partition the community property and to settle the claims between the parties arising either from a matrimonial regime or from coownership of former community property may be brought in the parish where either party is domiciled. Must be brought in parish of deceased or judgment is

null

CCP 83 Action to partition partnership property


Except as otherwise provided in the second paragraph of this article, an action to partition partnership property shall be brought either as an incident of the action to dissolve the partnership, or as a separate action in the court which rendered the judgment dissolving the partnership. If the partnership owns immovable property, the action to partition the partnership property, movable and immovable, may be brought in the parish where any of the immovable property is situated.

CCP 84 action involving certain retirement systems and empee benefit programs
Actions involving the Louisiana State Employees' Retirement System, State Employees' Group Benefits Program, State Police Pension and Relief Fund, Louisiana School Employees' Retirement System, Louisiana

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School Lunch Employees' Retirement System, Teachers' Retirement System of Louisiana, Assessors' Retirement Fund, Clerks of Court Retirement and Relief Fund, District Attorneys' Retirement System, Municipal Employees' Retirement System of Louisiana, Parochial Employees' Retirement System of Louisiana, Registrar of Voters Employees' Retirement System, Sheriffs' Pension and Relief Fund, Municipal Police Employees' Retirement System, or the Firefighters' Retirement System shall be brought in the parish of East Baton Rouge or in the parish of the domicile of the retirement system or employee benefit program.

CCP 85 Action against domestic corp; charter revoked by SoS


An action against a domestic corporation, the charter and franchise of which have been administratively revoked by the secretary of state in accordance with R.S. 12:163, may be brought in any parish where the suit could have been brought prior to revocation.

Cases: Gelpi v. Ben Development Co. Burke and 2 Eustis bros. Were co-endorsers and guarantors on a promissory note of the and were sued for the payment of the note in Plaquemine. s allege that Burke was a resident and domiciliary of NO and the Eustis were residents and domiciliary of P. s argued that venue was not proper under CCP 73 b/c the Eustis were not domiciled in P. Ct held that there was no venue under CCP 73 b/c they were not domiciled in P. Evidence showed that they did have a residence in P but were domiciled in NO. Even though the Eustis stated under oath that they considered themselves domiciled in P, the actual fact of residence and the real intention of the parties determines domicile. There was plenty of documentation that the Eustis were domiciled in NO.

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Coursey v. White s sued to recover damages that they alleged were sustained as a result of wrongful seizure of prop. Prop was in Livingston Parish. s were residents of BR and NO. Suit was brought in NO, under CCP 74 where the injuries were sustained to recover for damages for mental anguish, damage to reputation and decline in credit rating b/c of the alleged wrongful seizure. s argued that venue was proper in Livingston b/c that is where the seizure occurred and that was the domicile of the (CCP 42). Ct held that venue was not proper in NO. The s only brought suit to recover from the damages of the wrongful seizure not the wrongful seizure itself. If the had brought suit for wrongful seizure, it would have had to have been in Livingston and the damages alleged in the present case could have been addressed in the same suit. CCP 74 was not intended to permit a to litigate in ANY parish so capriciously. Ex: The Advocate defamation hypo. Meyers v. Smith Are the venue exceptions applicable to the DAS? NO! argued that the exception to the general venue rules were incorporated into the DAS b/c it adopted the rules provided in CCP 42. The ct held that the venue provisions of the DAS are substantive law and are in derogation to the general venue rules. The DAS only incorporates CCP 42. B/c the accident occurred in St. John, and none of the s can be sued in Jefferson, the suit was proper only in St. John.

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Greene v. Engolio was injured in Iberville. domiciled there. thought Gulf Coast was s insurer, so he filed suit in EBRP as per CCP 42(7) w/in the prescriptive period. But this was not s insurer, Globe was. The accident took place 10/12. Atty files in BR on 10/13 b/c 10/12 was a holiday. GC asks who the is. No relationship b/w GC and the . Process was served on on 10/21. No venue on in BR b/c had the wrong ins co, so gets a dismissal b/c of prescription. Ct held that is several s are solidary obligors, the suit may continue in a venue proper to one who has compromised the claim or has been dismissed after a trial on the merits. This case was neither of those exceptions. One of the alleged solidary obligors (GC) was dismissed form the action b/4 a trial on the merits b/c there was no legal relationship b/w the alleged solidary obligors. To hold that prescription was interrupted as to the other by the mere filing of the suit is absurd! Such a holding would allow the to subject a to a trial in an improper venue by the simple expedient of joining a party totally devoid of interest in the matter by alleging that the party was solidary. Harris v. Angelina Casualty Co. 26th JDC is the courthouse for Webster and Bossier parishes. Accident was in Webster. Suit was filed in Bossier. Improper venue b/c not the right parish! Belser v. St. Paul treated negligently in BR by a Dr. The damages continued in his home domicile of St. Helena and attempted to sue in that venue.

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Dr. was domiciled in BR and argued that venue is only proper there. Ct held that the damages were sustained and the wrongful conduct was committed in BR. Did not matter that the damages continued in another parish. Parish where the damage is done is the parish where the negligence occurred or the failure to perform a duty occurred this was in BR. This was not an example of a continuing tort (Like, for example, when a co has an underground pipeline they knew was leaking and 5 yrs later an accident occurs. This is a continuing tort). Hill v. Hill Suit was filed under CCP 42 in West Carroll Parish. sought her share of s military retirement pay. Both were domiciliaries of West Carroll, although the was in Ca for military reasons. argued improper venue b/c the community owned no immov property in La and b/c the parties were divorced in Ca. ct held that CCP 82 is not applicable to this case b/c the community was not dissolved in La and immov are not an issue. Par A of CCP 82 applies to cases where the partitions is incidental to an action that would cause dissolution of the community and cases where the partition is being sought as a separate action subsequent to an earlier action dissolving the community ONLY provides venue for a community prop partition in the parish where the community has been or is being dissolved. Par B does not apply b/c it allows additional partition where the comm. Prop is located. The action is proper only in s venue

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Miller v. American Dredging Co was injured on the Del River and filed a Jones Act claim in NO. urged FNC b/c nothing happened in La. The ct did not dismiss the case, but it was subsequently overruled by Lege. Now, CCP 123 would allow for the dismissal of this case. Succession of Thompson One heir wanted to open the succession of the deceased in LaSalle venue where deceased resided for a couple of years for medical treatment. Ct reversed b/c it was proved that the deceased was domiciled in Catahoula the succession had to opened there. Ct held that to effect a change in domicile from one parish to another requires actual residence in another parish, together w/ the intention of making a principal establishment there and abandoning the former domicile. How to show intent to change domicile: Express declaration of intent to change b/4 the recorder of the parishes or by proof of showing a change in circs: a. Where a person sleeps, takes his meals, establishes a household. b. The party who seeks to establish the change of domicile bears the burden of proving it. If there is any doubt concerning whether a change of domicile has occurred, the presumption is that the domicile has not changed.

