Civil Procedure (Kaplan)

Question 1

Summons and Subpoena

Answer 1

Service of process begins w/ the issuance of a summons on a party by the clerk of the court or the judge.

Non-parties are served process by subpoenas.

Question 2

Methods of Service

Answer 2

1) Personal Service = personally delivering a copy of the complaint and summons to D.

2) Substituted Service = if D cannot be personally served, leaving a copy of the summons and complaint at D’s usual place of abode, w/ any person residing there who is 15+ years old, and informing that person of the contents, OR at place of employment.

3) Constructive Service, or Service by Publication = may be used when party to be served cannot be found; P must make a sworn statement (affidavit) that after diligent search + inquiry, P cannot determine D’s whereabouts, or D is hiding.

4) Service by Mail = a party agreeing to accept service by mail gets 60 days to file an answer, and thereby waives no rights as to any objections.

Question 3

What is substituted service?

Answer 3

If D cannot be personally served, leaving a copy of the summons and complaint at D’s usual place of abode, w/ any person residing there who is 15+ years old, and informing that person of the contents.

–An employer is required to allow an authorized individual to make service on an employee in a private area designated by the employer, or the employer will be subject to a civil fine.

Question 4

What is Constructive Service?

Answer 4

May be used when party to be served cannot be found; P must make a sworn statement (affidavit) that after diligent search + inquiry, P cannot determine D’s whereabouts, or D is hiding.

Question 5

Service by Mail

Answer 5

A party agreeing to accept service by mail gets 60 days to file an answer, and thereby waives no rights as to any objections.

Question 6

Who may Delivery of service be made by?

Answer 6

Service may be made by:

1) A sheriff

2) A special process server appointed by the sheriff

3) Or any person over age 18 who is not a party or otherwise interested in the outcome of the case and who is specially appointed by the court to serve process.

Question 7

Timing of Service

Answer 7

Generally, D must be served within 120 days of filing the complaint.

–However, the time can be extended, but a party must file a motion with the court to extend the time.

Question 8

Venue: Actions against FL residents and corporations

Answer 8

If D is a FL resident, venue exists in:

1) the county in which D resides at the time the action commenced;

2) the county in which the cause of action accrued; or

3) the county in which the property in litigation is located.

–If multiple Ds, venue lies in each county that a D resides.

–If multiple causes of action, P may choose any county where 1 cause of action accrued.

Corporations: venue lies in any county in which a domestic corporation has, or usually keeps, an office for transaction of its customary business (foreign corps = any county in which corp has an agent or rep)

Question 9

Transfer of Actions (Venue)

Answer 9

FL statute grants court discretion in transferring venue w/o restriction as to whether the venue was properly filed in the first place.

The court may transfer an action to the proper court in another county if:

1) the action is pending in the wrong court or venue;

2) a party cannot receive a fair trial in the county where the action was brought;

3) it is for the convenience of the parties or witnesses; or

4) it is in the interest of justice.

Question 10

Forum Non Conveniens

Answer 10

Ds who object to jurisdiction over an action by a FL court may move to DISMISS the action based on forum non conveniens.

–This addresses the problem that arises when a FL court technically has jurisdiction, but the cause of action may be fairly and more conveniently litigated in a different state.

Question 11

What must be included in a Complaint?

Answer 11

A cause of action is initiated by a complaint or a petition, which must include:

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

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

3) a demand for judgement for the relief sought.

Question 12

Exceptions for Special Pleadings

Answer 12

1) Fraud or Mistake: Facts and circumstances must be stated w/ particularity.

2) Conditions Precedent: The performance of conditions precedent may be alleged generally; however, the denial of performance or occurrence must be made specifically.

3) Incapacity: A party wishing to challenge opposing party’s capacity to sue must state the particulars of his opposition that are within his knowledge.

4) Special Damages: Elements of special damages must be specifically stated, but dollar itemization is not required.

