REVIEW

I. Filing of Pleadings

Counterclaim

Answer

II.Distinguished Filing vs Service

Filing- Submission of a pleading in the court

Service- Delivery of the pleading to the adverse party or to co-parties

III.

IV. SUMMON

dOcument which the court attempt to jusrisdiction to the defendant

5 days after the

Clerk of court and mag le— contents - le to answer failure to le an answer default

Duty of the council - when a council voluntarily appears to delivery the summons of his clients

Report - assigned to delivery (sheri , deputy sheri plainti along with a sheri (must be proven
issuance delivery of summon failed))

Modes of service

I. RULE 15

A. Motion - application for a relief other than a pleading

Content-

a. State relief sought for

b. Grounds

c. Accompanied by a davits and other documentary evidence

Form

(Writing or Oral)

If writing you have to notify the other party for motion , Oral motion in trial called
for remark you ,presumed that the other party is there to make his proper objections

Motion that seems prejudicial if oral motion—

Non-litigious Motion
-Motions that can be acted upon without prejudice to adverse party

-No need to set for hearing

ex. comment on manifestation motion to admit

Litigious Motions
-Other party is given 5 days to comment on the motion

- the court shall decide within 15days or set it for hearing on Friday for
clari cation or for oral arguments then decided within 15days thereafter

Omnibus Motion Rule

Gen Rule- a motion attacking a pleading, order, judgment or proceeding
shall include all objections then available. All objections not included are deemed waived.

Purpose- To avoid piecemeal objection

Exceptions: THE FOUR NON-WAIVABLE GROUNDS ex. First

motion - denied — reconsideration

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(1) the court has Lack of jurisdiction—

(2) Litis pendencia - there is a pending case aside from the present case

3 Res Judicata- the case has been pass upon before

4 Statute of Limitations- action has been prescribed

Prohibited Motions
A. Motion to Dismiss

Except: Non waivable grounds

B. Motion for Reconsideration of Court’s Action on A rmative Defenses

C. Motion to Suspend Proceedings without TRO

D. Motion for Extension of Time

E. Motion for Postponement

Except. Force Majeure

Acts of God

Physical Inability Of Witness to Appear

**Postponement fee collected

**Party postponing must still nish presenting evidence as scheduled

** You can request for additional day???

DISMISSAL OF ACTIONS
I. With Prejudice
Dismissal that bars the re ling of case.

Does not bar an appeal

ex. Complaint you led for 2nd time not able to prosecute the claim and it was
dismissed for the 2nd time. You cannot le for 3rd time per you can still appeal the denial of
actions.

II. Without Prejudice

Dismissal that allows the re ling of case

DISMISSAL UPON NOTICE BY PLAINTIFF (RULE 17)

I. WHEN FILED?
*Before service of answer

*Before motion for summary judgment

**Akin to withdrawal of complaint ( Notice to withdraw)

**Required order of court CONFIRMING the withdrawal

**Mere notice, not Motion, is required

II. CONSEQUENCE OF DISMISSAL UPON NOTICE BY PLAINTIFF

*Dismissal without prejudice

*Exceptions:

1. Otherwise stated in the notice

2. The notice is already the second time

III. TWO-DISMISSAL RULE

**Plainti had/his her claims dismissed twice

**Claim is the same or based on the same claim

** Court has competent jurisdiction

DISMISSAL UPON MOTION BY PLAINTIFF

I. Dismissal should be with approval of court

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 II. Consequence
*Gen Rule: Dismissal is without prejudice

*Exception: Unless otherwise provided by the court

If with prejudice the court sasabihin na with prejudice.

III. E ect of dismissal on Counterclaim of Defendant

Counterclaim may be prosecuted separately UNLESS, Defendant manifest that
the counterclaim be heard in the same case.

DISMISSAL DUE TO FAULT OF PLAINTIFF

I. Who initiates this motion to dismiss?

A. The defendant

B. The Court

II. Grounds:

A. Plainti fails to appear on the date of presentation of evidence in chief

B. Plainti fails to prosecute for an unreasonable length of time

ex. 4 hearing dates wala na-irepresent na evidence/witnesses.

C. Fails to comply with court order or rules

ex. Bill of particulars I do not understand fa

III. Concepts:
*Unreasonable length of time- depends on circumstances of each particular
case. Plainti must have failed to be diligent in proceeding with promptitude.

* When delay is caused by parties anticipating a settlement, then it cannot be

considered as a non-suit.

IV. Consequence of Dismissal with fault

Gen Rule: Dismissal with prejudice
Exception: Unless otherwise declared by the court or rules

V. E ect of Dismissal with Fault on Counterclaim of Defendant

Counterclaim may be prosecuted separately
UNLESS, Defendant manifest that the counterclaim be heard in the same case
(RULE 17)

VI. E ect of Dismissal with fault on Cross-Claim, Third Party- Complaint

may be, prosecuted separately
UNLESSS, Parties manifest that their claims be heard in the same case (RULE
17)

EX. Plainti fail to proved evidence.

PRE-TRIAL (RULE 18)

I. General Concept
Procedural device to compel parties to aid the prompt disposition of the case.

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 II. Speci c Purposes:
a. Consider possibility of settlement

b. Identi cation of issues

c. Stipulation of facts and documents

d. Limitation of witnesses

e. Advisability of referring matter to commissioner

f. Propriety of rendering judgment on pleadings, summary judgment or

dismissing the case.

g. Mark documents in evidence

1. Compare with original

2. Manifest genuineness and authenticity of documents of parties

h. Make reservations:

1. Testimonial- giving name and nature of proposed witnesses

2. Documents- giving particular description

I. Other matters that may aid in prompt disposition of the action

III. Notice of Pre-Trial

A. When issued?
After last pleading is led

(expiration of period for the ling of last pleading)

B. Who issues Notice of Pre-Trial?

Clerk of Court

C. Contents
1. Date of Pre-Trial (not later than 60 days from ling of last pleading)

2. Date Court- Annexed Mediation;

3. Date of Judicial Dispute Resolution

D. Appearance of Parties
1. Pre-Trial

2. CAM

3. JDR

*Both Counsel and party must appear

*Appearance of only one is tantamount to non-appearance

*EXCEPT: Non-appearance is due to force majeure, acts of God, and

duly substantiated physical inability. (Rule 18)

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