FL Civ Pro Flashcards
COUNTING TIME - RULES
Don’t count the first day.
Do count the last day, unless it is a Saturday, Sunday, or legal holiday.
When the time period is less than 7 days, don’t count Saturdays, Sundays, or legal holidays.
When the time period is 7 days or longer, do count Saturdays, Sundays, and holidays (unless they are the last day)
COURT MAY NOT EXTEND THE TIME FOR THE FOLLOWING MOTIONS:
Motion for belated directed verdict;
Motion for new trial or rehearing;
Sua sponte grant of new trial;
Motion for amendment of judgment;
Motion for relief from judgment
Notice of appeal; or
Petition for certiorari.
ADDITIONAL TIME - ONLY EXCEPTION
If service is by regular US Mail, add 5 days
SERVICE OF PROCESS: INITIAL SERVICE
A legal action begins when the complaint is filed
The plaintiff then has 120 days to serve the summons and a copy of the complaint on the defendant
This time period can be extended for good cause or excusable neglect
You cannot serve process on a Sunday (unless the person to be served is evading service).
SERVICE OF PROCESS: ALIAS AND PLURIES SUMMONS
If the plaintiff was not able to render service after 120 days, the summons is no longer valid
The trial court has discretion to issue a second summons, which is called an alias summons
Any summons after the alias is called a pluries summons
SERVICE OF PROCESS: WHO CAN EFFECT SERVICE?
Service can be effected by
- sheriff
- special process sercer
- an elixir: any person court-appointed, over 18, no interest in the outcome of the case
SERVICE OF PROCESS: FORMS OF PERSONAL SERVICE
Personal delivery - to the person themselves
Usual place of abode to any person who
- resides at the abode
- at least 15
- made aware of contents of delivery
Deliver to spouse at any place within county of residence
- as long as the action is not between the spouses AND
- The spouse requests such service OR the spouse who is a party lives at the same house as the other
SERVICE OF PROCESS: SERVICE BY MAIL
party being served can waive formal service of process, and accept service by mail
It must be sent by certified mail, return receipt requested. Not just regular mail or even first class mail.
Advantages:
- The person served gets 60 days to respond to the complaint instead of the usual 20 days
- If the person served doesn’t waive formal service, he must pay for the plaintiff’s costs of making personal service
SERVICE OF PROCESS: INEFFECTIVE METHODS OF INITIAL SERVICE
EMAIL
FAX
TEXT
OTHERS
But service by email/eportal is required for service of all documents after initial service
SERVICE OF PROCESS: SERVICE ON TENANT
Nail and mail: leaving a copy of the service at the premises, followed by process via mail
When to use:
- The tenant cannot be found in the county and there is no suitable person to accept service at the abode,
- The plaintiff has made two attempts to serve process, at least 6 hours apart
SERVICE OF PROCESS: HOW TO USE NAIL AND MAIL
attach a copy of the summons and complaint to a conspicuous place on the property
clerk mails a copy of the summons and complaint by first-class mail to the defendant at the premises
SERVICE OF PROCESS: CORPORATIONS - ORDER OF PREFERENCE OF INDIVIDUALS TO SERVE TO
- The president, vice president, or other head of the corporation
- The cashier, treasurer, secretary, or general manager
- Any director
- Any officer or business agent residing in the state
Alternatively, serve the registered agent of the corporation
- if the corporation fails to designate an agent, process is allowed on any employee at the corporation’s principal place of business or employee of the registered agent
SERVICE OF PROCESS: FOREIGN CORPORATIONS
process may be served on any agent transacting business within the state.
But you still need to satisfy constitutional minimum contacts to obtain personal jurisdiction (i.e., substantial activities in state).
SERVICE OF PROCESS: PARTNERSHIP
Service on a partnership may be made by delivery of process to any partner, or an employee designated to accept service.
Serve one partner: jurisdiction over that partner and the partnership
Serve all partners: joint and several liability for all partners
Serve employee: jurisdiction over the partnership only, not the individual partners
SERVICE OF PROCESS: WHEN IS SERVICE COMPLETE?
Mail: when mailed
Hand delivery: when delivered
By fax: When transmission is complete. The deadline for faxes is 5:00 pm and must be followed by another form of delivery.
By e-mail or e-portal: On the date sent or electronically filed
LIS PENDENS
notice filed in the public records to alert third-parties of litigation affecting real property
If the case is dismissed, the lis pendens is automatically dissolved
VENUE
Geographic location of a court that can hear a case
Venue is the county:
Where the defendant resides at the time the action commences,
- If there are multiple defendants, in the county where any defendant resides.