5) Supporting Docs: A copy of any bond, note, contract, account, or other doc on the basis of which the claim or defense is made, must be attached to the pleading.

Question 13

What types of actions may be pled together?

Answer 13

Multiple causes of action, actions at law and at equity, and counts in the alternative may all be pled together.

There is no restriction on the number of causes of action that you can bring in a single complaint, and there’s no prohibition if there is any inconsistency among the causes of action brought.

Question 14

What must be stated in an Answer?

Answer 14

An answer must either admit, deny or respond “without knowledge” to the allegations of the pleadings to which it responds.

–A statement that the respondent is w/o knowledge of the specific facts or allegations is an implied denial.

–Failure to deny or allege insufficient knowledge constitutes an admission of all the allegations, except as to damages.

–An answer may also assert affirmative defenses (which must be stated plainly and concisely, and must meet the substance of the allegations and denials)

Question 15

Compulsory Counterclaims

Answer 15

Any claim that a pleader has against the opposing party which arises out of the same “transaction or occurrence” as the original complaint.

–These MUST be asserted w/ the responsive pleading or are deemed permanently waived.

Question 16

Permissive Counterclaim

Answer 16

A claim between the same parties that does NOT arise out of the same transaction or occurrence as the original complaint.

–Failure to bring a permissive counterclaim does NOT constitute a waiver of that claim.

Question 17

Cross-claim

Answer 17

A claim by one party against a co-party.

–This MUST arise out of the same transaction or occurrence as the original claim or counterclaim.

–In Florida, all cross-claims are PERMISSIVE. (a party is not required to file one)

Question 18

What is a reply and when must it be filed?

Answer 18

A reply is only required if the answer or third-party answer contains an affirmative defense that the opposing party seeks to avoid.

–A reply must be filed within 20 days after service of the answer. A mere denial of an affirmative defense does not require a reply.

Question 19

In a civil case, when should a Motion to Dismiss be filed?

Answer 19

The filing of a motion to dismiss suspends the time to file an answer until resolution of the motion.

–A MTD must be denied unless “it appears beyond doubt that P can prove no set of facts in support of his claim which would entitle him to relief” (these are rarely granted)

–Upon a MTD for failure to state a cause of action, the court must construe the complaint in the light most favorable to P, and assume all facts set forth in the complaint as true.

–NOTE: A party generally has 20 days from the date of service of the complaint to file an answer. However, when a MTD is filed, the time to file an answer is suspended until the court rules on the motion. Once the court rules on the motion, the answer must be filed within 10 days of the court’s ruling.

–If the MTD is granted, a court will usually allow P to amend the complaint either by filing an amendment to the original complaint or by filing a new amended pleading.

Question 20

Defenses Waived if Not Raised in Answer or Pre-Answer Motion

Answer 20

1) Lack of jurisdiction over the person (personal jurisdiction)

2) Improper Venue

3) Insufficiency of Process; or

4) Insufficiency of Service of Process.

Question 21

Discretionary Defenses (may be brought at any time during initial action)

Answer 21

1) Failure to state a cause of action

2) Failure to join an indispensable party

3) An objection of failure to state a legal defense.

–However, the right to raise these defenses at trial is NOT absolute but is in the discretion of the judge.

Question 22

Nonwaivable defense

Answer 22

The defense of lack of subject matter jurisdiction is NEVER waived.

–It may be raised at any time by any party or by the court, and may be raised for the first time on appeal.

Question 23

Motion for judgment on the pleadings

Answer 23

A motion for judgment on the pleadings is analogous to a motion to dismiss; however, it is made AFTER pleadings and all motions related to them are closed but within such time as to not delay the trial. (e.g., before discovery)

–This motion claims that based solely on the pleadings, the party is entitled to judgment as a matter of law.

Question 24

Motion for a more definite statement

Answer 24

If the pleading is “so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading,” the party may move for a more definitive statement before filing a responsive pleading.

–This TOLLS the time required to answer.

