Simone Lawson
A general appearance is made when a party first comes into court and appears in a case. This can be for any reason that recognises the authority of the court. In some states, a general appearance is considered consent by the defendant to personal jurisdiction, and thereby waives the defendant's right to challenge personal jurisdiction or service of process. A case management conference (CMC) is a meeting related to status and scheduling, for instance, whether all parties have been served and answered, what discovery is needed, and when the parties will be ready for trial. So, does appearance at a CMC constitute a general appearance?
Does appearance at a CMC constitute a general appearance?
| Characteristics | Values |
|---|---|
| Definition of a general appearance | When a party first comes into court and appears in the case. |
| What constitutes a general appearance? | Filing a motion which is predicated upon the court having personal jurisdiction; Filing an affidavit, other than for the purpose of presenting matters bearing on the court's jurisdiction; Filing a demurrer; Filing a Case Management Statement; Filing a motion to strike; Filing a notice of motion to transfer pursuant to Section 396b; Giving the plaintiff written notice of appearance; When an attorney gives notice of appearance for a client. |
| What does not constitute a general appearance? | A motion to dismiss or stay for lack of jurisdiction; A motion to quash for lack of jurisdiction; Filing an objection to a petition. |
| Notes | In some states, a general appearance is not considered made when a party comes into court purely to challenge the court's personal jurisdiction over the defendant – this is instead known as a special appearance. However, Rule 12(b)(2) of the Federal Rules of Civil Procedure abolished the distinction between general and special appearances in federal courts, and many states also adopted this modification. |
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What You'll Learn
Filing a Case Management Statement
When a case management conference or CMC is scheduled, the involved parties are required to meet and prepare, serve, and file a Case Management Statement. This must be done at least 15 days before the conference. In addition, at least 30 days before the conference, the parties must meet in person or by phone to discuss the case. This is called a "meet and confer".
The Case Management Statement must be filed and served on all other parties in the case. Parties must use the mandatory Case Management Statement form (CM-110), and all applicable items on the form must be completed. Alternatively, two or more parties may file a joint statement.
The filing of a Case Management Statement is considered a general appearance by the defendant. This means that the defendant recognises the authority of the court and waives their right to challenge the court's jurisdiction or service of process. However, it is important to note that some states do not consider a general appearance when a party appears in court purely to challenge the court's jurisdiction. In these cases, it is considered a special appearance.
A general appearance can also be made by filing certain other documents with the court, such as an answer, general denial, demurrer, motion to strike, or motion to dismiss or stay for forum non conveniens. On the other hand, documents such as an ex parte application for a provisional remedy, motion to transfer, motion to reclassify, and notice of a related case do not constitute a general appearance.
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Demurrer hearing
A demurrer hearing is a type of court proceeding in which a defendant challenges the legal sufficiency of a complaint in a criminal or civil case. The defendant may argue that the allegations in the accusation are factually accurate but do not provide sufficient grounds for a case against them. This can occur, for example, when an allegation is too vague or ambiguous, or when a case involves an unconstitutional law or statute.
The demurrer is typically filed at the beginning of a case, in response to the plaintiff's complaint or the defendant's answer. It is not a motion; rather, it is a type of pleading that requests the court to dismiss a cause of action (claim) or the entire complaint. If a cause of action in a complaint does not state a cognizable claim or all the required elements, the challenged cause or the entire complaint can be dismissed at the demurrer stage.
In some jurisdictions, including the UK, the US federal court system, and most US states, the demurrer has been discontinued. However, it is still used in some US states, including California, Pennsylvania, and Virginia.
A demurrer hearing is considered a general appearance, which means that the defendant recognises the authority of the court. This is distinct from a special appearance, where the defendant only appears in court to challenge the court's personal jurisdiction over them. It is important to note that the distinction between general and special appearances has been abolished in federal courts and many states.
In the context of a demurrer hearing, if one of the parties does not appear, the court may dispose of the demurrer on its merits or drop it from the calendar. If the demurrer is sustained, the judge agrees with the objection, and the law does not recognise a legal claim for the facts stated. On the other hand, if the demurrer is overruled, the judge disagrees with the objection, and the claim or case can proceed.
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Special appearances
A special appearance is a term used in American civil procedure law. It describes a civil defendant's appearance in the court of another state solely to dispute the personal jurisdiction of the court over that defendant. This type of appearance allows a defendant to dispute the court's jurisdiction over them without submitting to it, which prevents a default judgement while the defendant seeks the dismissal of the action.
