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LA Civ Pro
Louisiana Civil Procedure
| Question | Answer |
|---|---|
| 5051 Liberal Construction | Don't hurt me with procedure (not and end in themselves) |
| 5059 Computation of Time | 1) Day of event does not count (unless prescription) 2) Last day counts unless legal holiday 3) Intervening legal holidays are included in count (unless it is less than 7 days, except replies for SMJ) |
| 851 Three Modes of Procedure | Ordinary, Summary, Executory |
| 682 Proper Plaintiff for Individuals | Competent major and competent emancipated minor |
| 683 Proper Plaintiff for Unemancipated Minors | Parental authority or tutorship |
| 684 Proper Plaintiff for Interdicts | Curator |
| 685 Proper Plaintiff for Decedent | Succession Representative (unless otherwise provided by law: survival action or substitution procedure) |
| 688 Proper Plaintiff for Partnerships | Capacity to sue in name of partnership (Partnership is named plaintiff) Be represented by an authorized partner |
| 690-692 Proper Plaintiff for Corporations, LLCs, and Insurers | Capacity to sue in name of business (Receiver for business in receivership) |
| 731 Proper Defendants for Individuals | Competent major and competent emancipated minor |
| 732 Proper Defendant for Unemancipated minor | Sue person with parental authority or tutor (2318 vicarious liability for parents) |
| 733 Proper Defendant for Interdicts | Sue curator (if none sue interdict but court will appoint attorney) |
| 734 Proper Defendant for Decedent | Succession Representative |
| 737-740 Proper Defendant for Partnerships, Corporations, LLCs | Can be sued in their names (Corporations must be represented by counsel; Non-lawyer corporate representative may not file appeal for corporation except narrow exception for court of limited jurisdiction) |
| 801 Voluntary Substitution | When a party dies and the cause of action survives, the legal successor may file an ex parte written motion with proof of quality (affidavit of death and relationship) |
| 802 Compulsory Substitution | On ex parte written motion of another party the court may order a summons of the legal successor |
| 804 Failure of Legal Successor to Appear | 1)Dismissal if decedent was plaintiff 2) If decedent was defendant and legal successor is not served with summons, court appoints an attorney to represent legal successor |
| Things to consider when deciding whether a person can sue: | 1) Procedural capacity 2) Statutorily required class (i.e. wrongful death) 3) Statutory requirements (i.e. medical review panel) 4) Right of action 5) Cause of action |
| 927(5) Peremptory Exception: No Cause of Action | No one can sue for what is claimed; it is not a legal claim (i.e. negligent spoliation, alienation of affections) -> no evidence can be introduced to support or controvert the motion |
| 927(6) Peremptory Exception: No Right of Action | Someone can sue for what is claimed, but your are not the proper plaintiff (i.e. wrongful death, survival action) -> Evidence is admissible at the hearing on the exception |
| 926(6) Dilatory Exception: Lack of Procedural Capacity | Waived if not raised in first pleading |
Created by:
edelee