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Jordan v. Central La Electric contacted w/ to acquire immov property in Iberia parish. signed k in Rapides. brought action in Iberia under CCP 76.1 which provides for venue in a kual action in the parish where the k was executed. argues that venue is only proper in Rapides. Ct held that when a k is executed in more than one parish, venue is proper in either parish.

A. Domestic Venue: CCP 74.2, 3491; Ancillary Venue Sims v. Sims Issue: Where was the proper venue for the change of custody action b/w divorced parents? Ct state that there were 3 venues in this case where change of custody can be: 5. The parish where the custody was awarded the mother as an incident of divorce action. 6. The parish where the mother is domiciled when the change of custody action is brought. 7. Parish where the child is present. This was not a case about jd. Venue is not concerned w/ the power and authority of a ct to adjudicate a case, but rather w/ the parish in which the action can be brought.

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The ct held that a change of custody should be brought in the ct where the divorce is pending. This is incident-preferred venue over venue which would otherwise be proper. After a divorce is rendered, additional or optional venue is allowed The change of custody action after the divorce should be brought at the option of the as either an incidental action in the parish where the divorce was rendered or was a separate action in the parish of the s domicile. This venue, even though optional, is preferred over other venue which may be proper.

Albritton v. McDonald domiciled in NO and sale of horse was in Ouacita. put the horse in the pasture in Union where the damage was sustained and where the was domiciled. Venue is proper for a tort action in Union, but this is a sale. Ct holds that the action for the tort could be brought where the injury was sustained. If there is a conflict b/w the s home base domicile and the proper venue for the tort action, could bring the suit in either parish. When the has the right to institute an action on 2 or more claims arising out of one factual circumstance, and where venue is proper to 1 claim only, the disposition of which venue would not be proper, the ct has venue if the action to decide BOTH claims is in the interest of judicial admin and economy.

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B. Motions: CCP 961-969 (See pgs. 399 cert of service; 402 contradictory motion) CCP 961 - Written motion required; exception
An application to the court for an order, if not presented in some other pleading, shall be by motion which, unless made during trial or hearing or in open court, shall be in writing. A motion is asking the ct to do something. Must be signed by the judge. Jurisprudence holds that if you make an oral motion

during course of trial, must follow it up in writing.

CCP 963 Ex parte and contradictory motions; rule to show cause


If the order applied for by written motion is one to which mover is clearly entitled without supporting proof, the court may grant the order ex parte and without hearing the adverse party. If the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party. The rule to show cause is a contradictory motion. A contradictory motion needs a hearing. Ex parte motion does not. Opposite counsel need

not be present. Ex.: enrolment of new counsel. Most cts will ask, however, if you have cleared it w/ opposing party (so as to not infringe on their rights).

CCP 964 Motion to strike


The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter. Can be done by lawyers or by the cts own initiative. After a hearing, ct may order stricken form the

pleading any insufficient demand or defense or any redundantscandalous matter. Ex.: In a tort action - in his petition demands atty fees. motions to strike. Since a regular tort action
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does not allow for atty fees, will be stricken from the petition. See Smith v. Gatreau sues School Board. Has particulars in the petition about police brutality. motions to strike those allegations are about the police, not about the SB. The ct struck the allegations from the petition as being inflammatory. The allegations were immaterial as to the s no basis of liability on the part of the SB for any wrongful conduct be the police officers. Comment to the article says that there is no time limitation on the motion to strike. CCP 965 Motion for judgment on the pleadings
Any party may move for judgment on the pleadings after the answer is filed, or if an incidental demand has been instituted after the answer thereto has been filed, but within such time as not to delay the trial. For the purposes of this motion, all allegations of fact in movers pleadings not denied by the adverse party or by effect of law, and all allegations of fact in the adverse partys pleadings shall be considered true. This is like a reverse no c/a when the has denied

the allegations. Ex.: files suit on a promissory note. admits the note, admits to taking the $, but says he paid it back. Paying back is an aff defense that must be plead w/ particularity. In effect, he has admitted the debt, and now he cannot introduce evidence on the payment. then files for judgment on the pleading. On the face of the pleading, owes me $. Dont really see too many of these.

CCP 966 Motion for SJ; procedure


A. (1) The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff's motion may be made at any time after the answer has been filed. The defendant's motion may be made at any time. (2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those

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disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends. B. The motion for summary judgment and supporting affidavits shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted. (2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, 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, but rather to point out to the court 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 factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. D. The court shall hear and render judgment on the motion for summary judgment within a reasonable time, but in any event judgment on the motion shall be rendered at least ten days prior to trial. E. A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case. SJ are favored b/c they expedite litigation; save time. SJ is like a no c/z w/ the ability to show there is no

dispute of facts. A trial is solely for the establishment of facts. Par. A - if petition/affidavits show no genuine issue as to material facts, then there is no trial needed. Par. B if pleadings, depos, and affidavits = no genuine issue of material fact and mover is entitled to SJ as a matter of law --> judgment shall be rendered. Par. C(2) SJ burden of proof lies w/ the movant. Ex.: Winn-Dixie - slipped on a box of toothpicks. Sues . takes a depo and says that he doesnt

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know how they got there or how long they were there. These are the elements of a slip and fall case. Prima facie case must have these elements. moves for SJ. Attaches affidavit - cannot come forward w/ prima facie evidence to prove his case. If points out that at the trial will be unable to present evidence to make his case, then must produce factual support. If he fails, SJ awarded to . Very hard for to do. Ex.: Coffee Case Empee at coffee house is injured. Manufacturer of machine said that they had to examine the machine to know what happened. Moved for SJ and attached an affidavit stating that the machine had been disposed of and the cannot point to the defect in the machine that caused his injury. Ct granted SJ. Hypo: Lawsuit against 3 parties. 1 moves for SJ and the ct grants it. When do appeal delays start running? (CCP 2123) See 1915A appeal delays start running from the moment notice of judgment is given. If 3 is an ins co, and according to their policy, they have a limit of $500,000 they will move for a limit on the judgment. A SJ may be rendered dispositive of a particular issue, theory of recovery, c/a, or defense in favor of one or more parties, even though the granting of SJ does not dispose of the entire case. Judge would grant 3 motion. The is still in the lawsuit. Under 1915B, this is SJ as to an issue. For it to be appealable, the judge has to certify the SJ as a final judgment.

