Civil Procedure

Question 1

Pleading Special Matters: Capacity

Answer 1

Need not be affirmatively pleaded; defendant may challenge capacity

Minors - A minor must participate through a parent or guardian

Question 2

Substitution

Answer 2

The court may substitute one party for another after any of the following:

(1) death;
(2) incompetency;
(3) transfer of interest; and
(4) termination of public representation (successor in public office)

Question 3

Service of Process: Who & Timeframe of service

Answer 3

Who. (1) sheriff; (2) Certified process server; (3) Special Process Server (i.e. Judge list); (4) Any competent person not interested in the specific action appointed by the court.

When. 120 days from date of filing, unless good faith or excusable neglect. Void on Sundays.

NOTE: 90 days from date of filing (Fed.)

Question 4

Waiver of Service

Answer 4

Request to waive by mail:

(1) In writing addressed to D;

(2) Certified mail w return receipt;

(3) Copy of complaint, summons, + identify court;

(4) Consequences of failure to reply;

(5) State date sent;

(6) Copy of notice, request, waiver, & prepaid means of compliance.

Def. Response Timeframe. 60 day if accepts waiver

Question 5

Complaint Requirements

Answer 5

FL requires an Ultimate Facts Pleading showing:

(1) Short and plain statement showing JXD, unless court already has it;

(2) A short & plain statement of the ultimate facts showing entitlement to relief;

(3) Demand for judgment for relief that pleader is entitled to.

Plead w/ specificity: special damages, fraud, mistake

Fed: Notice Pleading: JXD, Claim for relief, & Judgement

Question 6

Means of Service

Answer 6

Individual. Deliver physical copies on person or resident of home at least 15 yo (Fed: suitable age & discretion) + inform person of contents

Substitute. Delivery to someone other than Def. who is authorized by law or contract to be served for him.

Individuals include: (1) authorized rep.; (2) spouse; (3) person in charge of private mailbox, virtual office, or office if only discoverable address; (4) service by mail via attorney (confers PJ); (5) service by mail w/o attorney (no PJ)

Publication (i.e. constructive) . When service cannot be made and sworn statement required to specify why publication is necessary

Question 7

Answer Response Timeframe

Answer 7

Answer due within 20 days from date of service; 30 days if international; 40 days if government. If by mail, extend by 5 days.

Weekends & legal holidays counted, unless timeframe is less than 7 days. Count last day, unless it is a weekend or holiday. Then extend to next business day.

A pre-answer motion (i.e. motion to dismiss) requires an answer w/in 10 days of the courts order.

Question 8

Amendment to Pleadings

Answer 8

A party may amend a pleading once as a matter of right at any time before a responsive pleading is served.

If pleading does not require response (i.e. answer), then it may be amended at any time w/in 20 days, so long as case is not on trial docket.

A party may amend a pleading by leave of court, if justice requires, or by written consent of adverse party’s.

Fed. w/in 21 days after serving pleading, responsive pleading, or motion.

Fed. May amend when justice so requires.

Question 9

Relation Back

Answer 9

A court will relate back an amended pleading, so long as it arises out of the same transaction or occurrence.

Question 10

Deposition

Answer 10

No limit on number of depositions; may take a deposition of a corporation, but must provide the topics of deposition prior to deposition.

Party must receive notice of deposition; whereas, non-party must receive a subpoena, and may only be deposed in the county they reside, are employed, or transact business.

PL. cannot take a deposition w/in 30 days of service without a court order.

May video record deposition, so long notice of recording, testimony is taken by stenographical, witnesses under oath, and attorney takes responsibility for safeguarding recording.

Objections. A lawyer must object only where the objection could be cured (ie compound question)

Question 11

Motion to Perpetuate Testimony

Answer 11

File a petition in the circuit court in the county of the residence of any expected adverse party.

The court will grant the petition if it is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice.

Question 12

Use of Depositions

Answer 12

Any part of a deposition may be used against any party present at the deposition if
admissible under the rules of evidence:

(1) For impeachment (i.e. contradicting statements)

(2) If the deponent is a party, as an opposing party statement

(3) The witness is unavailable (i.el death, < 100 mi, illness

(4) Witness is an expert or skilled witness

(4) If part of a deposition is offered in evidence, other parts may be admissible for
fairness (Rule of Completeness)

Question 13

Costs of Trial

Answer 13

May recover costs of Deposition if used as evidence

Question 14

Voluntary Dismissal

Answer 14

A party has an absolute right to dismiss his claim (by serving notice) prior to a hearing for summary judgment OR before the trier of fact retires for decision.

No dismissal if property seized or counter and cross-claims have been served

Dismissed without prejudice

Question 15

Involuntary Dismissal

Answer 15

May be used for failure to comply with a rule or court order or failure of the plaintiff to prove her case

After an interested party, the court, or the clerk of court serves a notice of a lack of record activity for 10 months in a matter, the case will be dismissed without prejudice for failure to prosecute if no record activity occurs within the 60 days following the service of such notice.

Dismissed with prejudice

Question 16

Lis Pendens

Answer 16

An instrument filed with the court that operates as constructive notice that there is pending litigation with respect to an interest in, or ownership of, property.

