...MEANING OF PLEADINGS INTRODUCTION The present day system of pleadings in our country is based on the provisions of the Civil Procedure Code, 1908 supplemented from time to time by rules in that behalf by High Courts of the States. There are rules of the Supreme Court and rules by special enactments as well. For one, words ‘plaints’ and ‘complaints’ are nearly synonymous. In both, the expression of grievance is predominant. Verily, when a suitor files a statement of grievance he is the plaintiff and he files a ‘complaint’ containing allegations and claims remedy. As days passed, we have taken up the word ‘Plaint’ for the Civil Court and the word ‘Complaint’ for the Criminal Court. Order 6, R. 1 of Civil Procedure Code (C.P.C.) defines ‘pleading’. It means either a plaint or a written statement.’ With the passing of time written pleadings supplanted archaic oral pleadings. When reduced to writing the scope of confusion, for obvious reasons, was made narrower. In this we find the object of a pleading which aims at ascertaining precisely the points for contention of the parties to a suit. The rules of pleading and other ancillary rules contained in the Code of Civil Procedure have one main object in view. It is to find out and narrow down the controversy between the parties. The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them Provisions relating to pleadings in civil...
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...Attorneys for PlaintiffRANDY LAW | | SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO RANDY LAW, Plaintiff, v.PIPER REED, Defendant. | CASE NO. Lawyering Skills 1 Complaint Filed: August 31, 2012Trial Date: TBDDiscovery Cutoff: Motion Cutoff: | Plaintiff Randy Law, for his cause of action against Defendant Piper Reed complains and alleges as follows: PARTIES 1. Plaintiff Randy Law (“Plaintiff”) is a twenty-four year old student, at all times herein mentioned, is a third student at Thomas Jefferson School of Law (“TJSL”) and resides in the city of San Diego, county of San Diego, state of California. 2. Defendant Piper Reed, an individual, is a twenty-six years old student, and is and at all times herein mention is also a student at TJSL. 3. Defendant Thomas James was also present at the “Bar Review” at the Music House Bar. Thomas James is a first year student at TJSL, and shares a torts class with Misty Gold. 4. Misty Gold, also a first year law student at TJSL. Misty Gold shares a torts class with Thomas James. She resides in the city of San Diego, county of San Diego, and state of California. She was also present at the “Bar Review” hosted at the Music House Bar. 5. Melody Wright, a student at TJSL, year unknown, is roommates with Misty Gold. She is a witness to Misty Gold’s injury. 6. The student government of TJSL hosted a “Bar Review” event for TJSL students at the House Music Bar, located in downtown San Diego on Friday,...
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...Pleadings Reflective Paper I recently took part in a pleadings exercise which involved drafting an Application for the initial pleading of a Family Law court action. The experience has been extremely useful in helping me understand the requisite steps involved in the court process and understanding the importance of acquainting the court and the parties with the facts in dispute. Role of Lawyers: As I began the exercise, I became aware of the important role family lawyers play in defining the issues and problems between the couple with utmost precision and clarity. This ensures fair notice of the case that has to be met to the opposing party and assists the court in its adjudication. When completing the form, I also became aware of the specific, factual information required from the spouses. For example, the Application required the precise marriage and separation date, along with a disclosure of financial statements. However, I soon learned that this information is necessary for the court to understand the proposed claims and ultimately come to a conclusion as to the amount of support to be awarded. This disclosure of personal information involves a great deal of trust between the client and lawyer, reinforcing the important communication skills required from a family lawyer, as well as having a...
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...ATENEO CENTRAL BAR OPERATIONS 2007 Remedial Law SUMMER REVIEWER 3. Special Proceedings – remedy by which a party seeks to establish a status, a right, or a particular fact. CIVIL PROCEDURE CLASSIFICATION OF ACTIONS (A) As to nature ORDINARY ACTION Governed by rules. CIVIL ordinary SPECIAL CIVIL ACTION Also governed by ordinary rules but SUBJECT to specific rules prescribed (Rules 62 to 71). Special features not found in ordinary civil actions. RULE 1 GENERAL PROVISIONS Section 1. Title of the Rules The Rules of Court are not penal statutes. They cannot be given retroactive effect. They can, however, be made applicable to cases pending at the time of their passage and therefore are retroactive in that sense. Under the 1987 Constitution, the rule-making power of the Supreme Court has the following limitations: 1. It must provide a simplified and inexpensive procedure for the speedy disposition of cases; 2. Uniform for all courts of the same grade; and 3. Shall not diminish, increase or modify substantive rights (Art: VIII Section 5[5]). Section 2. In what courts applicable Section 3. Cases governed ACTION CLAIM An ordinary suit in a A right possessed by one court of justice. against another. One party prosecutes The moment said claim is another for the filed before a court, the enforcement or claim is converted into an protection of a right or action or suit. QuickT the prevention or redress ime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. of...
