CIVIL PROCEDURECIVIL PROCEDURELEG 10390FLEG 10390F

The Indiana Trial RulesThe Indiana Trial Rules

Civil procedure Leg 10390f

Indiana Trial Rules

Ivy Tech Community College

Region 6 Muncie, Indiana

Instructor: Phillip R. Dawalt

Rule twoRule two

• There is only one form of Action, A There is only one form of Action, A “civil” Action.“civil” Action.

• A civil action is independent of any A civil action is independent of any public action (criminal action.)public action (criminal action.)

• A civil action can be brought in spite A civil action can be brought in spite of or in addition to any public action, of or in addition to any public action, (criminal action.) (criminal action.)

Rule ThreeRule Three

• Commencement of an Action:Commencement of an Action:

• A Civil Action is commenced by filing with the A Civil Action is commenced by filing with the court a “complaint or equivalent pleading or court a “complaint or equivalent pleading or document as specified by statute.”document as specified by statute.”

• A filing fee is required unless waived by the A filing fee is required unless waived by the court.court.

• A summons must also accompany the A summons must also accompany the complaint in number specified by the clerk.complaint in number specified by the clerk.

Rule 3.1Rule 3.1AppearanceAppearance

• Initiating party must file an appearance Initiating party must file an appearance which sets forth the name and address of which sets forth the name and address of the initiating party and attorney including the initiating party and attorney including email address if any.email address if any.

• The type of case must be specified.The type of case must be specified.• A statement regarding fax service.A statement regarding fax service.• In domestic relations, the names of any In domestic relations, the names of any

children should be set forth. (no full SSN)children should be set forth. (no full SSN)• Any related cases must be specified.Any related cases must be specified.

Rule 3.1 Responding or Rule 3.1 Responding or Intervening PartiesIntervening Parties

• Every responding party (defendant) or Every responding party (defendant) or intervening party shall also prepare and file intervening party shall also prepare and file an appearance in the same manner set forth an appearance in the same manner set forth above.above.

• A Standard form will be available from the A Standard form will be available from the clerk’s office.clerk’s office.

• Temporary appearance should be filed if an Temporary appearance should be filed if an attorney is only temporarily representing a attorney is only temporarily representing a party, but such reason shall be specified in party, but such reason shall be specified in the appearance.the appearance.

Appearance form Initiating Appearance form Initiating partyparty• APPEARANCE FORM ( CIVIL )• Initiating Party• Case Number:__________________________________ ( File Stamp)• ( To be supplied by Clerk at the time of filing )• / / Check if Pro. Se. Note: This form is not required for pro se protective orders.• 1.______________________________________________ 2.______________________________________• Name of first initiating party Telephone of pro se initiating party• ( Supply names of additional parties on continuation page.)• 3. Attorney information ( as applicable for service of process ):• Name______________________________________ Atty Number:____________________________• Address_____________________________________Telephone:______________________________• ____________________________________________FAX:___________________________________• ____________________________________________• ( Supply information for additional attorneys on continuation page. )• 4. Case Type requested:______________________________5. Will accept FAX service: Yes____ No____• [ See Administrative Rule 8 (b) (3)]• 6. Social Security numbers of all family members in proceedings involving support issues.• Name:________________________________________SS#___________________________• Name:________________________________________SS#___________________________• Name:________________________________________SS#___________________________• Name:________________________________________SS#___________________________• (Supply social security numbers for additional persons on continuation page.)• 7. Are there related cases? Yes____ No ____ If yes, list case and number below:• Caption:____________________________________ Case Number ___________________• Caption:____________________________________ Case Number ___________________• ( Supply information for additional related cases on continuation page. )• 8. Additional information required by state or local rule:____________________________________________• __________________________________________________________________________________________• __________________________________________________________________________________________• __________________________________________________________________________________________• __________________________________________________________________________________________

Rule 4 ProcessRule 4 Process

• Jurisdiction over persons: the court Jurisdiction over persons: the court acquires jurisdiction over the person of acquires jurisdiction over the person of a party when they are properly served a party when they are properly served by summons or enters an appearance.by summons or enters an appearance.

• Along with a complaint the initiating Along with a complaint the initiating party must prepare a summons in party must prepare a summons in sufficient copies and furnish these to sufficient copies and furnish these to the clerk for service on adverse parties.the clerk for service on adverse parties.