Question 25

Motion to strike

Answer 25

A party may move to strike from a pleading “any redundant, immaterial, impertinent, or scandalous material.”

–Filing a motion to strike does NOT toll the time to answer.

–FL also allows a verified motion to strike a SHAM PLEADING to be made any time BEFORE the cause is set for trial.

Question 26

Impleader

Answer 26

Aka third-party complaint, this is a device that allows D to bring in a third party who is or may be liable to D for all or part of P’s claims.

–The cause of action must be for claim of indemnity, subrogation, or contribution to raise a third-party claim against a non-party, although additional claims are permissible.

–Third Party D may assert any defenses it has against D

–Both the original P and third party D may file claims against each other.

Question 27

Intervention

Answer 27

Intervention is a device by which a non-party enters the action on his own motion, becoming a third-party plaintiff.

–The non-party wishing to intervene must be in a position that he will gain or lose by the effect of the judgment.

–An intervenor has the status of a party, but the intervention is subordinate to the main action, unless otherwise ordered by the court.

–The intervenor takes the case as they find it, and has no right to reargue earlier motions, orders, or rulings.

Question 28

Interpleader

Answer 28

Interpleader is a device by which persons having conflicting claims against a stakeholder may be joined as a D and required to interplead so that the stakeholder may avoid exposure to double liability.

–Ex: Person dies leaving life insurance policy, proceeds claimed by wife and ex-wife. Insurance co. is the stakeholder. As a neutral 3rd party, it may bring an action in court to determine the rights of each claimant.

–The order of interpleader will require the stakeholder to deposit the funds or property with the court, be dismissed as a party, and be awarded reasonable attorney’s fees/costs.

Question 29

Amendment of Pleading

Answer 29

As a matter of course, a pleading may be amended once BEFORE a responsive pleading is served.

–After the time period for amendment as of right has expired, a party must make a motion to amend the pleading.

–An amended pleading is substituted for the former pleading.

Question 30

Service of subsequent pleadings and papers

Answer 30

Unless the court otherwise orders, every pleading subsequent to the initial pleading must be served on every party to the action promptly after being filed w/ the court.

–Service of pleadings is mandatory by email. All documents required or permitted to be served on another party must be served by email.

Question 31

Service on attorneys

Answer 31

All attorneys designate a primary email address and no more than 2 secondary email addresses.

If an attorney doesn’t designate an email address, then it will be the default address on account w/ FL Bar.

Question 32

Time of Service by Email

Answer 32

Service by email is complete when sent.

–deemed served on the date sent

–if the sender learns that the email did not reach the address of the person to be served, the sender must immediately send another copy by email or by hand, mail, or fax

-Email service is treated as service my mail for the computation of time (meaning if complaint is served on a Monday, don’t count that day when determining the due date)

Question 33

Time (when computing when something is due)

Answer 33

When computing when something is due, the day of the act that requires you to take action is NOT counted (e.g., if complaint is served on a Monday, don’t count that day when determining the due date)

–For actions that take more than 7 days , intermediate Saturdays, Sundays and legal holidays ARE counted (but if the last day falls on one of the same, the deadline is extended to the next business day)

–If you have an action that MUST be taken in LESS than 7 days, intermediate Saturdays, Sundays and legal holidays are NOT counted

Question 34

Minors and Incompetent Persons

Answer 34

May sue and only be sued through a guardian or like fiduciary.

–If no guardian, may sue through a next friend or guardian ad litem (aka a temp. guardian appointed by the court to protect the minor’s interest during the litigation)

Question 35

Joinder of Parties

Answer 35

In general, FL has a very liberal policy of allowing joinder.

A party may be added at ANY TIME by amendment of the requisite pleading if the presence of that party is NECESSARY or PROPER to any complete determination of the cause.

Question 36

Misjoinder

Answer 36

Is the joinder of parties or actions that are improper.

