Civil Procedure (Celebration)

Question 1

Service of Processs: Party Represented by an Attorney

Answer 1

When a party is represented by an attorney, service must be made on the attorney unless otherwise ordered by the court.

Delivery to the attorney means:

1) Handing it to the attorney;

2) Leaving it at his office with the clerk or other person in charge;

3) Leaving it in a conspicuous place in the office if there is no one in charge; or

4) If the office is closed or the person to be served has no office, leaving it at his usual place of abode with some person of his family over the age of 15 and informing such person of the content.

Question 2

Long-Arm Jurisdiction

Answer 2

Long-arm jurisdiction requires that the individual have at least minimum contacts with the state.

In order for the court to have jurisdiction conferred on the basis of the long-arm statute, the cause of action must be the result of D’s activities within the state, or it must be the result of conduct outside of the state and D engaged in continuous and systematic business within the state.

Question 3

Long-Arm Jurisdiction: Contracts

Answer 3

Long-arm jurisdiction extends to one who breaches a contract in the state by failing to perform acts required by the contract to be performed in the state.

-It is not necessary that D have been engaging in business operations in the state.

-Further, the “act to be performed” may only have been a promise to make payment to a P in FL.

Question 4

Subject Matter Jurisdiction

Answer 4

Subject matter jurisdiction is the authority to hear and decide a general type of suit; it is granted by the constitution or statutes of the state, and cannot be waived by the parties.

-County courts have civil jurisdiction over all actions at law in which the amount does not exceed $30,000 (exclusive of interest, costs and attorney fees).

-The small claims division of the county courts has jurisdiction of actions in which the amount in controversy does not exceed $8,000.

Question 5

Service by Publication: What types of actions is this appropriate?

Answer 5

Service by publication may be made on certain types of defendants (natural persons) in a proceeding in rem or quasi in rem.

Appropriate actions for service by publication include, inter alia, foreclosure actions, proceedings for dissolution or annulment of marriage or for adoption, proceedings for construction of a will, deed, contract or other written instrument, or probate or guardian proceedings.

Question 6

Service by Publication: Process for properly serving

Answer 6

In order to make service by publication, P is required to file an affidavit showing that:

1) D’s residence is outside Florida;

2) Is unknown after diligent search and inquiry; or

3) Is known to be within the state but that D has been absent from the state for more than 60 days or is concealing himself.

Question 7

Service of Process: Private Corporations

Answer 7

Service of process against any private corporation, domestic or foreign, must be served pursuant to a statutorily prescribed hierarchy.

It is necessary to state in the return of service that attempts were made to make service at the higher level (i.e., to a corporate officer or agent designated to receive such service).

-Note: President and Vice President are at the same level of the above-mentioned hierarchy.

Question 8

Service of Process by Mail

Answer 8

Unlike the FRCP, the FL Rules do NOT generally allow for service of process by mail in lieu of in-hand delivery.

Service of process by mail is permitted only where substituted service is allowed or where the amount in controversy does not exceed $2500.

Question 9

How is service of process typically made on a resident of FL?

Answer 9

Service of process is made by delivering a copy of the summons or other original process to the person to be served, along with a copy of the complaint, or by leaving copies at her usual place of abode with any person residing therein who is 15 years of age or older and informing them of the contents of the papers. (it’s not necessary that it be a relative of D)

-It is not necessary for D to open the door to be served, as long as the process server can be sure of her presence in the home b/c of having seen her or talked with her over the phone.

Question 10

Defenses that D that may be raised in either her answer or pre-answer motion to dismiss

Answer 10

There are 7 defenses that D may raise in either her answer or, at her option, in a pre-answer motion to dismiss under Rule 1-140(b):

1) Lack of subject matter jurisdiction;

2) Lack of personal jurisdiction;

3) Improper venue;

4) Insufficiency of process;

5) Insufficiency of service of process;

6) Failure to state a cause of action;

7) Failure to join an indispensable party.

-NOTE: Affirmative defenses (such as res judicata) MUST be raised by D in her answer.

Question 11

When may D raise the defense of failure to state a cause of action?

Answer 11

D may raise the defense of failure to state a cause of action in any pleading, including a motion for judgment on the pleadings, and can even be raised at trial.

However, the right to raise this defense at trial is NOT absolute, but is in the discretion of the judge. It may NOT be raised for the first time on appeal.

Question 12

When may a party amend her pleading once as a matter of course?

Answer 12

A party may amend her pleading once as a matter of coourse at any time:

1) before a responsive pleading has been served; or

2) if no responsive pleading is permitted and the action has not been placed on the trial calendar, within 20 days after service of her pleading.

Note: The statute of limitations is tolled by the filing of the action.

Question 13

Can a party amend the pleading after the statute of limitations has run?

Answer 13

Yes - if the new claim arose out of the conduct, transaction or occurrence set forth in the original pleading, then the amendment relates back to the date of the original filing (i.e., it is deemed to have been filed on the date of the original pleading).

-Because the other party had notice within the limitations period of a claim against him arising out of the same transaction, he is not prejudiced by the addition of another claim based on the same transaction.

-However, P cannot add a new party after the running of the statute of limitations.

