Civil Procedure (Grossman)

Question 1

Timing

Answer 1

1) Don’t count 1st day

2) Count last day except if Sat., Sun., or a legal holiday.

3) If less than 7 days, don’t count Sat., Sun., or a legal holiday.

4) If service by mail, add 5 days.

5) Service complete:
–Mail = when mailed
–Hand delivery = when delivered
–Fax = when transmission complete
–Email = date sent or electronically filed

Question 2

Enlargement

Answer 2

Any time prescribed may be enlarged by the court, with or without motion, if such a request is made BEFORE the time expires.

However, the court may NOT extend the time for the following:

1) Motion for Belated Directed Verdict (commonly tested);

2) Motion for New Trial;

3) Sua sponte grant of new trial;

4) Motion for Amendment of Judgment;

5) Motion for Relief from Judgment;

6) Notice of Appeal (commonly tested); or

7) Petition for Certiorari.

Question 3

Wrong Venue

Answer 3

If P files the action in the wrong venue, it’s up to D to make a motion to change the venue.

1) If venue could be in two or more counties, P may select the county that the action is transferred to, or if no selection is made, the court may decide.

2) P must pay a service charge within 30 days of the transfer date.
—-If not paid within 30 days, the action shall be dismissed w/o prejudice.

Question 4

Pleadings

Answer 4

There are 7 pleadings in Florida:

1) Complaint

2) Answer (counter/crossclaims are brought within the answer by D)

3) Reply

4) Third Party Complaint

5) Third Party Answer

6) Answer to a Counterclaim

7) Answer to a Crossclaim

Question 5

Contents of Claim: What do we have to put in our pleadings?

Answer 5

1) A short, plain statement of the grounds of jurisdiction.

2) A short, plain statement of the ultimate facts showing the pleader is entitled to relief.

3) A demand for judgment for the relief sought.
—P must say it wants damages, injunction, etc.

Question 6

Special Pleadings

Answer 6

Certain circumstances must be plead w/ specificity:

1) Capacity or authority to sue on behalf of a minor;

2) Fraud or mistake;

3) Conditions Precedent (i.e., for a contract - if not satisfied, must be plead w/ specificty);

4) Special and general damages (must be plead w/ specificity so we know what P is asking for).

Question 7

Defense Motions (w/ respect to the pleadings)

Answer 7

1) Motion for more definite statement (i.e., complaint not clear)

2) Motion to strike

3) Motion to strike sham pleading (i.e., it’s not truthful)

4) Motion for Judgment on the Pleadings
—-This is usually done by D to test the sufficiency of the complaint.
—-Basically says opposing counsel did not properly file complaint or answer.
—-Judge will only look at the complaint, answer and any exhibits attached thereto.

Question 8

Motion for Judgment on the Pleadings

Answer 8

–This happens right after the pleadings.

–Used to test the sufficiency of the complaint or answer.

–Judge will only look at the complaint, answer and any exhibits attached thereto.

Question 9

Pre-Answer Defense Motions

Answer 9

The following defenses may be made by pre-answer motion:

1) Lack of jurisdiction over subject matter;

2) Lack of jurisdiction over person;

3) Improper Venue;

4) Insufficiency of Process;

5) Insufficiency of Service of Process (i.e., summons and complaint);

6) Failure to state a claim upon which relief can be granted;

7) Failure to join an indispensable party.

Question 10

Once a court has ruled on a defense motion, when must a responsive pleading be filed?

Answer 10

If the court denies the defense motion or postpones disposition until trial, a responsive pleading must be filed within 10 days after notice of the court’s action.

–Otherwise, typically an answer to a complaint has to be made within 20 days.

Question 11

Defenses that may be WAIVED by D if not made in the pre-answer motion or in his first response

Answer 11

There are 3 pre-answer motions that may be waived if not asserted:

1) Lack of personal jurisdiction;

2) Improper Venue;

3) Insufficiency of Service of Process.

Question 12

Answer

Answer 12

An answer must either ADMIT or DENY the allegations of the pleading to which it responds.

The answer must be made within 20 DAYS of the complaint.

–Failure to deny constitutes an admission to an allegation.

–Defenses must be stated in short, plain terms.

–General denials are permitted but not favored.

–Affirmative defenses must be specifically pled.

Question 13

Reply

Answer 13

If an answer contains an affirmative defense, a reply is required.

