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27 Cards in this Set
- Front
- Back
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Defendant's Pleadings (Overview)
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After being served with process, the D must appear in the court and respond to the lawsuit to prevent a default judgment. Usually this is done by filing an answer, which serves as the D's pleading giving the P fair notice of the D's position in the lawsuit.
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Defendant's Options
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1. Pre-Answer Pleadings (dilatory pleas) that delay or defeat an action without determining the merits. Ex. special appearances, MTVs, and other pleadings.
2. Answer: raising matters known as "pleas in bar" that seek a determination on the merits. But problems arise when defendant fails to follow the *due order of pleading rule.* 3. Consolidated response: a single, consolidated pleading raising both dilatory pleas and pleas in bar. Problems: due order of pleading rule. |
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Special Appearance - Challenging Personal Jurisdiction
When must it be filed? Consequences of failure to follow due order of pleading. Defendant actions that do not waive objection to jurisdiction. |
Under the due order of pleading, a special appearance must be filed before any other plea, pleading or motion by the defendant.
If defendant fails to comply with due order of pleading, defendant makes a general appearance, consents to jurisdiction, and waives all defects in service. By contrast, a "plea to the court's jurisdiction" challenges the court's subject matter jurisdiction, which is a non-waivable defect. Making discovery, subpoenaing witnesses, and appearing in person for the hearing on the special appearance may be done without waiving a special appearance. |
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What must the special appearance assert?
Burden of proof Forms of evidence Availability of appeal |
In Texas, the burden is on the defendant to negate the basis of personal jurisdiction. (Federal rules opposite).
The pleading should assert that D is not amenable to service of process and deny P's allegations concerning personal jurisdiction. The pleading must be verified (sworn affidavit). The forms of evidence that may be presented to the court in deciding jurisdiction are all discovery, affidavits, and (live) oral testimony. The granting or denial of a special appearance is an interlocutory order that may be immediately appealed. |
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Motion to Transfer Venue -- Challenging Venue
Substantive Law of Venue: General Rules Defendant is a Natural Person Defendant is a Corporation |
General rule: except as otherwise provided in sections dealing with mandatory exceptions or permissive exceptions, all lawsuits shall be brought:
In the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; If defendant is a natural person, in the county of the defendant's residence at the time the cause of action accrued; If defendant is not a natural person, in the county of the defendant's principal office in the state; or If none of the above applies, then in the county in which the plaintiff resided at the time of the accrual of the cause of action. In suits involving multiple defendants, if the plaintiff establishes proper venue against one defendant, it is proper as to all defendants in all claims arising out of the same transaction or series of transactions. |
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Mandatory and Permissive Venue
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The venue statute contains mandatory and permissive exceptions to the general venue rule:
Mandatory rules (12 exceptions): ex. actions involving land generally must be brought in the county of the situs. But a suit for specific performance to enforce a contract to convey land is not covered. Permissive rules (6 exceptions): breach of warranty by a manufacturer of consumer goods (suit proper in the county of the plaintiff's residence at the time the cause of action accrued); suit on a written contract (suit may be brought in county where the defendant is required to perform). |
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Venue Procedure: Motion to Transfer Venue
Step One: Plaintiff's Venue Pleading Step Two: Defendant's Motion to Transfer |
In the petition, plaintiff must plead the existence of cause of action and should plead venue facts that, if true, are sufficient to maintain the suit in the county where it is filed.
Under the due order of pleading rule, a motion to transfer venue must be filed before any other plea or pleading other than a special appearance. The motion will be waived for violating the rule. However, in a suit in which two or more defendants are joined, any act or omission by one defendant in relation to venue, including a waiver, does not operate impair or diminish the right of any other defendant to properly challenge venue. |
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Step Two: Defendant's Motion to Transfer (cont.)
What must defendant's motion to transfer venue assert? |
The defendant's motion to transfer must:
State that venue is not proper where suit is filed; Deny any venue facts in plaintiff's petition which defendant wishes to contest; Name the county to which transfer is sought and plead venue facts that support the county of requested transfer as proper; Identify the section of the venue statute making the requested county proper, and; Request a transfer to the specified county. |
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Step Three: Plaintiff's Reply to Defendant's MTV
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Plaintiff must file a response at least 30 days prior to the hearing on the motion to transfer venue. The response should present prima facie proof (affidavits and discovery materials) of matters specifically denied by defendant and specifically deny any of the defendant's pleaded venue facts which plaintiff wishes to contest.