Question 14

Once filed, can a demand for jury trial be withdrawn?

Answer 14

No, not without the consent of all the parties.

Question 15

What are the essential elements of a complaint or other claim for relief?

Answer 15

Each complaint (or other claim for relief, i.e., a counterclaim) must contain, inter alia, a short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and the complain and the other pleadings must contain a caption setting forth the (1) name of the court; (2) the file number; (3) the name of the first party on each side w/ an appropriate indication of other parties; and (4) a designation identifying the party filing and its nature (i.e., complaint or counterclaim).

Question 16

Does a foreign corporation have to allege in its complaint that it is authorized to do business in FL to file a claim therein?

Answer 16

No - the rules do not require that a foreign corporation allege that it is authorized to do business in FL.

In general, each complaint must contain:

1) a short, plain statement of the grounds upon which the court’s jurisdiction depends;

2) a short, plain statement of the ultimate facts showing that the pleader is entitled to relief; and

3) a demand for judgment for the relief to which P deems herself entitled.

Question 17

When must an answer be served?

Answer 17

The Rules require that an answer be served within 20 days after service of the summons and complaint on D.

If a reply is appropriate, the time for filing the reply is 20 days after service of the answer.

Question 18

When must a reply be filed?

Answer 18

If a reply is appropriate, the time for filing the reply is 20 days after service of the answer.

Question 19

If a court grants D’s motion for a more definite statement, how many days after servide of the motion does D have to serve his answer?

Answer 19

The Rules require that if the court grants D’s motion for a more definite statement, D has 10 DAYS after service of the motion to serve his answer.

Question 20

What happens if a party does not respond to a claim asserted against him?

Answer 20

That party is subject to default. This includes counterclaims made againt Ps.

Question 21

What is a verified motion?

Answer 21

In Florida, a verified motion is a legal document that includes a verification statement. This statement is an oath, affirmation, or declaration under penalties of perjury, asserting that the facts presented in the motion are true to the best of the knowledge and belief of the person signing it.

Question 22

When may a verified motion to strike a sham pleading be made?

Answer 22

FL allows a verified motion to strike a sham pleading to be made at any time BEFORE the cause of action is set for trial.

Question 23

If the court grants D’s motion to dismiss, what can P do?

Answer 23

If the motion to dismiss is granted, P can usually amend her complaint either by filing an amendment to the original complaint or by filing a new amended pleading.

-If P amends, she waives any right to appeal the dismissal of the original pleading.

If P wishes to appeal the grant of the motion to dismiss, she must allow a judgment of dismissal to be entered against her. An interlocutory appeal is not available in such a scenario.

-If she wins her appeal, the complaint is reinstated and the case proceeds. However, if she loses her appeal, the appellate court may still exercise its discretion to remand to allow her to amend her pleading.

Question 24

Declaratory Judgments

Answer 24

The court may render declaratory judgments on the existence, or nonexistence:

(1) Of any immunity, power, privilege, or right; or

(2) Of any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action.

Question 25

Interlocutory Appeals

Answer 25

In Florida, an interlocutory appeal refers to the appeal of a non-final order before the case has reached a final judgment. According to the Florida Rules of Appellate Procedure 9.130, interlocutory appeals to the district courts of appeal are limited to specific types of non-final orders1. These include orders that concern venue, grant or deny injunctions, determine jurisdiction of the person, immediate possession of property, certain family law matters, entitlement to arbitration or an appraisal under an insurance policy, and several other specific circumstances.

Question 26

What is a crossclaim and when should it be asserted?

Answer 26

A cross-claim is a claim asserted by one party against a co-party.

A cross-claim, like a counterclaim should be pleaded IN THE ANSWER, but it is NOT compulsory.

Question 27

What is a permissive counterclaim and when are they allowed?

Answer 27

Permissive counterclaims are those claims that do not arise out of the same transaction or occurrence as the original claim, and require and INDEPENDENT BASIS for jurisdiction.

An independent basis for jurisdiction is also required when persons other than those who are parties to the original action are added as parties to a counterclaim or crossclaim if their joinder is required or permitted, i.e., they are “indispensable”, “necessary” or “proper” parties.

-Whether in a compulsosy or permissive counterclaim or cross-claim, additional parties may be joined if the court can obtain personal jurisdiction over them.

Question 28

What is an Impleader and when may it be brought?

Answer 28

Impleader allows D to assert a claim against a third person not a party to the original action who is or may be liable to D for all or part of P’s claim against D.

D may serve a summons and third-party complaint on the third party (the “third-party defendant”) without leave of court not later than 20 days after he serves his original answer.

-NOTE: The court always has discretion whether to permit impleader.

Question 29

What is an Interpleader?

Answer 29

Interpleader allows a person, who does not know to which of several claimants he is liable (if he is liable at all), to join all the claimants in one action and require them to litigate among themselves to determine which claim is valid.

-In FL intervention is permissive, never a matter of right.

Question 30

What is an Intervention?

Answer 30

Intervention provides a procedure whereby a nonparty can enter a lawsuit upon her own initiative to protect her interests.