–Either the claims are severed or one of the wrongly joined parties is dropped

Question 37

Compulsory Joinder

Answer 37

The law compels that a particular party be joined in a lawsuit when that party is deemed to be INDISPENSABLE to the lawsuit.

Question 38

Indispensable Parties

Answer 38

An indispensable party is a person who has an interest in the controversy of the action such that a judgment cannot be made w/o affecting that interest, or in that person’s absence, the court will not be able to resolve the controversy completely and effectively w/o adversely prejudicing some party to the action.

–NOTE: if the indispensable party is not joined the suit may be dismissed.

Question 39

Class Actions

Answer 39

Before any claim or defense may be maintained on behalf of a class by one of more parties suing as the class representative, the court must determine that each of the following reqs have been met:

1) Numerosity (so numerous that joinder of all members is impracticable - e.g., at least 25)

2) Commonality (questions of law or fact common to the class)

3) Typicality (the claims or defenses of the representative parties must be “typical of the claims or defenses of the class.”)

4) Adequacy (the proposed representative must have common interests with the class members and be able to properly prosecute the class action)

Once a class has been certified, the case may NOT be dismissed, withdrawn or compromised w/o court approval.

Question 40

Scope of discovery

Answer 40

The court has broad discretion in overseeing discovery. The standards governing discovery are liberal, and discovery is proper on ANY non-privileged matter deemed to be relevant to the subject matter of the case.

–NOTE: Matters sought to be discovered need NOT be admissible evidence.

–Any material that is not itself admissible but may lead to admissible material may be discovered.

Question 41

Work Product

Answer 41

Consists of documents and other tangible things prepared in anticipation of litigation or for trial by or for another party or his representative.

– Can be divided into 2 categories:

1) Factual Work Product = factual information pertaining to the client’s case that is prepared or obtained by the attorney

2) Opinion Work Product = the attorney’s mental impressions, theories and conclusions concerning the client’s case. (this is NEVER discoverable)

Question 42

When is factual work product discoverable?

Answer 42

Upon a showing of:

1) Substantial need for case preparation; and

2) Inability, w/o undue hardship, to obtain the substantial equivalent by another means.

Question 43

Oral depositions

Answer 43

Any party may depose any person by giving all parties a reasonable notice of deposition, specifying the time and place of deposition and the name and address of the person to be deposed.

–If the deposition is to be videotaped, the notice must inform the person of that fact.

–Reasonable notice is required to be given to parties.

–To compel a non-party’s attendance at a deposition, the non-party must be served w/ a subpoena.

–Depositions are recorded in writing by a stenographer. (transcript not provided to parties automatically, but may be ordered at their expense) (a witness may review the transcript and correct both the form and substance of his testimony)

Question 44

Subpoena Duces Tecum

Answer 44

Compels the deponent to bring to the deposition specific papers and docs for inspection and copying.

–D is allowed 30 days to assemble the docs

Question 45

Objections at Depositions

Answer 45

Evidence at a deposition is taken subject to objections, but the objections are NOT generally waived if they are not raised during deposition. (subject to certain exceptions)

Question 46

Objections at Depositions which must be raised or are waived

Answer 46

The following objections must be raised at the deposition or they are waived:

1) Defects in the notice of the deposition;

2) Defects in the qualifications of the court reporter; or

3) Any error or irregularity in the manner of taking the deposition, including the form of the questions and conduct of the parties.

Question 47

Refusal to Answer by a Deponent

Answer 47

A deponent may only be properly advised not to answer in 3 circumstances:

1) To preserve privilege;

2) The scope of a deposition can be narrowed by a protective order; or

3) A witness may move to terminate or limit the deposition if it is being conducted in bad faith or in such a manner that is annoying, embarrassing, or oppressive.

Question 48

What are the specific reasons to hold a Deposition?

Answer 48

Deposition transcripts can be used, subject to the rules of evidence, for 3 specific reasons:

1) to proffer testimony;

2) to impeach; or

3) to refresh memory.