A reply must be filed within 20 DAYS of service of the answer.

Question 14

Amendment of Pleading

Answer 14

Without Approval of Court: A pleading may be amended once before a responsive pleading is served OR within 20 DAYS of service of the pleading.

–Note: After this time period ends, you must get court approval to amend.

Question 15

Crossclaim

Answer 15

This is a claim against a party on the same side of the “v.”

–Arises from same transaction or occurrence OR certain property is the subject of the suit.

Question 16

Counterclaims

Answer 16

This is a claim against a party on the opposing side of the “v.”

–Compulsory: arises from same transaction or occurrence (these must be claimed or are waived)

–Permissive: not same transaction or occurrence

Question 17

Impleader

Answer 17

Brings 3rd party into the action.

–Typically done when 3rd party is liable for P’s claim

–Arises out of transaction or occurrence

Question 18

Intervention

Answer 18

This is the device used for someon e with an interest in the case to join (up to discretion of the judge; take the case as you find it; same rights as P once joined)

Question 19

Interpleader

Answer 19

This is a device used to determine the rights of the parties each of whom claim the right to distrubution of the same fund or property that is held be a disinterested third person.

Interpleader allows the third party holding the funds to bring the competing parties into court to litigate their competing claims among themselves instead of litigating it against the party holding the funds.

–Typical for insurance company which has a pool of funds just needs to know amount to distribute to each P.

Question 20

When should counterclaims and crossclaims be asserted?

Answer 20

In the answer.

Question 21

What’s the time limit for an Impleader?

Answer 21

20 DAYS after service of answer without leave of court (otherwise have to make motion for impleader).

Question 22

Amended Pleading (Time Limit)

Answer 22

BEFORE RESPONSE or within 20 days if no response required and not on trial calendar.

Question 23

Response to Amended Pleading (Time Limit)

Answer 23

10 DAYS after service.

Question 24

Voluntary Dismissal (when can it be filed?)

Answer 24

A voluntary dismissal can be done at any time BEFORE the case goes to the factfinder, UNLESS:

1) Property has been seized; or

2) There’s a hearing set for a motion for summary judgment (commonly tested).

Question 25

Process for Voluntary Dismissal

Answer 25

Before Trial: serve notice

During Trial: must state on record

–First time is without prejudice; second time is with prejudice

–Stipulation to be signed by all current parties

Question 26

Involuntary Dismissal

Answer 26

1) Motion to Dismiss

2) Judgment on the merits except for:
–Lack of jurisdiction
–Improper Venue
–Indispensable party
–Court orders otherwise (w/o prejudice)

Question 27

Motion to Dismiss for Failure to Prosecute

Answer 27

If there’s been no activity for 10 months, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred (called a “notice of no activity”)

After this is filed, a hearing is required.
–Case is dismissed if there’s still no activity within 60 days of the notice.
–P has an opportunity to establish good cause in writing 5 days before hearing.

Case will typically be dismissed without prejudice.

Question 28

Lis Pendens

Answer 28

Automatically dissolved if claim dismissed

–Must record dismissal

–Filed at county courthouse; it’s notice that you’re litigating over a piece of property (to let 3rd parties know)

Question 29

Temporary Injunctions

Answer 29

Ex parte (done outside the presence of the other party):
-Must file an affidavit or verified pleading
-Must allege IMMEDIATE and IRREPARABLE HARM
-Must file a certificate regarding notice given to other party

No additional evidence unless other party:
1) appears
2) has notice

Note: A bond amount shall be set by the court (in case the injunction was improperly issued)

Question 30

Summary Judgment
(what is it and who may file)

Answer 30

Party is asserting that “there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law.”

–This is a decision on the merits (w/ prejudice).

–Either party may make this motion

–May be for all of part of the claim

Question 31

Summary Judgment (Timing)

Answer 31

A party may move for summary judgment at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party.

The movant must serve the motion for summary judgment at least 40 days before the time fixed for the hearing.

At least 20 days before the time fixed for the hearing, the nonmovant must serve a response that includes the nonmovant’s supporting factual position.

Question 32

What may a party discover?

Answer 32

Anything that is reasonably calculated to lead to the discovery of admissible evidence.

