Civil Procedure Flashcards
Until when can a person move for a belated directed verdict?
15 days after the return of the verdict
How many copies of the complaint and summons must be served if multiple defendants?
Each defendant is to receive one summons AND one copy of the complaint
When does service of process begin?
When the clerk of court or judge issues a summons
Does failure to make proof of service taint the service?
No
When must a party be personally served with the answer and counterclaims?
Only when directed by the court
Who is generally served with answers and counterclaims?
The plaintiff’s attorney
How do you get a nonparty to sit for a deposition?
Only with a subpoena
A subpoena can compel attendance of a resident of Florida where?
Only in the county where the deponent resides, is employed, or transacts business in person, or such other convenient place as is fixed by court order
A subpoena can compel attendance of a non-resident of Florida where?
Only in the county where the deponent was served or such other convenient place as the court orders
Where can the deposition of a nonparty witness be taken?
In any county in Florida where the witness may be validly served or anywhere else in the U.S. by using the subpoena power of an appropriate court there
What happens when service of process is made by publication?
The clerk of the court must mail D a copy of P’s published notice to D’s last known address
If process made by valid process server, what happens if affidavit of service is not filed?
Process is not invalid
When is a certificate required?
When service is by mail or personal service
What is the effect of proof of service?
Prima facie evidence of service
When can service by publication be made?
When defendant is outside of Florida, cannot be found for personal service after a diligent search, or is unknown
When can a plaintiff take an oral deposition of a party or non-party?
More than 30 days after initial pleasing and service, and upon reasonable notice to all parties, unless the defendant seeks discovery sooner or deponent is leaving the jurisdiction and special notice is given
Do you NEED a subpoena to depose a party?
No, usually the notice of deposition is enough to compel attendance if the deponent is a party
What is the only type of case in which a party may move for involuntary dismissal on the ground that the opposing party has not proved her case?
Nonjury trial
Can an action be dismissed without a court order?
Yes by filing a stipulation of dismissal signed by all parties who have appeared in the action
When can a plaintiff voluntarily dismiss the action by filing notice?
Prior to the retirement of the jury or submission to the court in a nonjury case, unless a MSJ is pending or if property has been seized/in custody of the court
What is the effect on a lis pendens if there is now a notice of stipulation of voluntary dismissal of that party of the entire case?
Lis pendens canceled without the need for a court order
How long must a case be inactive before you can file a motion to dismiss for lack of prosecution?
10 months
What is the only limitation on the power of the court to grant a voluntary dismissal?
Pendency of a counterclaim that cannot stand alone if the main action is dismissed
When to use long arm statute?
For specific jurisdiction
When is PJ okay if a nonresident does something outside of FL that causes injury in FL?
1) D engaged in solicitation or service activities in FL; or
2) its products are used in FL in the ordinary course of commerce
Circuit courts have exclusive jurisdiction over what?
1) Probate and estate, guardianship, incompetency
2) cases involving juveniles
3) cases involving title or boundaries to realty
4) ejectment cases (except landlord evicting tenants-not exclusive)
5) Equity and law actions exceeding $30,000
If D is a FL resident, where is venue proper?
Either where defendant resides, cause of action accrued, or where the property in litigation is located
If D is not a FL resident, where is venue proper?
Any county
What is the legal effect of a clause in a contract to improve realty in FL requiring parties to litigate out of FL?
Void
How long does plaintiff have to pay transfer costs if venue is improper?
30 days
When must motion to transfer venue be made if the motion is on the grounds of convenience?
60 days
Who may serve process in FL?
Nonparty adult appointed by the court or the sheriff/sheriff’s appointee
If serving someone at home, who can you give it to?
Someone who is 15 years old and resides there
What is needed for substituted service?
1) usual place of abode,
2) someone 15 years old living there
3) server tells the person the content of the documents
When can landlord nail and mail service?
Landlord failed twice at least 6 hours apart to make personal or substituted service in a dispossessory action
How long for defendant to return waiver of service form?
20 days
How long does defendant have to respond if waived service?
