Indiana Law Pleading And Practice

Front 1

JURISDICTION - definition

Back 1

(i) refers to the authority of a court

(ii) to hear a case

(iii) and render a binding judgment

TWO TYPES : Need Both -SMJ & PJ

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SUBJECT MATTER JURISDICTION

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SMJ - concerns the "TYPE OF CASE"

*granted by IN constitution and statutes

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PERSONAL JURISDICTION

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PJ - concerns the courts power over a "PARTICULAR PERSON OR ITEM OF PROPERTY"

Need:

(i) contacts w/ forum state

(ii) Proper notice of service of process

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CIRCUIT COURTS chaacteristics

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1. have original jurisdiction of

- All civil cases

- All criminal cases

Small Claims: *Just appearance no answer & constitutes a waiver of trial

(a) 6K or lesss (party asserting can waive)

(b) LL & T possessory

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SUPERIOR COURT characteristics

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1.has same original jurisdiction as that of circuit court (except: juvenile matters)

2. Is set by a particular statute

3. Also has a small claims division

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Transferring between Circuit and Superior two ways

Back 6

1. Transfer of Venue

2. Transfers between courts

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TRANSFER OF VENUE REQUIRES

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(i) any reason under law

(ii) more cases are filed in Sup. court than it can dispose of

(iii) early disposition is required

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TRANSFERRING BETWEEN CIRCUIT AND SUPERIOR REQUIRES

Back 8

(i) more cases are filed in Sup. court than it can dispose of

(ii) early disposition required

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Personal Jurisdiction: Limitations

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1. state statue

- Must grant court pwr to hear

2. constitutional limitation

Need:

- fair and adequate notice of action

- Must be minimum contacts

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Three types of PJ:

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1. in personam - power over plaintiff/ defendant

2. in rem - power over an item/property

3. Quasi in rem - power to determine whether individuals own specific property w/in courts control

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Traditional bases for PJ

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1. presence

2. domicile

3. consent (express or implied)

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Modern Bases for PJ

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" international shoe co. v. Washington" - focus today is whether sufficient minimum contacts exists between defendant and the forum state so as not to offend traditional notions of FAIR PLAY AND SUBSTANTIAL JUSTICE

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Modern trend - Standard

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1. Minimum contacts

(i) quantity and nature, (ii) connection with COA, (iii) Interest of the forum

a. Systematic and continuos

b. cause arising from in state activity

c. purposeful availment - knew or resonably should have known

2. reasonableness

a. states interest and litigants interest

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MODERN TREND MEORIZATION

Back 14

1- M (3) - (q/N) (C.COA) (IF2P)

a. S/C

b. C

c. P

2- R

a. interests

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LONG ARM STATUTE DEF

Back 15

A state court may excercsie in personam jurisdiction over a person only if (i) doing so satisfies the due process standard from modern trend and (ii) state authorizes exercise of jurisdiction over person outside of state

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LONG ARM STATUTE TRIGGERS - cause of action arises out of the following acts committed by that person or person's agent

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1. doing business

2. causing personal injury or property damage

3. supplying or contracting to supply services, goods, or materials

4. owning, using or possession of real property

5. (K)'s for insurance

6. marital relationship in IN

7. Abusing, harrasing, or disturbing peace or violation of a protection order in IN

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IN REM JURISDICTION Characteristics and constiutuional limitations

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it is binding as to the disposition of property

Constitutional limitations

* no jurisdiction if property is not located in the state

* no jurisdiction if brought into state by fraud or force

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Notice and service of process

Notice requires:

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(i) service of process (delivery of complaint and summons)

(ii) meet constitutional requirements of notice

due process:

*reasonable method of service

* notice reasonably calculated

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TRIAL RULE 4.1 Serivce of process can by made by:

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1. registered or certified mail

2. personal service - personally delivering

3. residence service - leaving summons at house or abode

4. service on agent

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TRIAL RULE 4.1 (C) who may be served when dealing with organizations?