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...Chapter 7 Procedure The heart of procedure is trial. Three phases : the before the trial, during the trial and after the trial Philosophy is different in CLC and WLC WLC = they want a winner = they will go till the end of the case. CLC = to find a solution to solve the case => more steps in CLC before the trial : want to solve the case before it cames in front of the judge, as soon as possible, find an agreement 1. Before the trial = For all the countries ALL 1st step : Letter of claim : letter send by the claimant to the defendant with three things 1: explanation of the situation 2: what to do 3: if you continue I will forced to go to the court + within an amount of time Problems : you need to be sure that the defendant received the letter before suing and you need to set a delay (you have to stop within ) or you have to wait for a “reasonable time. “ If you have a copy its not an accepted proof because copy + BWP and it has to come by the other party => you have to bring a prove of acceptance (poste) two proof = one that you sent and one that it was accepted => both parties have to bring the paper because otherwhile you can prove that it was the actual content We assume that the claimant is right if the defendant cannot prove that the claimant is wrong A letter of claim can take any shape and be deliver any way as long as you can prove that you did it. ALL 2nd step : go to the court Claim form : fact + legal reason + ask for this to stop/money...
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...Company who request that this Honorable Court order plaintiff to amend his Complaint to clarify the uncertain, vague and ambiguous allegations made therein RESPECTFULLY SUBMITTED, ____________________________________ MICHAEL L. MULLIN # 9819 5163 General DeGaulle Dr., Suite 213 New Orleans, Louisiana 70131 Telephone: (504) 393-1811 Attorney for: Robert Williams, United Parcel Service, Inc. and State Farm Insurance Company CERTIFICATE OF SERVICE I do hereby certify that I have on this _______ day of _______________, 20__ served a copy of the foregoing pleading on counsel for all parties to this proceeding, by mailing the same by United States mail, properly addressed, and first class postage prepaid. ____________________________________ MICHAEL L. MULLIN UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA * TODD BROWN * Plaintiff, * V. * * No. CIV. 01-123 ROBERT WILLIAMS, UNITED * PARCEL SERVICE, INC. AND * STATE FARM INSURANCE * COMPANY...
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...of warranty; (2) manufacturers owed duty of care to purchaser to design and manufacture product that would be reasonably safe for its intended and reasonably foreseeable uses; and (3) whether leaky air conditioning unit that failed to cool on a hot day was dangerous was question for jury. Reversed and remanded. Howerton, J., filed dissenting opinion. West Headnotes [1] KeyCite Notes 307A Pretrial Procedure 307AIII Dismissal 307AIII(B) Involuntary Dismissal 307AIII(B)6 Proceedings and Effect 307Ak686 Matters Deemed Admitted 307Ak687 k. Well-Pleaded Facts. Most Cited Cases In ruling on motion to dismiss for failure to state cause of action, court must accept as true all well-pleaded facts in pleading attacked, as well as all reasonable inferences which can be drawn from those facts that are favorable to pleader. S.H.A. ch....
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...Memorandum Re: Complaint Drafting Exercise Individual Short Memo General Information Regarding Group Dynamic The complaint drafting assignment was a very interesting and valuable practical exercise for a number of reasons. I particularly enjoyed the opportunity to apply what we’ve learned thus far in the same manner as a practicing attorney. Working within a group also afforded each of us the opportunity to draw on each other’s strengths throughout the process. Although we discussed the elements of each claim at length, we did not disagree on whether to include or omit any of the suggested claims listed in the assignment. Subject Matter Jurisdiction - Federal Question We examined the issues of jurisdiction first. Count 1 of the complaint arises under the Indian Arts and Crafts Act of 1990. 25 U.S.C. §305(e). Count II of the complaint pertains to Federal Trademark dilution pursuant to 15 U.S.C. §1125(c). Both of the allegations arise under federal substantive law. Therefore, we determined that the court may exercise jurisdiction under 28 U.S.C. §1331. Additionally, we carefully crafted the wording of the complaint to comport with the well-pleaded complaint rule. Mottley. Subject Matter Jurisdiction - Diversity We also determined that the court would be able to exercise subject matter jurisdiction based on diversity under 28 U.S.C. §1332. Plaintiff Big Crow is a resident and citizen of South Dakota. The corporate defendant, Brewing Company, is incorporated in...