60 days from receipt of the waiver form
Wihtin how many days does plaintiff need to serve defendant to toll statute of limitations?
120 days
What matters must be pled with particularity?
Fraud, facts supporting punitive damages, special damages
Can plaintiff originally plead for punitive damages?
No
How long does defendant have to respond to a complaint (different than federal)?
20 days
What does it mean that waivable defenses need to be included in defendant’s first defensive response?
An answer or request for affirmative relief
How long does defendant have to answer if previous motion is denied?
10 days
How long does plaintiff have to serve a reply?
20 days
What can plaintiff address in reply?
Affirmative defenses that it wishes to avoid
If defendant files a permissive counterclaim, what must the plaintiff do?
Respond within 20 days
Does Florida have required disclosures like in federal court?
No
What is the max number of interrogatories and RFAs?
30
When can plaintiff begin taking deposition?
After 30 days of serving complaint unless court order, plaintiff notices states deponent about to leave, or defendant has already taken deposition
Where is a plaintiff usually deposed?
Where the case is pending
Where is defendant usually deposed?
County of residence or business
Where is a nonparty deposed?
County of her residence or business unless agreed to otherwise
What is the 100 mile deposition thing?
Can use deposition at trial if deponent is 100 miles from the site of the trial
What is the standard for discovery?
Anything that is relevant (reasonably calculated to lead to admissible evidence)
What is needed before merits sanction imposed?
Opportunity to be heard
When can plaintiffs join together in an action?
Common interest in the subject of the action
When is a party necessary?
1) Without the person the court cannot accord complete relief
2) Person’s interest may be harmed in a practical way
When do you have a right to implead?
Within 20 days of serving the answer (further requires court permission)
What are the four requirements for a class action?
numerosity, commonality, typicality, and adequate representation
How do you determine the amount in controversy in a class action?
Aggregate all class claims
Which class needs notice in a class action?
All types of class action so class members can opt out of all three types
When can a condo association sue on its name?
When control of the association is with the unit owners rather than the developers
When can you not voluntarily dismiss?
1) case submitted to trier of fact already
2) property seized or in court custody
3) counterclaim that can’t stand for independent adjudication
Can defendant file answer beyond the 20 days?
Yes, if not default
How to set aside default (not default judgment)?
Show:
1) good cause for default;
2) Meritorious defense; and
3) due diligence after learning of the default
In a motion for failure to prosecute, the court will dismiss unless the plaintiff does what?
Good cause, in writing, 5 days before hearing
What is rule nisi?
Order to show cause
What is sicre facias?
Revive judgment (after 20 years)
When can a party move for summary judgment?
After 20 days from commencement of action or after service of a motion for SJ. Must be served with supporting materials before the hearing on the motion
When must the first mediation or arbitration conference take place?
Within 60 days of the court order
What percentage win for other party to be liable for attorney’s fees after settlement offer?
25%
When must a jury demand be made?
No later than 10 days after service of the last pleading directed to a jury triable issue
Can a party withdraw its demand for a jury trial?
Only if the parties agree
How many jurors in a civil case?
6
How many jurors in an eminent domain case?
12
How many preemptory challenges does each party get?
3 plus one for each alternate juror
When must a party object to a jury instruction or court’s failure to give a particular instruction?
Before the jury is charged
What is the standard for a directed verdict?
Reasonable people could not disagree on the result
What is the limit on punitive damages?
Cannot exceed 3x compensatory damages or $500,000. No limit though if defendant had the specific intent to harm the plaintiff or was under the influence of alcohol or drugs
What is a belated directed verdict?
Renewed JMOL
Within how many days can a party make a motion for a new trial?
Within 15 days after return of verdict (jury) or judgment (nonjury)
What interlocutory orders can be appealed?
1) Order granting new trial
2) Order regarding injunctions
3) Orders determining PJ or venue
4) Orders regarding the immediate possession of property
5) Orders on a distinct and separable claim
What is an elisor?
A civilian appointed to serve process
What if you want to depose someone but you haven’t filed suit in court yet?
