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109 Cards in this Set

  • Front
  • Back
What are the ways to set aside a default judgement?
Legal grounds and Equitable grounds
What are the procedural methods for setting aside a default judgement on Legal Grounds?
You can seek a motion for new trial to put on evidnece of legal error contained in the record

You can file a restricted appeal
What are the procedures for setting aside the default judgement on Equitable grounds?
Motion for new trial in which you will be held to the Craddick factors; or

Bill of Review in which you will be forced to meet the stricter Alexander v Higginbottom factors
When does the time period for filing a motion for new trial begin to run?

What is the court required to do?
From the signing of the judgement.

The clerk is required to immediatly give notice to the parties or their attorneys by 2st calss mail advising that the judgment or order was signed.
What happens if notice of the default judgement is not given?
If w/i 20 days after the jdugment or other appealable order is signed, an adversly affected party neither recieves notice or acquires acutal knowledge of the DJ, then the period or the court's plenary power does not begin to run until the party recieves notice or acquires actual knowledge of the DJ. -- BUT in no event shall such periods being more thatn 90 days after the original judgemnt was signed.
When must a MNT required?
A MNT is required when you need to put on evidence - for example, that you did not recieve notice or acquire knowledge within 20 days.
When would you need a MNT to put on eveidence to show a problem with a DJ?
ex. guy was in salt lake on the date that the record shows he was served. He has extrinsic evidence (plane/hotel ticket) to show that he had no notice of the DJ.
What must you do to attack a DJ on equitable grounds?
If you can file a MNT w/i 30 days you can show you deserve eq relief under the Craddok factors
When would you file a restricted appeal?
when you wan to appeal based solely on the record as it existed.

file it only if

1. you didn't appear
2. You did not file a MNT

if on the face of the record, you feel that the opp left a gap, you would do this to prevent the introduction of new evidence. BUT if you need evidence, MNT is your vehicle.
By when must a restriced appeal be filed?
Within 6 months of the signing of the final order.
When must a MNT be granted in a defualt judgment
Craddock Factors

in any case where:

• (1) the failure of the D to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided
• (2) the motion for a new trial sets up a meritorious defense and
• (3) is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the P.
Analyzing the Craddock Prongs

What is the first prong satisfied if the D was negligent?
Yes, the first prong is satisfied as long as it wasn't intentional. Can be negligence
What does it mean to set up a meritorious defense?
It means that the second prong cannot be set up by conclusory allegations.

you must plead facts that demonstrate a meritorious defense if they are true

AND the meritorious defense must be supported by affidavits or other evidence provinga PF case that the D has a meritorious defense.

Also, counter evidence should not be entertained but the court. Not a weighing of the evidence. Court should not consider counter evidence
What about the first prong. Can it be conclusory that it was a mistake?
the plaintiff CAN flle counter evidence to rebut the first prong, that the failure to answer was not intentional.

(this is becasue at trial prong 2 will be an issue, but this is the only chance the court considers prong 1) -- you are entitled to discovery on Prong 1
How far does a judge's plenary power extend after the signing of a judgment?
A judge has 75 days to rule on a MNT. If he doesn't the MNT is overruled as a mater of law.

BUT if overruled by written or signed order or by operation of law, the judge still has plenary power for 30 days to grant motion despite overruling.

SO the plenary power can theorhetically extend to 105 days after the DJ.
Holt atherton

said he did not show becasue he didn't think he was liable
not entitled to a new trial under Craddock because that is conscious indifference, not mistake.
Setting aside the DJ = Resticted appeal

What evidence may be considered in a restricted appeal?
the absence from the record of affirmative proof that notice of intent to dismiss or of the order of dismissal was provided does not establish error. The rule has long been that evidence not before the trial court prior to final judgment may not be considered in a writ of error proceeding. Permitting challenge to a judgment based on affidavits first filed in the appellate court undermines this judicial structure. The appropriate remedy when extrinsic evidence is necessary to the challenge of a judgment is by motion for new trial.
NORMAN COMMUNICATIONS v. TEXAS EASTMAN CO
Tex. 1997
PROC HIST
• Norman Comm appealed from a post-answer default judgment by way of writ of error alleging (1) it did not receive notice of the trial setting; and (2) the evidence was not legally sufficient to support the default judgment.
• Ct App overruled Norman’s point of error on lack of notice and then held it could not reach (2)

ISSUE
• whether the Ct App erred in not reaching point of error (2)?
• YES – review by writ of error affords the appellant the same scope of review as an ordinary appeal, that is, a review of the entire case. it necessarily follows that review of the entire case includes review of legal and factual insufficiency claims, thus, the Ct App erred in concluding that because it overruled Norman’s lack of notice point of error that it could not reach Norman’s legal sufficiency point of error.
SETTING ASIDE THE DEFAULT JUDGMENT: POST-DEFAULT MOTIONS: EQUITABLE BILL OF REVIEW

How long do you have to file an euitable bill of review?
After time runs out what can you do? file an equitable bill of review.

it falls under the residual statute of limitations = 4yrs. 4 years to bring an EQ bill of Review
What are the Hagedorn factors that must be satisfied in an EQ bill of Review?
(1) a meritorious defense to the cause of action alleged to support the judgment;
(2) which he was prevented from making by the fraud, accident, or wrongful act of the opposite party;
(3) unmixed with any fault or negligence of his own
What are the EQ bill of review after Rossen
(1) a meritorious defense to the cause of action alleged to support the judgment;

(2) which he was prevented from making by the fraud, accident, or wrongful act of the opposite party; ADDED or becasue of misinformation (given within 14 day window) by an officer of the court acting within his official capacity.

(3) unmixed with any fault or negligence of his own
OPER PROCEDURE FOR A BILL OF REVIEW
• (1) in order to invoke the equitable powers of the court, the bill of review complainant must file a petition
o must allege factually and with particularity that the prior judgment was rendered as a result of fraud, accident, or official mistake unmixed with his own negligence
o must further allege, with particularity, sworn facts sufficient to constitute defense and, as a pretrial matter, present prima facie proof to support the contention
• (2) prima facie meritorious defense
o if court determines that a prima facie meritorious defense has not been made out → proceeding terminates
o if court does determine that a pf meritorious defense has been made out → court conducts a trial
• (3) trial
o complainant must open and assume the burden of proving that the judgment was rendered as the result of the fraud, accident, or wrongful act of the opposite party or official mistake unmixed with any negligence of his own
o once this burden is met; bill of review D must assume the burden of proving his original cause of action
• (4) factfinder will determine whether the complainant has established by a POE that the prior judgment was rendered as a result of fraud, accident or… which may be submitted in one broad issue under TRCP 277 conditioned upon an affirmative finding to this issue, the fact finder will determine whether the bill of review D, the original P, has proved the elements of his original c/a → then court can grant requested relief
Amended and Supplemental Pleadings

What is an ammeded pleading in TX?
The object of amendment is to add something to, or withdraw something from, that which has been previously pleaded so as to:
 Perfect that which is deficient
 Correct something that is incorrectly stated by the amending party
 Plead new matter
 Amendment replaces a prior pleading

its to add correct subst or replace

NOT SUPPLEMENTAL PLEADINGS - In TX supplemental pleaddings are for the limited purposeof responding to somehting added by opponent and does nto replace prior pleadings
(in fed court, ammended pleading replaces you pleadings. For legal admissions, the propr pleadiingsis superceded)
Up to when can you file an ammended pleading?

What must you do?
You can file an ammedmed pleaidng up until judgement. You can even file them post verdict.

However, if you offer any ammended pleadings within seven days of the date of trial, you have to ask for leave of court.

