Civil Procedure Flashcards
How is service of process made in Florida?
(a) Service of original process may be made by personally delivering a copy of the complaint & summons to the defendant. Where there are multiple defendants, each defendant is to receive one summons and one copy of the complaint (in-hand service is not required; if the person refuses to take the papers, they have been served).
(b) Substituted service (defendant cannot be personally served):
- (1) The plaintiff may leave a copy of the summons & complaint at defendant’s usual place of abode, with any person residing therein who is 15 years of age or older, and informing that person of the contents.
- (2) The plaintiff may deliver the summons & complaint to the spouse of the person to be served at any place in the county, provided that the spouse is not an adversary of the defendant; the spouse requests service; & the spouse & the person to be served reside in the same dwelling. If the spouse does anything other than reject service, it has been accepted.
Service of process on a minor
Generally, service in person would be sufficient. However, when the person being served is a minor, service must be made on the legal guardian. If the minor does not have a legal guardian, a court order must be obtained appointing a guardian ad litem or making the determination that one is not necessary.
Service of process on an incompetent person
Service may not typically be made directly on an incompetent person. If the incompetent has a legal guardian, service must be on the legal guardian.
If the person does not have a guardian, an application must be made to the court to appoint one.
Service of process on partnerships
A partnership may be served with delivery of process to any partner, and is valid as if served on each individual partner.
Service may be made on the person in charge of the partnership during regular business hours if a prior attempt to serve the partner or designated employee was unsuccessful.
If a partner is not available during regular business hours to accept service on behalf of the partnership, he or she may designate an employee to accept service.
If service was made upon a designated employee, judgment may only be enforced against the partnership, and not against the individual assets of each partner.
If plaintiff only serves one partner, judgment can only be levied against the partnership and the partner who was served because each partner must be served individually to obtain judgment against multiple partners.
Service of process on a corporation
A corporation may be served with delivery of process by service upon:
- (1) the registered agent;
- (2) the president, vice president, or other head of the corporation;
- (3) the cashier, treasurer, secretary, or general manager;
- (4) any director of the corporation; or
- (5) any officer or business agent who is a resident of Florida.
These must be tried in order, cannot try (5) without trying the rest first.
Service of process by publication
Service by publication is allowed only by statute, in cases involving realty, construction of a will or other written instrument, for dissolution of marriage or adoption.
The plaintiff must give a sworn statement that the defendant cannot be found in Florida after diligent search and inquiry.
The plaintiff also must state whether the defendant’s residence is known or unknown. If known, the plaintiff must state the residence. A copy of the published notice is mailed by the clerk to the defendant at her last known address within 10 days of the publication.
Amending complaints and relation back
Once a plaintiff files a complaint, the pleading may be amended once as a matter of course before a responsive pleading is served or, if no responsive pleading is required and the action has not been placed on the trial calendar, within 20 days of service of the pleading.
After this time period has expired, if the plaintiff wants to amend the complaint, he or she must file a motion to amend the pleading.
When a party amends his or her complaint and the conduct or transaction set forth in the amended pleading was set forth or attempted to be set forth in the original pleading, then the amendment relates back to the date of the original complaint.
When can a party voluntarily dismiss an action? What is the effect of a voluntary dismissal?
A voluntary dismissal by notice is not available: (1) if the case has been submitted to the trier of fact or if a motion for summary judgment is presently pending; (2) if property was seized or in court custody; or (3) if there is a counterclaim in the case which cannot stand for independent adjudication.
- A voluntary dismissal by written stipulation is not available if property is in court custody.
- A voluntary dismissal by court order is not available if there is a counterclaim in the case which cannot stand for independent adjudication.
The effect of a voluntary dismissal is without prejudice. Note, however, that a party can only dismiss without prejudice once.
Florida venue rules
If the defendant is a resident of Florida, venue exists in:
- (a) the county in which the defendant resides at the time the action is commenced; or
- (b) the county in which the cause of action accrued.
Over nonresidents, venue is proper in a county where they are served.
