Civil Procedure

Question 1

A plaintiff commenced an action against the defendant and served him with a complaint on September 1. The next day, the defendant, believing that plaintiff’s lawsuit is completely frivolous, decides not to file an answer but instead immediately files a motion to dismiss for failure to state a claim. On September 8, the plaintiff served an amended complaint alleging a new cause of action. The defendant promptly moved to strike the plaintiff’s amended complaint. The court should:

Answer 1

Deny the motion to strike the amended complaint because the defendant’s motion to dismiss is not a pleading.

Question 2

Penelope was employed as a bartender for Big Owl’s nightclub. In the early morning hours of January 1, Penelope got into a verbal dispute with a customer. Doug, manager of Big Owl’s, told Penelope that she was fired and should leave the establishment immediately. Several days later, Penelope came to Big Owl’s to discuss her termination with Doug. During their meeting, Penelope and Doug argued, and Penelope slapped Doug in the face. On January 15, Penelope filed a lawsuit, alleging wrongful discharge, and naming both Doug and Big Owl as defendants. Big Owl retained Lawson to represent both Big Owl and Doug in the lawsuit. Lawson prepared an answer on behalf of Big Owl and Doug, denying that Penelope was wrongfully discharged and asserting all applicable defenses.
Doug alleges he was tortuously injured by Penelope when she slapped him. Big Owl alleges that after the filing of its answer, Penelope made defamatory statements about the business which resulted in a loss of business. Lawson considers filing counterclaims on behalf of both Doug and Big Owl. Which, if any, of the potential counterclaims would be compulsory counterclaims?

Answer 2

Only Big Owl’s counterclaim for loss of business.

Question 3

Pam and Dave were involved in an automobile accident. Pam filed suit against Dave, alleging that Dave caused the accident by running a red light. Pam alleged she incurred physical injuries as a result of the accident, and that she continues to suffer from back and neck pain. Dave maintains that the accident was caused by faulty brakes, and that the faulty brakes were the result of improper repair of his car by Bob.
Which of the following is the best option available to Dave?

Answer 3

Dave should file a third-party complaint against Bob.

Question 4

Service of process in a civil action is deemed timely if made within ____________ of the commencement of the action or suit against the defendant.

Answer 4

120 days.

Question 5

Nia and Rusty have a furniture store in Florida, which they operate as a partnership. After making a major deal with a consignor of sofa beds, they use the $700,000 in revenue from selling the sofa beds to finance a renovation of their store, rather than paying the consignor on the terms agreed. The consignor, concerned that the partnership may not have enough assets to pay the amount due, files suit against each of them and the partnership itself in circuit court. The consignor’s process server finds Rusty at the store and hands him the summons and complaint.
What has the consignor done?

Answer 5

Properly served process to obtain a judgment against the partnership and Rusty.

Question 6

Jerry, a 14-year old boy, was throwing rocks off of an overpass when he hit Monica’s car’s windshield, causing Monica to swerve her car and hit a tree. Monica sustained injuries in the collision, and she seeks to bring suit against Jerry in Florida, where he lives with his parents.
How may service of process be made on Jerry?

Answer 6

By serving Jerry’s parent or other legal guardian.

Question 7

A week prior the expiration of the statute of limitations for filing the action, Plaintiff files a vaguely worded complaint suggesting that Defendant breached an implied warranty in the repair of an automobile, which resulted in personal injury to the Plaintiff. Ten days after Defendant was served with the complaint, Defendant moved to dismiss for failure to state a cause of action. Three weeks after Defendant filed the motion to dismiss, but prior to the court ruling on Defendant’s motion, Plaintiff files an amended complaint that alleges (i) the breach of warranty in more detail; and (ii) for the first time, a claim that Defendant was negligent in the repair of the automobile. Which statement is true?

Answer 7

Plaintiff was entitled to amend the complaint at any time prior to the filing of the answer.

Question 8

A cross-claim, properly defined, is the pleading filed by:

Answer 8

One defendant against a properly joined co-defendant, which seeks affirmative relief against the co-defendant.

