Tx Bar 2008 Civpro

Front 1

Two requirements for diversity jurisdiction?

Back 1

$75,000 amt in controversy and complete diversity

Front 2

What are the requirements of removal?

Back 2

Could have been brought in fed court original, file motion to remove within 30 days of receiving service of process, & no defendant can be from the state in which suit is brought.

Front 3

When will the court grant remand?

Back 3

Remand to state court if there was a defect in removal procedure & plaintiff filed w/i 30 days after filing of the notice to remove.

Front 4

When can a plaintiff challenge a lack of jurisdiction in federal court? (same for defendant)

Back 4

Anytime before final judgment (so even raised for the first time on appeal)

Front 5

When are the elements of personal jurisdiction based on minimum contacts satisfied?

Back 5

(i) defendant purposefully did some act or consummated some transaction in Texas; (ii) cause of action either arises from that contact or the defendant has had systematic & continuous contacts and (iii) asserting jurisdiction won't offend the notion of fair play & substantial justice.

Front 6

How does a defendant challenge PJ?

Back 6

Files a sworn special appearance (remember must be first)

Front 7

At PJ hearing, what kinds of proof are admissible?

Back 7

all - any discovery, affidavits, or oral testimony

Front 8

What should a defendant file to contest the method of service of process?

Back 8

filing a motion to quash

Front 9

If the court sustains a motion to quash, what may the defendant do?

Back 9

Defendant now has 20 days from the day the service is quashed to file his answer. The other party doesn't need to re-serve.

Front 10

When should a defendant file a special appearance and when should he file a motion to quash?

Back 10

Special Appearance = lack of pj
Motion to Quash = challenges the process of service

Front 11

How does a plaintiff serve a resident defendant?

Back 11

Personal OR certified mailing

Front 12

If the plaintiff can not serve an in-state defendant personally or through registered mail - what may the plaintiff do?

Back 12

File a motion for substituted service - now may leave a copy of citation/petition w/ anyone over 16 years of age specified in the affidavit or by any manner that will reasonably give defendant notice of suit.

Front 13

How may a plaintiff serve an out of state defendant?

Back 13

Personal or Certified mailing (same as instate) OR use long arm statute

Front 14

How does a plaintiff use the long arm statute?

Back 14

Allege in petition that:
(i) defendant is non resident doing busi. in TX
(ii) doesn't maintain a place of reg. busi. in TX
(iii) doesn't maintain a designated agent in TX
SECRETARY of State then serves as an agent for the defendant.

Front 15

What does the Sect. of State send to prove service? What is in it?

Back 15

Sends a certificate to the court clerk - certifying he:
(i) received copies of the P & C
(ii) date of receipt
(iii) date he forwarded a copy of process to defendant via certified mail

Front 16

What is the consequence of plaintiff delaying service on defendant after filing petition? (note - filed to avoid statute of limitations)

Back 16

Lack of diligence = statute of limitations deemed to have run & suit barred

Front 17

When is a defendant's answer due?

Back 17

10 AM on first Monday after 20 days have expired - but even if late = still accepted w/o leave of court unless plaintiff has initiated no answer default judgment.

Front 18

When is an answer deemed timely filed?

Back 18

(i) properly addressed to district clerk;
(ii) proper postage attached;
(iii) deposited w/ US postal service

Hint 18

Mailing it

Front 19

What is the deadline for an answer in federal court?

Back 19

20 days or w/i 5 days after filing the notice of removal, whichever period is longer

Front 20

Where is venue permissive?

Back 20

(1) Brought in county in which ALL or SUBSTANTIAL part of events/omissions giving rise to the CLAIM OCCURRED
(2) IF defendant natural person = County where DEFENDANT RESIDES at time the cause of action accrued
(3) IF defendant is not natural person = defendant's principal office in this state
(4) DEFAULT: IF don't fall into any of those categories then where the plaintiff resided at the time of the accrual of the cause of action

Front 21

When may the court transfer?

Back 21

There is a mandatory venue location; current county is not proper; or convenience of parties/witnesses (is discretionary) IF:
(1) current venue = injustice to movant considering movant's economic & personal hardship
(2) balance of interests of ALL parties predominates in favor of action being brought in other county AND
(3)transfer of action would not work injustice to any other party

Front 22

Does venue have to be proper as to both defendants?