Prior to the advent of this procedure, defendants had two options: appear in the other state's court and defend the case on its merits, or not show up and then challenge any judgment rendered against them when the plaintiff came to the defendant's state to collect on the judgment. However, this created a legal conundrum, as the court would be permitted to assert jurisdiction based on the defendant's presence if they appeared solely to contest jurisdiction. To address this inequity, most states have passed statutes permitting special appearances, allowing defendants to contest jurisdiction without further subjecting themselves to the court's jurisdiction.
It is important to note that the term special appearance does not apply in criminal courts, as anyone charged with or indicted for a criminal offense is automatically within the jurisdiction of the criminal courts, regardless of their residence or citizenship.
In the context of a civil case, a special appearance is distinct from a general appearance. A general appearance occurs when a party first comes into court and appears in the case for any reason that recognizes the authority of the court. Some states do not consider a general appearance to have been made if the party appears solely to challenge the court's personal jurisdiction, which is considered a special appearance. However, Rule 12(b)(2) of the Federal Rules of Civil Procedure abolished the distinction between general and special appearances in federal courts, and many states have followed suit.
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Motion to dismiss
A motion to dismiss is a powerful tool for a lawyer defending a client in a lawsuit. It is a request to dismiss a case early in the litigation process, which can help the defendant prevail without the trouble and expense of full-blown discovery and a trial. A motion to dismiss is generally filed at the outset of the case as the first response to the plaintiff's complaint. The defendant generally waives their right to file a motion to dismiss once they file an answer to the complaint. However, there are exceptions where a motion to dismiss may be filed later in the litigation, such as if the plaintiff amends the complaint. The specific grounds for filing a motion to dismiss may vary by jurisdiction, but some common reasons include:
- Lack of jurisdiction: This can be due to the court lacking subject matter jurisdiction or personal jurisdiction over the defendant.
- Failure to state a claim: The plaintiff's allegations do not fit the facts of the case, there is a missing element of the claim, or the plaintiff is suing for claims not recognized by law.
- No injury or damages: The plaintiff alleges no harm or damages as a result of the defendant's actions.
- Violation of case management procedures: For example, failure to give notice of the CMC to an appearing defendant or failure of the appearing attorney to be knowledgeable about the file.
When filing a motion to dismiss, it is important to serve the motion to the opposing party and any other parties to the case. The plaintiff will have the opportunity to file an opposition, and the defendant should be prepared to present their arguments concisely and forcefully at the hearing. Additionally, the defendant should be aware of the court's tentative ruling before the hearing and be prepared to respond to the plaintiff's counterarguments. If the court denies the motion to dismiss, the litigation generally proceeds, but there may be options for seeking pre-trial dismissal later on.
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Jurisdiction
A general appearance is when a party or their attorney comes to court and recognises the court's authority. This means that they agree to the court's jurisdiction and are considered to have waived their right to challenge personal jurisdiction or service of process. In some states, a general appearance is distinct from a special appearance, where a party appears in court solely to challenge the court's personal jurisdiction over them. However, in federal courts and several states, this distinction no longer exists.
The filing of certain documents, such as a Case Management Conference (CMC) Statement, can constitute a general appearance and convey the court's jurisdiction over the defendant. This is unless the defendant files specific documents that can be submitted through a special appearance. A demurrer, which is a document filed to challenge the sufficiency of a complaint, is also considered a general appearance.
It is important to note that each jurisdiction has specific time frames within which a general appearance must be made after the service of process is complete. If a party fails to make a general appearance within the prescribed time, the plaintiff may be granted a default judgment.
In California, for example, the Civil Local Rules outline specific requirements for complaints, petitions, counterclaims, and cross-claims, including the need for a separate paragraph entitled "Jurisdiction." This paragraph identifies the basis for federal jurisdiction and the facts supporting it. Additionally, a paragraph entitled "Divisional Assignment" must be included, specifying any basis for assigning the case to a particular court division.
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Frequently asked questions
A Case Management Conference (CMC) is related to status and scheduling. It establishes whether all parties have been served and answered, what discovery is needed, and when the parties will be ready for trial. In some states, a general appearance is made when a party first comes into court and appears in the case for any reason that recognizes the court's authority. However, some states do not consider a general appearance to be made when a party comes into court to challenge the court's personal jurisdiction over the defendant. Filing a Case Management Statement is considered a general appearance unless the defendant files certain documents that can be filed by making a special appearance.
A general appearance is made when a party first comes into court and appears in the case. This can include filing an affidavit, answering, demurring, filing a notice of motion to strike, filing a notice of motion to transfer, or when an attorney gives notice of appearance for the defendant.
A general appearance is when a party appears in court for any reason that recognizes the court's authority. A special appearance is when a party appears in court purely to challenge the court's personal jurisdiction over the defendant. In some states, a general appearance is considered consent by the defendant to personal jurisdiction, waiving their right to challenge personal jurisdiction or service of process.