But the leave should be granted unless there is a showing that such a filing will operate as a surprise to the opposite party.

This is also the default for level 2 disc because ther is no scheduling order in level 2.
Does the substituted instrument take place of the original?
Unless the substituted instrument shall be set aside on exceptions, the instrument for which it is
substituted shall no longer be regarded as a part of the pleading in the record of the cause, unless
some error of the court in deciding upon the necessity of the amendment, or otherwise in superseding it, be complained of, and exception be taken to the action of the court, or unless it be necessary to look to the superseded pleading upon a question of limitation.


Original pleadigs are superceded for a legal basis of recovery but is not gone for evidentiary purposes.
What is a trial amedment?

Who has burden in objecting
TRCP 66. TRIAL AMENDMENT
If evidence is objected to at the trial on the ground that it is not within the issues made by the
pleading, or if during the trial any defect, fault or omission in a pleading, either of form or substance, is called to the attention of the court, 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 allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. The court may grant a postponement to enable the objecting party to meet such evidence.


baiscally if there is a pleading defect or something is not at issue the court may allow youto ammend the pleadings during trial.

Happens when they present evidence that has no relevance to any COA.

BURDEN to establish surprise or prejudice is on the party seeking to object to trial ammendment.
What happens if issues are tried that don't conform with the pleadings, but no one says anything?
TRCP 67. AMENDMENTS TO CONFORM TO ISSUES TRIED WITHOUT OBJECTION
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 in the pleadings. In such case 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 by leave of court upon motion of any party at any time up to the
submission of the case to the Court or jury, but failure so to amend shall not affect the result of the trial of these issues; provided that written pleadings, before the time of submission, shall be
necessary to the submission of questions, as is provided in Rules 277 and 279
can the court order parties to replead?
YES

TRCP 68. COURT MAY ORDER REPLEADER
The court, when deemed necessary in any case, may order a repleader on the part of one or both of the parties, in order to make their pleadings substantially conform to the rules.
What if repleading requires the opposite party to discovery or a new withness?
RULE 70. PLEADING: SURPRISE: COST
When either a supplemental or amended pleading is of such character and is presented at such time as to take the opposite party by surprise, the court may charge the continuance of the cause, if granted, to the party causing the surprise if the other party satisfactorily shows that he is not ready for trial because of the allowance of the filing of such supplemental or amended pleading, and the court may, in such event, in its discretion require the party filing such pleading to pay to the surprised party the amount of reasonable costs and expenses incurred by the other party as a result of the continuance, including attorney fees, or make such other order with respect thereto as may be just.
What if you mistakenly designate a plea?
You are not screwed. Ex. if you called it amended pleading but it was supplemental. You are not screwed.

RULE 71. MISNOMER OF PLEADING
When a party has mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated. Pleadings shall be docketed as originally designated and shall remain identified as designated, unless the court orders redesignation. Upon court order filed with the clerk, the clerk shall modify the docket and all other clerk records to reflect redesignation.
What happens if pleadings are ammended to change a COA and the SOL for the new COA has already run?
IT DOES NOT CHANGE THE SOL UNLESS THE AMENDMENT OR SUPPLEMENT IS WHOLLY BASED ON A NEW, DISTINCT, OR DIFFERENT TRANSACTION OR OCCURANCE

TCPRC § 16.068 AMENDED AND SUPPLEMENTAL PLEADINGS.
If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence.
Federal ammended and supplemental pleadings

FRCP 15. Amended and Supplemental Pleadings

When can a party amend?
How does that effect the time to respond?
FRCP 15 (this is the default rule if no scheduling order is in place
 (a) Amendment Before Trial
 (1) Party may amend pleading once as a matter of course within
o (A) 21 days after serving it; or
o (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
 (2) In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires
o In the absence of bad faith, undue delay, or dilatory motive, repeated failure to cure deficiency, futility of amendment, or undue prejudice to opposing party—leave should be given (Foman)
What about Federal ammended pleadings before or after trial?
(b) AMENDMENTS DURING AND AFTER TRIAL.
(1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.
(2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move — at any time, EVEN AFTER JUDGMENT— to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.
IN FEDERAL COURT when does the ammended pleading relate back to the date of the original pleading?
Relation back is similar to the way texas works

(c) RELATION BACK OF AMENDMENTS.
(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading
when:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading; or
(C) the amendment changes the party or the naming o the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.
(2) Notice to the United States. When the United States or a United States officer or agency is added as a defendant by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and
(ii) are satisfied if, during the stated period, process was delivered or mailed to the United States attorney or the United States attorney’s designee, to the Attorney General of the United States, or to the officer or agency.
Federal Scheduling Orders

What if we are under a scheduling order and someone want to modify past the time allotted to ammend the pleadings?
Rule 15(a) declares that leave to amend shall be freely given when justice so requires, if the underlying facts or circumstances relied upon by a P may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.

It is within the discretion of the Dist Ct, but outright refusal to grant leave without any justifying reason appearing for the denial is not an exercise of discretion, it is merely abuse of that discretion and inconsistent with the spirit of the Fed Rules.
Who has the burden in showing why new pleadings should be allowed?
The party objecting to the amendments has the burden if there is no scheduling order in place.
GREENHALGH v. SERVICE LLOYDS INSURANCE COMPANY
TEXAS STATE COURT. 1990

• whether a trial court abuses its discretion by allowing a post-verdict amendment increasing the amount of damages in P’s pleadings to conform to the amount awarded by the jury when D presents no evidence of surprise or prejudice?
• NO – in fact, under TRCP 63 and 66, a trial court abuses its discretion when it refuses an amendment unless (1) the opposing party presents evidence of surprise or prejudice; or (2) the amendment asserts a new cause of action or defense, and thus is prejudicial on its face, and the opposing party objects to the amendment

• the burden of showing prejudice or surprise rests on the party resisting the amendment
• b/c P’s amendment raised no new substantive matters and because there was no showing of surprise or prejudice by D, the trial court properly granted leave to file the amendment
WHAT DOES IT MEAN when an ammendment is PREJUDICIAL ON ITS FACE?
the ammendment asserts a now coa or defense and is thus prejudicial on its face.

you still have to object, but you don't have to put on evidence of surprise.
CHAPIN & CHAPIN INC v. TEXAS SAND & GRAVEL CO
Tex. 1993

• whether the trial court abused its discretion in refusing CCI’s motion?
• YES – by adding a verified denial in this case, CCI did not change a single substantive issue for trial. CCI’s position throughout had been that it had already paid for all it got.

• when the amendment is procedural only, it does not result in surprise or prejudice (like Service Lloyds – adjusting damages to reflect evidence)
SOSA v. CENTRAL POWER & LIGHT
Tex. 1995

• NOV 17, 1993: summary judgment hearing set for this date
• NOV 10, 1993: without first obtaining leave of court, Sosas filed their 2d Amended Original Petition which removed the factual allegations forming the basis for D’s MSJ and adding the allegation that Sosa neither discovered nor should have discovered the nature of his injury until less than 6 months before his death
• trial court granted D’s motion to strike the amendment, leaving the Sosa’s with their first amended original petition as their only live pleading and granted D’s MSJ


• whether Rule 4 governs the computation of the time period is Rule 63 (providing that an amended pleading requires leave of court if it is filed within 7 days of trial?
• YES – Rule 4 governs, it applies to any period of time proscribed by the rules of procedure, thus, the Sosas filed their second amended original petition exactly one week before a scheduled summary judgment hearing. When Rule 4 is applied, the day on which the Sosas filed their amendment is not counted but the 7th day after it was filed is counted. This latter day is Nov 17, 1993, therefore the Sosas timely filed their 2d amended original petition and there was no basis for D’s MSJ

ex. trial date on a monday, when can we file an ammendment without leave? the preceeding Monday.
WAL-MART STORES INC v. MCKENZIE
Tex. 1999