Back 22

No - Venue which is good against one defendant is good against all defendants properly joined.

Front 23

If one defendant does not contest venue and files a general denial, does that waive venue for any co-defendants?

Back 23

No - one defendant can not impair the other's right to contest venue.

Front 24

How many days must the motion to transfer venue be on file before a hearing?

Back 24

45 days

Front 25

What must a defendant alleges that motion to transfer venue, what type of proof is admissible and does defendant need to file any evidence w/ the motion?

Back 25

(1) Venue is not proper/another county has mandatory venue/should be transferred to another specified county of venue
(2) Court may consider affidavits and all forms of discovery except oral testimony. Defendant is not required to attach evidence to the motion!

Front 26

When does a plaintiff have to respond to a motion to transfer venue?

Back 26

30 days

Front 27

What should a plaintiff include in response to a transfer venue motion?

Back 27

(1) present prima facie proof by affidavits and any relevant discovery products of matters specifically denied by D, and must include a specific denial of any of the D's pleaded venue facts which P desires to contest.

Front 28

Motion to transfer to different county because of prejudice?

Back 28

Motion to Change Venue - couple with party's affidavit and 3 affidavits from residents of county of suit showing that there is such a prejudice

Front 29

Does the plaintiff have to plead the amount damages?

Back 29

If they are liquidated - yes; if they are unliquidated, just plead the jurisdictional amount.

Front 30

What may the defendant do if he wants the plaintiff to plead damages more specifically?

Back 30

File a special exception - requesting that the plaintiff amend and assert a specific amount in damages.

Front 31

Consequences of a general denial?

Back 31

(1) Plaintiff must now prove everything.
(2) No default judgment available.
Remember that if there was something the defendant had to specifically plead or deny under oath - general denial won't do.

Front 32

At what point must a party seek leave of court to file an amendment?

Back 32

If the amendment is made after the seventh day before trial. Otherwise, clerk must file when and the opposing party must bring a motion to strike the amendment.

Front 33

What may a party use to attack a defective pleading by an adverse party?

Back 33

Special exception - if sustained, right to replead. Failure to specially except before charge red to jury or judgment signed in a non-jury case = waiver of defect.

Front 34

May a plaintiff file a special exception?

Back 34

Yes! Available to both parties.

Front 35

If a party seeks leave of court to file an amendment, what must the objection party show?

Back 35

Amended pleadings =
(1) new cause of action or defense & is prejudicial on its face
OR
(2) Amendment causes surprise or prejudice

Front 36

What is the due order of pleading?

Back 36

(1) Special Appearance
(2) Motion to Transfer Venue
Anything else (General Denial; Motion to Quash Citation; Special Exceptions)

Front 37

What are the two types of forum non conveniens?

Back 37

(1) Code Forum Non Conveniens: for personal injury or wrongful death cases
(2) Common Law Forum Non Conveniens: for all other types

Front 38

When must a Code Forum Non-Conveniens be filed?

Back 38

180 days after motion to transfer venue is due (that's when the answer is due - 20 days)

Front 39

Can defendants file one answer together or do they need to file separately?

Back 39

May have on answer for all.

Front 40

Can a special exception motion require plaintiff to more specifically plead elements?

Back 40

Yes - elements and amount of damages sought.

Front 41

What may the court do if a plaintiff refuses to replead after special exception granted?

Back 41

(1) strike objectionable allegations
(2) if remaining allegations fail to state a cause of action = dismiss the suit.

Front 42

What procedural device may a defendant employ to turn one suit for two separate causes of actions into two or more?

Back 42

Motion to Sever.

Front 43

Must the court grant a motion to sever?

Back 43

No - discretionary

Front 44

What should a party do if they did not include a element/damages in pleading but did introduce the evidence at trial w/o objection?

Back 44

Seek leave of court to file a trial amendment - asserting the other party can not now claim surprise or prejudice because failed to object during trial (so had notice)

Front 45

If the suit is filed in one county and the defendant files a second suit in another county what should the plaintiff do?

Back 45

File a verified plea in abatement - asserting that the county of suit has dominant jurisdiction.

Front 46

Can a defendant make a general denial in federal court?

Back 46

No - must specifically deny/admit/claim lack of knowledge as to each allegation.

Front 47

When may a parent sue on behalf of their child? What are they called?

Back 47

File as "next friend" of the child. The parent can only do so where the parent is not an adverse party to the child's interest.