-In FL, these cannot be made as a matter of right but may be permitted at any time.

Question 31

Judgments on Shareholder Derivatives Suits vs. Class Action Suits

Answer 31

A judgment in a shareholder derivative suit is binding on persons not parties to the suit upon approval of the court.

This is not the same as in a class action suit wherein parties may request exclusion (opt out) and are thereby not bound by the judgment.

Question 32

Notes on Class Action Suits

Answer 32

The court may order that the action be treated as a class action with respect only to particular issues, or that the class be divided into subclasses w/ their own representatives.

-In a (b)(3) class action a valid judgment, whether or not favorable to the class, binds all those who have not requested exclusion (opted out) and who are found to be class members.

-A person who opts out is not bound by the judgment, but on the other hand, she cannot rely on a favorable judgment as collateral estoppel.

-The filing of a class action suspends the statute of limitations on each potential member’s claim until the decision of certification.

Question 33

What must a party do to take a deposition of another party? Non-party?

Answer 33

1) Notice alone is sufficient to compel attendance of a party

2) Non-parties must be served with a subpoena, but there is no need for court approval.

Question 34

What may a party discover regarding a testifying expert witness through an interrogatory?

Answer 34

A party may, through interrogatories, discover:

1) the identity of each expert witness his oponent expects to call at trial;

2) the subject matter on which the expert is expected to testify; and

3) the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

Question 35

What may a party discover regarding a non-testifying expert witness?

Answer 35

If an expert has been retained by the opponent in anticipation of or in preparation for litigation and is not expected to testify at trial, facts known or opinions held by the expert discoverable ONLY UPON A SHOWING OF EXCEPTIONAL CIRCUMSTANCES under which it is impracticable for the party seeking discovery to obtain facts or opinions on the smae subject by other means.

Question 36

When is leave of court required to take a deposition?

Answer 36

Leave of court must be obtained only if the plaintiff seeks to take a deposition within 30 days after service of the process and initial pleading on any defendant.

-However, leave is not required if a defendant has served a notice of taking deposition or otherwise sought discovery.

Question 37

Is a party that responds to a request for discovery with a response that was complete when made under an ongoing duty to supplement such response?

Answer 37

No. A party that responds to a request for discovery with a response that was complete when made is under NO DUTY to supplement his response to include information thereafter acquired.

Question 38

Objections at deposition vs. trial (procedure)

Answer 38

Depositions: If there’s an objection, the reporter notes the objection and the witness answer.

Trial: If that testimony is given at trial, the judge will rule on the objection.

Question 39

Can a party that refuses to submit to a physical exam be held in contempt?

Answer 39

No. Refusal to submit to a physical exam cannot be treated as contempt.

Question 40

What can a party do if the opposing party is not complying with its discovery requests?

Answer 40

Upon motion, a court can order a party to answer a question at a deposition or on interrogatories, or to produce a requested document or allow a requested inspection, or to admit or deny a request to admit.

If the motion is denied, and the court finds that the motion was made without a substantial justification, the court will require the moving party, or the attorney advising the motion, to pay the reasonable expenses incurred in opposing the motion, including reasonable attorney’s fees.

Question 41

Can dismissal with prejudice be granted against a noncomplying party for refusal to comply with discovery obligations?

Answer 41

Dismissal with prejudice can be granted under appropriate circumstances for discovery rule violations even without showing violation of a direct order.

However, an express written finding of willful or deliberate refusal to obey a court order to comply with discovery is necessary to sustain the severe sanctions of dismissal or default against a noncomplying P or D.

Question 42

When may a statement made in a deposition be admissible in court?

Answer 42

A statement made in a deposition is generally inadmissible as hearsay.

However, it may be admitted in limited circumstances:

1) Any deposition may be used by any party for contradicting or impeaching the deponent’s testimony as a witness;

2) The deposition of an adverse party or an officer, director or other agent of an adverse corporate party may be admitted for any purpose;

3) the deposition of a witness be used for any purpose if the witness is (unavailable):

-(a) dead

-(b) more than 100 miles from the place of trial;

-(c) unable to attend or testify b/c of age, illness, infirmity, or imprisonment;

-(d) not obtainable by subpoena;

-(e) special circumstances make it desirable in the interests of justice to use the deposition; or

-(f) the witness is an expert or skilled witness.

Question 43

Notes on Interrogatories

Answer 43

-Interrogatories are written questions to another party which must be answered in writing under oath.

-Note that while a deposition may be taken from a party or a nonparty, interrogatories can be addressed ONLY to a party.

-Interrogatories may be served at any time including at the time the complaint is served.

-The interrogatories shall not exceed 30, including all subparts, unless the court permits a larger number on motion and notice and for good cause.

Question 44

When must a party answer an interrogatory?

Answer 44

Interrogatories must be answered within 30 days after they are served

OR within 45 days if they are served with a complaint.

Question 45

When can a request for medical examination of a party be made without leave of court?

Answer 45

When the physical condition of a party is in controversy.

-If a P alleges mental or physical injury or if D asserts his condition as a defense the condition is clearly in controversy.

-NOTE: The party examined has an absolute right to a copy of a detailed written report of the physician or expert.