• McKenzie sued Wal-Mart for wrongful discharge from the Tyler, TX store, allegedly in retalation for filing a workers comp claim and because he was African American
• jury found Wal-Mart liable for wrongful discharged, awarded P $50,000 in back-pay, $10,000 for past mental anguish, $5,000 for past lost credit reputation, $250,000 in exemplary and $141, 975 in attys fees
• P moved for judgment on the verdict
• D asserted for first time that former article 5221k, the controlling TX discrimination statute at the time P was initially fired in 1992 and at the time he filed suit, authorized only equitable relief and does not permit recovery for mental anguish, lost credit reputation, or exemplary damages
• trial court rendered judgment on the verdict
• Ct App held that D waived any objection to the compensatory and punitive damage awards because it failed to object to the submitssion of the damages issues to the jury
ISSUE
• whether D waived its objection to the compensatory and punitive damage awards? (P argues that D should have brought this up before the court submitted the case to the jury so P could have amended his pleadings to plead under Title VII which authorized recovery of comp and punitive damages)


• NO – D’s response to P’s motion for judgment on the verdict was timely and sufficiently specific to give the trial court an opportunity to resolve the legal issue before rendering judgment, additionally, neither TRCP 63 or 66 makes a distinction between pre-verdict and post-verdict amendments, thus the timing of D’s legal challenge did not affect the standards under which the court would determine whether P could have amended his pleadings to assert his federal claim. Thus P’s claim that the timing of D’s objection left him without recourse to cure any pleadings defect is without merit.
AMENDED PLEADINGS: LIMITATIONS AND RELATION BACK

When can an ammended pleading relate back?
If the new COA is out of the same transaction or occurence, it relates back even if a new coa is asserted.
Effecton Prior Pleadings

What efect does an ammended pleading have on the old pleadings?
they can be used as admissions of a party opponent and referred to in the current trial. No hearsay and no requirement that they be inconsistent to be used for impeachement purposes only.

Bay Area - mentions that they dropped suit against doctor.

usually addresses issues of credibility
Is relation back allowed for parties?

Johnson V Coca Cola

• NOV 30, 1980: P hurt
• SEPT 10, 1981: original petition for damages filed naming Coca-Cola Bottling Co of Greenville
• MAR 15, 1982: first ameneded petition – named Coca-Cola Bottling Co of Greenville and The Coca-Cola Co
• MAY 7, 1982: 2d amended petition – dropped Coca-Cola Co from the petition
• MAY 7, 1985: 3d amended petition – added Coca-Cola Co back as a D
• CCC filed MSJ on the basis of SOL
• trial court grants CCC MSJ
No! No relation back for parties.

New Parties do not arise out of the same transaction or occurance.

If you drop out a party by ammended pleadings it is just as if you had non-suited them and relation back is not going to save you.

HOLDING
• YES – an amended pleading supercedes and supplants all previous pleadings, therefore the CCC was no longer a party to the suit when the Ps filed their 2d amended petition, when the CCC was brought back into the suit, the applicable SOL had run. Thus, the defense of limitations, which was apparent from the pleadings, amply supported the summary judgment.
AMENDED PLEADINGS: SERVICE OF AMENDED PLEADINGS

ISSUE
• whether a nonanswering D must be personally served with a new or second citation if the P amends the original petition and alleges a new c/a or seeks a more onerous judgment in the amended petition?
• NO – TRCP 21a specifically, expressly and unambiguously provides that every pleading that is required to be served under Rule 21, other than the original citation and except as provided in these rules, may be served in several different ways—including certified mail. We think it is clear that a P who amends the petition can now serve the D without regard to whether the amendment seeks a more onerous judgment or adds a new cause of action by complying with the filing and serving requirements of Rule 21.

Note: if seeking DEFAULT JUDGEMENT after serving amended/supplemental pleading, then make sure actual service on the party of amended/supplemental pleading and certificate of service
SUPPLEMENTAL PLEADINGS: TEXAS COURT
TRCP 69. SUPPLEMENTAL PETITION OR ANSWER
Each supplemental petition or answer, made by either party, shall be a response to the last preceding pleading by the other party, and shall not repeat allegations formerly pleaded further than is necessary as an introduction to that which is stated in the pleading then being drawn up. These instruments, to wit, the original petition and its several supplements, and the original answer and its several supplements, shall respectively, constitute separate and distinct parts of the pleadings of each party; and the position and identity, by number and name, with the indorsement of each instrument, shall be preserved throughout the pleadings of either party.
TRCP 80. PLAINTIFF'S SUPPLEMENTAL PETITION
The plaintiff's supplemental petitions may contain special exceptions, general denials, and the allegations of new matter not before alleged by him, in reply to those which have been alleged by the defendant.
TRCP 83. ANSWER; ORIGINAL AND SUPPLEMENTAL; INDORSEMENT
The answer of defendant shall consist of an original answer, and such supplemental answers as may be necessary, in the course of pleading by the parties to the suit. The original answer and the supplemental answers shall be indorsed, so as to show their respective positions in the process of pleading, as "original answer," "defendant's first supplemental answer," "defendant's second supplemental answer," and so on, to be successively numbered, named and indorsed.
TRCP 98. SUPPLEMENTAL ANSWERS
The defendant's supplemental answers may contain special exceptions, general denial, and the
allegations of new matter not before alleged by him, in reply to that which has been alleged by the
plaintiff.
SUPPLEMENTAL PLEADINGS: FEDERAL COURT
FRCP 15. Amended and Supplemental Pleadings
(d) SUPPLEMENTAL PLEADINGS. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.
DEFENDANT'S PLEADINGS

MATTERS OF SUBSTANCE AND FORM
TRCP 83. Answer; Original and Supplemental; Indorsement
The answer of D shall consist of an original answer, and such supplemental answers as may be necessary, in the course of the pleading by the parties to the suit. The original answer and the supplemental answers shall be indorsed, so as to show their respective positions in the process of pleading, as “original answer,” “D’s first supplemental answer,” “D’s second supplemental answer,” and so on, to be successively numbers, named, and indorsed
In what order do you have to plead your defenses?
THEY CAN BE IN ANY ORDER EXCEPT THAT SPECIAL APPEARANCE AND MOTION TO TRANSFER VENUE MUST BE FIRST OR TIED FOR FIRST!!!


TRCP 84. Answer May Include Several Matters
The D in his answer may plead as many several matters, whether of law or fact, as he may think necessary for his defense, and which may be pertinent to the cause, and such matters shall be heard in such order as may be directed by the court, special appearance and motion to transfer venue, and the practice thereunder being excepted herefrom.
WHAT DEFENSES CAN YOU PLEAD?
NOT ABOUT ORDER, ABOUT WHAT IS IN IT

TRCP 85. Original Answers, Contents
The original answer may consist of motions to transfer venue, pleas to the jurisdiction, in abatement, or any other dilatory pleas; of special exceptions, of general denial, and any defense by way of avoidance or estoppel, and it may present a cross-action, which to that extent will place defendant in the attitude of a plaintiff. Matters in avoidance and estoppel may be stated together, or in several special pleas, each presenting a distinct defense, and numbered so as to admit of separate issues to be formed on them.
What is a general denial?
TRCP 92. General Denial
A general denial of matters pleaded by the adverse party which are not required to be denied under oath, shall be sufficient to put the same in issue. When the defendant has pleaded a general denial, and the plaintiff shall afterward amend his pleading, such original denial shall be presumed to extend to all matters subsequently set up by the plaintiff.