Form of summons in civil Form of summons in civil cases:cases:• SUMMONS• ________________________________ THE STATE OF INDIANA• ________________________________ DELAWARE COUNTY CIRCUIT COURT NO._____• ________________________________ Muncie, Indiana• Plaintiff• VS. Cause No.__________________________________• ________________________________• ________________________________• ________________________________• Defendant• To Defendant ________________________________________________________________________• __________________________________________________________________________________________• You have been sued by the person (s) named “Plaintiff” in the Court stated above for _______________• _________________________________________________________________________________________.• The nature of the suit against you is stated in the complaint which is attached to this document. It also• states the demand which the Plaintiff has made and wants from you. ¹• You must answer the Complaint in writing, by you or your attorney, within twenty (20) ² days• commencing the day after you receive this summons, or a judgment will be entered against you for what the• plaintiff has demanded.• If you have a claim for relief against the Plaintiff arising from the same transaction or occurrence, you• must assert it in your written answer.• The following manner of service of summons is hereby designated: _____________________________• Date: _________________ __________________________________________• Clerk of the Delaware County Circuit Court No. ___• ________________________________• Attorney for Plaintiff• ________________________________• ________________________________• Address• ________________________________• Telephone• 1. If the complaint is not attached, a copy is available for you in the Office of the Clerk of said Court.• 2. Or, if the summons is served by registered or certified mail, within twenty-three (23) days.

Manner of Service:Manner of Service:

• There are three basic types of service:There are three basic types of service:• Personal Service including personal service Personal Service including personal service

and copy service. Copy service requires and copy service. Copy service requires leaving one copy at the last known address leaving one copy at the last known address and mailing a copy by regular US Mail.and mailing a copy by regular US Mail.

• Certified mail serviceCertified mail service• Service by Publication, only after all other Service by Publication, only after all other

means is exhausted and by affidavit that means is exhausted and by affidavit that the last known address of the Defendant is the last known address of the Defendant is unknown.unknown.

Rule 4.2Rule 4.2Service on infants or Service on infants or incompetentsincompetents• If a person is known to be a minor or If a person is known to be a minor or

infant than the service must made infant than the service must made upon the next of kin or guardian.upon the next of kin or guardian.

• If a person is known to be an If a person is known to be an incompetent then service should be incompetent then service should be had upon the guardian appointed by had upon the guardian appointed by the court or such other person as the the court or such other person as the hospital where the person is confined.hospital where the person is confined.

Duty to Inform the CourtDuty to Inform the Court

• Every Party has a duty to inform the court of Every Party has a duty to inform the court of information that the adverse party is information that the adverse party is incompetent or a minor child.incompetent or a minor child.

• Rule 4.4 actions taking place in this state or Rule 4.4 actions taking place in this state or having effect in this state.having effect in this state.

• If a nonresident commits an act in this state If a nonresident commits an act in this state or commits and act which takes effect within or commits and act which takes effect within this state submits to the jurisdiction of the this state submits to the jurisdiction of the courts of this state (Long Arm Statute)courts of this state (Long Arm Statute)

Rule 4.4b Manner of ServiceRule 4.4b Manner of Service

• Service may had on non residents in the Service may had on non residents in the same manner as with state residents andsame manner as with state residents and

• In addition, if no other means is available, In addition, if no other means is available, by service on the secretary of the State of by service on the secretary of the State of Indiana.Indiana.

• Out of State residents may request the Out of State residents may request the court to transfer the case to a court of court to transfer the case to a court of more convenient forum. (Federal Court?)more convenient forum. (Federal Court?)

• Or out of state residents may argue that Or out of state residents may argue that the case should be dismissed as being the case should be dismissed as being improperly filed in the wrong state. improperly filed in the wrong state.

Rule 4.9 In rem actionsRule 4.9 In rem actions

• An in rem action is when the Plaintiff is only An in rem action is when the Plaintiff is only interested in the property of a defendant. A interested in the property of a defendant. A good example is a person who files good example is a person who files bankruptcy.bankruptcy.

• Although the person who filed bankruptcy Although the person who filed bankruptcy cannot be sued, the real estate he owns can cannot be sued, the real estate he owns can be sued in an “in rem” action.be sued in an “in rem” action.

• Service is had as with any other case upon Service is had as with any other case upon anyone who may be interested in the “res,” or anyone who may be interested in the “res,” or land.land.

Rule 4.12 Rule 4.12 Service by Sheriff or othersService by Sheriff or others• The Sheriff or any officer of the court may The Sheriff or any officer of the court may

serve any papers or documents in any case.serve any papers or documents in any case.• In addition a person may be designated by the In addition a person may be designated by the

court as a qualified person to serve papers.court as a qualified person to serve papers.• In large cities, private “process servers” are In large cities, private “process servers” are

often authorized to serve documents because often authorized to serve documents because the sheriff is too busy doing other things.the sheriff is too busy doing other things.

• In cases with a private process server, the In cases with a private process server, the plaintiff is responsible to pay the additional plaintiff is responsible to pay the additional costs of service by the process server.costs of service by the process server.

