Civ Pro Flashcards
FLSC mandatory jx
- final orders of DP
- DCA declares state statute invalid
- final orders re: bonds/debt proceedings
- actions re: statewide agencies
Service of Process on D
120 days after filing of complaint (w/ clerk of court in applicable county) (90 days under FRCP)
Filing of complaint (not service) tolls SOL
When can a claim be amended?
- As a matter of course:
- before responsive pleading service OR
- if no response required and action not yet set for trial, 20 days after service
- otherwise, need leave of court or written consent from CP. If complaint has ambiguities, leave usually freely given by court
Pleadings to be stated wiht particularity
- fraud
- mistake
- denial of CPs
- special damages
Timeline for pre-answer MTD
- Usually D must serve answer w/i 20 days of service of inital pleading
- If pre-answer MTD is filed and denied, answer must be serviced w/i 10 days after that
Counterclaims
- Mandatory - claim that D has against P arising out of same T/O (and doesn’t require 3Ps out of court’s control to adjudicate)
- Permissive - claims that D has against P arising from same SM, but not same T/O
Same response deadlines as other way around
Intervention
Intervenors -
- can assert right to intervene due to interest in pending lit at any time, but
- must have sufficient legal interest in the outcome - will their rights be affected?
Note: Members of LLCs - can’t intervene in LLC’s case given they wouldn’t be liable anyway
Discovery - Interrogatories
- Only applicable to parties
- Max - 30
- Opinions/contentions ok if relate to facts or call for conlusion
Deadline - 30 days after service (or 45 if served w/ complaint)
Complex actions
Any party or court can move to declare action complex if:
- all Ds have been served
- appearance has been entered by each party or a default judgment entered
Failure to prosecute
3 reqs
- 10 months - Party can file notice after 10 months and no stip has been entered staying action
- 60 days - subsequent grace period during which parties can remedy situation
- 5 days - at least 5 days prior to MTD, non-moving party must show GC and that action should remain pending
Case is dimissed w/o prejudice
Peremtory challenges
3 for each party
unless number of parties on each side is unequal, in wihch case they even out (based on great number of parties)
Directed verdict
Can be made by D either
- at close of case-in-chief
- at conclusion of all evidence
Court considers evidence in light most favorable to P
If D filed per above, can also file motion to set aside verdict w/i 15 days of verdict
Who can serve process?
Any competent person over 18 w/ no interest in action (can’t be a party)
Need proof of service affidavit (but lack thereof won’t make service invalid)
DCA discretionary jx
- final orders of county courts
- non-final orders of county crim cases appealed by prosecution
- certiroari
- non-final lower court orders other than above
- final circuit court orders acting in review capacity (high burden - clear department by court resulting in irreparable harm)
FLSC discretionary jx
- DCA decisions -
- declaring state statutes invalid/construing FLC
- directly conflicting w/ other DCAs (or FLSC)
- Certified Qs of great public importance
- trial court judgments certified to be of GPI
- Qs of law certified by SCOTUS/USCCs w/ no state controlling precedent
Voluntary dismissals
P can move to dismiss:
- before hearing on MSJ or
- before retirment of jury/before submittal of non-jury action to court for decision
Cannot voluntarily dismiss if court has already seized proprety
Venue - FL contractor rule
Legal actions brought outside FL involving FL resident contractors/subs/materialmen/etc. are void as matter of PP. Venue provisions in contracts don’t matter
Can be brought in county where FL D resides, where COA accrued or where property is located (if app)
Motion for more definite statement
(deadlines)
- Once D’s motion approved by court, P has 10 days to serve response
- D then has 10 days to serve answer
DCAs - Interlocutory appeals
- Venue
- injunctions
- receivership
- grants of new trials
- relief based on mistake/newly discovered evidence, etc.