CCP 967 Same; affidavits


Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits. Paoli/Vasquez Page 143 Fall 2000

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees. Any offending party or attorney may be adjudged guilty of contempt.

Supporting and opposing affidavits shall be made on personal knowledge, set forth the facts that would be admissible in evidence, and show that the affiant is competent to testify to the matters stated therein. BUT see Independent Fire amended this standard. Now, affidavits can be made by expert witnesses (have no personal knowledge). However, any expert material is subject to Dobeau. The Fed Rules of Evid say that is an expert witness is a maverick, dont listen b/c his views are not generally held by his peers. Dobeau holds that there is no requirement that experts opinion be one that is generally held be experts in the field. We can have mavericks, bur judge acts as a gatekeeper. He tests the evidence to see if it is of quality and can go to the jury. Expert must show a foundation for his opinion research, tests. Judges criteria for letting evidence in is it reliable? Is it relevant? When a motion for SJ is made, the adverse party cannot rest solely on the pleadings. Must come up w/ its own evidence and affidavits. If adverse party does not respond, SJ, if appropriate, shall be rendered against him.

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if appropriate App Cts have held that in suits against empers, if the issue is course/scope of employment, this is a subjective matter w/in the empers knowledge, so that SJ is not appropriate. permitted use is also so subjective that it is not appropriate for a SJ. CCP 968 Effect of the judgment on the pleadings and SJ
Judgments on the pleadings, and summary judgments, are final judgments and shall be rendered and signed in the same manner and with the same effect as if a trial had been had upon evidence regularly adduced. If the judgment does not grant mover all of the relief prayed for, jurisdiction shall be retained in order to adjudicate on mover's right to the relief not granted on motion. An appeal does not lie from the court's refusal to render any judgment on the pleading or summary judgment. SJ is a final judgment. Ends the lawsuit. Res jud. SJ are appealable.

CCP 970 Motion for judgment on offer of judgment


A. At any time more than thirty days before the time specified for the trial of the matter, without any admission of liability, any party may serve upon an adverse party an offer of judgment for the purpose of settling all of the claims between them. The offer of judgment shall be in writing and state that it is made under this Article; specify the total amount of money of the settlement offer; and specify whether that amount is inclusive or exclusive of costs, interest, attorney fees, and any other amount which may be awarded pursuant to statute or rule. Unless accepted, an offer of judgment shall remain confidential between the offeror and offeree. If the adverse party, within ten days after service, serves written notice that the offer is accepted, either party may move for judgment on the offer. The court shall grant such judgment on the motion of either party. B. An offer of judgment not accepted shall be deemed withdrawn and evidence of an offer of judgment shall not be admissible except in a proceeding to determine costs pursuant to this Article. C. If the final judgment obtained by the plaintiff-offeree is at least twenty- five percent less than the amount of the offer of judgment made by the defendant-offeror or if the final judgment obtained against the defendant- offeree is at least twenty-five percent greater than the amount of the offer of judgment made by the plaintiff-offeror, the Paoli/Vasquez Page 145 Fall 2000

offeree must pay the offeror's costs, exclusive of attorney fees, incurred after the offer was made, as fixed by the court. D. The fact that an offer is made but not accepted does not preclude a subsequent offer or a counter offer. When the liability of one party to another has been determined by verdict, order, or judgment, but the amount or extent of the damages remains to be determined by future proceedings, either party may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than thirty days before the start of hearings to determine the amount or extent of damages. E. For purposes of comparing the amount of money offered in the offer of judgment to the final judgment obtained, which judgment shall take into account any additur or remittitur, the final judgment obtained shall not include any amounts attributable to costs, interest, or attorney fees, or to any other amount which may be awarded pursuant to statute or rule, unless such amount was expressly included in the offer. F. A judgment granted on a motion for judgment on an offer of judgment is a final judgment when signed by the judge; however, an appeal cannot be taken by a party who has consented to the judgment. Designed to encourage settlements. If refuse to settle, might have to pay a fee.

CCP 971
A. (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim. (2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (3) If the court determines that the plaintiff has established a probability of success on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the proceeding, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination. B. In any action subject to Paragraph A of this Article, a prevailing defendant on a special motion to strike shall be entitled to recover reasonable attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award reasonable attorney's fees and costs to a plaintiff prevailing on the motion. C. The special motion may be filed within sixty days of service of the petition, or in the court's discretion, at any later time upon terms the

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court deems proper. The motion shall be noticed for hearing not more than thirty days after service unless the docket conditions of the court require a later hearing. D. All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this Article. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. Notwithstanding the provisions of this Paragraph, the court, on noticed motion and for good cause shown, may order that specified discovery be conducted. E. This Article shall not apply to any enforcement action brought on behalf of the state of Louisiana by the attorney general, district attorney, or city attorney acting as a public prosecutor. F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise: (1) "Act in furtherance of a person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue" includes but is not limited to: (a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law. (b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law. (c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest. (d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (2) "Petition" includes either a petition or a reconventional demand. (3) "Plaintiff" includes either a plaintiff or petitioner in a principal action or a plaintiff or petitioner in reconvention. (4) "Defendant" includes either a defendant or respondent in a principal action or a defendant or respondent in reconvention. Kills an action in, for example, defamation, libel

when brought against a (i.e.: newspaper). Crawford says the only difference b/w this and SJ is that SJ requires pleadings and affidavits. Special motion to strike = mini trial in and of itself. May bring in witnesses, testimony, etc This, early in the proceedings, may be used to bring in witnesses and throw out the suit.

