Civil Procedure Flashcards
What cases does the FRCP apply to?
All civil actions in circuit and county courts, except those to which other rules (probate, family law, small claims apply)
Do pleadings need to be verified
NO, unless a court rule specifically requires it.
When is an action “commenced”
When complaint or petition is filed
When can the court transfer an action that was filed in a proper court
- when party cannot receive a fair trial, or you cannot obtain a qualified jury
- For the convenience of the parties, or in the interests of justice, case can be transferred to a county in which it could have originally been brought.
When can the court transfer an action that was filed in the wrong venue?
If case was brought in the wrong venue, court may transfer to a county in which it could have originally been brought. If 2 or more counties are proper, P gets to choose.
When can the court transfer an action for lack of SMJ?
If court determines that case was brought in the wrong court (e.g. $$ threshold), it may transfer to the proper court in the same county.
Method of transferring a case between courts
P pays service charge of clerk w/in 30 days. If not paid, the court that entered the order to transfer must dismiss w/o prejudice.
Who pays clerk’s fee if transfer results from D’s counterclaim or cross-claim exceeds the jurisdictional amount of the court
The party asserting the CC pays the fee, and if he doesn’t the court just reduces the claim to an amount within the juris limit of the court and doesn’t transfer it.
What are the grounds upon which a court can dismiss a case because a satisfactory remedy may be more conveniently found in a juris other than Florida?
“Forum Non Conveniens”
Court MUST determine:
- that an adequate alternate forum exists;
- That factors of private interest favor the alternative forum
- If balance of private factors is equivalent, the factors of public interest tip the balance in favor of other forum
- That trial judge will ensure P can restate their suit in the alternative forum.
E..g. Plaintiff sues in a state that has a favorable doctrine for recovery
When must a forum non conveniens motion be served?
No later than 60 days after service of process on the moving party
Can parties stipulate to a FNC dismissal?
Yes, subject to approval by the trial court.
Must be in writing and signed by parties
Does case instituted in new forum after FNC dismissal relate back to the Florida complaint for SOL purposes?
Yes
How many days does Plaintiff have to refile case after FNC dismissal
120 days after Florida dismissal becomes final
Who issues summons
Clerk
Must be signed and sealed !
Court’s seal must be affixed
Can a complaint includes pleading in the alternative?
Yes
What must be plead with specificity?
Fraud, mistake, special damages
How many days do you have to serve the summons after it is issued?
120 days, or there is a dismissal w/o prejudice
Who can serve pleadings?
Sheriff
“Elisor” - process server appointed by court
Any person not a party or not otherwise interested in outcome of case.
Can you serve pleadings on a Sunday?
No, unless P by affidavit states that he has reason to believe that D will escape from the state under protection of Sunday.
Alias Summons
2nd summons
Pluries Summons
3rd summons
If a complaint is amended adding a new party, when must you serve new party?
120 days from order granting leave to amend.
How can you effect personal service on an individual?
- Personal delivery
- Substitute or abode service
- Service on spouse
- Substitute Service on Private mailbox or shared office
- Service on agent authorized or appointed to receive service of process
What if D refuses to accept personal service?
You can leave it in his presence.
How do you effect substitute or abode service?
-leave at D’s home with someone 15 and older who lives there, and state what it is.
Strict compliance with statute is required, even if D has actual notice of the action.
How do you effect delivery on spouse?
If the spouse requests such service, and they live together, AND it isn’t an action between spouses, personal service may be made by delivery on the spouse anywhere in the county.
Substitute Service on Private mailbox or shared office
If the only address discoverable is that of a private mailbox or shared office, service may be made on the person by leaving a copy with the individual in charge, but ONLY if process server determines that person still maintains a mailbox at that location
Service on Tenant in An Action for Possession of Residential Premises
You can nail and mail only AFTER two attempts at personal service at least 6 hours apart.
Rules regarding service in a Gated Residential Community
A gated community must grant unannounced entry into the community to a person who is attempting service of process.
What is Florida’s pleading requirement
Florida requires a statement of “the ultimate facts showing the pleader is entitled to relief”
What does an attorney certify when he signs a document?
That:
- he has read the document;
- to the best of his knowledge there are grounds to support it.
- It is not interposed for delay.
- Confidential information is protected.
When are attorneys fees available to a prevailing party?
Court may award prevailing party reasonable attorneys fees if the court finds that the losing party or their attorney knew or should have known that a claim or defense: 1. was not supported by material facts necessary to support the claim or defense; OR 2. would not be supported by the application of the law to those facts.
-paid by lawyer and client 50/50 unless lawyer acted in good faith and relied on client representations.
Any party that files a court document that questions the constitutionality of a state statute, or county or municipal rule, must do the following:
- file a notice of constitutional questions
2. serve the attorney general or state attorney by certified or registered mail (don’t need to add them as a party)
What does each claim for relief need to contain in a pleading?
- short, plain statement of grounds for jurisdiction
- Short, plain statement of ultimate facts
- Demand for judgment of relief, which may be plead in the alternative. Specific $$ not required
When can you amend a pleading
Any time, even after verdict.
Exception - unfair surprise to a party
Does capacity to sue need to be alleged?
No
How must fraud or mistake be plead?
With particularity
How must condition of mind (malice, intent, knowledge) be plead?
They may be averred generally
How must special damages be alleged?
Must be specifically stated, but $$ amount is not required.
How must general damages be alleged?
-those that necessarily result from a wrong, such as pain and suffering do not have to be claimed by name
Do bonds, notes, contracts need to be attached to the pleading?
yes, unless incorporated in the pleading
When are signatures on an instrument deemed admitted?
When their genuineness is not specifically denied in the pleading
What is a motion for a more definite statement and when must it be made?
- It is the motion made when pleading is vague or ambiguous
- it must be filed before responsive pleading, and it must point out defects in the complaint
What happens if court grants motion for more definite statement?
Plaintiff has 10 days to obey the order or the court may strike the pleading
What is a motion to strike
-Motion made when complaint complains immaterial, redundant or scandalous matter, or when law requires pleading to be verified and it is not.
What is a motion to strike a sham pleading and when can it be made?
- It is made wen a party asserts that all or part of a pleading is a sham.
- Can be made at any time before trial
- It must be VERIFIED
- court may take testimony to decide whether to grant motion
If court grants motion to strike a sham pleading, what may it do?
-Court may enter default or summary judgment, or permit additional pleading for good cause shown.
Can you use affidavits to support a motion to dismiss?
Yes.
Can the court grant a MTD without a hearing?
No
What grounds are waived if not raised in first pleading ( MTD or answer)
- insufficient service of process
- venue
- lack of jurisdiction
If a MTD is denied, how long does a party have to file a responsive pleading?
10 days
What grounds may be raised in any pleading or motion?
- lack of subject matter jurisdiction
- failure to state a cause of action
- failure to join an indispensable party
Does filing a Notice of Appearance waive the jurisdiction objections that must be raised in the first pleading?
No
Does failure to deny damages amount to admission?
No
How must defenses be plead in an answer?
They must be state specifically and with particularity
How must affirmative defenses be plead?
They must be specifically pleaded in answer, unless grounds for it appear on the fact of a prior pleading and the defense is asserted as a basis for dismissing the pleading for failure to state a COA
When must an answer be filed?
20 days after service, or 10 days after court order on preanswer motion
How much time does the state get to answer a complaint
40 days (except when sued in a tort action, then its 30 days)
Can the plaintiff file any motions against the ANSWER?
Yes, plaintiff may file a
- motion to strike for failure to state a legal defense
- motion for judgment on the pleadings or at trial
- if a reply is required, a motion for a more definite statement may be filed
When is a reply required?
If a plaintiff wants to raise new matter in response to an affirmative defense, he may file a reply. Otherwise, a reply is deemed denied.
When must motions against an answer be made?
Within 20 days
When is a reply due?
w/in 20 days, or 10 days after court order
When can a pleading be amended
-As of right before a responsive pleading is served, or if no responsive pleading is required, w/in 20 days of service of the pleading, otherwise by leave of court (freely granted when justice so requires) or written consent of adversary
May new parties be added by amendment?
Yes, but normal rules concerning jurisdiction and service of process apply
When do amendments relate back to original pleading?
when the conduct, transaction or occurrence set forth in the amended pleading, was in the original pleading.
When can plaintiff’s claims against a third party D (in an amended complaint) relate back to the filing of a third-party complaint?
When the plaintiff’s claims in the amended complaint arise from the same conduct, transaction or occurrence AND the third-party complaint was filed within the statute of limitations
When can a pleading be amended to conform to the evidence?
During or after trial, or even after judgment to reflect issues not pleaded but actually tried by express or implied consent, s/l/a there’s no defense that the opposing party did not have the opportunity to prepare, which would result in prejudice
Can you assert claim for punitive damages in complaint?
No, must make motion showing a reasonable basis for recovery of p.d., and motion must be served at least 20 days before the hearing.
How long do you have to respond to an amended pleading?
10 days
What are supplemental pleadings and when are they allowed?
- For new matters arising AFTER complaint is filed
- Permission of court, upon motion, is required
- This is different from a supplemental complaint, filed after final judgment where court has retained jurisdiction
What is a compulsory counterclaim?
Any claim that a pleader has against an opposing party that arises out of the same transaction and occurrence must be asserted at the time of the responsive pleading or it is lost, unless it requires the addition of parties outside the court’s jurisdiction
other exceptions:
- claim is subject matter of another lawsuit
-claim to which a responsive pleading was filed is not based on in personam jurisdiction
What is a permissive counterclaim?
any claim against a party NOT arising out of the same transaction and occurrence
Is a counterclaim arising AFTER party has answered pleading compulsory?
No.
Can a counterclaim or cross claim be brought against additional parties who were not original parties to the suit?
Yes, but all jurisdiction and service requirements apply
How does SOL apply to counterclaims?
Compulsory counterclaims: calculated as of the filing of plaintiff’s complaint
Permissive counterclaim: calculated as of the filing of the counterclaim
What is a cross-claim
- filed by one party against a co-party
- they are permissive
- MUST arise out of same transaction and occurrence, or involve the property that is the subject matter of the litigation
- normal answer rules apply to answers of cross-claim
What claims may a plaintiff join in his suit
Any claims he has “in the same right”, i.e., in the same capacity (can’t join individual claims with claims filed in representative capacity)
Can claims be aggregated to satisfy jurisdictional amount?
YES, If they arise from the same transaction or occurrence.
What unincorporated associations may be sued as entities?
- labor unions
- fraternal benefit societies that issue insurance benefits
- condominium and mobile home owners associations
Whose obligation is it to bring up capacity issue
Defendant must contest status of plaintiff; plaintiff does not otherwise have to plead it or prove it.
Permissive joinder- who may sue together
-any plaintiffs who have a common interest in the subject matter of the action and in obtaining relief demanded. Family members may sue together in tort actions
When can a party be added to a pleading?
Can be added by amendment whenever the presence of the party is necessary or proper to a complete determination of the cause
May a court sua sponte add parties?
Yes, at any time
How can a party be dropped?
By voluntary dismissal, by court sua sponte or on motion of any party at any stage of the proceeding.
When parties are MISJOINED, is case dismissed?
No, either the claims or severed, or the wrongly joined party is dropped.
What is a necessary party?
- a party whose rights are affected by the outcome, so they have a material interest in the case
Is the absence of a necessary party grounds for dismissal of action?
No
What is an Indispensable party
One whose interest will inevitably, directly and substantially be affected, or
Court will not be able to resolve controversy completely and effectively without party
Is the absence of a indispensable party grounds for dismissal of action?
Yes, but its w/o prejudice and last resort. Court will do what it can to join party, or find that they are not indispensable.
-Court will not label party as indispensable if her interests are separable from the others
What is an involuntary plaintiff?
-party whose interest is aligned with the plaintiff but who will not join voluntarily. She will be joined as a D and treated as an involuntary P
When can the issue of an indispensable party be raised?
-raised by a party opposing a claim, by motion to dismiss or in answer, or by motion for judgment on the pleadings before trial or at trial
What is intervention?
-a device whereby party enters a case on his own motion.
Does court have discretion whether to permit intervention?
yes
When can a party make a motion to intervene?
In a jury trial - any time up to verdict
In a non jury trial - any time up to final judgment
in exceptional cases, intervention is allowed after judgment for purposes of appeal
What are an intervenor’s rights in the litigation?
He takes the full status of a party, but also takes the litigation as he finds it, so no rights to reargue early orders, and he cannot raise additional claims without permission.
What are the two stages of an interpleader action?
First stage, determine whether requirements of interpleader are satisfied - court can have stakeholder deposit property with court and dismiss them
Second stage - claimants litigate their rights to the property
Impleader
D may bring in person not a party to the action who may be liable to D for all or part of P’s claim (e.g. indemnity, contribution, subrogation).
-NOT available where impleaded D may be directly liable to P or if D has a completely unrelated claims against the non-party
Is a motion necessary for impleader?
No motion necessary if D files the third-party complaint w/in 20 days of filing her answer
-otherwise motion is necessary and depends upon discretion of court.
What defenses does a third party defendant have in the action?
He may assert he is not liable to D, and may assert all defenses against P that D would have against P, even if D doesn’t raise them.
Is the third party D bound by the finding of D’s liability to to the P?
Yes. Res judicata applies.
Requirements for a class action
- Numerosity
- Common question of law or fact
- Typicality
- Adequate representation - class rep will fairly and adequately represent the class
- Type - class action must be of a recognized type
What findings must court make as to TYPE of class action, in order for it to go forward
- Risk that separate claims would lead to inconsistent adjudications or that separate adjudications would impair the interests of other members.
- Injunctive or declaratory relief is appropriate based on the fact that D treated all class members alike.
- Common questions predominate over individual questions.
Pleading requirements for a class action
- Designation “class representative” next to caption
- must allege all requirements of a class action
When is a determination made as to class action status
as soon as practicable after hearing. Once class action status is determined, class must be given notice and claim may not be voluntarily dismissed without court approval upon notice to all class members.
Who is entitled to notice of class action
Each class member who can be identified and located through reasonable effort. Rep pays cost of giving notice
Can a homeowner, condo or mobile homeowner’s association sue as part of a class action?
Yes, they may sue in its name on behalf of all association members concerning matters of common interest
When must a motion for substitution be made?
90 days after service of suggestion of death upon the record, otherwise the action is dismissed as to the deceased party.
What happens if a person transfers their interest in the subject matter of litigation (e.g., note)
Suit can be continued by or against original party, unless court on motion directs the transferee be substituted or joined.
Rights of a substituted party in an ongoing litigation
Takes the case as she finds it, e.g., all discovery that could be used against predecessor party can be used against her.
What is discoverable?
All relevant, unprivileged matters
Is there a special sequence to discovery?
No, it may proceed in any sequence
When is MPAL discoverable?
Only upon a showing of:
- substantial need
- inability without undue hardship to obtain substantial equivalent by other means
OR
-if party intends to use it at trial, he must produce it
Even if work product is discoverable, what is ALWAYS protected
Attorney’s mental impressions, conclusions or legal theories.
When is a written statement - taken by an attorney - discoverable?
- When W is unavailable for depo
- When W is uncooperative
- When W no longer remembers
- A party’s own statement is discoverable w/o a showing of need or hardship
Two step process for discovery from expert witnesses who are expected to be called at trial
For an expert expected to be called at trial -
- First, ROGs to opposing party to discovery identity and substance of facts and opinions of expert.
- Second, discovery directed to expert, only upon notice, subject to an Order re: scope, and Ct shall require payment of fee to expert for responding, and may require both parties to share the fee
Discovery from non-testifying expert
Discovery available ONLY upon a showing exceptional circumstances. If those exist, same two step process, except Court SHALL require parties to pay an expert fee, and to share the cost of it.
COST caveat - ct need not require sharing if manifest injustice could result
Is electronically store information discoverable?
Yes, in the the same form as it is maintained, or some other reasonably usable form
When is electronically store information NOT discoverable?
When the info or format requested is not reasonably accessible because of undue burden, court may still order discover upon a showing of good cause or it may limit discovery depending on whether it is cumulative, or it is available from a less expensive source, or if burden of discovery outweighs benefits.
When is discovery admissible on a party’s financial worth?
When a pleading on punitive damages has been permitted.
Is there a duty to supplement discovery responses?
NO!!
Time limit for advising of inadvertent disclosure
10 days from discovery of inadvertent disclosure
Time limit for challenging an assertion of privilege
20 days of service from assertion, specifying grounds for challenge (e/g/. waiver, lack of standing, not privileged)
Are depositions limited in number?
No
Is an employee considered a party for purposes of deposition notice or subpoena?
No. - must serve subpoena instead of notice
Where can a resident of Florida be compelled to deposition?
In county where party
- resides
- is employed or
- transacts business.
Can a party object to producing documents in responses to a subpoena duces tecum
Yes. and if he does, you need a court order to compel him to produce
Where can a NON-resident of Florida be compelled to deposition?
Only in county where deponent was served or other convenience place fixed by court.
-Or in any other state using the subpoena power of the court in that state
Where are P and D’s depositions taken
P - county where action is pending
D - county of residence or business
corporate - county where principal place of business is
When can a deposition be noticed?
By D, any time after service of complaint.
By P, only after 30 days have passed since service of complaint, unless P has a court order, or without court order if D will be outside reach of court within 30 day period
Before complaint is filed, can you get a deposition
Yes, you can get a court order to perpetuate your own or someone else’s testimony by oral or written deposition - court will grant if it is satisfied that the deposition may prevent a failure or delay of justice.
Can you get deposition testimony pending appeal?
Yes, you can get a court order to perpetuate your own or someone else’s testimony upon motion - court will grant if it is satisfied that the deposition may prevent a failure or delay of justice.
Before whom are depositions taken?
Before notary or judicial officer or other person authorized in Florida to administer oaths.
May a court permit telephonic deposition?
Yes
What deposition objections are not waived unless curable at the time?
-Objections to competency, relevancy or materiality
What deposition objections ARE waived if not made at depo
Objections to form, conduct of parties, or something else that can be cured at the time
What are your choices if a deponent refuses to answer questions?
Complete the examination or adjourn. You can then move for an order directing the deponent to answer.
When may you instruct a party not to answer
- Preserve a privilege
- Enforce a limitation on discovery
- to Present a motion to terminate or limit the examination on the grounds of annoyance, embarrassment or oppression (can get a protective order)
Who can sign depo if W can’t
The officer who took the deposition signs it, and it has the same effect as if W signs it, unless court orders otherwise.
Can you videotape a depo
Yes, if you give notice that it is going to be videotaped. No court order needed.
How is a deposition on written questions conducted
Serve questions
W appears before officer designated to take depo
Officer puts W under oath, asks questions and records answers
If you get served with deposition upon written questions, when do you have to serve cross-questions and reply questions by?
30 days/10 days
When can depositions be used at trial?
- Impeachment (but not for substantive purposes)
- Opposing party statement
- Deponent, whether or not a party, is unavailable or dead
Subject to rules of evidence, only against a party who was present or represented at the deposition or who had reasonable notice thereof.
How long do you have to answer ROGS
30 days, except D has at least 45 days to respond after service of the complaint.
Who signs Rogs
Party signs answers
Attorney signs objections
Are contention Rogs permitted?
Yes
Rogs - business record option
If burden is the same on both parties, you can permit reasonable access to records instead of answering them s/l/a you specify the records from which the answers can be obtained.
Do you have to answer questions if you don’t have personal knowledge?
No, you respond with whatever information you have, and the source of that information.
How are ROGs served?
Must serve ALL parties, and file certificate of service with court. Answers do not need to be filed unless court orders it.
Are ROG answers of one party binding on a co-party?
No.
How many Rogs are permitted
30, including all subparts. Must use standard forms where available.
How long do you have to respond to a demand fro documents?
30 days (or 45 days after service of complaint)
Notice required if you subpoena documents from non-party
You must give notice of intent to serve subpoena at least 10 days BEFORE subpoena is issued (15 days of service is by email or mail). You do not have to send a copy of the subpoena
What happens if a party objects to the production of documents under a subpoena?
Records ARE NOT produced.
Party seeking discovery must get order order, or can notice a deposition with a subpoena duces tecum instead and take their deposition
How is service of subpoena made?
Personal service or by mail with written confirmation of delivery, signature of person receiving subpoena (this must be filed with the court)
When is a physical examination allowed?
When condition is in controversy
-notice must state who will attend, who will perform, and whether it will be recorded.
In general in discovery, when can a minor have a parent or guardian present?
Any time, unless it is shown that the presence of parent/guardian is likely to have a material/negative effect
When can a request for physical examination be served?
At any time after commencement, if to P, or after service of process, if to D
How long do you have to object to a physical examination
30 days, 45 days after service of complaint if D.
What if the condition is not physical - can you serve a notice to examine?
Need to make a motion
Who gets written report of examination
Examined party only gets it if they request it (which waives privilege)
If expert fails to make a written report, can she still testify at trial?
It’s up to court - court may exclude her testimony
Can you take the deposition of an examining expert
YES!!! In accordance with all other discovery rules.
Admissions - limits on number
May not exceed 30, including subparts, absent court order on motion and for good cause, or by stipulation of parties.
How long do you have to answer?
30 days (45 days for D)
What happens if you do not answer admissions?
They are deemed admitted
How are admissions answered
- Admit
- . Deny
- Give reasons why you cannot admit or deny
Can admission be used in other actions?
No, conclusive only for purposes of the pending action.
What must you do before filing a motion to compel
Confer in good faith! And you must certify that you have attempted to confer in good faith.
If court issues order compelling answers to discovery what MUST it do with respect to cost sanction
Court MUST require refusing party to pay cost of motion, including attorneys fees, unless it finds that refusal had substantial justification or that moving party failed to certify good faith effort to resolve.
If court denies order compelling answers to discovery what MUST it do with respect to cost sanction
Court MUST require refusing party to pay cost of motion, including attorneys fees, unless it finds that motion had substantial justification
Do you need a motion to compel if party fails to respond at all to a discovery request?
NO!! A court can proceed with sanctions without a motion. Motions to compel are only necessary if the answer is incomplete or objected to.
Sanctions available for willful refusal to comply with discovery orders (after notice and opportunity to be heard)
- Judgment by default
- Dismissal of action
- Striking pleadings
- staying proceedings until order is complied with
- prohibiting party from asserting claims or defense
- prohibiting introduction of certain evidence
- contempt
- payment of costs or attorneys fees
- any other order that is just.
When can dismissal or default be used as discovery sanction
Only where the court makes an express written finding of a willful or deliberate refusal to obey a discovery order.
Can a party be sanctioned for ESI that is lost?
Not if the loss was a result of the routine, good faith operation of an electronic information system.
What if a party denies an admission and then later the party requesting the admission proves it?
Court MUST order payment of costs including attorneys fees unless there were GOOD REASONS for denial or the admissions were of no substantial importance.
Can costs of depositions be collected by prevailing party?
No, unless the depositions served a useful purpose at trial.
Who can schedule a case management conference or pre trial conference
Court or motion of party to convene a conference
Purpose of pre trial conference
- narrow issues
- discuss settlement
- necessity of amendments to pleadings
Consequences for failure to attend a conference?
Court may dismiss action, strike pleadings, limit proof or witnesses (but need a finding that non attendance was willful)
How is a case designated complex
By motion or stipulation of parties. Court must rule on motion w/in 10 days of hearing.
When must initial CMC be held in complex action
W/in 60 days of order declaring matter complex. Lead counsel and client must attend.
When is joint statement for discovery due in complex action?
14 days before conference.
When is trial for complex action?
No sooner than six months and no later than 24 months from date of CMC
When is final CMC held?
At least 90 days prior to trial date
Grounds for default judgment
Failure to appear or otherwise defend.
Note: recovery cannot exceed or be different in kind than prayed for.
Who can enter default?
Clerk - if D hasn’t appeared at all (no notice req’d)
Court - if D has appeared. Must be upon notice to D
Who enters final judgment on default?
Court Can hold hearing on damages
Can default judgment be entered against a minor?
No
How can a party set aside a default?
Upon proof of
- good cause for default
- meritorious defense AND
- due diligence in seeking relief after learning of default.
How can a P voluntarily dismiss her own case?
- By filing notice, unless SJ motion is pending or there is a CC.
- By stipulation of parties (unless property is in custody of court)
- By court order (if cc, party may waive CC so court can dismiss)
Is voluntary dismissal with our without prejudice?
Without prejudice ONLY ONCE.
-unless otherwise agreed or court specifies otherwise
If P voluntarily dismisses, can D get costs?
Yes
Grounds for involuntary dismissal
- failure to prosecute (10 months) or
- failure to comply with rules or order of court
- at close of P’s evidence in a JUDGE trial, on grounds that P has shown no right to relief
Where is a involuntary dismissal made WITHOUT prejudice?
- lack of juris
- improper venue
- failure to join an indispensable party
- failure to prosecute for 1 year
- whenever court orders it
Effect of involuntary dismissal
It is with prejudice (unless an exception or court orders otherwise) and operates as an adjudication on the merits.
When can a party move for summary judgment
Any time after 20 days from commencement, and must give at least 20 days notice of hearing. However, if hearing date is set after motion is served, you do not have to give 20 days notice of hearing date.
If MSJ is supported by affidavits, can adverse party rest upon pleadings to set up a genuine issue of material fact?
No!
If adverse party relies upon evidence in case file, must he serve that evidence on opposing party?
YES, at least 5 days before hearing, or hand delivered no later than 2 days before hearing.
What if affidavits are unavailable to party opposing motion?
He may by affidavit state reasons for unavailability. Court may deny motion, or order a continuance to permit affidavits to be obtained or depositions to be taken.
Can the court issue sanctions for bad faith affidavits?
YES!! Court can order party to pay expenses or adjudge party or attorney in contempt.
When do you have the right to a jury trial in Florida?
If suit was triable by jury in 1845 !!
Are cases that are a mixture of law and equity triable by a jury?
Legal issues tried first by jury, then equitable.
When must a jury demand bemade?
No later than 10 days after service of the last pleading directed to the issue. Can be on pleading itself, or on separate piece of paper.
Can you withdraw jury demand?
Only with consent of all parties.
Number of jurors
civil-6
condemnation - 12
Jury challenge for cause
- unlimited
- removed if related to party, judge or attorney (3x) or person has an interest in action
Peremptory challenges
3 to each party, plus one for alternate.
When number of parties is not in balance, largest number of peremptories given to each side.
If party files Notice for Trial (similar to our note of issue) when must trial be held
Not less than 30 days from notice.
Once Notice for Trial is filed, cannot dismiss for lack of prosecution
Can you make a motion for continuance?
Yes but only granted for good cause.
Can jurors submit written questions to witnesses?
Yes! After lawyers are done questioning. Must be written, signed and given to bailiff. Counsel has an opportunity to object outside the presence of the jury
What is the burden pf proceeding and how can it shift?
It is the burden of satisfying the judge that enough evidence has been presented so that a jury could reasonably find in his favor. Burden generally on P, but shifts to D if P presents evidence to prove a fact, burden shifts to D to disprove, or there will be no issue for jury.
Motion to Strike Evidence at Trial
If evidence is admitted that party believes is inadmissible, he can make motion immediately during testimony or after testimony has been given. It is NOT a substitute for an objection.
Motion for Mistrial
is made on the ground that some statement or act is so prejudicial that in all probability it would be impossible to have a fair trial.
Motion for Directed verdict
Made on the theory that there is nothing for the jury to decide. Either party may make motion at close of evidence.
What is the test for a directed verdict?
Drawing all reasonable inferences in favor of non moving party, the judge concludes that no reasonable jury could return a verdict in favor of the non moving party.
Belated directed verdict motion
- can only be made on grounds from directed verdict motion
- must be made within 15 days of verdict
Do you need jury’s consent to grant directed verdict motion?
Not anymore.
Objections to jury instructions - how is it preserved for appeal?
If judge modifies or replaces a standard jury instruction, or if he deviates from recommendations for an instruction’s use, he must state the legal basis for varying from the standard instruction on the record.
Otherwise, just object at conference.
Verdict - how may jury votes needed?
Must be unanimous
If substance of verdict is imperfect, what can court do?
-send the jury back to deliberate or order a new trial
If form of verdict is no good, what can court do?
Correct it, or send jury back.
General verdict
A verdict for one of the parties, and if applicable, the damages.
Special verdict
Jury returns answers to specific factual questions., The judge then applies the law to the facts as found by the jury.
General verdict with ROGS
General verdict is rendered, but jury ALSO answers factual questions.
If answers disagree with general verdict, what can court do?
- Enter judgment in accordance with answers;
2 Send the jury back or - Order a new trial
If answers are inconsistent among themselves, what can court do?
Send the jury back or
Order a new trial
Punitive damages cannot exceed
Three times compensatory damages or $500,000 whichever is greater
-must be separately stated
BOP for punitive damages
clear and convincing evidence
Conduct required for liability for punitive damages
- intentional misconduct
- gross negligence
Circumstances where there is no cap on punitive damages
- Where there is specific intent to harm
2. Intoxication
When can you conduct post-verdict interview of jurors
by motion served no later than 10 days after verdict, except for good cause shown.
Motion for judgment on costs, attorneys fees or both must be served no later than __________
30 days after filing judgment
Timing of motion for a new trial?
Within 15 days after return of verdict.
In absence of motion court’s jurisdiction terminates after 15 days
When can court make sua sponte motion for new trial?
Not later than 15 days after entry of judgment or judgment (if no jury)
Grounds for motion for new trial
- verdict contrary to evidence
- prejudicial error
- newly discovered evidence
- excessive or inadequate damages
Are remittitur and additur permitted
Yes. If adversely affected party does not agree, court must order a new trial
Motion for a Belated Directed Verdict - timing
must be made with 15 days after rendition of verdict or judgment
Motion for a Belated Directed Verdict - condition precedent
must have made motion for directed verdict during trial
-limited to grounds raised in first motion
If party does not fulfill conditions precedent, what can court do?
Order a new trial
Motion in arrest of judgment
Is a post-verdict motion to dismiss for failure to state a cause of action. It can ONLY be filed by defending party, and must be served after verdict is received but prior to entry of judgment.
What is an offer of or demand for judgment?
Prior to trial, D may file an offer of, or P may file a demand for, judgment.
Time limit for offer of or demand for judgment
90 days after service (D) or commencement (P) and no later than 45 days before trial
Contents of offer or demand for judgment
Must be in writing and identify applicable FL Law
- Name of parties
- Claims being resolved (must resolve all claims except attorney’s fees)
- Any relevant conditions
- Total amount and non-monetary items
- Amount of punitive damages
- Whether amount proposed includes attorney’s fees
- Certificate of service
How do you accept an offer or demand for judgment
Deliver written notice of acceptance w/in 30 days
How do you reject an offer or demand for judgment
Written rejection or failure to respond
What happens if D makes good-faith offer and p rejects
D entitled to reasonable costs and attorney’s fees if judgment is no liability or damages at least 25% less than the offer
What happens if p makes good-faith offer and D rejects
p entitled to reasonable costs and attorney’s fees if judgment is at least 25% greater than offer
True or false:
A court has the inherent power to award attorneys fees for bad faith conduct against party or attorney?
TRUE, only after notice and an opportunity to be heard.
Motion to Alter or Amend judgment
Must be made w/in 15 days of entry of judgment
Motion to set Aside Judgment - w/in one year after judgment
- Mistake, inadvertence, surprise or excusable neglect
- Newly discovered evidence
- Fraud, misrepresentation or other misconduct
Motion to set Aside Judgment - at any reasonable time
- Judgment is void
- Judgment has been satisfied, released or discharged
- A final divorce judgment was based on a fraudulent financial affidavit
Motion to Dismiss for Failure to prosecute - can party that has failed to prosecute save the case?
Yes, by showing good cause in writing why the action should remain pending.
Can you refer a case to a magistrate without the consent of the parties?
No
If jury is taken to view premises, who pays expenses?
Party making motion advances cost, but then expense can be counted as a cost recoverable if the party prevails.
Time to serve opposing party affidavits on motion for new trial
10 days, but can be extended for up to an additional 20 days.
What must order granting a new trial contain?
It shall specify grounds for ordering new trial.
How do clerical mistakes in judgments get fixed?
May be corrected by court at any time sua sponte or on motion of a party.
When can you execute on a judgment?
Not until after time for serving motion for new trial has passed (automatic 15 day stay) , or if motion was filed, not until after it is determined.
Court can stay execution upon good cause shown.
What is a Fact Information Sheet
After judgment, judgment creditor can ask court to order judgment debtor to fill out sheet and all attachments to aid in enforcement of judgment. You get 45 days to complete or you can be held in contempt.
Judgment creditor can also obtain discovery
How do you enforce a money judgment?
Execution, writ of garnishment
How do you enforce a property judgment
Writ of possession for real property
writ of replevin for personal property
distress writ
writ of garnishment
What happens if you do not comply with judgment within the time it specifies that it needs to be performed?
- court may issue a writ of attachment
- court may hold disobedient party in contempt
What is a writ of possession?
When judgment is for delivery of real property, the judgment shall direct the clerk to issue a writ of possession. Clerk shall deliver it to the sheriff for execution.
If third party is in possession, that person may retain possession by filing an affidavit with the sheriff that he is in possession. Court then works it out.
What NON FINAL orders may be appealed?
- venue
- injunctions
- jurisdiction over person
- immediate possession of property
- child custody
- right to immediate monetary relief
- whether party is entitled to arbitration
- workers compensation immunity
- certification of class action
- qualified immunity under federal civil rights law
- gov’t has taken action that inordinately burdened real property
How long do you have to take an appeal?
30 days from rendition of appealable order, or 30 days from decision on a timely filed written post-trial motion
Where is an appeal filed
For final orders - in court where appeal is taken from
For nonfinal orders- filed with the clerk of the appellate court that has jurisdiction
Can you obtain a stay pending appeal?
Yes by filing bond for the amount of the judgment plus twice the statutory rate of interest
When can a temporary injunction WITHOUT NOTICE be granted?
Only if
-immediate and irreparable injury will result before the adverse party can be heard in opposition
-attorney certifies in writing any efforts that have been made to give notice
-the reasons why notice should not be required are stated
MUST BE ENDORSED WITH DATE AND HOUR OF ENTRY and state findings
Can an injunction be granted if there is an adequate remedy at law?
No
Is a bond req’d for a temporary injunction
Yes, unless injunction being sought by the state or to prevent personal injury
Can a person subject to an injunction move to modify or dissolve it?
Yes, at any tome. If party makes a motion, it shall be heard within 5 days.
Do you need an actual controversy for a declaratory judgment?
No, but there must be an element of dispute between the parties
Receiver’s duty to file report
Inventory under oath due within 20 days of appointment and then every three months thereafter.
What do attachment and garnishment do?
Provide P with security for payment of any final judgment
Is prejudgment garnishment available to P
Yes, when P reasonably believes that D will not have sufficient property after judgment to satisfy P’s claim
How is due process satisfied when property is seized through attachment or garnishment?
Either
- D is given notice and opportunity to be heard before seizure OR
- procedural safeguards such as affidavit of P and bond, to minimize the financial impact on D. But D has the right to a prompt hearing after seizure.
Can you garnish WAGES before giving notice and an opportunity to be heard?
No. Due process requires that D be given prior notice and an opportunity to be heard BEFORE his wages are garnished - although NOT TRUE of post-judgment wage garnishment
What is a writ of attachment
It is a command to the sheriff to take into custody so much of D’s property to satisfy the debt demanded plus costs
What is quo warranto?
Remedy to determine title or right to public office and to remove a person who is unlawfully holding office
What is a writ of mandamus?
Used to compel a public officer to perform a purely ministerial function
What is a writ of certiorari
This common law writ is an extraordinary method of review of a lower court action that constitutes a departure from essential requirements of law and causes irreparable harm
What is a writ of prohibition?
Used to prohibit a public officer from performing an act which she has no discretion to perform. It cannot be used to control her discretion.
Describe summary procedure for small claims
o Claim - not more than $5,000
o Pleadings
§ File concise statement of claim
§ Notice to appear is served w/ statement of claim
§ No answer by D required
o Discovery - no discovery unless represented by attorney (unless unrepresented party engages in discovery)
o Pre-Trial Conference - no later than 50 days after commencement of action
o Trial - no more than 60 days after pre-trial conference, so long as parties get at least 10 days’ notice of trial
Medical Malpractice Pre Suit Screening Rule
- send Notice of Intent to litigate to D prior to expiration of SOL by certified mail RRR
- parties may obtain pre suit screening discovery - unsworn statements upon oral examination, document demands, physical exam.
- unsworn statement not discoverable or admissible in civil action
- have to wait 90 days before filing suit.
- to avoid SOL issue, commence action within 60 days of the expiration of 90 day period, or within remaining SOL, whichever is longer.
Does claimant in medical malpractice action need a verified written opinion from a medical expert?
Yes!
SOL med mal action
2 years
Cases that may be mediated or arbitrated
Judge can order, or parties can stipulate to, referral of most contested civil cases
-First mediation conference or arbitration hearing shall be held within 60 days of order of referral
What is a certificate of authority in mediation?
The representative with the authority to settle (can be the attorney) must file this with court and serve on all parties 10 days prior to mediation
Does mediation suspend discovery?
No, unless stipulated by parties or court order
Qualifications of mediator
must be certified by Florida Supreme Court or may be allowed to act if parties agree. MUST be Florida bar member and must attend 4 hours of approved training
Powers of arbitrator
to administer oaths and issue subpoenas
Non-binding arbitration
- informal; testimony is minimal
- can proceed in a party’s absence
- must be completed within 30 days of first arbitration unless extended by court order, but only up to 60 days
- if a panel of arbitrators, decision is a majority vote
When does arbitrator have to issue decision in non-binding arbitration?
10 days after arbitration concluded
-decision is referred to judge who enters judgment if no request for trial is made w/in 20 days
Voluntary binding arbitration
- procedure established by written agreement
- 10 days to file written decision
- may be appealed to circuit court w/in 30 days
- if no appeal, judge enters judgment.
Review of voluntary binding arbitration is limited to:
-failure of arbitrator to comply with rules of procedure or evidence; partiality or misconduct of arbitrator, violation of US or Florida constitution
Exclusions from mediation and arbitration
- bond estreatures (court order to forfeit bond)
- habeas corpus and extraordinary writs
- bond validations
- civil or criminal contempt
Can you move to disqualify mediator or arbitrator?
Yes, on a showing of good cause
Who picks mediators and arbitrators?
Mediators - parties agree
Arbitrators - appointed by court from list of available arbitrators
Can voluntary binding arbitration transcript be used in future legal proceedings?
Yes, subject to the Rules of Evidence
When is voluntary dismissal unavailable to P
- When SJ motion is pending
- When jury has retired or issue has been submitted to judge
- when property has been deposited with the court
- when a counterclaim is pending, unless ct finds it can stand alone
What is a motion for judgment on the pleadings
- can only be filed once pleadings are closed
- trial court is limited to pleadings, so appropriate for when complaint fails to state a COA, or answer fails to state affirmative defense
- same standard as MTD
What effect does a voluntary dismissal have on a lis pendens
It cancels the lis pendens without a court order. Can be by stipulation or notice of dismissal
Who can seek a dismissal for failure to prosecute -
Court, on its own motion, or any of the parties
How do you make a motion for failure to prosecute?
If no activity on record of case for 10 months, serve notice to all parties. If nothing happens for 60 days after notice, action will be dismissed for lack of prosecution
What happens if court fails to rule on a directed verdict motion at the time it is presented?
The failure to decide reserves it for later determination. Moving party may then move w/in 15 days of verdict to have judgment set aside and entered in accordance with her motion for a directed verdict.