Question 9

As Marsha was driving her car down the street, she dropped the cold drink that she was holding. It landed on her foot. When she reached down for the spilled drink, she inadvertently turned the steering wheel, just as Fred was passing by. Marsha ran into Fred. Fred brings an action against Marsha. Both parties move for summary judgment. Which of the following may the judge not consider in ruling on the motions for summary judgment?

Answer 9

Oral testimony.

Question 10

Joker sues Batman in Florida state court for false imprisonment. Which of the following would not be a valid objection to service of process?

Answer 10

The sheriff served Batman by serving Robin at Batman’s usual place of abode. Robin was a 16-year-old then residing there, and the sheriff informed Robin of the contents of the papers.

Question 11

In response to a suit filed by Rachel, Doug serves an answer denying many of the principal allegations contained in Rachel’s complaint. Two weeks after serving his answer on Rachel, Doug discovers that he has a potential counterclaim against Rachel factually related to her original claim. Doug immediately serves an amended answer on Rachel, which answer includes the counterclaim but does not otherwise alter his original response to Rachel’s complaint. Under the Florida Rules of Civil Procedure, Rachel may take all of the following actions except:

Answer 11

Rachel may answer the counterclaim, provided she does so within 20 days of the service of the amended answer.

Question 12

Daphne lives in Georgia but often travels through County A, Florida, on her way to Alabama for business. While on vacation in County B in Florida, Daphne is involved in a motor vehicle accident in which Jorge is badly injured. Jorge is a resident of County C, Florida.
If Jorge brings suit against Daphne and service of process is made in Alabama, where would venue be proper?
I. County A.
II. County B.
III. County C.

Answer 12

II. County B.

Question 13

By whom may service of process be performed?

Answer 13

A special process server appointed by the sheriff

Question 14

The plaintiff has initiated a contract dispute by filing a complaint for damages with the appropriate circuit court. Who may make service of process on the defendant?

Answer 14

A competent person, not interested in the action, and appointed by the court.

Question 15

Lou filed a tort action against Mike, a Florida resident, and then had the local sheriff serve Mike with the summons. When the sheriff arrived at Mike’s residence, the only person home was Mike’s 17-year-old daughter. The sheriff gave the summons to Mike’s daughter and said sternly, “It’s very important that you give these papers to your father. Do you understand?” The daughter said that she did, and the sheriff left. Mike argues service was improper and the trial court should dismiss the complaint.
How should the trial court rule?

Answer 15

The action will be dismissed the sheriff did not tell Mike’s daughter that the papers were a summons.

Question 16

Wyatt brings suit against Reis for defamation, negligent infliction of emotional distress, and false imprisonment. The court grants Reis summary judgment on the issues of negligent infliction of emotional distress and defamation, but the claim for false imprisonment is still pending.
If Wyatt wants to appeal the summary judgment order, which of the following is true?

Answer 16

He can immediately appeal the summary judgment order.

Question 17

Allen filed suit against Carl, a contractor, for damages resulting from Carl’s allegedly negligent installation of shingles on the roof of Allen’s house. In his complaint, Allen seeks damages for extensive water damage during a subsequent thunderstorm. Before filing his answer, Carl filed a motion to dismiss challenging the sufficiency of the pleadings. The court denied Carl’s motion.
Which of the following defenses will Carl be allowed to raise subsequent to the court’s denial of his motion to dismiss?

Answer 17

Failure to state a cause of action.

Question 18

While driving to work one morning, Carrie pulled into an intersection and was struck by a car driven by Shawn. Just seconds later, James, another motorist, was inattentive and hit both cars. Carrie, who was hurt in both collisions, sued both Shawn and James for personal injuries and damage to her car. Shawn noticed there was damage on his car where James had hit it. Shawn has told his attorney he would like to sue James for the damage to Shawn’s car. Shawn was not injured in the accident, but he has filed a counterclaim against Carrie for damages to his car arising from the accident.
Which of the following best describes the advice that Shawn will likely receive from his attorney?

Answer 18

Shawn may bring a permissive cross-claim against James, because it relates to the same transaction or occurrence as the original claim and counterclaim.