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...Litigation and ADR LAW/531 Litigation and ADR Litigation is the bringing, maintaining, and defense of a lawsuit (Cheeseman, 2013). The two forms of litigation are traditional and nontraditional. Before a trial ensues the pretrial process must take its course and is divided into pleadings, discovery, dismissals, pretrial judgments, and settlement conference. These events are followed by the trial proceedings and appeals, if applicable. Nontraditional litigation includes alternative dispute resolution (ADR). The most common form of ADR being arbitration (Cheeseman, 2013). Other forms include negotiation and mediation. It is up to management to determine which form of litigation is appropriate for the organization. A pleading is the paperwork that is filed with the court to initiate and respond to a lawsuit (Cheeseman, 2013). The pleading process involves a few steps, including: the complaints, the answer, the cross-complaint, and the reply. Every lawsuit begins with a complaint. After the complaint is filed with the court an answer must then be filed by the defendant. In some cases, a defendant may file a cross-complaint, or countersuit against the plaintiff. The plaintiff must then file a reply. During the discovery period, both sides go on a fact-finding mission to state and/or defend their cases. Once these steps are complete, the trial is ready to be heard. If the trial requires a jury, voir dire takes place, otherwise known as “jury selection”. At the onset of the trial...
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...Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 126749 August 21, 1997 ERIBERTO M. SUSON, petitioner, vs. HON. COURT OF APPEALS and DAVID S. ODILAO, JR., respondents. PADILLA, J.: The issue in this case is whether or not a party litigant, whose complaint has been dismissed by a Regional Trial Court due to improper venue, can seek an authorization from the Supreme Court thru the Deputy Court Administrator to re-file his complaint in the court of proper venue without payment of the prescribed docket fee. This is a petition for review on certiorari under Rule 45 of the Rules of Court to review the decision 1 of the Court of Appeals in CA-G.R. SP No. 37311 which dismissed petitioner's petition for certiorari assailing the order of the Regional Trial Court (Branch 6) Cebu City which denied his motion to dismiss for lack of merit. The facts are not in dispute. On 15 November 1993, private respondent Odilao filed a P5.15 million civil suit for damages against petitioner Suson before the Regional Trial Court of San Juan (Branch 26), Southern Leyte. Private respondent claimed that petitioner made false and groundless accusations of graft and corruption against him before the Office of the Ombudsman, and thereafter caused their publication in a Cebu-based local daily under the headline "ODILAO SUED FOR GRAFT." According to private respondent, Suson's machinations had cast dishonor, discredit and contempt upon his person which besmirched his reputation...
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... March 26, 2012 Robert Reimer Traditional Vs. Nontraditional Litigation According to Cheeseman (2010), “Litigation is a process of bringing, maintaining and defending a lawsuit.” The litigation process involves resolving disputes in the court by taking an argumentative approach to prove the point. The litigation process has different phases – pleading, discovery, dismissals, pretrial judgments, settlements conference. In the litigation process the court decided the case in which one party wins over the other or the case or dispute is dismissed. Many times the cases do not go to trial because the parties may decide to use Alternate Dispute Resolution (ADR). According to Cheeseman, (2010), “ADR are methods of resolving disputes other than litigation.” ADR methods include arbitration, negotiation, mediation, conciliation, mini-trial, and fact-finding. The discussion in this paper will compare and contrast between the traditional and nontraditional litigation. The process of traditional litigation starts by pleading in which a complaint is filed in the court by the plaintiff. The defendant is served with a summons and the copy of the complaint. The defendant is given a certain period to answer to the complaints filed by the plaintiff. The defendant can also file a counter compliant if he or she decides to countersue the plaintiff. After the complaints are files in court the next process is to proceed to pretrial...