Note: If only part of a deposition is offered by a party, any adverse party may compel the introduction of any other part of the deposition that should be considered in fairness.

Question 49

When can a deposition be used as substantive evidence in a trial?

Answer 49

1) If the deponent was an adverse party or an expert; or

2) the deponent is unavailable b/c the deponent is:

–(a) dead;

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

–(c) farther than 100 miles from the place of the trial OR outside the state of FL, and thus beyond the subpoena power of the court,

UNLESS the party offering the deposition procured the absence.

Question 50

Interrogatories

Answer 50

Are written questions served by one party upon another party, whether or not adverse.

–May only be served ON PARTIES to the action.

–Limited to 30 questions, including all subparts. (may only be extended by leave of court)

–Any objections as to the questions must be stated or they are waived.

–Instead of providing an answer, the answering party may produce docs if the info is contained in such docs, e.g., in the business records of the answering party, allowing the interrogating party to personally inspect the business records.

Question 51

Request for Production or Inspection

Answer 51

May be used to compel parties to produce relevant docs for inspection, or as discovery. Docs MUST be provided if they are In the party’s possession, custody or control.

–NOTE: requests for production or inspection are NOT appropriate for persons who are not a party to the action. Instead, a subpoena duces tecum should be used.

The producing party may either:

1) produce the docs as they are kept in the ordinary course of business; or

2) organize them to correspond with the categories in the request

Question 52

Requests for admissions

Answer 52

This is a device whereby one party serves on another party a written request for admission of truth of the matter, of application of law to facts, or of genuineness of docs.

–Possible responses include:
1) admission;
2) denial;
3) a reason the request cannot be admitted or denied; or
4) objection w/ the basis for the objection.

Requests for admission are limited to 30 questions, including all subparts. May only be extended by leave of court.

Requests for admission that are not responded to are deemed admitted at trial.

Question 53

When may a party request an Examination of another party?

Answer 53

A party may request that any other party submit to an examination by a qualified expert when the physical or mental condition of the party is in controversy.

–Mental examinations require leave of court, while physical examinations do not.

–Requests for examinations may only be served on PARTIES to an action.

Question 54

Motions to compel discovery

Answer 54

If a party fails to provide discovery, the propounding party may move for an order compelling discovery.

–When discovery is provided, a motion to compel may still succeed if the answer given is evasive or incomplete.

–Before filing this motion, there is a duty to have attempted in good faith to resolve the issue.

Question 55

Voluntary Dismissal of Actions by Parties

Answer 55

May be done by P w/o order of court as follows:

1) Before trial: by serving a notice of dismissal;

2) During trial: by stating on the record;

3) At any time: by filing a stipulation of dismissal.

–A voluntary dismissal is dismissal w/o prejudice

–NOTE: a party can only dismiss ONCE w/o prejudice. A subsequent dismissal operates an an adjudication on the merits.

Question 56

Restrictions on Voluntary Dismissal of Actions by Parties

Answer 56

An action may not be dismissed w/o order of court:

1) Once a hearing for summary judgment has begun;

2) If a counterclaim is pending against the party wishing to dismiss; or

3) If the action has been submitted to the judge or jury for final determination.

Question 57

When may a party move for an Involuntary Dismissal of an Action or Claim?

Answer 57

Any party may move for dismissal of an action or claim due to:

1) Failure to prosecute: if there’s no record activity by the filing of pleadings, order of court, or otherwise for a period of 10 months, a notice may be provided to all parties that no such activity has occurred.

2) Failure to comply: A party’s failure to comply w/ an order from the court or w/ the court rules will result in involuntary dismissal

Effect: An involuntary dismissal is deemed WITH PREJUDICE and operates as an adjudication on the merits unless otherwise specified.

Question 58

Default Judgment

Answer 58

If a party fails to respond to a claim, the pleading party can move for a default judgment.

–If no docs have been filed in a case, the CLERK MAY enter a default judgment.