Cases:
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B-W Acceptance v. Clarkson sued on a chattel mortgage note made be and sought the collection of the balance due under the note. denied that the was the holder of the note in due course and a 3p demand against another party who the s said were liable to them if they were held liable. 3p made a motion for SJ. Issue: Whether the ct should grant a SJ when the movant does not have sufficient evidence? NO!! Ct held that SJ is based on an alleged absence of material and necessary allegations in 3p demand. Motion denied. SJ on insufficient evidence if allegations cannot be used as a substitute for an exc of vagueness or no c/a. 3p did not bring enough evidence for a SJ. Walker v. Firemans Insurance (permitted use) seeks damages sustained by her son when he was struck down by a truck driven by . files MSJ saying that this was not a permitted use ins co not liable. In support of the MSJ, files a copy of the ins policy. introduces adverse evidence that she is informed and believes that there was a conspiracy b/w the s. Issue: Whether the opposing affidavit of the based solely on her info and belief rather than on personal knowledge is sufficient to show genuine issue of material fact? NO!! The opposing affidavit of is not sufficient to show an issue of material facts. The affidavit states only that she believes there was a conspiracy.

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There was no personal knowledge, evidence that the facts would be admissible into evidence, evidence that the affiant is competent to testify. Note: permitted use is usually frowned upon as a basis for SJ. How can prove they are lying? To subjective. Here, however, ct did not apply prohibition against subjective knowledge. Simoneaux v. Dupont brought action for injuries sustained during a fire and the petition alleged the explosion was intentionally caused by empers. argued MSJ b/c the s did not intend the explosion and that the exclusive remedy was WC. MSJ was granted for s b/c there was no genuine issue of material fact to be resolved. Issue: Whether a petition generally alleging a c/a under the intentional act exception to WC can be dismissed as an MSJ, b/4 have been allowed to conduct discovery? Ct held that SJ is correct way to dispose of a case when intent is the critical question. Intent need only be plead generally, but for SJ, it must be alleged specifically. The conclusory statements of the that were issues of material fact were not sufficient to overcome the s affidavits that there was no intent. McWright v. Modern Iron Works Ex of a SJ on a question of law. could not get a no c/a. Issue: whether the umbrella policy drops down? It often does not unless the primary policy covers up to a certain amount. TC granted SJ to . CCP 966E SJ rendered dispositive of an issue.

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C. Incidental Actions: 1116 In General: See page 2: poop sheet. Basic action is -----> . IA enlarge the basic action.

CCP 1031-

Purposes served: 1. Pp would like to go into ct on any given transaction/occurrence and get the whole mess cleared up. 2. Efficient administration of justice. 3. Saves ct time. B/c of this have: 1. Cumulation 2. Consolidation If the IA get to complicated, TC may break them apart for trail purposes. CCP 1031 Incidental demands allowed
A. A demand incidental to the principal demand may be instituted against an adverse party, a co-party, or against a third person. B. Incidental demands are reconvention, cross-claims, intervention, and the demand against third parties. May file IA if the ct allows it. If a 3p is added as a primary , any demands

against him by other s will be a cross-claim. If a 3p is added as a 3p, must make 3p demands on him.

CCP 1033 Time for filing incidental demands

An incidental demand may be filed without leave of court at any time up to and including the time the answer to the principal demand is filed.

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An incidental demand may be filed thereafter, with leave of court, if it will not retard the progress of the principal action, or if permitted by Articles 1066 or 1092. An incidental demand that requires leave of court to file shall be considered as filed as of the date it is presented to the clerk of court for filing if leave of court is thereafter granted. Of the demand requires leave of the ct and it is

not obtained, it will not interrupt prescription. But if do not get leave of the ct, and the judge accepts it anyway, the party is OK.

CCP 1034 Exceptions and motions


A defendant in an incidental action may plead any of the exceptions available to a defendant in a principal action, and may raise any of the objections enumerated in Articles 925 through 927, except that an objection of improper venue may not be urged if the principal action has been instituted in the proper venue. Exceptions pleaded by the defendant in an incidental action shall be subject to all of the provisions of Articles 924 through 934. A party to an incidental action may plead any of the written motions available to a party to a principal action, subject to the provisions of Articles 961 through 969. may plead all exceptions available to him. Any IA have the same exceptions that would have in

the principle action Exception: cannot object to venue if the PA is in the correct venue. If has proper venue over the PA, IA s cannot object. If the main action is in the right venue and brings in a 3p, he cannot object to venue. Party to IA may plead any motion except CCP 961969. CCP 1035 - Answer

The answer in an incidental action shall be filed within the delay allowed by Article 1001, or at any time prior to a judgment by default against the defendant in the incidental action, and shall be subject to all of the rules set forth in Articles 1001 and 1003 through 1006. If hit w/ an IA, must file an answerer.

CCP 1036 Jd; mode of procedure


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jurisdiction over the demand had it been instituted in a separate suit. The only exceptions to this rule are those provided in the state constitution. B. The mode of procedure employed in the incidental action shall be the same as that used in the principal action, except as otherwise provided by law. Hypo: City cts have a monetary limit of $20,000. if

files suit here for $12,000 worth of damages to his car, and comes back w/ a suit for $500,000 worth of medical damages + a jury trial, then the city ct will only have jd over the IA if it would have had jd had it been instituted as a separate suit. This case must be transferred to the DC. Why do this? B/c of CCP 1061B compulsory reconvention. It you dont use it, you lose it. The goals are efficiency and saving time. If lets suit go to judgment in city ct and files later in DC, the would plead res jud.

CCP 1037 Action instituted separately


When a person does not assert in an incidental demand the action which he has against a party to the principal action or a third person, he does not thereby lose his right of action, except as provided in Article 1113, and except as provided in Article 1061. Does not lose his right to assert the demand unless it

is a reconventional demand form the same trans/occ.

CCP 1038 Separate trial; separate judgment


The court may order the separate trial of the principal and incidental actions, either on exceptions or on the merits; and after adjudicating the action first tried, shall retain jurisdiction for the adjudication of the other. When the principal and incidental actions are tried separately, the court may render and sign separate judgments thereon. When in the interests of justice, the court may withhold the signing of the judgment on the action first tried until the signing of the judgment on the other.

CCP 1039 Effect of dismissal of principle action


If an incidental demand has been pleaded prior to motion by plaintiff in the principal action to dismiss the principal action, a subsequent dismissal thereof shall not in any way affect the incidental action, which must be tried and decided independently of the principal action. If IA is pleaded prior to motion by to dismiss the

PA, the dismissal shall not affect the IA, which shall be tried and decided independently of the PA.
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Reconvention CCP 1061 Actions pleaded in reconventional demand; compulsory


A. The defendant in the principal action may assert in a reconventional demand any causes of action which he may have against the plaintiff in the principal action, even if these two parties are domiciled in the same parish and regardless of connexity between the principal and reconventional demands. B. The defendant in the principal action, except in an action for divorce under Civil Code Article 102 or 103, shall assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action.