Front 48

If a parent is an adverse party to their child's interest and have brought suit as next friend, then what should the court do?

Back 48

Appoint a guardian ad litem.

Front 49

Can a defendant file a counterclaim against a parent who is suing solely as next friend of their child?

Back 49

No - the child is the proper party - parent is not open to suit.

Front 50

If a next friend settles on behalf of child, what must the court do?

Back 50

(1) approve the settlement (always true where minor involved)
(2) determine whether there is a conflict w/ the minor & parents - if there is, appoint a guardian ad litem.

Front 51

What should a defendant do if they believe another party is partly or solely liable to plaintiff for plaintiff's injuries?

Back 51

File a third party motion (impleader) asserting that the third party is either solely or partially responsible to the plaintiff.

Front 52

When must the defendant seek leave of court to implead a party?

Back 52

If more than 30 days have passed since the defendant filed his answer.

Front 53

What remedies are available against a defendant/party who makes a statement that is untrue in their pleading?

Back 53

Sanctions:
(1) striking defendant's answer
(2) preclusion of evidence
(3) contempt of court
(4) awarding costs & atty's fees

Front 54

What are the elements of a compulsory counterclaim?

Back 54

(1) court has jurisdiction over the claim
(2) claim has accrued at the time of pleading
(3) not be the subject of a pending action

Front 55

What must a defendant do when answering a petition that alleges all conditions precedent have been met?

Back 55

Must specifically deny each condition precedent; plaintiff must prove all the conditions precedent that defendant fails to specifically deny.

Front 56

What happens to a counterclaim when the plaintiff files a non suit?

Back 56

May proceed by itself.

Front 57

When may a plaintiff file a non suit?

Back 57

Absolute right to non suit up until it offers all of its evidence other than rebuttal.

Front 58

What is a sworn or open account?

Back 58

Petition must contain:
(1) systematic, itemized statement of goods/services sold to D
(2) reveal any offsets
(3) be supported by an affidavit stating claim is just and true and w/i affiant's knowledge

Front 59

How must a defendant respond to a sworn or open account petition?

Back 59

Sworn statement denying each and every item D asserts is not just and true. Failure to respond specifically and sworn statement precludes defendant from offering any defense. Sworn account may be a counterclaim.

Front 60

How may a defendant challenge a plaintiff's capacity to bring suit?

Back 60

File a verified plea in abatement.

Front 61

What are the two types of default judgments?

Back 61

(1) No answer default judgment
(2) Post answer default judgment

Front 62

What must a plaintiff prove in a no answer default judgment hearing?

Back 62

(1) negligent act proximately caused injuries
(2) prove injuries
(3) show court has SMJ
(4) D properly served
(5) petition states a valid cause of action
(6) time to answer has expired
(7) return of citation on file w/ court for 10 days not counting day of filing and day default judgment sought
GR: must prove damages but not the cause of action itself, D guilty

Front 63

What must a plaintiff prove in a post answer default judgment hearing?

Back 63

Everything, all issues/liability/unliquidated damages

Front 64

What must a defendant do to set aside a default judgment?

Back 64

File a motion for new trial w/i 30 days after judgment signed

Front 65

What must a defendant prove to resort to an equitable motion for new trial?

Back 65

(1) failure to answer not intentional/result of conscious indifference; was due to mistake/accident
AND
(2) set up a meritorious defense
(3) granting will occasion no delay/otherwise harm plaintiff

Front 66

What is the burden for summary judgment?

Back 66

Movant entitled to summary judgment as a matter of law (no reasonable minds could differ)

Front 67

What are the two ways to get summary judgment?

Back 67

(1) Conclusively prove each element in own case (ground of recovery/defense) AND negate an element of plaintiff's case or negating element of defendant's affirmative defense
(2) no evidence to support element/defense - after reasonable period of time for discovery

Front 68

How can a party fight off a summary judgment motion?

Back 68

Under either - raise a genuine issue of material fact

Front 69

When may a plaintiff bring a summary judgment motion? When can D?

Back 69

P = anytime after D appeared
D = at anytime - even before filing answer

Front 70

What types of proof can the movant use?

Back 70

(1) sworn affidavits based upon PK &
(2) any type of discovery other than oral testimony

Front 71

How many summary judgment motions may a party file?

Back 71

Unlimited.