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Other Motion to Transfer Venue Issues:
Burden of Proof Verified? Notice Required Decision-maker |
Defendant will have the burden of proof.
The motion to transfer does not need to be verified. Except on leave of court, each party is entitled to 45 days notice of a hearing on the motion. All venue challenges are decided by the court without the aid of the jury. |
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Appeal: General Rule
Appeal: Multiple Plaintiffs Motion to Change Venue Distinguished |
General Rule: no interlocutory appeal is allowed and a party must appeal the venue decision after a final judgment. The trial court's decision will prevail unless the appellate court finds "reversible error."
Multiple Plaintiffs: each plaintiff must independently establish proper venue, if challenged. An interlocutory appeal may be taken of a trial court's determination that a plaintiff did or did not independently establish proper venue. Motion to change venue: while the motion to transfer venue asks whether the trial court is the proper venue, the motion to change venue asks if there is such a prejudice against the defendant in the county of suit that the defendant cannot obtain a fair and impartial trial. |
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Motion to Quash -- Challenging Service
Availability Utility |
In a motion to quash, the defendant does not challenge the court's power over the defendant. Instead, the defendant challenges the procedure used to serve the defendant. A defendant may challenge defective jurisdictional allegations in the petition or defects in service of process or in the citation with a motion to quash.
The purpose of service is to give the defendant notice of the suit. If the motion to quash is granted, the defendant does not need to be re-served (he has notice). The moving party is required to file an answer by 10 AM on the first Monday after the expiration of 20 days from the date that the service or citation is quashed. |
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Pleas in Abatement -- Challenging the Suit
Ground One: Defect in the Parties |
This plea challenges the plaintiff's pleadings by alleging facts arising outside the petition that justify the suspension or dismissal of the case. A plea in abatement is based on either:
A defect in the parties (eg, capacity, non-joinder of a necessary party, improper party); Ex. P sues a convenience store, owned by a TX corporation. The corporation can assert its capacity to protect its officers, directors, and shareholders from personal liability by: (1) filing a verified denial (raises the issue) because it is not liable in the capacity in which it has been sued; (2) allege the same matters in a verified plea in abatement , which raises the capacity issue and asks the court to take action on the alleged defects. |
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Pleas in Abatement -- Challenging the Suit
Ground Two: Defect in Plaintiff's Allegations |
A defect in the petition's allegation (eg, pendency of another action involving the same parties or pendency of an administrative proceeding involving the same claim).
The plea identifies the impediment, the effective cure, and asks the court to suspend the lawsuit until the plaintiff has corrected the defect. |
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Special Exception -- Challenging the Pleading
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An objection to plaintiff's or defendant's pleading is made by special exception. The special exception may be based on:
Defects of substance related to the cause of action, defense, an element of damage, or relief which is not allowed by law (analogous to FRCP 12(b)(6)) Defects of form typically related to vagueness, ambiguity, and the like. A party specially excepting must object in writing, call for a hearing, and get a ruling on the exception on the record, otherwise it is waived. If the exception is sustained, the ruling will allow the party to amend the pleadings to correct the defect, if possible If the party elects not to amend the pleading, the opposing party can file a motion to dismiss or strike asking the court to dismiss or strike the defective allegation which the party refused to amend despite being given the opportunity to do so. |
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The Answer
Time to Respond |
The defendant must file an answer by 10 AM on the first Monday after the expiration of 20 days from the date the defendant was served with process. This rule applies to corporate as well as individual defendants.
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General Denial
Availability Effect Due Order of Pleading |
Availability: In Texas, a defendant may generally deny all of the plaintiff's allegations. The defendant's general denial need only state: "defendant denies each and every allegation in plaintiff's original petition."
Effect: A general denial puts in issue all matters not required to be denied under oath or specially denied. Due Order of Pleading: Special Appearance (to challenge personal jurisdiction), Motion to Transfer Venue (to challenge venue), Special Exception (to challenge generality of the pleadings), General Denial (to deny all plaintiff's allegations). |
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Special Denial
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When there is a condition precedent to the defendant's duties, it is sufficient if the plaintiff generally alleges that all conditions precedent have been performed or have occurred.