Rule 6 TimeRule 6 Time

• Calculating Time:Calculating Time:• Never start on the day the event first Never start on the day the event first

happened.happened.• For example if a person is served with a For example if a person is served with a

summons on the 1summons on the 1stst and they have 23 days to and they have 23 days to respond, start counting on the second.respond, start counting on the second.

• Never count Saturday, Sunday or holidays as Never count Saturday, Sunday or holidays as the last day.the last day.

• So if the 23So if the 23rdrd day is Sunday then the Defendant day is Sunday then the Defendant has until the end of business Monday.has until the end of business Monday.

Diary the event on the Diary the event on the calendar:calendar:SunSun MonMon TuesTues WedWed ThuThu FriFri SatSat

1 1 XX 22

33 44 55 66 77 88 99

1010 1111 1212 1313 1414 1515 1616

1717 1818 1919 2020 2121 2222 2323

2424 25 25 XX 2626 2727 2828 2929 3030DEFAULT DEFAULT JONES V.JONES V.

SMITHSMITH

Rule 6B Enlargement of Rule 6B Enlargement of timetime• The Court may upon good cause shown extend The Court may upon good cause shown extend

the time for any act to be performed.the time for any act to be performed.• However, generally, the request or motion However, generally, the request or motion

must be filed before the act is due to be done.must be filed before the act is due to be done.• Service of other pleadings shall be completed Service of other pleadings shall be completed

within twenty days after the original motion is within twenty days after the original motion is filed unless otherwise ordered.filed unless otherwise ordered.

• Divorces must be pending for over sixty days Divorces must be pending for over sixty days before a final hearing can be held.before a final hearing can be held.

Rule 7 Pleadings and Rule 7 Pleadings and Motions Motions

• Pleadings include a complaint, and Pleadings include a complaint, and answer, a counterclaim and reply.answer, a counterclaim and reply.

• A cross claim and answer, a third A cross claim and answer, a third party complaint and answer, party complaint and answer,

• Motions are applications to the court Motions are applications to the court for written orders.for written orders.

• Demurrers are abolished.Demurrers are abolished.

Rule 8 General Rules of Rule 8 General Rules of Pleading:Pleading:• A claim for relief must include a short plain A claim for relief must include a short plain

statement of the claim and a demand for relief, but statement of the claim and a demand for relief, but no dollar amount shall be specified.no dollar amount shall be specified.

• An answer shall likewise be plain and direct, An answer shall likewise be plain and direct, general denials may be averred as well as specific general denials may be averred as well as specific denials.denials.

• Affirmative defenses shall be required with Affirmative defenses shall be required with specificity.specificity.

• Failure to deny a pleading is deemed an admission.Failure to deny a pleading is deemed an admission.• Construction of pleadings shall be in such manner Construction of pleadings shall be in such manner

as to do substantial justice.as to do substantial justice.

Rule 9 Pleading Special Rule 9 Pleading Special matters:matters:• Capacity shall be assumed unless otherwise pled.Capacity shall be assumed unless otherwise pled.• Fraud, mistake mental condition must be specifically Fraud, mistake mental condition must be specifically

pledpled• Conditions precedent, an act which must occur before Conditions precedent, an act which must occur before

another act is required, must be specifically pled.another act is required, must be specifically pled.• Special damages such as lost wages shall be Special damages such as lost wages shall be

specifically stated by amount: “Plaintiff lost $600.00 specifically stated by amount: “Plaintiff lost $600.00 in wages due to the car accident.”in wages due to the car accident.”

• Written instruments should be copied and attached to Written instruments should be copied and attached to a pleading.a pleading.

• Exceptions for infants or incompetents: if a party is an Exceptions for infants or incompetents: if a party is an infant or incompetent or is deceased the infant or incompetent or is deceased the requirements to admit or deny a written instrument is requirements to admit or deny a written instrument is not applicable.not applicable.

Rule 10: Form of Pleading:Rule 10: Form of Pleading:

• Captions shall include the names of all parties. Captions shall include the names of all parties. Subsequent pleadings may include on the first Subsequent pleadings may include on the first named person of the Plaintiffs and Defendants named person of the Plaintiffs and Defendants where there are multiple parties to the lawsuit.where there are multiple parties to the lawsuit.

• Paragraphs shall be numbered and include a Paragraphs shall be numbered and include a single set of circumstances.single set of circumstances.

• Adoption by reference later parts of pleadings Adoption by reference later parts of pleadings may refer back to earlier paragraphs “as if fully may refer back to earlier paragraphs “as if fully rewritten.”rewritten.”

• Every pleading or motion shall be signed by an Every pleading or motion shall be signed by an attorney for the parties if an attorney represents attorney for the parties if an attorney represents the party in addition the address, bar number and the party in addition the address, bar number and telephone number of the attorney will be included.telephone number of the attorney will be included.