Question 17

Pre-Trial Conference

Answer 17

The court may or must require the parties to appear for a conference to simplify issues; amend pleadings; admissions; etc.

Requires notice 20 days prior to conference (+5 days for mail).

Failure to attend results in court: strike or dismiss pleadings, enter a default judgment, cite the delinquent attorney for contempt, or take other appropriate action

Question 18

Motion to Poll the Jury

Answer 18

Motion must be made prior to dismissal of the jury

After the jury is dismissed, may move to interview the jury.

Question 19

Post-trial motions

Answer 19

15 Days

Relief from Judgement - W

Question 20

Motion for Costs & Attorney’s Fees

Answer 20

Must be made within 30 day of judgement

Question 21

Relief from Judgement

Answer 21

Within 1 year from the verdict, for the following:

Mistake, inadvertence, surprise, or excusable neglect

Newly discovered evidence that due diligence could not have discovered in time

Fraud, misrepresentation, or other misconduct

Judgment or decree being void, or

Judgment satisfied, released, or discharged

Question 22

Time Extensions

Answer 22

Motion for directed verdict (15 days)

Motion for relief of judgement

Notice of appeal (30 days)

Question 23

Disqualification of a Judge

Answer 23

A judge can be disqualified from hearing a case if:

Interest in the result of the action (pecuniary or property)

Relationship to a party or person interested in the result (by a third degree of consanguinity or affinity)

Relationship to an attorney of record

Material witness in the action

Prejudice (possible conflict of interest is sufficient)

The parties, or their attorneys, may waive any of the grounds of disqualification by stipulation or delay.

Question 24

Expert Witness Deposition

Answer 24

Expected to testify –
party may obtain information about an expert’s experience and qualifications. However, the party must pay the expert a reasonable fee to compensate him/her for her time.

Not expected to testify –
may not be deposed ~unless~ the party requesting discovery shows exceptional circumstances that make obtaining facts or opinions on the same subject impracticable by other means

Question 25

Impleader

Answer 25

The defendant implead a person who is not a party to the action (i.e., a third-party complaint).

If the third-party complaint includes a claim for indemnity, contribution, or subrogation, it may also include any other claims that arise out of the subject matter of the plaintiff’s complaint.

Question 26

Directed Verdict

Answer 26

At the conclusion of the plaintiff’s case in chief, the defendant may file a motion for a directed verdict

A motion for directed verdict argues that, given all of the evidence presented by the plaintiff, no reasonable jury could issue a verdict in the plaintiff’s favor.

Additionally, filing a motion for directed verdict allows the filing party to file a motion to set aside the verdict within 15 days of the return of the verdict

Question 27

When can an attorney object to questioning at a deposition?

Answer 27

A party’s attorney may instruct the deponent not to answer a question when necessary to:

• Preserve a privilege
• Enforce a limitation on evidence directed by the court
• Present a motion to terminate the deposition.

Question 28

Summary Judgement

Answer 28

Summary judgment must be granted if the movant shows that there is:

(1) no genuine dispute of material fact; and

(2) she is entitled to judgment as a matter of law.

A court may grant a partial summary judgment for specific issues.

Question 29

Venue

Answer 29

Transitory (Personal) Action.
(1) county where Def(s) reside;
(2) place where cause of action occurs.

For non-residents, in the county in which service is made.

Local Action. Venue is proper where the property, subject to dispute, is located

Corporations. Venue is proper where (1) cause of action accrues or (2) PPB (ie. Office)

Non-FL Corporation. Venue is proper where cause of action accrues; or (2) where agent resides

State agency. Venue is proper where the agency is located.

Exceptions:
(1) Waiver;
(2) county where constitutional rights were violated;
(3) gov. sued as a joint tortfeasor;
(4) petition for access to public records.

Question 30

Long-Arm Statute

Answer 30

Permits the exercise of personal jurisdiction over a nonresident when the cause of action arises out of the following acts by the defendant:

• Carrying on a business within Florida
• Committing a tortious act within Florida
• Owning, using, or possessing real property within Florida
• Contracting to insure anything located within Florida at the time of contracting
• Maintaining a domicile or residing in Florida prior to the action being filed (alimony, support, and property distribution issues)
• Causing injury to a person in the state by an act or omission outside the state involving the solicitation or sale of services or products within Florida
• Breaching a contract by failing to perform required acts within Florida
• Engaging in sexual intercourse in Florida by which a child may have been conceived (paternity proceedings)
• Entering into a contract that specifies that it is governed by Florida law and that the person agrees to Florida court jurisdiction.

Question 31

Amending Pleading

Answer 31

A party may amend a complaint before an answer is filed once as a matter of course. Otherwise, a party may amend a pleading only:

(1) by leave of the court; or

(2) by written consent of the adverse party. Leave to amend a pleading should be freely given when justice so requires.

Question 32

Preemptory Challenges

Answer 32

In Florida, each party in a civil suit is entitled to three peremptory challenges.

But when the number of parties on opposites sides is unequal, the opposing parties are entitled to the same aggregate number of peremptory challenges.

Question 33

Complex Litigation

Answer 33

An action may be declared complex at any time if

(1) all defendants have been served and an appearance has been entered in response to the complaint by each party or a default judgment entered, and

(2) any party or the court, upon its own motion, has moved to declare the action complex.