If real property is the subject of the litigation, then venue only proper in the county in which the real property in litigation is located.
If there are multiple defendants, venue resides in the county where any defendant resides.
Venue for corporations in Florida
In an action against a domestic corporation, venue resides in any county in which a domestic corporation has, or usually keeps, an office for transaction of its customary business.
For these purposes, “foreign” refers to whether or not the corporation is in this state.
What defenses can be raised in a pre-answer motion to dismiss?
Florida rule identical to federal rule (including waiver):
- Lack of Subject Matter Jurisdiction
- Lack of Personal Jurisdiction
- Improper venue
- Insufficiency of process
- Insufficiency of service of process
- Failure to state a claim
- Failure to join an indispensable party
Personal jurisdiction, venue, process, and service of process are waived if not objected to in the initial response.
Waiver of affirmative defenses
Affirmative defenses must be raised in the answer or reply or they are considered waived by the defendant.
These include: (1) accord and satisfaction; (2) arbitration and award; (3) assumption of risk; (4) contributory negligence; (5) discharge in bankruptcy; (6) duress; (7) estoppel; (8) failure of consideration; (9) fraud; (10) illegality; (11) injury by fellow servant; (12) laches; (13) license; (14) payment; (15) release; (16) res judicata; (17) Statute of Frauds; (18) Statute of Limitations; and (19) waiver.
When must an answer be served and what are the implications in admissions and denials?
Answer must be served within 20 days of service of the complaint, or 10 days after denial of pre-answer motion to dismiss.
An answer must admit or deny the allegations of the pleading to which it responds. A statement that the respondent is without sufficient facts to answer is an implied denial. Failure to deny or allege insufficient knowledge constitutes an admission. General denials are permitted but not favored.
Permissive v. compulsory counterclaims
A compulsory counterclaim is any claim that a pleader has against the opposing party which arises out of the same “transaction or occurrence” as the original complaint. Must be asserted with the responsive pleading or are deemed permanently waived, except where:
- (1) the counterclaim requires the presence of third parties outside of the jurisdiction of the court;
- (2) the counterclaim was already the subject matter of another pending action when the present action was commenced; or
- (3) the counterclaim to which a responsive pleading is being filed was not based upon in personam jurisdiction.
A permissive counterclaim is a claim between the same parties that does not arise out of the same transaction or occurrence as the original complaint.
What is a cross-claim?
A cross-claim is a claim by one party against a co-party. It must arise out of the same transaction or occurrence as the original claim or counterclaim, or relate to any property that is the subject matter of the original claim.
In Florida, all cross-claims are permissive.
Summary judgment standard, considerations, timing, and effect
A motion for summary judgment will be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Courts review motions for summary judgment in the light most favorable toward the party against whom summary judgment is sought. The court may consider pleadings, depositions, interrogatory answers, admissions, and affidavits. The court may not consider oral testimony.
A plaintiff may move for summary judgment at any time after 20 days from commencement of the action or after service of a motion for summary judgment by the adverse party. A defendant may make a motion for summary judgment at any time.
When a defendant moves for summary judgment, they do not need to provide supporting material; they may obtain summary judgment for plaintiff’s failure to produce sufficient evidence.
Summary judgment is a final order with prejudice.
When can a motion for directed verdict be made and what is the standard?
Either party may move for a directed verdict at the close of the evidence of either side if the party feels the evidence presented was not sufficient to allow the jury to properly enter a verdict in favor of either party.
A motion for directed verdict is not a waiver of jury trial. If the motion is granted the matter is res judicata and the jury plays no role. The assent of a jury to a directed verdict is not required.
When may a motion for a belated directed verdict (JNOV) be made?
To make a motion for a belated directed verdict, a party must have made a directed verdict at trial. The motion must be made within 15 days after the return of the verdict.
A party moving for directed verdict does not preserve the right of the opposite party to move for a belated directed verdict later on.