Question 33

Depositions (when can they be done and what’s the general process)

Answer 33

Must wait 30 days after service of process or need court order, unless:

1) A witness is leaving the state and will be unavailable; or
2) D has served discovery request.

–Must subpoena witness (except parties) for depositions

–To videotape the deposition, notice is required (but don’t need court approval)

–Need a court order:
1) to do a deposition by telephone
2) to depose a person in prison

Question 34

Motion to Perpetuate Testimony

Answer 34

This is a motion to get a deposition from someone before a complaint has even been filed. (notice must be given at least 20 days before the hearing; served like a summons)

–Must show to judge:
1) Witness leaving the state and will be unavailable; or
2) D has served discovery request.

This is filed in the circuit court in the county where the party lives.

Question 35

Subpoenas

Answer 35

-This is issued by the clerk (upon oral request) or by an attorney;

-Can move to quash or modify;

-Who can serve a subpoena?
1) Anyone authorized by law to serve process;
2) Anyone over 18 years old and not a party to the case (proof by affidavit).

-Failure to comply w/ subpoena = contempt (unless adequate excuse

Question 36

Upon issuing a subpoena, where should a deposition be held?

Answer 36

The deposition should only be held where the deponent (the person being deposed):

1) Lives;

2) Works; or

3) Transacts business in person.

Question 37

Subpoena Duces Tecum

Answer 37

-Served on parties who have possession or control of evidence

-Gives serving party the opportunity to inspect and copy;

-Relates to documents, records, tangible things

-Response: inspection allowed or objection (could be burdensome or difficult to perform)

Question 38

Production of Documents w/o Deposition

Answer 38

-Subpoena duces tecum w/o deposition (non-parties)

-Notice to parties of intent to serve subpoena:
1) 10 days before issuance if delivered
2) 15 days before issuance if mailed

-Party can object within 10 days of service

-Production only in county where docs/custodian lives or usually conducts business

-Motion to quash or modify: A court on motion may quash or modify the subpoena if unreasonable or oppressive.

-Can send copies of docs instead.

Question 39

Testifying Experts

Answer 39

A party may send interrogatories to identify:
1) Expert
2) Subject Matter
3) Facts/Opinions
4) Summary of grounds for opinion

–Note: Florida is very liberal about the opposing party being able to discover what expert will opine to, opinions, ultimate issues, etc. (to encourage settlements)

Question 40

What can an expert be required to tell?

Answer 40

An expert can be required to tell:
1) Payment for case
2) Litigation experience (% cases for P vs D)
3) Other cases involved in (within a reasonable time)
4) % hours worked, # hours or % income as an expert

NOT required to tell:
1) Income as expert or other jobs (i.e., overall income last year)
2) Financial records

Question 41

Consulting Expert

Answer 41

Consulting experts are much harder to learn about than in comparison to testifying experts.

1) Must show exceptional circumstances

2) Must be impracticable to get facts/opinions by other means

3) Must pay fee

Question 42

Interrogatories

Answer 42

May be served on another PARTY (NOT witnesses) with written questions, that are to be answered in writing within 30 DAYS after service.

–Note: However, D has at least 45 DAYS to respond if the interrogatories are served with the complaint.

IMPORTANT: The number of interrogatories is limited to 30.

Question 43

Class Actions (elements)

Answer 43

1) Numerosity (i.e., the class is so numerous that joinder of all members is impracticable); [at least 20]

2) Commonality (i.e., questions of law or fact common to the class);

3) Typicality (i.e., the claims or defenses of the representative parties are typical of the claims or defenses of the class);

4) Adequacy (i.e., the representative parties will fairly and adequately protect the interests of the class); AND

–One of these:
i) risk of inconsistent results otherwise;
ii) separate cases would decide the rights of nonparties
iii) injunctive relief appropriate for whole class; or
iv) common questions of law or fact predominate AND class action is the best way to resolve the controversy.

Question 44

Class Actions (notice)

Answer 44

-Notice must be given to all members who can be identified and located.

-Must say:
1) Can opt out;
2) Judgment includes all who don’t opt out; and
3) Can make separate appearance.

Question 45

Dismissal or Compromise of Class Action

Answer 45

A class action may not be voluntarily dismissed or settled without judicial approval after notice to all members of the class.

Question 46

Demand for Jury Trial

Answer 46

-Should be made within 10 DAYS of service of last pleading.