Question 19

Marksman, Inc. manufactures guns and has stores in four counties (A, B, C, and D) throughout Florida. Ricky purchased a gun manufactured and sold by Marksman, Inc. and was badly injured when the gun misfired. Ricky is a resident of County A, but purchased the gun in County B. The accident took place in County B. Marksman’s corporate offices are located in County C. Ricky brought suit against Marksman, Inc. for products liability.
Where is venue proper?

Answer 19

County A, B, C, or D.

Question 20

Tom intends to sue Parker. Tom also wishes to take advantage of Florida’s rules for constructive service of process to serve Parker.
Under what circumstance may Tom do this?

Answer 20

If Tom cannot locate Parker and Tom makes a sworn statement that he searched diligently for Parker.

Question 21

Samuel and Marie, Florida residents, have a business dispute. Unable to resolve their dispute, Samuel decides to file suit against Marie in Circuit Court. However, the process server that he hires can never find Marie at her office or home because of her frequent business trips. After a few attempts, the process server goes to Marie’s house, finds a man working in the garden, and says, “Who are you?” When the man identifies himself as Marie’s husband, the process server hands him the summons and complaint and says, “This is for Marie.” The process server has:

Answer 21

not made correct service, because he did not explain what the papers were.

Question 22

Eric, a seventeen-year-old high school student, was involved in a motor vehicle accident with Courtney. Courtney’s car was damaged in the accident, and she sustained minor injuries. Courtney filed suit against Eric in a Florida court, and effected service of process on Eric at his high school.

Answer 22

No, because Eric is a minor.

Question 23

Ignatius, an adult, has been adjudicated to be legally incompetent. While running after a ball, he enters the road, causing an accident as drivers swerve to avoid hitting him. An injured driver files suit against Ignatius. It is correct that:

Answer 23

if Ignatius has a legal guardian, service must be on the legal guardian.

Question 24

Aaron, Bernard, and Cletus are the partners in a law firm. Service may be validly effected upon the partnership by
I. delivery of process to any of Aaron, Bernard, or Cletus.
II. delivery of process to each of Aaron, Bernard, and Cletus.
III. delivery of process to a majority of the partners.
IV. delivery of process to the person in charge of the firm during regular business hours if a prior attempt to serve Aaron, Bernard, or Cletus was unsuccessful.
V. delivery of process to the person in charge of the firm during regular business hours.

Answer 24

I, II, III and IV only.

Question 25

Tom wishes to sue Parker. Tom may take advantage of Florida’s rules for constructive service of process to serve Parker with process only if:

Answer 25

A and C, but not B.

Question 26

Billy runs a stop sign and hits Jennifer ’s car as she is properly proceeding through an intersection. Jennifer files suit against Billy alleging that he caused damage to her car in the accident. Twenty-nine days later, Jennifer begins to show symptoms consistent with injuries sustained in the accident. Jennifer wants to amend her complaint to allege damages for her injuries as well. Billy has not yet filed an answer to the complaint. It is true that:

Answer 26

Jennifer may be permitted to amend her complaint, but only if she makes a motion to amend the pleading.

Question 27

Pam sued Laurie for negligence arising out of an auto accident in Florida prior to the expiration of the applicable statute of limitations. After the statute of limitations expired, Pam amended her complaint to include additional damages after her lawyer learned of a novel argument from a colleague. Several weeks later, Pam met with her lawyer to discuss the case and mentioned that she believed she may have a false imprisonment claim against Laurie that occurred on the day after the auto accident. The lawyer determined that Pam also had a claim for false imprisonment against Laurie. Pam once again amended her complaint to include a claim for false imprisonment. When Pam amended her complaint the second time, the statute of limitations for the false imprisonment claim had run. However, the statute of limitations for the false imprisonment claim had not run when Pam filed the original complaint against Laurie.
Will Pam’s amendments be barred by the applicable statutes of limitations?

Answer 27

The amendment regarding the claim for additional damages will not be barred because it will relate back to the date that Pam filed the original complaint, but the false imprisonment claim will be barred.

Question 28

Jill and Ollie wanted to purchase a home on one acre in Deland. They were approved for a mortgage to finance 95% of the purchase. After making payments for two years, Jill and Ollie decided that the house wasn’t worth keeping, so they stopped making mortgage payments. The bank filed a foreclosure action and a lis pendens. While the action was still pending, Jill negotiated a settlement with the bank. The parties filed a stipulation of dismissal, and the action was dismissed voluntarily. The dismissal was recorded. Jill and Ollie immediately defaulted on the loan again. The bank filed a second foreclosure action and another lis pendens.
Which of the following is correct?