- PJ determination
- certain real property matters
- certain family matters
- class action certs
DCA discretional jx
- final trial court orders not reviewable by FLSC or circuit courts
- admin actions as provided by law
- specified interlocutory orders (see separate card)
3P complaints (i.e. impleading) - Timing
Original D can file 3P complaint freely w/i 20 days after serving original answer
May assert other claims agianst 3P D arising from same T/O
Venue
Proper in district where:
- Any D resides if all are in same state
- substantial part of events occured
- location of property at issue (if app)
If DJ - new court will apply law from previous court
if fed Q - new court in another circuit will apply its own fed law
Experts witnesses
- Retained to testify at trial - can be deposed
- Retained to advise during preparation for trial
In personam jx
(FL statutuory bases)
D is:
- present in FL when served w/ process
- domiciled in FL
- Incorporated in FL
- Substanial, non-isolated activity in FL
- long arm statute
- NMA
but can’t trick D into coming into state just to serve him or serve while he’s here for another suit
Nonresident motorist act
Provides specific jx over nonresident who owns or operates a motor vehicle, watercraft or aircraft involved in an accident or collision in FL
Constituional test for PJ
My Parents Frequently Forgot to Read Children’s Stories
- Minimum contacts:
- purposeful availment
- forseeability
- Fair Play & substantial justice:
- relatedness of c/a and forum
- convenience
- state’s interest
Circuit court - Exclusive jx
- Probate/estate matters, guardianship, incompetence
- cases involving juveniles (except traffic offenses)
- cases involving title or boundaries to realty
- Ejectment cases **EXCEPT landlords evicting tenants.
- Equity suits exceeding $30,000
- Actions at law exceeding $30,000
County court jx
Exclusive
- Actions at law - $30k or less unless otherwise already exclusively in Circuit Court
- Evictions involving $30k or less it MUST go to county court.
Concurrent w/ circuit court
- equity cases - $30k or more
- Evictions involving more than $30,000
- HOA disputes
Requirements of a complaint
- Grounds for SMJ (and PJ, if D is nonresident)
- short & plain statement of ultimate facts showing P’s entitled to relief
- demand for judgment
What types of damages are pled separately?
Punitive and special
Major defense motions
- lack of SMJ
- lack of PJ
- improper venue
- insufficient process
- insufficient service
- 12(b)(6)
- failure to join indispensable party
If any of 2-5 aren’ in the first defense response, deemed waived
Reply
Responsive pleading to D’s answer
Due 20 days after P is served w/ answer
Cross-claims
Claim agianst co-party arising from same T/O as original claim or conterclaims. NEVER COMPULSORY
Discovery tools
- Deposition (okay for nonparties too)
- Interrogatorie
- Request to produce (ok for nonparties too)
- Physical/mental exam
- request for admission
Deadline: 30 days after service (or 45 if sent w/ complaint)
Inadvertant disclosure of privileged material
- Won’t waive privilege if producing party sends written notice w/i 10 days to other party
- Notice must specify material(s), type of privilege and date sent
- Ohter party must return, sequester or destroy
Impleading
D adds new party
Default judgment
When D fials to plead/defend by deadline (usually 20 days)
Judgment - $$ amount. Entered by judge after dfeault entered by clerk/judge
Involuntary dismissal
- P fails to prosecute
- Noncompliance w/ procedural rules/court ordre
- P fails to show he’s entitled to relief in a bench trial (basically, directed verdict)
- Any MTD is granted
Failure to prosecute
- No record action for 10 months
- Court certifies lack of action to all parties
- P then has 60 days to act
- If not, D can then file MTD
f P shows up w/ GC at least 5 days before hearing on MTD, no (immediate) dismissal
Types of Service of process
personal sevice
substituted service - delivery to someone other than D authraoized by law/K to be served (CSC)
Constructive service = publiciation in qualified newspaper, mailing notice to D (if location unknown)
Traverse/demur
If MTD alleges factual matters, state may traverse/demur the motion.
Court may dismiss if state doesn’t deny all facts in traverse; if not denied, deemed admitted
Discovery - electronically stored info
Court must limit frequency/extent of discovery otherwise allowed if determined that it’s unreasonably cumulative or duplicative, or can be obtained from another source more convenient, less burdensome, less expensive
