Term
| What are the three types of procedure action can employ? |
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Definition
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Term
| Can you donate a cause of action? |
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Definition
No. but if its heritable, then it can be inhertied by the heirs.
Covert v. Liggett Group |
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Term
| If suit is filed in improper court or venue, prescription is interrupted only if ... |
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Definition
| defendant is served within the prescriptive period. |
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Term
| interruption of prescription does not occur if: |
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Definition
1. Plaintiff abandons
2. Plaintiff voluntarily dismisses the action
3. Plaintiff fails to prosecute at trial |
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Term
| When prescription is interrupted it begins to run anew from...? |
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Definition
| the last day of interruption |
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Term
| Can a person use a COA as a defense? |
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Definition
| yes. even if it has perscribed it may be used as a defense if it is incidental or connected to the obligation plaintiff seeks to enforce.(Except if it arise under Fed. Consumer Credit Protection Act) art. 424 |
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Term
| What does preclusion by judgment mean? |
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Definition
A party must assert all COAs arising out of a transaction or occurrence that is the subject matter of the litigation.
Exception for Divorce, comm. prop., contribution for spouse's education |
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Term
| Does suing one solidary obligor interrupt prescription against all? |
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Definition
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Term
| If an amendment to the COA is filed after prescription would have run for the action or defense, has the action or defense prescribed? |
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Definition
| Not if the amendment "relates back" to the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. |
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Term
| Would a completely new defendant be considered to relate back to original pleading? |
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Definition
probably not.
the court affirmed, finding that the final petition did not relate back to the original petition, thereby interrupting prescription, because it named a wholly new defendant. This was tantamount to the assertion of a new cause of action, and consequently did not relate back to the date of the filing of the original petition.
-Rideaux v. SCB |
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Term
| When is an action considered abandoned? |
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Definition
When parties fail to take any step in its prosecution or defense in the trial court for 3 years
-unless its a succession proceeding, which has been opened, executor opinionated or in which a testament has been probated. |
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Term
| When changing identity of defendant or adding new plaintiff what factors does the court consider? |
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Definition
1. Does the amended claim related back to the same conduct, transaction, or occurrence set forth in the original petition?
2. Defendatn must have actual or constructive notice of the suit or of the new plaintiff
3. Added party must be sufficiently related
4. Defendant must not be prejudiced in preparing a defense |
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Term
| How do you get an abandoned action thrown out of court? |
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Definition
1. File an ex parte motion, then the trial court will entered a formal order of dismissal
2. A motion to set aside the dismissal may be made only within 30 days of the date of the sheriff's service of the order of dismissal
3. An appeal of an order of dismissal may be taken only within 60 days of the date of the clerk's mailing of the order of denial. |
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Term
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Definition
When more than one suit is brought in more than one court between the same parties in the same capacities...
All but the first suit must be dismissed or if defendant does not except, first judgment will be conclusive of all.
Courts may stay in LA for the same case in another state |
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Term
| Can a cause of action be transmitted? |
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Definition
| Unless strictly personal, a COA may be transmitted to heirs and legatees. |
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Term
| Do obligations die with the obligor? |
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Definition
| No, creditors may sue the heirs through the succession representative |
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Term
| When can a single plaintiff cumulate actions based on different grounds against a single defendant? |
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Definition
If the action is within the court's juridiction and brought in the proper venue
AND
All of the cumulated actions are mutually consistent and employ the same form of procedure. |
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Term
| When can two or more parties be joined in the same suit as plaintiffs of defendants? |
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Definition
If ther is community of interest (same legal or factual issues)
Each cumulated action is within the court's juridiction and proper venue; and
all of the culumated actions are mutally consistent and employ the same form of procedure (executory and summary cannot be combined) |
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Term
| When does abandonment occur? |
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Definition
If at any stage in the proceeding 3 years passes without either party taking any steps in its prosecution or defense, the suit is deemed abandoned and will be dismissed.
-exception for succession proceedings |
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Term
| What is a step that would be considered to not abandon the case? |
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Definition
any steps in the prosecution or defense that bring the parties close to judgment
-discovery counts
-Subsutiting counsel does not. |
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Term
Prerequisites for a class action
(TONIC) |
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Definition
1. Numerosity - so many menebers joinder would be impractial
2. Commonality - there are questions of law and fact common to the class
3. Typical claims or defense - The claims or defenses of the representaitve parties are typical of the claims or defense of the class
4. Fair and Adequate Protection of interests
5. Objectively defined class
+A KICKER |
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Term
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Definition
1. Separate actions would create inconsistent or varying results or ind. adjucations would be dispostive/impair or impeded their ability to protect their interests
2. The party opposign the class refuses to act in a manner applicable to the whole class or
3. the questions of law and fact common to the member predominate over any questions affecting only individaul memebers and CA is most fair and effiecnet adj. the Court looks at
-Member's interst control
-extend of any litigation already commenced
-the desiability of concentrating litigation in a particular forum
-Possible difficulties in managing class
- Practical ability of indiviual class memebers to pursue their claims without class certification
- balance btwn the relief demanded and the costs of burdens of the litigation
4.Settlement request for Certification |
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Term
| How much time is allowed to certify a class? |
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Definition
| Motion to certify must be made within 90 days after service of the intial pleading on all adverse parties. |
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Term
| What is the effect of a class action judgment? |
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Definition
| Effects and concludes all members of the class, whether |
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Term
| When may ONE plaintiff cumulate against the same defendant |
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Definition
1. Actions within the court's jx and brought in the proper venue
AND
2. actions are mutally consistent and same form of procedure |
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Term
| When can many plaintiffs or many defendants cumulate actions? |
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Definition
Community of interest
Actions within court's jx and venue
Actually are mutually consistent and same form or procedure |
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Term
| When is lis pendens appropriate when multiple suits in LA |
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Definition
1. SUits pending in more than on court on same tranaction or occurence between same parties in the same capacities
All but the suit filed first is dismissed or it the defednant does not except, first final judgment shall be conclusive of all |
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Term
| When is lis pendens approperiate when a suit is brought in LA while another is pending in another state or federal court |
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Definition
| if same parties, traxn or occurence, in the same capaites, cour may stay proceedings in second pending the outcome of the first. |
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Term
| What is best practicable notice for classa actions suits? |
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Definition
| Individual notice to all members that can be identified. Must allows a time delay during which individual class members may opt out before commencement of trial. |
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Term
| Can a class action be dismissed or compromised? |
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Definition
Yes, but only with court approval of the court exercising jx over the class.
Notice of a proposed dismissal and terms of compromise have to be provided to all members of the class
The court must approve atty's fees and hold a fairness hearing. |
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Term
| What happens to prescription during a class action? |
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Definition
Liberative prescription is suspended on the filing of the petition as to all class members and begins when
(1) 30 days after exclusion
(2) 30 days afer suit is dismissed or certification denied |
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Term
| What is special about lis pendens for class actions? |
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Definition
defendant may have all suits transferred to
the district court where the transaction or occurrence happened
or
If the suits involve multiple related transactions or occurrences in different locations, defendant may have all suits transferred to the district court where the first suit
was brought |
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Term
| What's different about class actions forum non convienens? |
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Definition
Within thirty days after class certification, upon contradictory motion, a related putative class action may be transferred, in the interests of justice and for good
cause shown, to the district where the related action has been certified. |
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Term
| What does a petition for a derivative suit contain? |
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Definition
1. Property party - π must be shareholder/partner/member at the time of the allegation
2. Allege with particularity
3. Joining the corp as a defendant
4. Prayer
5. Verification by affidavit |
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