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domestice and foreign organizations/corps

- executive officer

partnerships

- general partner

state gov. organizations

- executive office and attorney general

local gov. organizations

- executive officer

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Special service for :

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infants / incompetents

- guardian ad litem or court appointed rep

incarcerated

- service on institution

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Last resort service is called:

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Service by publication

Need:

REQUEST, CONTENT OF SUMMONS, PUBLICATION

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Service by publication: REQUEST -MUST CONTAIN

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affidavit showing diligent search has been made

1. person cannot be found

2. has concealed whereabouts

3. has left the state

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Service by publication : CONTENT OF SUMMONS

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i - name of Def.

ii- name of court

iii - title of action

iv - name / adress of P. counsel

v- clear statement that D. must respond within 30 days.

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Service by publication : PUBLISH req.

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3X in newspaper authorized by law

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once we have SMJ and PJ : __________ naturally follows

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VENUE

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VENUE characteristics

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1. largely a question of convenience

2. Any case may be "venued, commence and decided in any county in IN"

TRIAL RULE 75

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VENUE: Trial rule 75(A) tells us

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9 preferred venue counties : here are 6

1. Defendants reside

2. Where property is at

3. where collision occured

4. Defendants principle office - if organization

5. assigned by stipulation of parties

6. where party is held in custody

Front 29

How to transfer venue? Trial RULE 76

Back 29

parties may object to venue in a pleading or motion to dissmiss no later than 10 days after issues are closed on the merits (ex: B4 answer)

consideration - TRIAL RULE 76

1. county is a party

2. party can show unlikelyhood of fairness/bias

Front 30

COMMENCEMENT OF THE ACTION REQUIRES:

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(i) filing the complaint w/ the court

(ii) paying the fee

(iii) providing the clerk with necessary copies of summons and complaint

Front 31

what are pleadings?

Back 31

Pleadings set fourth parties claims and defenses under IN TRIAL RULE 7(a)

COMPLAINT

ANSWER

REPLY TO A COUNTERCLAIM
ANSWER TO A CROSS CLAIM
THIRD PARTY COMPLAINT
THIRD PARTY ANSWER

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all pleadings must contain:

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* caption with courts name and title of action

* case #

* kind of pleading

* signature

Front 33

Type of initial pleadings: Interlocutory injuctions (2)

****Key: these are brought b4 complaint****

Back 33

Interlocutory injunctions: (2 types) - equitable remedy by which a person is ordered to act or to refrain from acting

PRELIMINARY injunction

(i) likelyhood of sucess

(ii) remedy at law inadequate

(iii) threatened injury outweighs the harm

(iv) in public interest

TRO : Temporary restraining order (expires in 10 days)

(i) necessary to prevent irreparable harm

(ii) injury will result before preliminary injuction

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COMPLAINT : Definition + Requirements

Back 34

the complaint is

(i) the PRINCIPLE PLEADING of the P.

(ii) sets fourth CLAIMS and ALLEGATIONS

2 requirements

1. Short and plain statement

2. Demand for judgment

Front 35

PRE -ANSWER MOTIONS : TRIAL RULE 12(B)

"defenses that can be raised prior to the answer"

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(i) Lack of SMJ (raised at any time)

(ii) Lack of PJ (raised at time of answer or waived)

(iii) Improper venue

(iv) Insufficiency of Process

(v) insufficiency of service of process

(vi) same action pending in another IN court

(vii) failure to state a claim

(Viii) failure to join a party

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If no pre answer 12(B) defense is raised then the D. must answer in _________ after service .

if 12(B) is raised and court postpones or denies then D has _____ days to answer

Back 36

20 days

10 days

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What is an affirmative defense?

Back 37

an affirmative defense raises an issue that IF PROVEN will defeat P. even if allegation in compliant is true

1. accord and satisfation

2. arbitration and award

3. assumption of risk

4. contribut. negligence

5. discharge in bankruptcy

6. duress

7. estopple

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What is Trial rule (11) ? Purpose?

Back 38

Rule 11: requires every pleading or motion to be signed by attorney or party herself to certify.

Certification: means

a. attorney or party has read the doc

b. to thier knowledge there is good ground to support

c. document not interposed for dely

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When can a pleading be AMENDED?