File a verified petition in the circuit court in the county of residence of any expected adverse party to perpetuate another person’s testimony that may be cognizable
If counterclaim exceeds county court jurisdiction, how to get the case to circuit court?
Pay the required transfer fee, otherwise counterclaim will be cut down to county court limit of $30k
When the condition of the party is in dispute, how to get the person to submit to examination?
Request it from the party and state reasonable circumstances, and scope of the examination, and identify the person who will perform it. Don’t need to make a motion to get court approval if condition is at issue
Can you get the substance of an expert’s opinion through interrogatory if that expert is going to testify at trial?
Yes. Party must disclose the experts it intends to call at trial and by interrogatory may be compelled to recite the substance of the expert’s anticipated trial testimony and grounds for that opinion
When can a plaintiff amend the complaint?
May amend once as a matter of course any time before a responsive pleading is served (doesn’t include MTD)
Is a motion to dismiss a responsive pleading?
No
What is required in a pleading that sets forth a claim for relief?
1) Short and plain statement of the grounds upon which the court’s jurisdiction depends, unless court already has jurisdiction;
2) short and plain statement of the ultimate facts showing the pleader is entitled to relief; and
3) demand for judgment for the relief
In interpleader, when would a party be entitled to attorney’s fees?
Stakeholder claims no interest in the fund/property
Default is with the _____ of the court
Discretion
What can the court consider on a motion for summary judgment?
Pleadings, depositions, interrogatory answers, admissions, and affidavits attached to the MSJ
If filing an appeal, what court do you first ask to issue a stay of the trial court’s order?
Trial court
What happens if party doesn’t object to evidence or testimony at trial?
Precluded from bringing it up later, even on a motion for new trial
Does the order setting a case management conference need to specify the matters to be considered at the conference?
Yes
Does the defense have the burden of persuasion in a negligence matter?
No
What kind of case does the Florida Supreme Court not have jurisdiction to hear?
A decision by a DCA that expressly construes a state statute
(if it conflicts with another DCA, then yes)
How is service of process upon the state of Florida accomplished?
By service to the local state attorney and the attorney general
Is the product developed by a person’s insurer subject to the work product doctrine?
Yes
Is a party entitled to attend depositions?
Yes and exclusion of that party at the deposition would be grounds to objecting to the use of that deposition
If a party finds out new information after already answering discovery, must the supplement their answer or amend the complaint/answer?
No because there is no duty to supplement with information subsequently acquired
Can three friends join together in a suit if all involved in the same accident?
No because they have separate causes of actions and no family relationship
When can an insurance company be included in a suit?
Once there is a judgment against the insured party
Who determines equitable relief claims?
Judge (not jury)
Can a case be set for trial even if pending discovery requests?
Yes, as long as not motions on the pleadings pending
party may seek a continuance if disco is pending
Are court reports required?
No and must be paid by party requesting it
Time frame for motion to amend the judgement?
15 days
Time frame for motion to set aside the judgment?
1 year of court’s entry of judgment
If landlord evicting tenant, what court has jurisdiction?
If less than $30k –> County court
If more than $30k –> County or Circuit
Where can equity case be filed?
Either county or civil
Can you organize files in the way you think is most logical and send to opposing party?
No
If deposition being recorded, can parties waive stenography?
Yes, otherwise there must be a stenographer
If requiring the officer of a corporation that is party to the suit sit for a deposition, where would venue be proper for the deposition?
The place where the action is pending
What can a party served with deposition deuces tecum do?
1) Condition the preparation of copies of the documents on the payment in advance of the reasonable copy cost
2) produce the document or things in the county where it resides or where the documents are located
If defendant concerned with the costs of searching through its records, what can it do?
Ask the court to allow defendant to make the records available to the plaintiff for search without having to conduct his won search first
What is the earliest a party can move for summary judgment?
20 days from the commencement of the action
How long before the hearing on a MSJ does the motion need to be served?
40 days
Up to when can a nomovant respond to a MSJ?
20 days before the hearing on the MSJ
Can appeals motions be oral?
YEs but must also be reduced to writing
Can an opposing party object to a request for production of documents of a non party?
yes