Where the cause of action arose, OR
Where the property in litigation is located
VENUE: CHANGE OF VENUE
Raised by defendant in first response, or it is waived
The court may also transfer the case for convenience of the parties, or in the interest of justice, to another county that also qualifies as a proper venue
Defendant request change, defendant pays cost of relocation
Plaintiff brings action of improper venue and the venue is changed, plaintiff pays
VENUE: WRONG VENUE
If the action was brought in the wrong venue, the court can transfer the case to another venue.
If 2 or more alternative venues are proper, the person bringing the action choses where the case is moved.
If he does not make a selection, the current (wrong) court chooses the new venue
PLEADINGS: CLAIM FOR RELIEF
A pleading where a party asks the court for some remedy.
Includes: Complaints counterclaims third-party complaints Cross-claims
PLEADINGS: ANSWER
Admits or denies the allegations contained in the claim for relief
PLEADINGS: WAIVER OF DEFENSES IF NOT RAISED IN DEFENDANT’S FIRST RESPONSE (PRE-ANSWER MOTION OR ANSWER)
Lack of personal jurisdiction,
Improper venue, or
Insufficient service of process
PLEADINGS: WAIVER
Failure to state a cause of action and failure to join an indispensable party can be raised at any time during trial
Lack of subject matter jurisdiction is never waived, even on appeal
PLEADINGS: AMENDMENT
A party has the right to amend any pleading once, at any time before a responsive pleading is filed
After the first amendment, subsequent amendments are permitted only by written consent of all adverse parties OR with permission from the judge
PLEADINGS: PREANSWER MOTIONS (MOTIONS TO DISMISS)
Lack of subject matter jurisdiction
Lack of personal jurisdiction
Improper venue
Insufficiency of process
Insufficiency of service of process
Failure to state a cause of action upon which relief can be granted
Failure to join an indispensable party
PLEADINGS: COUNTERCLAIM
Counterclaim: defendant claim against plaintiff
Compulsory: If the claim arises from the same occurrence as the plaintiff’s claim, it must be pleaded as a counterclaim or it will be barred
Permissive: If the claim arises from any other circumstance, the defendant may assert it but is not required to
Must be included in the answer
PLEADINGS CROSSCLAIMS
claim against party/parties on the same side
must relate to the subject matter of the principal claim
All are permissive
Must be included in the answer
PLEADINGS: JOINDER OF PARTIES (INTERVENTION)
Anyone with an interest in the outcome of the case can voluntarily join, on any side.
Standard: party will gain or lose DIRECTLY as a result of the judgment
based on judge’s discretion
Can be made at any time before the verdict
PLEADINGS: JOINDER (IMPLEADER OR THIRD-PARTY PRACTICE)
defendant may bring a third-party into the lawsuit, if
that third party may be liable for some or all of the plaintiff’s claim, OR
if the claim arises out of the same transaction or occurrence
Can implead a third party without a motion within 20 days of filing answer
after 20 days, motion is necessary. Judge will decide
PLEADINGS: JOINDER (INTERPLEADER)
can join multiple parties into a lawsuit, usually to determine ownership or liability from among multiple parties
i.e., anyone who believes they have an interest can join
SUBSTITUTION OF A PUBLIC OFFICER
If a public officer party to a lawsuit leaves office before or during the lawsuit against them in their official capacity THEN
successor to the office will be automatically substituted as the party
CLASS ACTION
The court must notify all members who can be identified and located. The notice must say they can opt out, and the judgment will include all who don’t opt out
Dismissal or compromise: Once a class action claim or defense has begun, it cannot be voluntarily withdrawn, dismissed, or settled without notice to the class, a court hearing, and court approval
DISCOVERY: INTERROGATORIES
written questionnaires which the parties use to collect information during discovery.
Any party may serve the other with them
Only parties to the suit are compelled to answer
DISCOVERY: TIMING OF INTERROGATORIES
The plaintiff may serve interrogatories upon the defendant at any time after receiving initial service of process (including simultaneously with service of process)
The defendant may serve interrogatories upon the plaintiff at any time after the complaint is filed
Response to interrogatories within 30 days
If the interrogatory is attached to the complaint and the summons, then the party has 45 days to answer
DISCOVERY: FORM OF INTERROGATORIES
Must be served and answered in writing
Must be 30 total (court can permis more upon motion and with goodc ause)
If there are more than 2 parties, all parties should be given copies of the questions and answers
Can file up to 25 interrogatories
DISCOVERY: SCOPE OF INTERROGATORIES
Interrogatories can ask about any matter within the general scope of discovery
Parties can object to questions in the interrogatories, with a signed statement by the objecting attorney
Common objections:
- outside the scope
- unduly burdensome to answer
- privilege
- confidentiality
DISCOVERY: DEPOSITIONS (WHAT IS IT? WHEN IS IT?)