Back 39

Pleadings may be amended 1X before responsive pleading is served

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Reasons to amend: 4

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1. relates back to same transaction, or occurance

2. changes party name Trial rule (15)(C)

3. When name of unknown party becomes known Trial rule 17(F)

4. to conform to evidence to reflect an issue actually tried

Front 41

PERMISSIVE JOINDER of PARTIES falls under rule ____, and requires (i) _________ & (ii)_________

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TRIAL RULE (20) - parties may join as plaintiffs or defendants

(i) same claim is made by each plaintiff and against each defendant relating or arising out of same series of occurrences or transaction

(ii) question of fact or law common to all

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JOINDER OF PERSONS NEEDED FOR ADJUDICATION falls under rule_________ and requires (i) _____ (ii)________ & (iii) _________

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TRIAL RULE (19) - a party is need for JUST ADJUDICATION if:

(i) complete relief cannot be given in her absence

(ii) disposition in her absence may impair her ability to protect interests

(iii) her absence would expose existing parties to a substantial risk or double or inconsistent obiligations

Front 43

JOINDER OF CLAIMS definition

Back 43

The indiana trial rules permit the adjudication of all claims between the parties and all claims arising out of a single transaction ;

* Need:

only that one claim arise out of a transaction in which all were involved

Front 44

COUNTER CLAIM definition

Back 44

Any claim asserted against a party who already has asserted a claim against the party asserting the counterclaim (def. asserts against plaintiff)

Front 45

COUNTER CLAIM Effect:

Back 45

counterclaim may defeat or diminish the recovery sought by P,or may win affirmative relief

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What is a COMPULSORY COUNTERCLAIM

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if D has a claim that arises out of the same transaction or occurance as P's claim the D's claim is compulorsory counter claim

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WHat is a PERMISSIVE COUNTERCLAIM

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Any claim asserted by D against P that (i) does NOT arise from same T/O as P's claim and (ii) falls within one of the execptions to the the compulsory counter claim

Front 48

What is cross claim ?

Back 48

TRIAL RULE 13(G) authorizes any claim by a party against a co-party to be asserted as a cross claim, need not be related

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what is an IMPLEADER

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TRIAL RULE 14 - A device whereby a D may bring in a PERSON not a party to the action who is or may be liable to him for all or part of P's claim against him.

ex: 3rd party D is liable to 3rd party P

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IMPLEADER DOES NOT APPLY WHEN:

Back 50

1. D asserts that he is not liable to P but rather 3rd party is

2. D asserts entirely unrelated claim against 3rd party

3. D asserts an individual claim or relief from ther 3rd party D not contingent on P's recovery

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what is INTERVENTION

Back 51

TRIAL RULE 24: When a non-party enters the case on his own motion

Front 52

what is a CLASS ACTION?

Back 52

TRIAL RULE 23 - when there is more than a few P's for same injury. all member of a class are bound:

Court considers

(i) interest of individual control

(ii) extent and nature o litigation elsewhere

(iii) desireability of having whole thing in court

(iv) level of difficulty managing

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PREREQUISITES FOR A CLASS ACTION

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N - so NUMEROUS joinder impractible

C - common question of law or fact

I - interest are typical of the class

_____________________________________________

1. risk of inconsistent results

**notice to all members required

Front 54

DISCOVERY DEFINITION AND PURPOSE

Back 54

DISCOVERY - A way for parties to obtain information regarding any matter that is related to the subject matter of the pending action

its purpose is to 1) prevent surprise 2) narrow the issues and 3) lead to settlement

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Presentation of discovery is divided into 4 parts

Back 55

1. scope

2. methods

3. supervision

4. use

Front 56

Scope of discovery includes:

Back 56

"any information reasonably calculated to lead ot admissible evidence"

Front 57

are insurance agreements discoverable?

Back 57

yes

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What is not discoverable?

Back 58

1. privileged matter

2. Trial Prep Material

- work product

* Exception: substantial need + undue hardship

- Attorney's opinions

- identities and views of experts informally consulted in preparation of trial

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METHODS OF DISCOVERY : 5

Back 59

1. depositions - TRIAL RULE (30) a party may depose by giving notice of time, place, and address

2. depositions to written q's - TRIAL RULE (31)

3. interrogatories (written qs) - TRIAL RULE (33) - written q's, under oath, leaving space ,30 days to answer

4. Mental/physical exams TRIAL RULE (35)

5. Request for admissions TRIAL RULE (36)

Front 60

DEPOSITIONS B4 ACTION or PENDING APPEAL

Back 60

A person wishing to perpetuate her own testimony or that of another regarding any matter, may, on verified petition, obtain and order for deposition TRIAL RULE 27