Answer 28

The bank may properly file a second foreclosure action because the first dismissal was without prejudice.

Question 29

Eddie and Billy own adjoining lots of commercial property in County A. Eddie wants to expand his parking lot and begins construction. However, Billy claims that the proposed parking lot will encroach on his property. Eddie and Billy both live in County B, and Eddie’s business’s corporate office is located in County C. Assume all counties are in Florida.
If Billy files a dispute over the property line boundaries, his suit can be brought in:

Answer 29

County A

Question 30

In a Florida civil case, which of the following defenses may be raised at any time during the initial action?

Answer 30

Failure to state a cause of action.

Question 31

Robert and his neighbor Gregory constantly argued over their property line, but both parties were too stubborn to have a survey done. Robert planted a rare and expensive tree in his front yard, but Gregory insisted the tree was on his property. When Robert refused to remove the tree, Gregory chopped it down. Robert filed a civil action against Gregory in the Florida courts alleging various counts such as trespass. One week after the trial began, Gregory wanted to file a motion to have the action against him dismissed.

Answer 31

Failure to state a cause of action.

Question 32

George applied for a job as a water skier at Water Fun, a large water park and resort in central Florida. George told his prospective employer that he was an expert water skier. After George was informed about the obstacles in the water ski course, George signed a liability waiver. In fact, George was an inexperienced skier. Before the first jump, George lost control, crashed into the ramp, and broke his leg. George filed suit against Water Fun alleging negligence and demanding $100,000 in damages. George’s complaint alleged dozens of facts related to George’s claim. Water Fun filed an answer.
With regard to the answer, which of the following is correct?

Answer 32

A general denial to the allegations is permitted, but not favored.

Question 33

Seller had a valid contract with Buyer to sell her boat for $1,000,000. Buyer paid $900,000 and took possession of the boat. Seller filed suit against Buyer for the $100,000 balance. Buyer’s answer included an affirmative defense and a counterclaim for recovery of a $150,000 personal loan he made to Seller. Seller filed a motion to dismiss the counterclaim. The court should find that:

Answer 33

Buyer may file a permissive counterclaim for recovery on the personal loan.

Question 34

Heidi is a pedestrian who is injured in a motor vehicle collision that she alleges was caused by two parties, Aaron and Bruce. Aaron alleges that Bruce and Carl, who was not named as a defendant in Heidi’s complaint, caused the accident. Under Florida law, in order to address his allegations Aaron:

Answer 34

may file a cross-claim against Bruce.

Question 35

Marcus hit Megan’s son Sammy with his car while she was watching. Megan sued Marcus on behalf of herself for negligent infliction of emotional distress. Marcus’s attorney filed an answer and began discovery. As part of discovery, Marcus’s attorney takes the deposition of Megan’s neighbor, who stated that she saw Megan in her backyard at the time of the accident, and thus she couldn’t possibly have seen the accident. All pleadings have been filed in the case and discovery has since closed. If there are no further triable issues of fact, Marcus should file a motion:

Answer 35

or summary judgment.

Question 36

Peter, a politician, files suit for defamation against The Times, a local newspaper. At the conclusion of Peter’s case, counsel for The Times makes a motion for a directed verdict. The court will grant the motion if:

Answer 36

Peter has presented insufficient evidence to prove The Times is liable for defamation.

Question 37

The Florida Supreme Court has mandatory appellate jurisdiction for:

Answer 37

public utility cases, constitutional questions, and capital cases.

Question 38

Billy runs a stop sign and hits Jennifer ’s car as she is properly proceeding through an intersection. Jennifer files suit against Billy alleging that he caused damage to her car in the accident. Twenty-nine days later, Jennifer begins to show symptoms consistent with injuries sustained in the accident. Jennifer wants to amend her complaint to allege damages for her injuries as well. Billy has not yet filed an answer to the complaint. It is true that:

Answer 38

Jennifer may amend her complaint once as a matter of course, because Billy has not yet filed a response.