WORKS for all defensese except those that must be verified.
What if a party to a suit is served with a cross claim or counterclaim?
When a counterclaim or cross-claim is served upon a party who has made an appearance in the
action, the party so served, in the absence of a responsive pleading, shall be deemed to have pleaded a general denial of the counterclaim or cross-claim, but the party SHALL NOT BE DEEMED TO HAVE WAIVED any special appearance or motion to transfer venue. In all other respects the rules prescribed for pleadings of defensive matter are applicable to answers to counterclaims and cross-claims
VERIFIED PLEADINGS

What type of pleadings need to be verified?
TRCP 93. Certain Pleas to be Verified
A pleading setting up any of the following matters, unless the truth of such matters appear of record,
shall be verified by affidavit.
1. That the plaintiff has not legal capacity to sue or that the defendant has not legal capacity to be sued.

2. That the plaintiff is not entitled to recover in the capacity in which he sues, or that the defendant is not liable in the capacity in which he is sued.

3. That there is another suit pending in this State between the same parties involving the same claim.

4. That there is a defect of parties, plaintiff or defendant.

5. A denial of partnership as alleged in any pleading as to any party to the suit.

6. That any party alleged in any pleading to be a corporation is not incorporated as alleged.

7. Denial of the execution by himself or by his authority of any instrument in writing, upon which any pleading is founded, in whole or in part and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed. Where such instrument in writing is charged to have been executed by a person then deceased, the affidavit shall be sufficient if it states that the affiant has reason to believe and does believe that such instrument was not executed by the decedent or by his authority. In the absence of such a sworn plea, the instrument shall be received in evidence as fully proved.

8. A denial of the genuineness of the indorsement or assignment of a written instrument upon which suit is brought by an indorsee or assignee and in the absence of such a sworn plea, the indorsement or assignment thereof shall be held as fully proved. The denial required by this subdivision of the rule may be made upon information and belief.

9. That a written instrument upon which a pleading is founded is without consideration, or that the consideration of the same has failed in whole or in part.

10. A denial of an account which is the foundation of the plaintiff's action, and supported by affidavit.

11. That a contract sued upon is usurious. Unless such plea is filed, no evidence of usurious interest as a defense shall be received.

12. That notice and proof of loss or claim for damage has not been given as alleged. Unless such plea is filed such notice and proof shall be presumed and no evidence to the contrary shall be admitted. A denial of such notice or such proof shall be made specifically and with particularity.

13. In the trial of any case appealed to the court from the Industrial Accident Board: a bunch of shit
Are affirmative defenses plead in a general denial?
No, you have to specifically plead affirmative defenses.
DEFENDANTS PLEADINGS: TEXAS COURT PLEADINGS:

DEADLINE TO ANSWER

What must a citation contain?
. Issuance. Upon the filing of the petition, the clerk, when requested, shall forthwith issue a citation and deliver the citation as directed by the requesting party. The party requesting citation shall be responsible for obtaining service of the citation and a copy of the petition. Upon request, separate or additional citations shall be issued by the clerk.

b. Form. The citation shall
(1) be styled "The State of Texas,"
(2) be signed by the clerk under seal of court,
(3) contain name and location of the court,
(4) show date of filing of the petition,
(5) show date of issuance of citation,
(6) show file number,
(7) show names of parties,
(8) be directed to the defendant,
(9) show the name and address of attorney for plaintiff, otherwise the address of plaintiff,
(10) contain the time within which these rules require the defendant to file a written answer with the clerk who issued citation,
(11) contain address of the clerk, and
(12) shall notify the defendant that in case of failure of defendant to file and answer, judgment by default may be rendered for the relief demanded in the petition.
The citation shall direct the defendant to file a written answer to the plaintiff's petition on or before 10:00 a.m. on the Monday next after the expiration of twenty days after the date of service thereof. The requirement of subsections 10 and 12 of this section shall be in the form set forth in section c of this rule.
What notice must a citation contain that informs the defendant of the deadline?
c. Notice. The citation shall include the following notice to the defendant: "You have been
sued. You may employ an attorney. If you or your attorney do not file a written answer with
the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration
of twenty days after you were served this citation and petition, a default judgment may be
taken against you."

SUBJECT TO DEFAULT AT 10:01
How many copies are required?
d. Copies. The party filing any pleading upon which citation is to be issued and served shall
furnish the clerk with a sufficient number of copies thereof for use in serving the parties to
be served, and when copies are so furnished the clerk shall make no charge for the copies.
How much time do you have to answer if your case is remanded from federal court?
15 days from Notice by the plaintiff

TRCP 237a. Cases Remanded From Federal Court
When any cause is removed to the Federal Court and is afterwards remanded to the state court, the P shall file a certified copy of the order of remand with the clerk of the state court and shall forthwith give written notice of such filing to the attorneys of record for all adverse parties. All such adverse parties shall have fifteen (15) days from the receipt of such notice within which to file an answer. No default judgment shall be rendered against a party in a removed action remanded from federal court if that party filed an answer in federal court during removal.
BONEWITZ v. BONEWITZ
Tex. App.—Austin 1987

• H and W get a Virginia divorce
• W filed suit against H, a resident of Maryland, alleging that he failed to convey a parcel of TX real estate to the Bonewitz children as required by the divorce
• JAN 10, 1986: Process was served on the TX SOS
• JAN 15, 1986: SOS forwarded citation to Richard Bonewitz
• JAN 21, 1986: Richard receives citation
• FEB 4, 1986: Default judgment entered

ISSUE
• whether the trial court erred because the time period within which the nonresident D must answer should begin to run from the date the SOS actually forwards process to the D and not from the date service is made upon the SOS?
• NO – the SOS is an agent for service of process and service of process upon one who is an authorized agent for service of process constitutes constructive service upon the D, thereby beginning the time period within which the D must answer. We find nothing in the substituted service provisions of the LA statute to indicate that the legislature intended to alter this general principle. We hold that the service of process on the SOS constitutes constructive service on the nonresident D, thereby triggering the nonresident D’s answer date.
HBA EAST, LTD v. JEA BOXING COMPANY, INC
Tex. App.—Houston [1st Dist] 1990

• whether the trial court erred in entering a default judgment against them before their answer was due under TRCP 237a?
HOLDING
• YES – a default judgment cannot be granted against a D following a remand of a case from federal to state court until 15 days have expired from the D’s receipt of the remand notice from the P. In this case, the D’s never received the remand notice from the P; while they had constructive notice of remand, TRCP 237a expressly requires that, following remand, P shall give written notice of such filing to the atty of record for all adverse parties and then the adverse parties have 15 days within which to file an answer.
CONAWAY v. LOPEZ
Tex. App.—Austin 1994

• Pursuant to TRCP 99, deadline for filing an answer was 10am on the first Monday after the expiration of twenty days after the date of service
• MAY 25, 1992, was C’s appearance day, this day was a legal holiday
• MAY 26, 1992: 2:04pm; with no answer from C, trial court enters default judgment
• trial court denied motion for new trial and Austin Ct App denies appeal because C had not timely perfected it
• C files a writ-of-error appeal

ISSUE
• Whether the default judgment rendered against C should be set aside because it was rendered before his answer was due?
• YES – when a D’s Monday appearance day under TRCP 99 is a legal holiday, Rule 4 operates to extend the deadline TO THE END of the next day that is not a Sat, Sun or legal holiday. In this case, the default judgment rendered at 2:04pm on May 26, 1992 was improper b/c C’s answer was not due until the END of that day.
DEFENDANTS PLEADINGS: TEXAS COURT PLEADINGS:

DUE ORDER OF PLEADING
SPECIAL APPEARANCE CAN BE FIRST OR TIED FOR FIRST BUT CANNOT BE SECOND

we can put all of the defenses in one instruemnt, but if you seperate them, file the goddamn Special Appearance First.
What about MTV?
TRCP 86. Motion to Transfer Venue
(1) Time to File. An objection to improper venue is waived if not made by written motion filed prior to or concurrently with any other plea, pleading or motion except a special appearance motion provided for in Rule 120a. A written consent of the parties to transfer the case to another county may be filed with the clerk of the court at any time. A motion to transfer venue because an impartial trial cannot be had in the county where the action is pending is governed by the provisions of Rule 257.
Special Appearance Statute
A special appearance may be made as to an entire proceeding or as to any severable claim involved therein. Such special appearance shall be made by sworn motion filed prior to motion to transfer venue or any other plea, pleading or motion; provided however, that a motion to transfer venue and any other plea, pleading, or motion may be contained in the same instrument or filed subsequent thereto without waiver of such special appearance; and may be amended to cure defects.
ALLIANZ RISK TRANSFER (BERMUDA) LIMITED v. SJ CAMP & CO
Tex. App.—Tyler 2003

• AUG 16, 2002: at 5:03pm Allianz files a motion to transfer venue and at 5:04pm files a special appearance
• denied transfer and made finding that there was specific jurisdiction via the LA statute for torts committed in TX
• NO – when Allianz filed its motion to transfer venue and original answer at 5:03pm on Aug 16, it made its special appearance, filed in a separate instrument one minute later, a nullity. Thus, Allianz Bermuda has made a general appearance in this suit, thereby waiving its special appearance.

if they were filed at same minute → OK; rule just says can’t be filed “before”
SPECIAL APPEARANCES

TRCP 120a. Special Appearance
TRCP 120a. Special Appearance
1. Notwithstanding the provisions of Rules 121, 122 and 123, a special appearance may be made by any party either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process issued by the courts of this State. A special appearance may be made as to AN ENTIRE PROCEEDING OR AS TO ANY SEPERATE CLAIM involved therein. Such special appearance shall be made by SWORN MOTION (VERIFIED) filed prior to motion to transfer venue or any other plea, pleading or motion; provided however, that a motion to transfer venue and any other plea, pleading, or motion may be contained in the same instrument or filed subsequent thereto without waiver of such special appearance; AND MAY BE AMMENDED TO CURE DEFECTS. The issuance of process for witnesses, the taking of depositions, the serving of requests for admissions, and the use of discovery processes, shall not constitute a waiver of such special appearance. Every appearance, prior to judgment, not in compliance with this rule is a general appearance.


if you screw up your special appearance, you can amend it and cure defects

SA can be done on a claim-by-claim basis or as to the entire lawsuit
DAWSON-AUSTIN v. AUSTIN
Tex. 1998

• Whether Dawson entered a general appearance by filing an unsworn special appearance or by amending it only after it was overruled?
• Whether Dawson made a general appearance by filing a motion to quash service, a plead to the jurisdiction and a plead in abatement, all in the same instrument with the special appearance and all following the special appearance in the instrument, but none expressly made subject to the special appearance?
• Whether the motion for continuance and postponement filed by Dawson after Austin requested a hearing on the motions and pleas in Dawson’s special appearance constituted a general appearance?
• whether the trial court erred in granting a divorce without determining personal jurisdiction of the case?
• Whether Dawson, by asserting her motion to quash service of process at the conclusion of the hearing on her special appearance, made a general appearance before filing her amended special appearance the next day?
• whether dist ct erred in overruling Dawson’s amended special appearance?
• NO – under TRCP 120a, a motion to transfer venue and any other plead, pleading, or motion may be contained in the same instrument or filed subsequent thereto without waiver of such special appearance, thus, because Dawson’s motion and pleas fully complied with Rule 120a, they did not constitute a general appearance.
• NO – TRCP 120a states that pleadings and motions may be filed subsequent to a special appearance without waiver of such special appearance; the motion for continuance did not request affirmative relief inconsistent with Dawson’s assertion that the Dist Ct lacked jurisdiction; the motion was appropriate b/c Dawson was obliged to request that hearing of her motion and pleas be deferred until after the special appearance; thus her motion for continuance in now way constituted a general appearance.
• NO – where a trial court in a divorce proceeding has no personal jurisdiction over the respondent, the trial court has jurisdiction to grant the divorce, but not to determine the managing conservatorship of children or divide property outside the State of TX.
• NO – Austin’s counsel raised the motion to quash, and the court ruled it moot without a word from Dawson’s counsel, nothing else transpired before the filing and hearing of Dawson’s amended special appearance, thus the dist ct properly considered the special appearance on the merits.
EXITO ELECTROINCS CO v. TREJO
Tex. 2004

• whether the Rule 11 agreement waived Exito’s special appearance?
• whether the later motions (deposition and request for admissions modification) waived special appearance?
• whether the fatally defective affidavit waived Exito’s special appearance?
• NO – a D who files a Rule 11 Agreement extending the answer date did not seek affirmative action from the court or recognize that the action was properly pending and thus did not enter a general appearance. A Rule 11 agreement is not a plea, pleading or motion as described in TRCP 120a and is not in itself a request for enforcement or any other affirmative action by the trial court.
• NO – the issuance of process for witnesses, the taking of depositions, the serving of requests for admissions, and the use of discovery processes, shall not constitute a waiver of a special appearance. A nonresident D’s participation in the trial court’s resolutions of such discovery matters does not amount to a recognition that the action is properly pending or a request for affirmative relief inconsistent with the jurisdictional challenge.
• NO – as in Dawson-Austin, an unverified special appearance does not concede jurisdiction, if a D does not provide sufficient evidence in support of its jurisdictional challenge, the appropriate thing to do is deny the motion (trial court did here), the Ct App therefore erred in holding that a defective verification and affidavit resulted in a waiver of Exito’s special appearance.
D’s Actions – Dawson-Austin Factors
(1) does it invoke the court’s judgment
(2) did it recgnize action that was properly pending
(3) did it seek affirmative action from court

under 120a, discovery processes shall not constitute a waiver of such special appearnce, but this doesn’t give you free reign in discovery matters → just discovery related to personal jurisdiction
DEFENDANTS PLEADINGS: TEXAS COURT PLEADINGS:

MOTION TO TRANSFER VENUE

Wen is the proper time to file?
1. Time to File. An objection to improper venue is waived if not made by written motion filed prior to or concurrently with any other plea, pleading or motion except a special appearance motion provided for in Rule 120a. A written consent of the parties to transfer the case to another county may be filed with the clerk of the court at any time. A motion to transfer venue because an impartial trial cannot be had in the county where the action is pending is governed by the provisions of Rule 257.
HOW DO YOU FILE?
. How to File. The motion objecting to improper venue may be contained in a separate instrument filed concurrently with or prior to the filing of the movant's first responsive pleading or the motion may be combined with other objections and defenses and included in the movant's first responsive pleading.
What must the motion contain?
. Requisites of Motion. The motion, and any amendments to it, shall state that the action should be transferred to another specified county of proper venue because:
(a) The county where the action is pending is not a proper county; or
(b) Mandatory venue of the action in another county is prescribed by one or more specific statutory provisions which shall be clearly designated or indicated.