There need be no connexity b/w the PA and the IA reconventional demand. If the recon demand is prescribed, it can only be brought of there is a connexity. CCP 1062 Pleading compensation
Compensation may be asserted in the reconventional demand. If sued on a debt, and he too owes the , the

two may compensate/offset each other. This can be done in the reconventional demand.

CCP 1064 Additional parties

Persons other than those made parties to the original action may be made parties to the reconventional demand.

Recon demand may add parties. Hypo: builder sues buyer for non-payment on the k to build the house. The reconvenes w/ a list of things the needs to complete. also knows that the architect has a role in that list. CCP 1064 allows the to add the architect on the recon demand as an additional party.

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CCP 1065 Reconventional demand exceeding principal demand


The reconventional demand may or may not diminish or defeat the recovery sought in the principal demand. It may claim relief exceeding in amount that sought in the principal demand.

CCP 1067 When prescribed incidental or 3p demand is not barred


An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.

The old rule: if for a collision. On the last day of prescription, files suit. used to not be able to bring recon demand b/c barred by prescription. But CCP 1067 allows 90 days from service of the suit to put in your recon demand. Applies to all IA. This is a bonus time period that keeps you from being trapped. This will not save an already prescribed action, but will save actions not already prescribed. Only applies to properly filed incidental actions. Designed to help the .

Cross Claims CCP 1071 Cross-claims


A party by petition may assert as a cross-claim a demand against a coparty arising out of the transaction or occurrence that is the subject matter either of the original action or a reconventional demand or relating to any property that is the subject matter of the original action. The cross-claim may include a demand that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of the demand asserted in the action against the crossclaimant.

Must arise out of the same trans/occ as the main demand.


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CCP 1072 Service of cross-claim, citation unnecessary


The petition in a cross-claim shall be served on the co-party in the manner prescribed by Article 1314. Citation of the co-party shall not be necessary.

CCP 1073 Additional parties


Persons other than those made parties to the original action may be made parties to a cross-claim.

Notes: C-C are for your own damages for your own c/a. C-C must be against parties of equal degrees. Must be against a co-party. ?? on poop sheet is not a c-c.

Intervention CCP 1091 Third persons may intervene


A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by: (1) Joining with plaintiff in demanding the same or similar relief against the defendant; (2) Uniting with defendant in resisting the plaintiff's demand; or (3) Opposing both plaintiff and defendant. Hypo: if A B over a dispute of ownership of land.

C has a lease from A. C can intervene, join the suit, b/c he has an interest in seeing A declared the owner. Intervention is to enforce a right you have connected to the object of the pending litigation. If it is not a proper intervention, you are not entitled to the extra time allowed in CCP 1067. This is the bus accident hypo.

Cannot intervene if you separate suit by yourself.


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CCP 1092 Third person asserting ownership of, or mortgage or privilege on, seized property
A third person claiming ownership of, or a mortgage or privilege on, property seized may assert his claim by intervention. If the third person asserts ownership of the seized property, the intervention may be filed at any time prior to the judicial sale of the seized property, and the court may grant him injunctive relief to prevent such sale before an adjudication of his claim of ownership. If the third person claims a mortgage or privilege on the entire property seized, whether superior or inferior to that of the seizing creditor, the intervention may be filed at any time prior to the distribution by the sheriff of the proceeds of the sale of the seized property, and the court shall order the sheriff to hold such proceeds subject to its further orders. When the intervener claims such a mortgage or privilege only on part of the property seized, and the intervention is filed prior to the judicial sale, the court may order the separate sale of the property on which the intervener claims a mortgage or privilege; or if a separate sale thereof is not feasible or necessary, or the intervener has no right thereto, the court may order the separate appraisement of the entire property seized and of the part thereof on which the intervener claims a mortgage or privilege. An intervener claiming the proceeds of a judicial sale does not thereby admit judicially the validity, nor is he estopped from asserting the invalidity, of the claim of the seizing creditor.

Used when a 3p asserts an interest in seized property (mortgage or privilege). He may protect his security interest. CCP 1093 Service of petition; citation unnecessary
When the intervention asserts ownership of, or a mortgage or privilege on, the seized property, the petition shall be served on the sheriff and all parties to the principal action as provided in Article 1313. Any other petition of intervention shall be served on all parties to the principal action as provided in Article 1314. Citation is not necessary in intervention.

Do not need a citation. Need service of demand by sheriff or certified mail. CCP 1094 Intervener accepts proceedings
An intervener cannot object to the form of the action, to the venue, or to any defects and informalities personal to the original parties.

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Demand Against a Third Party CCP 1111 - may bring in a 3p


The defendant in a principal action by petition may bring in any person, including a codefendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand. In such cases the plaintiff in the principal action may assert any demand against the third party defendant arising out of or connected with the principal demand. The third party defendant thereupon shall plead his objections and defenses in the manner prescribed in Articles 921 through 969, 1003 through 1006, and 1035. He may reconvene against the plaintiff in the principal action or the third party plaintiff, on any demand arising out of or connected with the principal demand, in the manner prescribed in Articles 1061 through 1066. 3p : there must be a c/a that can assert

against the 3p. Ex.: indemnity (may be implied). The jurisprudential rule is that must be utterly w/o fault to call on a 3p. Ex.: Ford will 3p Firestone. If there is a judgment against me, I want it held over against 3p. 3p will argues something to get out of liability. They can argue that indemnification is precluded by fault. Ford told us to under inflate the tires.

CCP 1112 - in reconvention may bring in a 3p

The defendant in reconvention likewise may bring in his warrantor, or any person who is or may be liable to him for all or part of the reconventional demand, and the rules provided in Articles 1111, and 1113 through 1115 shall apply equally to such third party actions. in reconvention may bring in a 3p. can go on

indefinitely.

CCP 1114 Service of citation and pleadings


A citation and a certified copy of the third party petition shall be served on the third party defendant in the manner prescribed by Articles 1231 through 1293. Unless previously served on or filed by the third party defendant, certified copies of the following pleadings shall also be served on him in the same manner: the petition in the principal demand; the petition in the reconventional demand, if any; and the answers to

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the principal and reconventional demands filed prior to the issuance of citation in the third party action.

