Civil Procedure – Rules 11-20
Rule 11 When to File Responsive Pleadings
- 1. Answer to complaint – 15 days from service, unless different period fixed by the courts;
- 2. Answer of defendant foreign private juridical entity – when service of summons is made on the government official designated by law, answer to be filed within 30 days from receipt of summons by such entity.
- 3. Answer to amended complaint – if amended as a matter of right, 15 days from being served with copy thereof
à If amended not as a matter of right, 10 days from notice of order admitting the same
à Answer earlier filed may be answer to amended complaint, if no new answer is filed
à Applicable to amended counterclaim, cross, third, etc,
- 4. Answer to counterclaim or cross-claim – within 10 days from service.
- 5. Answer to 3rd party complaint – 15 days from service
- 6. Reply – may be filed within 10 days from service of the pleading responded to.
Rule 12 Bill of Particulars
- 1. Bill of particulars
- Period of filing motion – before responding to a pleading; if pleading is a reply, within 10 days from service thereof;
- Order for bill must be complied with in 10 days from notice OR period fixed by court
- After service of bill or denial of motion – party has balance of time he was entitled to file responsive pleading, but not less than 5 days
à Motion for Bill of Particulars may NOT call for matters which form part of the proof of the complaint. Thus, motion should not be granted if the complaint, while not very definite, nonetheless already states a sufficient cause of action.
Rule 13 Filing and Service of Pleadings, Judgments and Other Papers
- 1. Kinds of service of pleadings:
- Personal service – to be done whenever practicable (Most preferred mode)
- Service by mail (ordinary if no registered mail)
- Substituted service (delivering copy to clerk of court with proof of failure of 1st 2 modes)
à Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally.
à Violation of rule may be cause to consider the paper as not filed.
- 2. Kinds of service of final orders:
- Registered mail
- Publication (if summons by publication)
3. Proof of personal service
- Written admission of party served;
- Official return of the server; or
- Affidavit of party serving, containing a full statement of the date, place and manner of service.
Rule 14 Summons
- 1. Contents of summons
- 2. Kinds of service of summons:
- Handing a copy to the defendant in person; OR
- If he refuses to receive and sign for it, by tendering it to him
- Leave copies at his residence, with person of suitable age and discretion residing therein; OR
- Leave copies at defendant’s office/regular place of business, with competent person in charge thereof.
- 3. By whom served:
- 4. When extraterritorial service allowed:
- 5. Kinds of extra territorial service
- 6. When service by publication in a newspaper of general publication allowed:
- Signed by the clerk under the seal of the court
- Name of the court and that parties to the action
- Direction that the defendant answer within the time fixed by these rules
- Notice that unless defendant so answers, plaintiff will take judgment by default
- By publication
- Other proper court officer
- Any suitable person specially authorized by the judge
- Defendant is a non-resident and is not found in the Philippines and action affects plaintiff’s personal status
- Subject of action is property within the Philippines in which the defendant has or claims a lien or interest
- Where relief demanded consists in whole or in part in excluding the defendant from any interest in such property
- When property of defendant has been attached within the Philippines
- Personal service
- Publication and summons sent by registered mail to last known address
- Any other matter the court may deem sufficient
- Identity of defendant unknown
- Whereabouts of defendant unknown and cannot be ascertained by diligent inquiry
à (a) and (b), applies to ANY action, even actions in personam
- Defendant is non-resident and the suit is quasi in rem
- Defendant is temporarily out of the country and the suit is quasi in rem
- 7. Service upon private domestic juridical entity – refers to corporation, partnership, or association organized under Phil. Laws with a juridical personality:
- 8. Service upon private foreign juridical entity transacting business in the Phils:
- Managing partner
- General manager
- Corporate secretary
- In-house counsel
- Resident agent designated in accord with Law
- If no such agent, on government official designated by law OR
- On any of its officers or agents within the Phils
NOTE: IF NO RESIDENT AGENT, SERVICE OF SUMMONSES AND PROCESSES ON THE SEC.