The motion shall state the legal and factual basis for the transfer of the action and request
transfer of the action and request transfer of the action to a specific county of mandatory or
proper venue. Verification of the motion is not required. The motion may be accompanied
by supporting affidavits as provided in Rule 87.
BY WHEN DOES THE COUT HAVE TO DECIDE A MOTION TO TRANSFER VENUE?
1. Consideration of Motion. The determination of a motion to transfer venue shall be made promptly by the court and such determination must be made in a reasonable time prior to commencement of the trial on the merits. THE MOVANT HAS A DUTY TO REUEST A SETTING ON THE MOTION TO TRANSFER. Except on leave of court each party is entitled to AT LEAST 45 DAYS NOTICE of a hearing on the motion to transfer. Except on leave of court, any response or opposing affidavits shall be filed AT LEAST 30 DAYS PRIOR to the hearing of the motion to transfer. The movant is not required to file a reply to the response but any reply and any additional affidavits supporting the motion to transfer must, except on leave of court, be filed NOT LATER THAN 7 days prior to the hearing date.
WHO HAS THE BURDEN IN ESTABLISHING A MOTION TO TRANsfer venue?
Party seeking transfer has burden
 Procedure
o All properly pleaded venue facts are taken as true, unless specifically denied by opposing party
o When a fact is contested, the party pleading the fact must submit supporting affidavits or otherwise make prima facie proof
 Motion is decided on pleadings, affidavits, and stipulations
 Only one motion to transfer venue will be heard
o This is so even if other defendants are subsequently joined, unless the subsequently joined defendant is asserting a mandatory venue provision that previous defendants could not have asserted
 Exception: a mtn to transfer venue due to inability to secure impartial trial can still be asserted (also cannot be waived by due order of pleading error)
What kind of proof is needed to establish venue?
. Proof.
(a) Affidavits and Attachments. All venue facts, when properly pleaded, shall be taken as true unless specifically denied by the adverse party. When a venue fact is specifically denied, the party pleading the venue fact must make prima facie proof of that venue fact; provided, however, that no party shall ever be required for venue purposes to support prima facie proof the existence of a cause of action or part thereof, and at the hearing the pleadings of the parties shall be taken as conclusive on the issues of existence of a cause of action. Prima facie proof is made when the venue facts are properly pleaded and an affidavit, and any duly proved attachments to the affidavit, are filed fully and specifically setting forth the facts supporting such pleading. Affidavits shall be made on personal knowledge, shall set forth specific facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify.
TRCP 88. Discovery and Venue
Discovery shall not be abated or otherwise affected by pendency of a motion to transfer venue. Issuing process for witnesses and taking depositions shall not constitute a waiver of a motion to transfer venue, but depositions taken in such case may be read in evidence in any subsequent suit between the same parties concerning the same subject matter in like manner as if taken in such subsequent suit.
TRCP 89. Transferred if Motion is Sustained
the cause shall not be dismissed, but the court shall transfer said cause to the proper court; and the costs incurred prior to the time such suit is filed in the court to which said cause is transferred shall be taxed against the plaintiff.
TRCP 255. Change of Venue by Consent
Upon the written consent of the parties filed with the papers of the cause, the court, by an order entered on the minutes, may transfer the same for trial to the court of any other county having jurisdiction of the subject matter of such suit.
TRCP 257. Granted on Motion
A change of venue MAY be granted in civil causes upon motion of either party, supported by his own affidavit and the affidavit of at least three credible persons, residents of the county in which the suit is pending, for any following cause:
(a) That there exists in the county where the suit is pending so great a prejudice against him that he cannot obtain a fair and impartial trial.
(b) That there is a combination against him instigated by influential persons, by reason of which he cannot expect a fair and impartial trial.
(c) That an impartial trial cannot be had in the county where the action is pending.
(d) For other sufficient cause to be determined by the court.
TRCP 258. Shall Be Granted
Where such motion to transfer venue is duly made, it shall be granted, unless the credibility of those making such application, or their means of knowledge or the truth of the facts set out in said application are attacked by the affidavit of a credible person; when thus attacked, the issue thus formed shall be tried by the judge; and the application either granted or refused. Reasonable discovery in support of, or in opposition to, the application shall be permitted, and such discovery as is relevant, including deposition testimony on file, may be attached to, or incorporated by reference in, the affidavit of a party, a witness, or an attorney who has knowledge of such discovery.
GENERAL VAENUE RULES

TCPRC § 15.002. Venue; General Rule

TCPRC § 15.005. Multiple Defendants

TCPRC § 15.020. Major Transactions: Specification of Venue by Agreement
b) For the convenience of the parties and witnesses and in the interest of justice, a court may transfer an action from a county of proper venue under this subchapter or Subchapter C to any other county of proper venue on motion of a defendant filed and served concurrently with or before the filing of the answer, where the court finds:
(1) maintenance of the action in the county of suit would work an injustice to the movant considering the movant's economic and personal hardship;
(2) the balance of interests of all the parties predominates in favor of the action being brought in the other county; and
(3) the transfer of the action would not work an injustice to any other party.
(c) A court's ruling or decision to grant or deny a transfer under Subsection (b) is not grounds for appeal or mandamus and is not reversible error.

In a suit in which the plaintiff has established proper venue against a defendant, the court also has venue of all the defendants in all claims or actions arising out of the same transaction, occurrence, or series of transactions or occurrences.

equal to or greater than $1 million =
b) An action arising from a major transaction shall be brought in a county if the party against whom the action is brought has agreed in writing that a suit arising from the transaction may be brought in that county.
(c) Notwithstanding any other provision of this title, an action arising from a major transaction may not be brought in a county if:
(1) the party bringing the action has agreed in writing that an action arising from the transaction may not be brought in that county, and the action may be brought in another county of this state or in another jurisdiction; or
(2) the party bringing the action has agreed in writing that an action arising from the transaction must be brought in another county of this state or in another jurisdiction, and the action may be brought in that other county, under this section or otherwise, or in that other jurisdiction.
Text of subsection effective until April 01, 2009
TCPRC § 15.066. Conflicts with RCP
this chapter controls
GEOCHEM TECH

• DEC 1993: GeoChem Tech sues GeoServ Co and Verseckes in Dallas County
• GeoServ files motion to transfer venue to Stephens County
• Verseckes filed motion to transfer to Van Zandt County where he is a resident
• Verseckes files amended motion to have case transferred to Stephens County claiming to be resident there too
• Before the Dallas County court rules on anything, GeoChem nonsuits the entire case and refiles in Van Zandt County against all Ds
• All Ds motion to transfer to Stephens County → granted; Stephens County court enters final judgment against GeoChem
• Ct App reversed and remanded, holding the case was properly transferred to Stephens County at least

• whether the case was properly transferred to Stephens County?
• NO – the trial court erred in transferring the case to Stephens County because venue in Van Zandt County was proper under TCPRC § 65.023. GeoChem never met its burden of proving that venue was proper in Dallas County, when he nonsuited the case, the venue facts alleged by Verseckes in his motion to transfer were taken as true under TRCP 87(3)(a) and became established when the nonsuit was filed. Finally, when GeoChem files its second suit in Van Zandt County, it did so in full compliance with the mandates of the venue statutes, the P has the first choice of proper venue and it cannot be transferred to another venue just because there is more than one proper venue.

under TRCP 86 – motion need not be verified

have to look at status of pleadings at point of nonsuit; if D has on file a motion to transfer venue, but not in form admissible for hearing purposes, then P nonsutis and there’s nothing more you can do

if you’re gonna file motion to transfer venue; make it verified; don’t give them an option to nonsuit


once the court has made a venue determination; right or wrong; that’s it and the D is entitled to enforce court’s ruling
DEFENDANTS PLEADINGS: TEXAS COURT PLEADIINGS:

MOTION TO TRANSFER FOR MULTIDISTRICT LITIGATION

Rule 13. Multidistrict Litigation
Know the basics
- MDL = panel of judges authorized to accept types of cases relating to subject matters which generate lots of cases (e.g.—asbestos)
- Cases can be transferred to the MDL panel for resolution of pre-trial matters
- If the case makes it past pre-trial, it is sent to the court it came from for trial
- MDL has authority to resolve dispositive motions and has sanction authority
- There are no effective time limits for a case pending in an MDL
- Generally, a trial ct must follow the MDL’s pre-trial rulings
TX GOVT CODE § 74.161. JUDICIAL PANEL ON MULTIDISTRICT LITIGATION.
(a) The judicial panel on multidistrict litigation consists of five members designated from time to time by the chief justice of the supreme court. The members of the panel must be active court of appeals justices or administrative judges.
(b) The concurrence of three panel members is necessary to any action by the panel.
DEFENDANTS PLEADINGS: TEXAS COURT PLEADINGS:

MOTION TO DISMISS FOR FORUM NON CONVENIENS
PI/WD claims → statutory FNC
all other claims → common law FNC

TCPRC §71.051. FORUM NON CONVENIENS.
General Principal behind FNC
Part of Dow that’s still good law: For FNC in the wrongful death and personal injury context, we look to Chapter 71 of the TCPRC. For FNC in all other contexts, we look to case law.
Statutory factors
In determining whether to grant a motion to stay or dismiss an action under the doctrine of forum non conveniens, the court shall consider whether:
(1) an alternate forum exists in which the claim or action may be tried;
(2) the alternate forum provides an adequate remedy;
(3) maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party;
(4) the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiff's claim;
(5) the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this state; and
(6) the stay or dismissal would not result in unreasonable duplication or proliferation of litigation.
Deadlines for statutor FNC
A request for stay or dismissal under this section is timely if it is filed not later than 180 days after the time required for filing a motion to transfer venue of the claim or action. The court may rule on a motion filed under this section only after a hearing with notice to all parties not less than 21 days before the date specified for the hearing. The court shall afford all of the parties ample opportunity to obtain discovery of information relevant to the motion prior to a hearing on a motion under this section. The moving party shall have the responsibility to request and obtain a hearing on such motion at a reasonable time prior to commencement of the trial, and in no case shall the hearing be held less than 30 days prior to trial.
In re Smith Barney
place of business in NY. Defendant moved for FNC.

Note: This is a non-WD, non-PI case. It arises out of the wrongful withdrawal from a joint venture.

One of the plaintiffs was a resident of Texas. How did that play into the FNC analysis?
Plaintiffs argued: “Rouw says that if there’s a Texas plaintiff, you have an absolute right to sue in Texas. Because one of us is a Texas corporation, FNC isn’t proper!”

Court said: Rouw is overruled. The fact that you have a Texas Π doesn’t prevent FNC from applying.

Court also said: TCPRC 71.051 doesn’t apply in this case. Rather, we look to the common law factors.

Point: The fact that you have a Texas plaintiff doesn’t prevent FNC from applying.
Common Law FNC factors:
Private factors:
1. relative ease of access to sources of proof;
2. availability of compulsory process for attendance of unwilling witnesses; and
3. enforceability of a judgment if one is obtained.

Public factors:
1. burden imposed upon citizens and courts of Texas in trying a case that has no relation to Texas;
2. general interest in having localized controversies decided locally; and
3. the interest in having a diversity case tried in a forum that is familiar with the law that must govern the action.

Rule: In the FNC context, there is a presumption in favor of the plaintiff’s choice of forum
IN RE GENERAL ELECTRIC CO
Tex. 2008
• DEC 2005: Richards was diagnosed with mesothelioma and filed suit in Dallas County against GE and 20 other companies, three of which were headquartered in TX
• case was transferred to the asbestos MDL court in Harris County
• 7 Ds moved for dismissal on FNC → Richards argued Ds did not meet burden of proof under TCPRC § 71.051 factors, and had not proved the existence of an adequate alternative forum b/c if his case was refilled in Maine, it would be removed (likely) and moved into MDL 875 where virtually nothing happens – so P argues he couldn’t try his case there, since no cases actually get tried.

HOLDING
• YES – under (1) and (2), Maine, and even MDL 875, come within the Legislature’s intent that the alternative forum be one “in which the claim or action may be tried”; under (3) whether maintaining the action in TX would work a substantial injustice to Ds – weighs strongly in favor of the claim being more properly heard in a forum outside TX; (4) Maine would have jurisdiction over all Ds as they have agreed to stipulate to jurisdiction or were otherwise subject under Maine’s long-arm statute; (5) key evidence and witnesses are located in Maine (outside TX’s subpoena power); the paper mill is in Maine, P’s treating physicians and family are in Maine → thus private interests weigh in favor of Maine; also Maine’s interest in the case is high as the State has an interest in ensuring its citizens are not exposed to hazardous materials; finally (7) dismissal would not result in unreasonable duplicate litigation b/c the Ds all request dismissal of the entire case, thus the extent to which hit litigation might be fragmented or duplicated lies in his hands, not those of the TX court. Thus, the trial court’s denial of the relators’ motions to dismiss violated the FNC statute and was an abuse of discretion.
DEFENDANTS PLEADINGS: TEXAS COURT PLEADINGS: MOTION TO DISMISS PURSUANT TO FEDERAL PREEMPTION

ISSUE
• whether Carter’s claim of a higher standard of child resistance at common law is compatible with the federal regulation under the CPSA?
• NO – the lighters were required to go through safety testing before being released on the market. Testing is not merely a safety floor, but a balancing of factors that ensure the product meets carefully described safety standards. A common law tort claim could impose duties that conflict with the federal regulatory scheme and therefore would stand as an obstacle to the accomplishment and execution of the full purpose and objections of Congress. Imposing a common law rule that would impose liability above the federal standard is contrary to the Commission’s plan and conflicts with federal law
• State laws may conflict with federal laws and be preempted in three ways
o (1) a federal law may expressly preempt state law

o (2) federal law or regulations may impliedly preempt state law or regulations if the statute’s scope indicates that Congress intended federal law or regulations to occupy the field exclusively.

o (3) state law is impliedly preempted if it actually conflicts with federal law or regulations because
(i) it is impossible for a private party to comply with both state and federal requirements; or
(ii) state law obstructs accomplishing and executing Congress’ full purpose and objectives.
• whenever a consumer product safety standard under this chapter is in effect and applies to a risk of injury associated with a consumer product, no State or political subdivision of a State shall have any authority either to establish or to continue in effect any provision of a safety standard or regulation which prescribes any requirements as to the performance, composition, contents, design, finish, construction, packaging, or labeling of such product which are designed to deal with the same risk of injury associated with such consumer product, unless such requirements are IDENTICAL TO THE REQUIREMENTS OF THE FEDERAL STATUTE

you’re arguing no SMJ due to FED PREEMPTION removing state court’s ability to hear case with proper SMJ
Motion to dismiss persuant to FSC

Auto Nation
In re Autonation: we honor people’s agreements in a forum selection clause, public policy does not outweigh allowing FL to hear the case b/c FL is where the case was first filed, there is connection to FL in the case and the parties agreed to settle their disputes there

• We have never held that fundamental Texas policy requires that every employment dispute with a TX resident be litigated in TX

If there is a forum selection clause, then the proper way to enforce that right is through a motion to dismiss
- TX policy favors enforcement of forum-selection clauses so long as they are freely bargained for
o Grounds for disregarding:
 Enforcement would be unreasonable or unjust
 Clause is invalid for fraud or overreaching
MOTION TO COMPELL ARBITRATION
Texas arbitration act has little significance because fed arbitration act is almost the same.

Fed arbitration act controls as long as the transaction involves interstate commerce (they almost always do).