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...FIRST DIVISION MYRNA P. ANTONE, Petitioner, -versus- LEO R. BERONILLA, Respondent. | G.R. No. 183824 Present: CORONA,C.J., Chairperson, LEONARDO-DE CASTRO,*DEL CASTILLO, andABAD,**PEREZ, JJ. Promulgated: December 8, 2010 | | | x-----------------------------------------------------------------------------------------x D E C I S I O N PEREZ, J.: Before us is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to nullify and set aside the issuances of the Court of Appeals in CA-G.R. SP No. 102834, to wit: (a) the Resolution[1] dated 29 April 2008 dismissing the petition for certiorari under Rule 65, which assailed the trial court’s Orders[2] dated 20 September 2007 and 6 December 2007 in Criminal Case No. 07-0907-CFM for Bigamy; and (b) the Resolution[3] dated 18 July 2008 denying the motion for reconsideration of the first resolution. The trial court quashed the Information on the ground that the elements of Bigamy were rendered incomplete after herein respondent presented documents to prove a fact, which the court believed would negate the allegation in the Information that there was a first valid marriage. The evidence presented showed that respondent later obtained a judicial declaration of nullity of the first union following the celebration of a subsequent marriage. The Antecedents On...
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...Court for judgment on the pleadings, pursuant to Civil Rule 12(C). In light of this Court's January 22, 2009 Decision and Entry Granting Defendant Wells Fargo N.A.'s Partial Motion to Dismiss, the only remaining claim asserted against Wells Fargo by Plaintiff, Apex Restoration, LLC ("Apex"), is its second claim, alleging unjust enrichment. However, construing all material allegations in the Complaint as true, Wells Fargo is entitled to judgment against Apex as a matter of law because Apex did not confer the benefit by which Apex claims Wells Fargo was unjustly enriched. The grounds for this motion are more fully set forth in the attached Memorandum. [Respectfully submitted,] MEMORANDUM I. STATEMENT OF THE CASE On May 30, 2008, Apex filed its Complaint in this case. The Complaint alleges three claims for relief--conversion, unjust enrichment, and breach of contract. Of these claims for relief, only the first and second--conversion and unjust enrichment--are pled against Wells Fargo. On January 22, 2009, this Court entered its Decision and Entry Granting Defendant Wells Fargo N.A.'s Partial Motion to Dismiss, thereby disposing of Apex's conversion claim for relief against Wells Fargo. Therefore, the only remaining claim for relief against Wells Fargo is for unjust enrichment. II. STATEMENT OF FACTS The following facts are taken exclusively from Apex's Complaint. They are presented here solely because, in this Motion for Judgment on the Pleadings, Apex is entitled to...
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...file suit, but is unfamiliar with litigation, and may be a tad naïve about the process. Describe, in general, the life of a lawsuit from beginning to end (what pleadings get filed, what is trial like, in general, etc.). Also, please describe the structure of the federal and state judicial branches (what courts are out there). Go on a brief tangent about alternative dispute resolution, and explain the process of mediation and how it differs from arbitration. Although there are different types of cases and each type has a different complexity level, most American courts follow a general procedure. . The person or group that initiates the lawsuit is called a plaintiff and the one being sued is the defendant. Except in criminal cases where the state files the complaint on behalf of the public. In this case the state is referred to as the prosecution but the accused is still referred to as the defendant. In equity cases the accuser is called the petitioner and the accused is the respondent. For the purpose of this explanation we will refer to the person or group that initiates the lawsuit as the plaintiff and the person or group that is being sued as the defendant. Once the plaintiff chooses to file suit, there are papers required in order to bring the situation before a court. These papers are called pleadings. The first of these papers will be the complaint itself. These papers are also referred to as a declaration, petition or bill of complaint. It must be filed with...
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...1. Explain what you think the role of a paralegal is in the litigation process. Reflect on your own personal skills and if you like litigation practice. The role of a paralegal in the litigation process is to provide a win-win solution to the cost of legal services as most people cannot afford the services of a lawyer. Paralegals engage in substantive legal work, the kind of work that lawyers do with certain limitations and prohibitions. Based on my own personal skills such as filing of small claims, paralegals are engaged in real legal work, provided as paralegals are appropriately supervised, the lawyers for whom paralegals work are able to engage in other legal work. I like litigation practice because paralegals are of service to the clients. Clients will receive a smaller bill when legal assistants are used effectively because the work of legal assistants is billed at a lesser rate than that of lawyers. The use of paralegals allows more members of society to be able to afford legal services, while at the same time allows employing lawyers at private law firms to increase their earnings. Paralegal is a highly demand profession which makes me reflect that litigation practice is a rewarding career. 2. As a paralegal what documents should you attempt to obtain before a lawsuit is filed during the informal fact-gathering stage? What sources are available to you to locate these documents? The attorney’s work product, now called “trial preparation materials.”...
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