- 9. Newspaper of general circulation (RA 4883, PD 1079)
- Published for the dissemination of local news and general information
- Has a bona fide subscription list of subscribers
- Published at regular intervals
- Not published for nor devoted to the interest of a particular group of persons
- Must have been regularly published for at least 2 years before the date of the publication in question.
à Mere filing of an answer per se should not be automatically treated as a voluntary appearance by the defendant for the purpose of sumons. It should be noted that when the appearance of the defendant is precisely to object to the jurisdiction of the court over his person, it cannot be considered as an appearance in court.
Rule 15 Motions
- 1. All motions must be in writing except:
- 2. Exceptions to the three-day notice rule:
- Those made in open court; OR
- Those made in the course of a hearing or trial.
- Ex parte motion
- Urgent motion
- When court sets hearing on shorter notice for good cause
- Motion for summary judgment (must be served at least 10 days before the hearing)
à A prudent judge would, in the absence of the opposing party in the hearing of a motion, inquire from the other party or inquire from the records the proof of the service of notice rather than proceed with the hearing. He should not rely on a party’s undertaking to notify the adverse party of a scheduled hearing. The judge must demand what the rule requires, i.e., proof of such notice on the adverse party. Otherwise, a contentious motion should be considered a mere scrap of paper which should not have even been received for filing.
à Subsequent service of the motion on the adverse party may be considered substantial compliance with the Rule 15, § 6. Failure to attach to the motion proof of service thereof to the adverse party is not fatal when the adverse party had actually received a copy of the motion and was in fact present in court when the motion was heard.
Rule 16 Motion to Dismiss
- 1. Motion to Dismiss must be filed within the time for and before the filing of an answer to complaint.
- 2. Grounds for motion to dismiss:
- Court has no jurisdiction over the person of the defendant- unlike old rule, inclusion in motion to dismiss of other grounds aside from lack of jurisdiction over the person does NOT constitute a waiver of the said ground or voluntary appearance;
- Court has no jurisdiction over the subject matter of the claim;
- Venue is improperly laid;
- Plaintiff has no legal capacity to sue;
- There is another action pending between the same parties for the same cause;
à Requisites of litis pendentia:
- Identity of parties/interest
- Identity of rights asserted and prayed for/relief founded on the same facts;
- Identity of the 2 cases (such that judgment in one would amount to res judicata in the other)
- Cause of action is barred by a prior judgment or by statute of limitations;
à Requisites of res judicata:
- Final judgment or order
- Rendered by court of competent jurisdiction
- On the merits (even without trial, such as cases decided by Judgment on the Pleadings, Summary Judgment, or dismissed for failure to prosecute or for refusal to obey an order of the court)
- Identity of the parties
- Pleading asserting claim states no cause of action;
- Claim or demand in the plaintiff’s pleading has been paid, waived, abandoned, extinguished;
- Claim on which action is founded is unenforceable under the statute of frauds;
- Condition precedent for filing has not been complied with (this includes prior recourse to barangay conciliation, or failure to make attempts to reach a compromise in cases between members of the same family)
à The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable.
3. Actions that court may take on a Motion to Dismiss:
- Grant it – remedy: appeal
- Deny – NOT appealable; but may avail of certiorari, prohibition and mandamus
- Order amendment of the pleading
4. If denied, defendant must file answer within the balance of the 15-day period, but not less than 5 days from the time he received notice of the denial;
5. Subject to the right to appeal, dismissal based on the following grounds will be bar to refiling:
- a. Res judicata
- Extinguishment of claim or demand
- Unenforceability under the Statute of Frauds
6. The dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.
à A motion to dismiss on the ground of failure to state a cause of action in the complaint must hypothetically admit the truth of the facts alleged in the complaint. The admission, however, is limited only to all material and relevant facts which are well pleaded in the complaint. The demurrer does not admit the truth of mere epithets charging fraud; nor allegations of legal conclusions; nor an erroneous statement of law; nor matters of evidence; nor to legally impossible facts.
Rule 17 Dismissal of Actions
- 1. Dismissal by the plaintiff
- Notice of dismissal any time before service of the answer or a motion for summary judgment;
à Dismissal is without prejudice EXCEPT on 2nd notice of dismissal, which operates as adjudication on the merits when filed by same plaintiff who has once dismissed an action based on or including said claim.