Front 61

EARLY DEPOSITION REQUIREMENTS

the pettition must show :

Back 61

1. petitioner expects to be a party

2. subject matter of expected action and interested

3. facts they wish to establish (ex before someone dies)

4. names or description of persons she expects to be adverse

5. name and address of persons to be examined

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Granting early deposition petition occurs WHEN:

Back 62

the petition satisfied that perpetuating the testimony described in petition may prevent a failure or delay of justice

Front 63

SUPERVISION OF DISCOVERY

Back 63

Discovery is designed to progress without court participation (extra-judicially) unless and until a party invokes the courts aid for protection, enforcement, or management

Front 64

Before a party files a motion to compel discovery or to protect themselves from discovery they must

Back 64

1. make a good faith effort to agree with opposing

2. include in the motion a certificate that such effort was made

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A responding party is protected from discovering party , and may invoke courts protection against the following:

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A - annoyance, embarassment, or undue burden

B - Beyond scope of discovery

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PUNISHMENT FOR FAILURE TO RESPOND TO DISCOVERY or court ordered discovery

Back 66

for failure to attend deposition, respond to interrogatories, or requests for production under trial rule 34 responding party may:

a. have facts taken as established against

b. be prohibited from supporting or opposing claims, defenses, or evidentiar propositions

c. have all or part of her pleading stricken

d. have the proceeding stayed

e. be dismissed or pay for expenses

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PRE-TRIAL CONFERENCES OBJECTIVE:

Back 67

Indiana may schedule one or more conferences before trial to accomplish a variety of objectives

1. settlement

2. simplification of issues

3. exchange of reports - from expert witnesses, medical reports, hospital records

4. other matters aiding in the disposition

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PRE- TRIAL conference rules

Back 68

1. 30 days notice from clerk of court

2. at least one attorney must attend/ appear

3. 10 days prior to conference attorneys must meet

4. sanctions for failure to participate

Front 69

WAYS TO TERMINATE TRIAL

Back 69

-12(B) motion to dismiss

- motion for judgement on the pleadings

- motion for summ. judgement RULE 56

or

P may obtain a default judgment RULE 55 for D's failure to appear, plead, defend or obey

P may obtain a voluntary dismissal of his action RULE 41(A)

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SUMM JUDGEMENT DEF

Back 70

Summ. Judgement will be granted where there appears to be no genuine issue of material fact and the moving party is entitled to judgment as a matter of law - TRIAL RULE 56

claimant may move for this anytime after 20 days from commencement, a Defendant can move at any time.

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RIGHT TO TRIAL RULE

Back 71

TRIAL RULE 38 :all parties have a right to a jury trial in all actions considered actions at law prior to 1852.

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DEMAND FOR JURY TRIAL

Back 72

TRIAL RULE 38: A party who desires a jury trial (on some or all issues) must file a timely written demand with the court and serve it on the parties within 10 days after first responsive pleading to a complaint otherwise it is waived.

Front 73

JURY SIZE AND COMPOSITION

Back 73

juries consist of 6 jurors and upto 3 alternatives

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challenges to the jury

Back 74

Each party may challenge a juror for cause if the juror has some relationship to a litigant or is biased - unlimited

and 3 peremptory challenges (race-neutral / gender neutral)

Front 75

Jury verdict : characteristics

Back 75

1. unanimous

2. one side or the other wins - no special verdicts

Front 76

TAKING A CASE from the JURY: is called ______________ on the______________

Back 76

JUDGEMENT on the EVIDENCE : TRIAL RULE 50(A)

when issues are not supported by sufficient evidence, or a verdict is clearly erroneous ct. must withdraw such issues and enter a judgment

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JUDGEMENT ON THE EVIDENCE - parties may move for this how and when?