-Specify issues (other party can add other issues within 10 days of service of demand).

-Failure to demand = waiver
1) can grant w/ consent of parties
2) allow amendment
3) sua sponte jury trial (means judge decides to have)

-Can’t withdraw w/o consent of parties.

Question 47

Challenges for Cause

Answer 47

-Unlimited number

-Grounds (can support w/ evidence):
1) Related (3rd degree) to party, lawyer, person alleged liable, person wrong;
2) Interested in case;
3) Formed or expressed opinion;
4) Biased or prejudiced;
5) Served as juror within past year;
6) Can’t read, write or do math (if necessary);
7) Employed by party or person alleged liable (within 30 days before trial).

Question 48

Peremptory Challenges

Answer 48

-Each party gets 3

-If the number of parties is unequal, both sides get the same number of peremptory challenges. (e.g., if 2 Ps and 3 Ds, each side would get a total of 9 peremptory challenges)

-For each alternate juror selected, each party gets 1 peremptory challenge.

Question 49

Use of Depositions

Answer 49

You can use a deposition for any reason so long as witness is:
1) dead
2) adverse party
3) expert
4) greater than 100 miles from hearing
5) out of state
6) unable to attend / testify b/c age, illness, infirmity, prison
7) unable to be subpoenaed

Question 50

Motion to View

Answer 50

Standard: “Necessary to a just decision”

-Moving party pays costs (including officer to attend jury)

Question 51

Motion to Continue Trial

Answer 51

-Must be written (unless at trial)

-Signed by party (unless good cause)

Question 52

Motion for Directed Verdict

Answer 52

-Made at close of evidence

-Must state specific grounds

-Can join w/ Motion for New Trial

-If denied, can present evidence

Motion for Judgment in Accordance w/ MDV
-15 days after return of verdict; OR
-15 days after jury discharged.

Question 53

Motion for Directed Verdict (standard)

Answer 53

-Judge will look at the evidence in a light most favorable to the non-moving party.

-Movant basically stating that there’s insufficient evidence for a reasonable jury to find for other party.

-Key difference between MDV and summary judgment = timing (during trial vs before trial)

Question 54

Motion for Judgment in Accordance w/ MDV

Answer 54

Aka Motion for Belated Directed Verdict or Judgment Non-Obstente Verdicto (JNOB)

-Must be done within:
1) 15 days after return of verdict; OR
2) 15 days after jury discharged.

Question 55

Motion to Poll Jurors

Answer 55

After the verdict is returned, the losing party may have the jury polled.

Question 56

Post Verdict Interview of Jurors

Answer 56

A party may make a motion to interview jurors to determine if there’s a legal challenge to the verdict.

-Motion must be served within 15 days of verdict, except for good cause shown.

-Court may allow the interview of the jurors but must prescribe the place, manner, conditions and scope of the interview.

Question 57

Motion for Costs and Attorney’s Fees

Answer 57

Filed 30 days after:
1) Judgment filed; OR
2) Notice of voluntary dismissal served.

Question 58

Motion for New Trial or Rehearing

Answer 58

Served 15 days after:
1) return of jury verdict; OR
2) filing of judgment in bench trial.

-May file affidavits of why you want a new trial.

-File opposing affidavits 10 days after service of motion. (Note: 20 additional days if good cause shown or parties stipulate)

Question 59

Motion for Relief from Judgment

Answer 59

Done for clerical mistakes

-can be made sua sponte or on motion

-during appeal (can correct before appeal is docketed; need leave of court after appeal is docketed)

Question 60

Grounds for Motion for Relief from Judgment

Answer 60

Within a reasonable time:
1) voidness
2) judgment satisfied
3) prior judgment reversed

Within 1 year after judgment “entered or taken”:
1) mistake
2) inadvertence
3) surprise
4) newly discovered evidence (not prev. discoverable by due diligence)
5) fraud, misrepresentation or other misconduct of party

Question 61

Procedure in Medical Malpractice Claims

Answer 61

1) Pre-suit Investigation (need expert witness opinion from another Dr. in the area opining that there was medical malpractice)

2) Notice of intent to sue (given to healthcare provider and insurance companies)

3) Pre-suit screening process by D (90 day tolling period for D to look over suit and come back with a settlement offer)

4) Discovery

5) Voluntary Binding Arbitration (alt. to suing in circuit court)