In order to challenge plaintiff's allegations, defendant must specifically deny those conditions that the defendant maintains have not been met. Unless the defendant specifically denies the conditions precedent, the plaintiff need not prove the matters, as her allegations are taken as true. |
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Verified Pleas
Five Affirmative Defenses Must Be Verified Denials and Abatements That Must Be Pleaded Under Oath: |
How: verification consists of signing an affidavit under oath to the effect that the factual matters pleaded are true. The affidavit should be made by the party.
(1) Contract is usurious; (2) No consideration; (3) Failure of consideration; (4) Denial of the execution of an instrument in writing; and (5) Denial of the genuineness of an assignment. Denials/Abatements Must Be Pleaded Under Oath: That the plaintiff lacks legal capacity to sue or defendant lacks legal capacity to be sued; A denial of plaintiff's properly filed sworn account action; and That there is another suit pending in Texas between the same parties involving the same action. |
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Affirmative Defenses
Definition: Confession and Avoidance Denials Distinguished Common Affirmative Defenses under TRCP 94 (name 5) |
An affirmative defense is any matter that provides an independent reason that, if proved by the defendant, will totally or partially bar the plaintiff from recovering, even if the plaintiff's allegations are true.
Affirmative defenses are distinct from denials, which directly negate and contest the allegations made by the plaintiff. Common Affirmative Defenses: accord and satisfaction, arbitration and award, duress, fraud, contributory negligence, payment, release, statute of limitations, and the statute of frauds. |
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Affirmative Defenses
Effect and Waiver Arbitration Clauses Distinguished |
Affirmative defenses must be pleaded by the defendant as a ground of defense. Defendant has the burden of proof on these matters and, if pleaded and evidence is produced, defendant is entitled to have affirmative defenses submitted as questions to the jury. (Recently tested)
The failure to plead an affirmatie defense waives that defense. However, an affirmative defense will be tried by consent if the opposing party fails to timely object to evidence introduced supporting the defense. Arbitration and award is an affirmative defense, but the contractual arbitration clause by itself provides a basis for filing a motion to compel arbitration. |
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Removal to Federal Court
Standard for Removal |
A case may be removed to federal court if the case could have been originally filed in federal court (e.g., the case presents a federal question or satisfies diversity of citizenship requirements).
Unanimity: removal is available only to the defendants, and, if there are multiple defendants, all defendants must join in the removal. |
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Removal to Federal Court
Diversity of Citizenship |
In order to satisfy the requirements of diversity of citizenship, the parties must be diverse and there must be a sufficient amount in controversy.
There must be complete diversity citizenship in that each plaintiff must be diverse from each defendant who is properly named as defendant. The amount in controversy must not exceed the sum of $75,000. |
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Removal to Federal Court
Determining Citizenship |
For individuals, citizenship is defined in terms of domicile.
A corporation has "dual" citizenship because it is deemed to be a citizen of any state by which it has been incorporated and of the state where it has its principle place of business. Both citizenships count for purposes of determining diversity of citizenship jurisdiction. A corporation's principle place of business is identified by determining the corporation's nerve center. |
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Limits on Removal
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Forum state rule: even if complete diversity exists, no defendant may be a resident of the forum state.
A case may not be removed on the basis of diversity of citizenship more than one year after the commencement of the action. |
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Removal Procedure
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The defendant must file a verified notice of removal in the federal district court;
The notice must be signed under Rule 11 of FRCP. Notice shall contain a short statement of why the case can be removed. A notice of removal must be filed within 30 days after the defendant is served in state court If the case stated by the initial pleading in state court is not removable, a notice of removal may be filed within 30 days after receipt by the defendant of an amended pleading or other paper from which it may first be ascertained that the case is one which is or has become removable; and After filing the notice, defendant must give written notice to all adverse parties and file a copy of the notice with the clerk of the state court. |
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After Removal: When Answer is Required
Motion to Remand |
If the defendant did not file an answer in state court before filing its notice of removal in federal court, the defendant must file its answer in federal court:
Within 21 days after receipt of the initial state court pleading; or Within 7 days after filing the notice of removal, whichever period is longer The plaintiff may challenge the defendant's removal by filing a motion to remand the case to state court. The plaintiff may allege that remand is proper because: The case could not have been originally brought in federal court (e.g., no federal question and no diversity); or That there has been a defect in removal procedure. When the motion to remand is based on a defect in removal procedure, it must be filed within 30 days after the filing of the notice of removal. If the challenge is lack of jurisdiction, it may be asserted at any time before final judgment. |