- If answer or motion for summary judgment already served, dismissal by a Motion for Dismissal, which shall require approval of the court; shall be without prejudice unless otherwise specified by the court
à If counterclaim has been pleaded by a defendant prior to the service upon him of plaintiff’s motion to dismiss, dismissal is limited to the complaint; dismissal is without prejudice to defendant’s right to prosecute counterclaim in a separate action or, if he makes a manifestation within 15 days from notice of the motion, to prosecute CC in same action.
- 2. Dismissal due to plaintiff’s fault – the following must be without justifiable cause
- If plaintiff fails to appear on the date of presentation of his evidence in chief;
- Plaintiff fails to prosecute claim for an unreasonable length of time
- Plaintiff fails to comply with the Rules of Court or any order of the court
à Complaint may be dismissed upon defendant’s motion or motu proprio.
à Unless otherwise declared by the court, dismissal has effect of adjudication upon the merits.
RULE ON SEVERANCE OF COMPULSORY CC: Dismissal of principal action upon plaintiff’s motion or due to plaintiff’s fault does not necessarily carry with it the dismissal of the compulsory CC; defendant is also given option to prosecute the same in same or separate action.
- 3. Dismissal of counterclaim, cross-claim, or 3rd-party complaint – must be made by claimant before a responsive pleading or a motion for summary judgment is served, or if there is none, before the introduction of evidence.
Rule 18 Pre-Trial
1. What to consider in pre-trial (with notice to counsel or party without counsel)
- Possibility of amicable settlement or arbitration
- Simplification of the issues
- Amendments to the pleadings
- Stipulations or admissions of facts and documents
- Limitation of number of witnesses
- Preliminary reference of issues to a commissioner
- Propriety of judgment on the pleadings, summary judgments, or dismissal of action
- Other matters for the prompt disposition of the action
- 2. It is the duty of the plaintiff to move ex parte for the setting of the case for pre-trial. However, if plaintiff answers the defendant’s counterclaim, it will be the latter’s duty to set the pre-trial.
- 3. Failure of plaintiff to appear shall be cause for dismissal of the action. Non-appearance of defendant is cause to allow plaintiff to present evidence ex parte and the court to render judgment on basis thereof.
- 4. Non-appearance of party excused only if:
- 5. Must file pre-trial brief so as to ensure that other party receives it at least 3 days before pre-trial. Failure to file brief has same effects as failure to appear at pre-trial.
- 6. Proceedings recorded, and court shall issue an order reciting in detail matters taken up.
- A valid cause is shown therefor OR
- If representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents,
Rule 19 Intervention
- 1. Grounds for intervention
- 2. Motion may be filed at any time before rendition of judgment.
- 3. Answer to complaint-in-intervention must be filed within 15 days from notice of court admitting the complaint.
- 4. Motion for intervention will be granted if it will not unduly delay or prejudice adjudication of rights or original parties and if the intervenor’s rights may be fully protected in separate proceedings.
- 5. Complaint in intervention is merely collateral to the principal action. Hence, it will be dismissed if main action is dismissed.
- 6. A complaint in intervention that seeks affirmative relief prevents a plaintiff from taking a voluntary dismissal of the main action. Such a case is not subject to dismissal upon intervenor’s petition showing him to be entitled to affirmative relief. The petition will be preserved and heard regardless of the disposition of the main action.
- Legal interest in the matter in litigation
- Interest in the success of either or both parties or interest against both
- Party is so situated as to be adversely affected by the distribution of the court
- Disposition of property in the custody of the court or of an officer thereof.
Rule 20 Calendar of Cases
1. Calendar of cases to be kept by clerk of court for cases set for pre-trial, trial, those whose trials adjourned or postponed and those with motions set for hearings.
- 2. Preference given to habeas corpus, election cases, special civil actions and those so required by law.
Remedial Law (Civil Procedure) Memory Aid
Ateneo Central Bar Operations 2001