Sets donw rules in cases where an arbitrtion clause dictates that you arbitrate
In re merryll lynch seperate issues
• Alaniz was injured in a refinery explosion, recovered $2MM and used Merrill Lynch, through its employee Medina to provide financial and investment services
• for each cash and investment account opened with Merrill Lynch, they agreed to arbitrate
• as part of the plan, the Alanizes set up an irrevocable life insurance trust with ML Trust Co, as trustee, which then purchased the variable life policy from ML Life Ins Co
• APR 2003: Alanizes sued ML Trust, ML Life, and Medina (but not Merrill Lynch)
• Ds moved to stay the litigation and compel arbitration → trial court denied
• 13th Ct Appeals denied mandamus



ISSUES
• Whether the claims with Medina must be arbitrated?
• YES – for two reasons (1) parties to an arbitration agreement may not evade arbitration through artful pleading, such as by naming individual agents of the party to the arbitration clause and suing them in their individual capacity, if a P’s choice between suing the corporation or suing the employees determines whether an arbitration agreement is binding, then such agreements have been rendered illusory on one side and (2) the substance of the Ps’ suit here is against ML, even though it has not been named as a party. While the Ps allege they are suing Median only for his actions while wearing his insurance agent hat, brokers do not change employers every time they sell someone else’s product, as there is no question Medina was acting in course and scope, if he is liable for the torts alleged against him, the ML is liable too.
• whether the claims against ML life and ML Trust Co must be arbitrated?
• NO – unlike a corporation and its employees, corporate affiliates are generally created to separate the businesses, liabilities, and contracts of each. Thus, a contract with one corporation—including a contract to arbitrate disputes—is generally not a contract with any other corporate affiliates. Of course, if two corporations are actually operated as one, many courts recognize an alter-ego exception that will bind one to the arbitration agreements of the other. Thus ML Trust and ML Life are not covered by the Ps arbitration agreements with ML.
• whether ML Trust and ML Life can compel arbitration through estoppel theory?
• NO – (1) The USSC has never construed the FAA To extend this far, they repeatedly hold that it is a matter of consent, not coercion; (2) while TX law has long recognized that nonparties may be bound to a contract under traditional contract rules like agency and alter ego, there has never been such a rule for concerted misconduct. Conspiracy is a tort, not a rule of contract law. While conspirators consent to accomplish an unlawful act, that does not mean they impliedly consent to each other’s arbitration agreements.
• whether the motion to stay should have been granted?
• YES – when an issue is pending in both arbitration and litigation, the FAA generally requires that the arbitration go first. Here, after the arbitration is completed, the Ps’ claims against ML Trust and ML Life can be litigated without infringing the arbitration agreement. In the interim, a stay of litigation ensures that the Alanized do not both have their contract and defeat it too.

under FAA → strong presumption against waiver of arbitration agreement

employee can enforce arbitration agreemenet against employer even though not a signatory
IN RE CITIGROUP GLOBAL MARKETS INC

ISSUE
• whether CGMI waived its right to arbitrate?
HOLDING
• NO, CGMI never opposed arbitration, nor did it expressly waive its rights, it reserved the right to request arbitration early on and so information the Nickells. Just because CGMI informed the Ns of how much discovery could be saved and filing motion to transfer to MDL, does not mean they waived arbitration right.

REASONING
• a party waived an arbitration clause by substantially invoking the judicial process to the other party’s detriment
• waiver is a legal question for the court based on the totality of the circumstances, and asks whether a party has substantially invoked the judicial process to an opponent’s detriment, the latter term meaning inherent unfairness caused by “a party’s attempt to have it both ways by switching between litigation and arbitration to its own advantage”


you don't waive your right to arbitrate by challenging jurisdictional issues, not merits.

you almost have to be on the eve of trial to waive arbitration

there have been cases where parties conduct full discovery and then seek arbtration and it has been ruled OK as long as it is not on the eve of trial
• Labatt food service does not provide worker’s compensation insurance for on the job injuries
• It provides an occupational injury plan that employees can elect to participate in
• Part of that plan included an agreement to arbitrate
• It also says that when an employee chooses this plan they elect to be covered under the plan “individually and on behalf of heirs and beneficiaries
• Dancy died from an asthma attack that happened while at work
• His parent’s and children filed a wrongful death action against Labatt
• Labatt responded by a motion for arbitration
• Beneficiaries argue they are not bound to arbitrate for two reasons: 1) they were not signatories to the agreement and 2) the entire agreement was void b/c the indemnity clause was a pre-injury waiver in violation of the Texas labor code
• What law to apply under the Federal Arbitration Act?
o We apply TX procedural rules
o Under the FAA state law governs whether the litigant agreed to arbitrate and federal law governs the scope of the arbitration clause
o Pending an answer from the Supreme Court, we decide to apply state substanative law and endeavor to keep it consistent w/ federal law
• RULE: nonsignatories to an agreement subject to the FAA may be bound to an arbitration clause when rules of law or equity would bind them to the contract generally (so would Dancy’s relatives be bound under TX law?)


o RULE: a decedent’s pre-death contract may limit or completely bar subsequent action of his wrongful death

ALSO - if you try to invalidate the contract as a whole, that has to go to the arbitrator too so you're fucked either way.
Motion to Quash

TRCP 122: Constructive Appearance
If the citation or service thereof is quashed on motion of defendant, such defendant shall be deemed to have entered his appearance at ten o'clock a.m. on the Monday next after the expiration of twenty (20) days after the day on which the citation or service is quashed, and defendant shall be deemed to have been duly served so as to require him to appear and answer at that time, and if he fails to do so, judgment by default may be rendered against him.

If you want to lock in date of service as being outside the SOL, then MTQ is a vehicle
o How/Why? B/c if service is quashed, then date of service is the day the order is signed
 To satisfy the SOL, must file w/in SOL & exercise ―due diligence‖ in service if service not met w/in SOL
 WREN -- This is that rare circumstance where you would want to use a motion to quash because it gets the case dismissed on SOL
 D needs to make sure the order to quash is signed before filing an answer
Ramirez v. Consolidated HGM

So why would you ever use a motion to quash? Why not just file your answer?....(see next case)

11/93: Date of injury.
8/95: Lawsuit filed.
9/95: Service made to “X, agent of corporation.” Service signed off on by Y.
11/98: Defendant files motion to quash.
6/01: Hearing on motion to quash. Court grants.
In this case, the defendant gained a basis for SJ! Limitations expired in 11/95, and because proper service hadn’t been made, the court held that the plaintiff had not exercised due diligence.
Plea to the Jurisdiction

TRCP 85: Original Answer; Contents
The original answer may consist of motions to transfer venue, pleas to the jurisdiction, in abatement, or any other dilatory pleas; of . . .

TCPRC 51.014: Appeal from Interlocutory Order
(a) A person may appeal from an interlocutory order of a district court, county court at law, or county court that:
(8) grants or denies a plea to the jurisdiction by a governmental unit…;

Interlocutory appeal is limited to this situation.
A plea to the jurisdiction should not be confused with a special appearance. A plea to the jurisdiction is a contest to the SMJ of the court. There is no due order of pleading requirement because SMJ can’t be waived. Thus, it can be raised for the first time on appeal.

Rule: When you are filing a plea to the jurisdiction, you are entitled to support it with evidence regarding the presence or absence of SMJ (but not evidence going to the merits of the case).
Texas Parks and Wildlife
if a plea to the jurisdiciton is raised, the trial cout should consider relevant evidence submitted by the parties when necessary to resolve the issues

TC has discreation whether to make the determination at a preliminary hearing or await a fuller development of the case. mindfu that it must be made as soon as practical