Requirements for proof of service
The person making service notes the date and time of service and her identification number, and she initials the process. She should file a signed proof of service form, which is prima facie evidence that service was made.
If made by a civilian, proof of service is by affidavit. If by an officer, it need not be by affidavit.
Failure to file proof of service does not affect the validity of service.
How is service of documents after the initial complaint is made? When is the service considered complete?
Subsequent documents, such as motions, discovery requests, and the like, generally are served on the party’s attorney (or the pro se party) by email unless some other method is ordered by the court. Each attorney must designate a primary email address.
If an email is sent by the court’s e-filing portal, service is complete when the document is electronically filed. Otherwise, service is complete when sent.
If an attorney is excused from having an email address (or if a pro se party doesn’t have email), subsequent documents can be delivered or snail mailed. Five days are added to the time in which to respond if service is made by snail mail.
What are the deposition requirements? Is a court order required to take a deposition? Can a party object to evidence taken from depositions at trial?
Both parties and non-parties may be deposed. Videotaped depositions are allowed if the notice and subpoena state that it is to be video recorded and gives the name and address of the operator. It also must be recorded by a stenographer unless the parties agree otherwise.
Generally, no court order is needed to take a deposition. There are two exceptions:
- A deposition may be taken on court order before the case is filed to preserve evidence because the witness won’t be available at trial.
- A court order is required if the plaintiff wants to take the deposition less than 30 days after serving the complaint unless (a) the plaintiff’s notice states that the person to be deposed is about to leave the state and won’t be available after the 30 days or (b) the defendant has already taken a deposition.
Generally, you can’t object at trial to any evidentiary issue that could’ve been remedied at the deposition.
If seeking to depose someone before the case is filed, service must be made upon all expected adverse parties and the person to be deposed, subject to the rules for service of process (in addition to obtaining the court order).
Where is the proper place for depositions to be taken?
A plaintiff usually is deposed where the case is pending.
The defendant usually is deposed in his county of residence or business.
A nonparty is deposed at the county of her residence or business unless agreed to otherwise. In fact, the parties can agree to take a deposition at another place.
A court also can order a deposition to be taken anywhere.
For what purposes can deposition testimony be used at trial? What about depositions of expert witnesses?
A party can use depositions at trial:
- To impeach the deponent
- For any purpose if the deponent is an adverse party
- For any purpose if the deponent is dead, ill, over 100 miles from the site of trial, or beyond the subpoena power of the court (unless the party seeking to introduce the evidence procured the absence).
Deposition of expert witnesses may be used at trial regardless of the witness’s residence or location.
When may default be entered and by whom?
Default may be entered when a party against whom a claim is filed fails to plead or otherwise defend the action in 20 days.
An entry of default may be made by the clerk of the court if the defendant has filed no paper; if some paper has been filed, it must be entered by the judge.
Either way, the plaintiff must make an application for entry of default. Once default is entered, the defendant can’t answer or file a motion. However, Defendant may file beyond the 20 day period if a default has not been entered yet.
Defendant is only entitled to notice of the default if he has filed some paper.
What are the grounds for involuntary dismissal? What is the effect?
The grounds for involuntary dismissal are:
- Plaintiff fails to prosecute
- Failure to comply with procedural rules or court order;
- Any of the defendants motion for dismissal and it is granted;
- Failure to show in a nonjury trial that a party is entitled to relief (same functionality as directed verdict being granted for the defendant).
Any involuntary dismissal is presumed to be with prejudice unless the court said otherwise or unless it was based upon jurisdiction, venue, indispensable parties, or failure to prosecute.
What does it mean when plaintiff fails to prosecute? What is the effect?
If there is no record action (no court order, no motion, etc.) for 10 months (and the case is not stayed), the court or a party may certify that fact to all parties. If the plaintiff takes no record activity (or if no stay is entered) within 60 days after service of the notice, the motion to dismiss for failure to prosecute can be made.
The court will dismiss unless the plaintiff shows good cause in writing for why the action should remain pending at least five days before a hearing on the motion.