–If docs have been filed, the JUDGE must respond to a motion to default.

Question 59

When may a court grant a Motion to set aside a default judgment?

Answer 59

A default judgment may be set aside by the court if the defaulting party shows

(1) both good cause (excusable neglect) for the default; AND

(2) A meritorious defense.

Question 60

When should a motion for Summary Judgment be granted?

Answer 60

Summary judgments are intended to pierce the pleadings to determine if there is credible evidence to factually support a party’s claim.

A motion for summary judgment will be granted where:

1) There is no genuine issue of material fact; and

2) the moving party is entitled to judgment as a matter of law.

Question 61

When may a party move for summary judgment?

Answer 61

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 service the motion for summary judgment at least 40 days before the time fixed for the hearing.

–Court will look at the motion, supporting memorandum, affidavits, pleadings and other summary judgment evidence such as depositions.

Question 62

When may a party serve a Notice for trial?

Answer 62

A party may serve notice that an action is ready for trial within 20 days after service of the last pleading or any time after any motions directed to the pleading have been decided.

Question 63

Setting an Action for Trial: Court Action

Answer 63

If the court finds the action is ready to be set for trial, it will enter an order fixing the date for trial.

–The trial date must be set at least 30 days from service of the notice for trial.

Question 64

Demand for Trial by Jury

Answer 64

A demand for trial by jury must be requested in writing or it is waived.

–The demand must be made no later than 10 days after the service of the last pleading directed to such issue.

–Once demanded, a jury trial may not be waived, unless there is consent from the other party (but the court may allow an amendment in the proceedings to demand a trial by jury or trial or order a trial by jury on its motion).

Question 65

Jury Selection for Civil Actions

Answer 65

The jury is composed of 6 persons in all civil actions.

–For Cause Challenges: any party may remove a juror for cause upon motion to the court

–Peremptory Challenges: each party is entitled to 3 peremptory challenges, provided they are not discriminatory

Question 66

Motion for Directed Verdict

Answer 66

A motion for directed verdict is made AFTER P’s case but BEFORE D’s case.

–Such motion, if granted, results in judgment for D.

Standard: When evaluating D’s motion for directed verdict, the court assumes P’s facts are true and all of the inferences from those facts are true; then the court determines whether there is any way for a jury following the law to return a verdict in favor of P. If not, D’s motion will be granted.

Question 67

Motion to set aside the verdict and for judgment in accordance w/ motion for directed verdict

Answer 67

A party waives the right to make a “motion to set aside the verdict and judgment in accordance with the motion for directed verdict” if no prior motion for directed verdict was made.

–NOTE: the court may not entertain a motion to set aside the verdict UNLESS that party made a motion for a directed verdict or similar motion during trial.

–This motion must be made within 15 days of the return of the verdict (or discharge of the jury if there is no verdict).

Question 68

Motion for new trial or rehearing

Answer 68

May be granted to all or any of the parties on all or part of the issues litigated at trial.

–Motions for a new trial or rehearing must be made within 15 days of the return of a verdict in a jury action or judgment in a non-jury action.

–In the event a motion for rehearing is filed and the party then files a notice of appeal, the appeal constitutes an abandonment of the motion for rehearing and gives the appellate court jurisdiction over the matter.

Question 69

Motion for relief from judgment

Answer 69

A trial court loses subject-matter jurisdiction after the resolution of any post-trial motions; however, a motion for relief from judgment constitutes an attempt by a party to re-invoke a trial court’s jurisdiction.

A court may set aside judgment in the event of the following:

1) Clerical mistakes

2) Other mistakes and newly discovered evidence

3) A judgement that is void, satisfied, released or discharged

–This motion must be brought within a REASONABLE TIME, but in all cases within 1 year, if based upon “mistake” or “newly discovered evidence”.

–If based on clerical errors, that motion can be brought at any time.

Question 70

When must a notice of appeal be brought?

Answer 70

Must be filed within 30 days of final judgment