Civil Procedure Assignment January 08,2008

Read Rule 17 to 21.

1. What is the effect of two-dismissal rule?
Such dismissal is without prejudice except:
a. where the notice of dismissal so provides
b. where the plaintiff has previously dismissed the same case in a court of competent jurisdiction.

2. May the court dismiss the complaint on the complainant's motion?
(by Ms. Suzzette)Yes, on the following grounds:
a. the plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the complaint (o.k.a. plaintiff is NON-SUITED)
b. the plaintiff fails to prosecute his action for an unreasonable length of time
c. the plaintiff fails to comply with the Rules of Court
d. the plaintiff fails to comply with any order of the Court

3. May the court dismiss the complaint on the plaintiff's motion?
(by ms. Suzzette)Yes, by filing a:
a. Notice of Dismissal - if the defendant's answer or counterclaim has not yet been filed
b. Motion to Dismiss - if the defendant's answer or counterclaim has already been filed

4. What is the effect of dismissal by the court where there is no statement "with
prejudice"?
(by Ms. Suzzette)It depends
a. It shall be without prejudice if the dismissal was upon notice by the plaintiff, except when the dismissal operates as an adjudication upon the merits (Rule 17, Sec. 1)
b. It shall be without prejudice if the dismissal was upon motion by the plaintiff (Rule 17, Sec. 2)
c. It shall be with prejudice if the dismissal is ion motion by the defendant, or upon the court motu propio, on the grounds due to plaintiff's fault(Rule 17, Sec. 3)

5. What is pretrial?
A mandatory conference and personal confrontation before the judge between the parties and their respective counsels.

6. What is the purpose of pretrial?
The court shall consider:
a. the possibility of an amicable settlement or of a submission to alternative modes of dispute resolution
b. the simplification of issues
c. the necessity or desirability of amendments to the pleadings
d. the possibility of obtaining stipulations or admissions of facts and documents to avoid unnecessary proof.
e. the limitation of the number of witnesses
f. the advisability of a preliminary reference of issues to a commissioner
g. the property of rendering judgement on the pleadings, or summary judgement, or of dismissing the action should a valid ground therefore be found to exist
h. the advisability or necessity of suspending the proceedings
i. such other matters as may aid in the prompt disposition of the case.

7. What is the effect of failure to mark exhibits during the pretrial?
Any Evidences that are not marked during pre trial shall not be admissible in during actual court proceedings.

8. What is the effect of failure by the plaintiff to appear at the pretrial
conference?
Shall cause for the dismissal of the action, with prejudice, unless otherwise ordered by the court.

9. What is the effect of failure by the defendant to appear at the pretrial
conference?
Shall cause the plaintiff to present evidence ex parte and for the court to render judgement on the basis thereof.

10. Can the court set the pretrial?

11. What is a pretrial brief?
A pretrial brief is a document that contains:
a. A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof;
b. A summary of admitted facts and proposed stipulation of facts;
c. The issues to be tried or resolved;
d. The documents or exhibits to be presented stating the purpose thereof;
e. A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and
f. The number and names of the witnesses, and the substance of their respective testimonies.

12. What is a pretrial order?

13. What is a motion for intervention?
Is a legal proceeding by which a third party is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirements set by the rules of court.
NOTE: intervention is never an independent proceeding but is ancillary and supplemental to an existing litigation. Hence, the final dismissal of the principal action results into dismissal of said ancillary action.

14. Who may intervene?
a. one who has legal interest in the matter in litigation
b. one who has a legal interest in the success of either of the parties
c. one who has an interest against both parties or,
d. one who is situated as to be adversely affected by distribution of other disposition of property in the custody of the court or of an officer thereof.

15. What are the requisites for intervention?
Factors to be considered by the court:
a. whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and
b. whether the intervenor's rights may be fully protected in a separate proceedings.

16. What is a subpoena?
Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition.

17. What are the different kinds of subpoena?
The two kinds of Subpoena:
a. Subpoena duces tecum- the process directed to a person which requires him to bring with him:
i. any books,
ii. documents, or
iii. other things under his control.
b. Subpoena ad testificandum- process directed to a person requiring him to attend and testify:
i. at the hearing or the trial of an action, or
ii. at any investigation conducted by competent authority,or
iii. for taking his disposition.

18. What do you mean by the 100-km rule?

19. Who may serve the subpoena?
a. the court before whom witness is required to attend;
b. the court of the place where the deposition is to be taken
c. the officer or body authorized by law to do so in connection with its investigations conducted by the said officer of body, or
d. any justice of the supreme court or of the court of appeals in any case or investigation pending within the Philippines

20. What is the effect of disobedience to subpoena?
Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule.