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)