Must be by personal service. Need citation and service. When file a IA as a petition, service of process = only 3p demand requires service of citation (you must answer or default). The rest of the IA parties are already in the suit, so no need to serve them a citation. W/ a 3p demand, you are bringing in someone new need service of citation. Cases: Guidry v. Barras Purchaser of home sues vendor who 3ps realtor for not telling the purchaser that the home was prone to flooding. Does the 3p have a duty to tell? YES!! Ct looked at the statute and saw that this could be a c/a, hence it was a valid 3p demand. Randall v. Feducia brought in 3p timely. wanted to make 3p a primary . Ct says cannot use the CCP 1067 90 day bonus. That only applies to the filing of IA. Does not apply to PA. If the and 3p were solidarily liable, could have interrupted prescription and she could have made 3p a primary , but they were not.

D.Amendments: CCP 1151-1156 CCP 1151 Amendment of petition and answer; answer to amended petition
A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his

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petition under Articles 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party. A defendant shall plead in response to an amended petition within the time remaining for pleading to the original pleading or within ten days after service of the amended petition, whichever period is longer, unless the time is extended under Article 1001. may amend at any time prior to the answer.

After the answer is served, he needs permission of the ct. The amendment must be valid. If not, evidence pertaining to the amendment will not be allowed into ct. The answer may be amended 10 days after its service. After that, need leave of ct. CCP 1152 Amendment of exceptions
A defendant may amend his declinatory or dilatory exceptions by leave of court or with the written consent of the adverse party, at any time prior to the trial of the exceptions, so as to amplify or plead more particularly an objection set forth or attempted to be set forth in the original exception. A declinatory or a dilatory exception may not be amended so as to plead an objection not attempted to be set forth in the original exception. A defendant may amend his peremptory exception at any time and without leave of court, so as to either amplify an objection set forth or attempted to be set forth in the original exception, or to plead an objection not set forth therein. Hypo: you file a dilatory. Realize afterward that you

also have a declinatory. You cannot amend the dilatory and slip in the declinatory. Cannot slip it in.

CCP 1153 Amendment relates back

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

If the main action is filed timely, you can add new parties or c/a if they relate back to the original pleading.

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When adding an additional party, does the late added party have timely notice that they are being sued? Ex.: Do they the same claims dept? The same legal dept? See Ray v. Alexandria Mall Cannot use this article to substitute parties. Giroir v. South La Medical Center o wants to add his children to the w/d suit. o wants to amend the petition to relate back and include his children. o Same theory of notice is required for added s as for added s. o Hospital must have notice that the children could sue. This is usually found in the record. o Otherwise, the action is prescribed as to the children. o The ct held that s were on notice that the children could sue. o Nurse testified (her notes) hospital knew she had children. o was allowed to amend and relate back. o Crawford says this is an incredible case that is seldom followed. o Nurses notes constituted notice to the hospital?!? If the added is a joint tortfeasor, Makhoney v. Lyons allowed the bringing in solido joint tortfeasor 15 years after the filing of the suit. Under CC 2324C prescription interrupts as to one joint tortfeasor, prescription interrupted as to all. Crawford says b/c of this, you dont even really need CCP 1153. To relate another c/a back, must be the same trans/occ. Sikes v. McLean o After the trial had started, filed more allegations to the petition describing a whole new gamut of arguments from the original pleading. o wanted to amend the pleadings to add all new injuries (headaches).

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o Ct allowed the amendment b/c the was not surprised

w/ the new injuries. The headaches were in discovery and were to be expected. CCP 1154 Amendment to conform to evidence
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

Lawyers must introduce evidence that is in their petition. If it is not in the pleadings, need an in stanter amendment (i.e. drunk). This is an oral motion. The will say that he needs time to put together a defense. The judge will probably allow the continuance. But, all pleadings must be in writing. If you dont follow it up w/ a written pleading, its as though it was never amended. Must write and file it later. Industrial Sand v. Quebedeaux o Party failed to submit written pleading after the oral motion to amend was accepted. o The ct held that the pleadings were not amended. CCP 1155 Supplemental pleadings
The court, on motion of a party, upon reasonable notice and upon such terms as are just, may permit mover to file a supplemental petition or answer setting forth items of damage, causes of action or defenses which have become exigible since the date of filing the original petition or answer, and which are related to or connected with the causes of action or defenses asserted therein. Paoli/Vasquez Page 161 Fall 2000

A supplemental petition or answer setting forth items of damage, c/a, or defenses that have become exigible since the date of the filing of the original and relate back to the original may be filed. Subject to prescription and relating back (CCP 1153). CCP 1156 Amended and supplemental pleadings in incidental action
The petition, the answer, and the exceptions filed in an incidental action may be amended or supplemented in the manner provided in Articles 1151 through 1155.

E. Production of Evidence: 1351-1392 Subpoenas CCP 1351 Issuance; form

CCP

The clerk or judge of the court wherein the action is pending, at the request of a party, shall issue subpoenas for the attendance of witnesses at hearings or trials. A subpoena shall issue under the seal of the court. It shall state the name of the court, the title of the action, and shall command the attendance of the witness at a time and place specified, until discharged.

Subpoenas are a direct order from the ct command the attendance of the witness at a time and place specified. CCP 1352 Restrictions on subpoenas
A witness, whether a party or not, who resides or is employed in this state may be subpoenaed to attend a trial or hearing wherever held in this state. No subpoena shall issue to compel the attendance of such a witness who resides and is employed outside the parish and more than twenty-five miles from the courthouse where the trial or hearing is to be held, unless the provisions of R.S. 13:3661 are complied with. Witness in a civil case who reside or employed by the

state may be subpoenaed and compelled to attend trial or hearing wherever held in the state.
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Witnesses in state subpoenaed if more than 25 miles away, must comply w/ 3661.

R.S. 13:3661 - Attendance compulsory in civil cases; witnesses outside parish but within state; deposit
A. Witnesses in civil cases who reside or who are employed in this state may be subpoenaed and compelled to attend trials or hearings wherever held in this state. B. (1) No witness residing and employed outside of the parish and more than twenty-five miles from the courthouse where the trial or hearing is to be held shall be subpoenaed to attend court personally unless the party who desired the testimony of the witness has deposited with the clerk of court a sum of money sufficient to cover: (a) Reimbursement of the traveling expenses of the witness in traveling to the court and returning, at the rate of twenty cents a mile. (b) The witness' fee at the rate of twenty-five dollars a day. (c) Hotel and meal expenses at the rate of five dollars a day. (2) Such a witness shall be paid his expenses and fee immediately by the clerk of court when the witness has answered the subpoena and has appeared for the purpose of testifying. No witness if reside or employed outside of the

parish and more than 25 miles away from the ct unless the party pays costs.