Back 77

1. after another party has completed presentation

2. after all parties completed presentation of their evidence on an issue

3. after all evidence has been presented but before judgement

4. In a motion to correct errors

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NEW TRIAL

Back 78

TRIAL RULE 50 (C) - a court may grant a new trial in lieu of a judgement if it is impracticable, unfair, or improper

Front 79

POST-TRIAL MOTION TO CORRECT ERRORS

Back 79

TRIAL RULE 50(A)(4) - parties may assert a motion to correct errors that may have been made in the entering of the final judgement

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POST TRIAL MOTION TO CORRECT ERRORS: NEED: five things

Back 80

1. must be filed 30 days after entry of final judgement

2. it is not a pre requisite for Appeal if party seeks to address (1) newly discovered material or (2) claim that jury verdict is excessive or inadequate

Front 81

PRETRIAL MOTION TO CORRECT ERRORS:

Type of relief granted

Back 81

G - grant a new trial

E- enter final judgemnt

A - Alter, amend, or modify

A - amend for correct findings

A - alter amount of damages

G - grant other appropriate relief

Front 82

PRETRIAL MOTION TO CORRECT ERRORS:

If it is denied

Back 82

if this is denied you will know becuase if a court fails to set the motion for a hearing within 45 days after it was filed the motion is DEEMED DENIED

Front 83

TRIAL RULE (60) is - RELIEF FROM JUDGEMENT and there are 6 ways to get relief

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1. party suffered from mistake, surprise or excusable neglect

2. party presents newly discovered evidence that otherwise could not have been discovered in time to correct

3. adverse party engaged in fraud

4. judgement by default was entered a party who had no knowledge

5. judgement entered when party had no representation

6. justice requires relief from judgement

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APPELLATE REVIEW: RULE

Back 84

APPELLATE RULE 2(H) - generally only final judgments may be appealed - this includes

1. judgments that dispose of all claims as to all parties

2. Judgments directed by trial court

3. rulings on motions for relief from judgment

4. rulings on motions to correct errors

5. judgments deemed final by law

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NON JURY TRIAL ARISE WHEN?

Back 85

TRIAL RULE 52

* when no right to jury trial

* parties waive their right

Here: court decides both legal and factual issues

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RULE FOR INDIANA COURT OF APPEALS

Back 86

after trial court the next step is appellate court,

In all cases that are not appealed directly to the SUPREME court, appeals must be take to the court of appeals. Thus a vast majority of appeals from trial courts go to the court of appeals

Front 87

APPELLATE PROCEDURE

Back 87

1. Notice of appeal with clerk of trial court

2. filed after juwithin 30 days -dgment or courts motion to correct errors

3. or 30 days after motion to correct errors was deemed denied (remember 45 days no response = denial)

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Effects of judgments on future cases:

Back 88

RES JUDICATA - CLAIM PRECLUSION

COLLATERAL ESTOPPLE - ISSUE PRECLUSION

Front 89

RES JUDICATA - CLAIM PRECLUSION RULE:

Back 89

1. RULE: once a final judgment on the merits has been rendered the claimant is BARRED from asserting the SAME CAUSE of ACTION in a later law suit

Front 90

merger and bar distictions for RES JUDICATA

Back 90

1. merger = when claimant is P and wins

2. Barred = when claimant is D and wins

Front 91

RES JUDICATA : Requirement for merger/bar:

Back 91

earlier judgment is

F - Final

O - on the merits

S - Same cause of action is being involved in later law suit

(i) coa arsing out of same T/O

ex: personal injury claims from car accidents seeking separate damages.

Front 92

COLLATERAL ESTOPPEL: ISSUE PRECLUSION RULE

Back 92

A judgment for P or D is conclusive in a subsequent action on a different COA between them or their privies as to

(i) issues actually litigated &

(ii) essential to the judgment

in the first action

Front 93

WHO CAN SEEK COLLATERAL ESTOPPLE if they aren't parties?

Back 93

while persons neither parties or privies cannot be bound by a judgment they may be able to take advantage of , or assert, collateral estopple but typically they need compelling reasons.

Front 94

COLLATERAL ESTOPPLE FOR non- parties : who decides? how?

Back 94

The decision to use or not to use collateral estopple as a shield or as a sword is left to the discretion of the court; they use a 4 pt. test

Front 95

collateral estopple for non- parties : balancing test (4 pts)

Back 95

1. were issues IDENTICAL

2. were final JUDGMENTS ON MERITS

3. did party who judgment is against have FAIR OPP. to BE HEARD

4. is posture of the case such that it would NOT be UNFAIR or INEQUITABLE to a party to apply collateral estopple

Front 96

COLLATERAL ESTOPPLE - Result of balancing TEST

Back 96

* if all questions answered YES collateral estopple MAY BE ALLOWED but a court may still refuse.