1355.1 Reissuance of subpoena; service by certified or registered mail


When a subpoena that has been personally served is ordered reissued due to continuance or passage of the trial or hearing, the party requesting such reissuance may have the subpoena served in accordance with Article 1355 or may serve the subpoena by mailing a copy of the original subpoena, together with a notice of the new date and time for attendance, to the witness at his dwelling house or usual place of abode, or to a representative of the witness if personal service of the original subpoena was made on such representative. The mailing shall be by registered or certified mail, return receipt requested. The date of mailing shall be not less than thirty-five days prior to the date on which the witness is subpoenaed to appear. A copy of the documents mailed to the witness and the signed return receipt shall be filed by the party in the record as proof of service. If the registered or certified mail is unclaimed, service of the subpoena shall be as otherwise provided by law. To renew a subpoena certified mail dont need

sheriff to serve again.

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1392 Proof of statutes

Printed books or pamphlets purporting on their face to be the session or other statutes of any of the United States, or the territories thereof, or of any foreign jurisdiction, and to have been printed and published by the authority of any such state, territory or foreign jurisdiction, or proved to be commonly recognized in its courts, shall be received in the courts of this state as prima facie evidence of such statutes.

Used to prove law is what you say it is valid statute.

Discovery Discovery takes place in advance of the trial. Purpose: to eliminate surprise at the trial. There are 6 discovery methods: 1. Depositions by oral or written questions on any person. 2. Written interrogatories only on a party. 3. Production of docs only on a party. 4. Physical or mental exam only on a party. 5. Release of medical records only on a party. 6. Request for admission only on a party. CCP 1437 Deposition upon oral examination; when depo may be taken Can take oral depo of anyone. CCP 1457 Interrogatories to parties; availability; additional, hearing required Authorizes written interrogatories. CCP 1461 Production of docs and things; entry upon land; scope Any party may serve on another party a request to: a. Produce docs for inspection b. Allow entrance on certain lands
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CCP 1463 Production of docs and things; entry upon land, persons not parties W/o having a formal depo can get a 3p to produce docs. Must notify that it will take place. Can have him produce records, copy them, and give them back. This is a valuable procedure. Can get a subpoena on a non-party in connection w/ entry onto land. CCP 1464 Order for physical or mental examination Must be for good cause. CCP 1465.1 Requests for release of med records CCP 1466 Requests for admission; service of request Party is requested to admit or deny the truth of any matter w/in the scope of CCP 1422-1425. Discovery CCP 1422 Scope of discovery; in general May discover anything that is not privileged. What the witness says doesnt have to be admissible it is enough if it can lead to something. Not grounds for objection that the info sought will be inadmissible if the info appears to be reasonably calculated to lead to admissible evidence. What are privileged evidence? CCP 1424 The court shall not order the production or inspection of any writing obtained or prepared by the adverse party, his atty, surety, indemnitor, expert, or agent in anticipation of litigation or in preparation for trial UNLESS satisfied that the denial of production or

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inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim. The ct shall not order the production of any part of the writing that reflects the mental impressions, conclusions, opinions, or theories of an atty or expert. Ex.: ship captains notes describing what happened. Not available anywhere else, to w/hold would be extreme prejudice. CCP 1426 Protective orders Judge can order upon motions and good cause shown 2. That discovery not be had. 3. That the discovery may be had only in a certain method. 4. That the discovery be done at a certain time. 5. The discovery be limited to a certain topic. 6. Be conducted w/ limited pp. 7. Be sealed. 8. Trade secret or other confidential research not be disclosed or be disclosed in a designated way. Fed Rules are different Judge rules on it while the depo is taking place. In La, stop and motion for protective order. CCP 1437 - Procedure for setting up the depo Letter to the other side = formal notice. CCP 1441 tells party to bring things to ct w/ him. CCP 1440 video depos are OK. CCP 1443 Examination and cross-exam Get to protect witnesses w/ objection. Theory of objection if ask ambiguous question, then object. Rule is even that can be corrected.

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If you do not object to a substantive error, it is not waived later in the case.

CCP 1450 Use of depos At the trial or upon hearing of the motion, part or all of a depo may be introduced as if the person were present to testify if: 1. Any time to impeach a party 2. W idd as a party 3. Any depo if the witness is not available OR the witness lives more than 100 miles of the ct 4. Exceptional circs 5. Opponent reads partthe other party can introduce other parts. Any depo may be used to contradict or impeach. If took depo of opposing party, can use it for any purpose but there are cases showing that must be a legit purpose served. Can use depo: a. If witness is unavailable b. Over 100 miles away CCP 1451 Objections to admissibility Cant put hearsay evidence into the record you must be ready to object. CCP 1448 Serving written questions; notice If a witness is called for discovery purposes, can use written questions and/ or discovery recorded by ct reporter. CCP 1469 Motion for order compelling discovery Teeth in the discovery process. CCP 1471 Failure to comply w/ order compelling discovery; sanctions If fail to comply, can be sanctioned.

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CCP 1429 Perpetuation of testimony; petition Used if you find out that a witness important to your case is about to die. Perpetuate his testimony in a depo. The ct orders it. Depo must be taken where the deponent resides or is employed. The basic rule in discovery is that you must go to where the witnesses are. Letters rogatory: If you go to Tx to take a depo, and want to make sure that the witness appears (in La would send a subpoena, but they are no good in other states) you need letters rogatory. (13:3821-3823). This is used for the depos of witnesses in a foreign jd. Send a letter rogatory to proper ct in that state (i.e. DC in Houston) and ask them to issue their subpoena to the Tx witness. What if you want the depo done in the manner of La law governing depos? Stipulate in letters rogatory that the depo is to be taken under the rules of discovery of laws of La. Pg. 449 Typical form for entering into stipulations regarding the taking of depos. Pg. 451 Notice of taking depo. It is filed in the ct record. There is no order form the judge. CCP 1430, 1438 - statutes furnish formal authority in place of the judge. Arts. in CCP specify how to take depo. This has the force of law. Cases:

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Weidenbacher v. St. Paul Fire CCP 1422-1425: Scope of discovery, trial prep, experts. Something prepared in anticipation of litigation is not discoverable absent special circs. CCP 1424 Standard is that unless denial will unfairly prejudice party seeking production or cause him undue hardship or injustice. The case holds that these arts apply to writings only these are always privileged. What about oral statements if the expert is called to the stand to testify? May get testimony as a fact witness, even though cant get a written report. Ogea v. Jacobs Info prepared in anticipation of lit is not discoverable unless denial will unfairly prejudice the party seeking production, cause undue hardship[p, injustice. It was never shown that employer of was asked to take notes in anticipation of lit. The notebook was the only source of info on the accident. Lindsey v. Escude CCP 1464 For med exam, when the condition of the party is in controversy, ct may order him to submit to exam by physician, vocational rehab expert, or psychologist only on motion for good cause. Cannot be by ex parte hearing. Robin v. Ass. Indem. Co. s requested that be examined by their orthopedic surgeon. s lawyers conditioned assent: a. Dr. could not delve into questions of liability.

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b. Dr. could not limit answers of to multiple

choice. c. Dr. must preserve and produce all recordings made during the exam. Later on, lawyer says he must be present at the exam. TC signed judgment ordering the examination under the conditions, but the hubby was to be present not the lawyer. Case illustrates that discovery is not easy. Its a hotbed for litigation. LASC ended up OKing the conditions.

Hodges v. Southern Ins. has a problem w/ his excess insurer about coverage. requests his investigation file. said NO! Was prepared in ant of lit. The LASC said they must hand it over. It was his file, so the discovery rationale that protects privacy does not apply. Bodden v. Arseneaux CCP 1450 Use of depos A(2) depo of party may be used by adverse party for any purpose. A(3) depo used if witness: Unavailable want to use depo in place of witness. If witness lives w/in 100 miles, must show that you subpoenaed the witness and he din not show up. In the case, a subpoena ducus tecum was served. Under A(3)(b) the depo is admissible b/c the witness was unable to attend. The subpoena was served properly, could not procure attendance. Harrison v. La CCP 1450(1)

(a)

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Depo not admissible when testimony already in the case.

it

is

repetitive

of

Bailes v. US Fidelity CCP 1451 Objection to admissibility of depo b/c it was full of hearsay. Under the Rules of Evid, should not be admitted. You must object at the time of introduction into trial. Harvey v. Travelers Ins. Co. Lawyer wants to introduce depo of witness b/c the witness lives more than 100 miles away. Must show the TC proof. Judge refused entry of depo into evidence. Also, if the witness is unavailable b/c of illness need to show the TC proof in the form of a med report or a letter from the Dr. Dunham v. Anderson, Inc TC refused entry of depo into record. App Ct reversed said there was a valid purpose for having the depo in the record. Cambre v. St Paul Fire Proof of law in Miss. CCP 1391/CE 202 La cts allowed to take notice of basic law of sister states. Get statute books, etc to prove Miss law. Burnes v. Holiday Travel Law of a sister state can be taken judicial notice of. Statute itself is proof. Allen v. Smith Sanctions for not answering requests for depo. atty did not go to any depos, did not answer interrogatories, refused to produce needed evidence.
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TC dismissed the suit w/ prejudice. LASC says cannot do this they distinguished the misbehavior of the atty form the misbehavior of the client. This was the lawyers wrong sanction him, not the client. Sudwischer v. Estate of Paul Hoffpauir Blood test relevant in the suit. Other side wanted it taken. The ct compelled the party to submit to the blood test.

F. Pre-Trial Procedure: CCP 1551 CCP 1551 Pre-trial and scheduling conference; order
A. In any civil action in a district court the court may in its discretion direct the attorneys for the parties to appear before it for conferences to consider any of the following: (1) The simplification of the issues, including the elimination of frivolous claims or defenses. (2) The necessity or desirability of amendments to the pleadings. (3) What material facts and issues exist without substantial controversy, and what material facts and issues are actually and in good faith controverted. (4) Proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence. (5) Limitations or restrictions on or regulation of the use of expert testimony under Louisiana Code of Evidence Article 702. (6) The control and scheduling of discovery. (7) The identification of witnesses, documents, and exhibits. (8) Such other matters as may aid in the disposition of the action. B. The court shall render an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. Such order controls the Paoli/Vasquez Page 172 Fall 2000

subsequent course of the action, unless modified at the trial to prevent manifest injustice. C. If a party's attorney fails to obey a pretrial order, or to appear at the pretrial and scheduling conference, or is substantially unprepared to participate in the conference or fails to participate in good faith, the court, on its own motion or on the motion of a party, after hearing, may make such orders as are just, including orders provided in Article 1471 (2), (3), and (4). In lieu of or in addition to any other sanction, the court may require the party or the attorney representing the party or both to pay the reasonable expenses incurred by noncompliance with this Paragraph, including attorney fees.

The purpose of the pre-trail conference is efficiency, saving time. Usually the side that is ready to go to trial asks for it. The conf determines what will happen at the trial. Flesh out things that are in dispute, not in dispute. The ct and the attys consider: Par. A: 1. Simplification of issues, including elimination of frivolous claims or defenses. 2. Amendments are allowed if necessary. 3. What material facts and issues exist w/o substantive controversy and what is controverted. 4. Proof of authenticity of docs and advance rulings on admissibility of evidence. 5. Limitations on expert testimony. 6. Control and scheduling of discovery. 7. Id of witnesses, docs, exhibits. The purpose of this is to avoid trial by ambush. The judge may refuse to hear a witness that is not on the pre-trial order. 8. Date and time for trial. Par. C if a partys atty fails to obey pre-trial orderor does not show up, the ct on its own motion or motion of party, after a hearing, may make such orders as are just, including CCP 1471(2)(3)(4). Also sanctions: pay experts incurred by non-compliance, atty fees, etc

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La Hoop Co. v. Hood Ct cannot render a DJ for failure to comply w/ the pre-trial order. This is not an appropriate sanction. Cannot penalize the client for what the lawyer did. Note: BR has its own special rules for pre-trial. Civil Rules, 19th Judicial District Court Pre-Trial Conf Rules pgs. 506-511. A pre-trial is a way of making sure the trial is really on the merits. Allwein v. Horn May dismiss a case w/ prejudice for failure to comply w/ pre-trial order.

G.Trial: CCP 1561-1673 Add the review in class on 8/26/00 into outline.

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