After an action commences, the parties may depose any person (party or non-party) without a court order
The plaintiff must wait 30 days from filing the complaint to begin taking depositions
UNLESS The witness is leaving the state and will be unavailable, or the Defendant has served a discovery request
DISCOVERY: DEPOSITIONS (COMPELLED ATTENDANCE, WAIVER)
If the deponent is a party, a notice is sufficient to compel attendance
If the deponent is a nonparty, a subpoena is required
The deponent must read the deposition and can make changes. This can be waived by the deponent, if they do not read it and make changes
DISCOVERY: LOCATION OF DEPOSITIONS
The plaintiff is generally required to appear for depositions in the location where the action is pending.
The defendant can be deposed in the county where she resides or does business
Nonparty witnesses can be deposed in ANY COUNTY in Florida where the witness may validly be served with process, or anywhere else in the US under subpoena power of the appropriate court
Corporate defendants are typically deposed at their principal place of business
Judicial discretion
DISCOVERY: DEPOSITION ISSUES
Subpoena Duces Tecum: A subpoena duces tecum requires a nonparty to produce documents, or bring documents to a deposition. If the nonparty refuses, a court order is required
The party requesting the materials may be required to advance the costs of compliance. These costs may be awarded back to the requesting party if he prevails in the case
Deposition costs: If a deponent fails to appear due to the error or neglect of a party, the responsible party must pay the other party’s costs
Defective/improper subpoena: The deponent can move to modify the subpoena to correct it or move to quash the subpoena to get rid of it
Videotaping: You can videotape a deposition without a court order, but you must provide notice to the deponent.
Telephone depositions and deposition of a person in prison: Court order required
DISCOVERY: DEPOSITION BEFORE ACTION COMMENCES
In some circumstances, you can take a deposition before commencing an action to preserve testimony. Notice served 20 days before the hearing
There must be a verified petition to the judge stating the reason why the deposition must be taken now:
- Whether the deponent is expected to be a party
- The reason that the case cannot be brought at this time
- Subject matter of the suit and petitioner’s interest
- The facts to be established and why they are needed
- Names and addresses of adverse parties
- Names and addresses of deponents
DISCOVERY: PRODUCTION OF MATERIALS FROM A PARTY
A party can serve another party with a request to produce documents and materials
no subpoena needed
includes any tangible thing
DISCOVERY: INSPECTION (PARTY)
The inspecting party can test, sample, photograph, copy, etc.
The party seeking inspection serves notice after commencement of the action.
The recipient must serve a written response which agrees to furnish the material, or object with legitimate reasons (mainly relevance or privilege)
DISCOVERY: PRODUCTION OF MATERIALS FROM A NONPARTY
You can only obtain materials from a nonparty by subpoena duces tecum.
You do not need to take a deposition to serve a subpoena duces tecum. You can just ask for the materials
Notify all parties of intent to serve this subpoena:
- IF delivered by hand or email, 10 days before
- IF delieverd by mail, 15 days
- Party can object within 10 days of notice
- no objection, then the subpoena is issued
DISCOVERY: INSPECTION (NONPARTY)
The nonparty can send copies of the documents instead of permitting inspection. Production is required only in the county where the materials are located or where the custodian lives or conducts business
TERMINATION WITHOUT JURY DECISION: VOLUNTARY DISMISSAL
The plaintiff may voluntarily dismiss his case at any time before the jury retires to deliberate, or the case is submitted to the judge for decision
UNLESS
A counterlaim has been filed that cannot be adjudicated independently,
A motion for summary judgment is pending, OR
Property has been seized and is in the custody of the court
The first voluntary dismissal is without prejudice.
The second voluntary dismissal is with prejudice
TERMINATION WITHOUT JURY DECISION: INVOLUNTARY DISMISSAL REASONS
Response to motion to dismiss
Lack of prosecution
TERMINATION WITHOUT DECISION: INVOLUNTARY DISMISSAL (JUDGMENTS NOT ON THE MERIT)
Motion to dismiss for lack of jurisdiction,
Motion to dismiss for wrong venue,
Motion to dismiss for failure to join an indispensable party, and
Motion to dismiss for failure to prosecute
Everything else is judgment on the merits
TERMINATION WITHOUT DECISION: FAILURE TO PROSECUTE
Any interested person (including the court or the clerk) can file a motion to dismiss for failure to prosecute if:
- There has been no record activity for 10 months
- The interested person serves notice on all parties
- No record activity occurs within 60 days after the notice
UNLESS: a party shows good cause in writing at least 5 days before the hearing on the motion
Dismissal for failure to prosecute is without prejudice
SUMMARY JUDGMENT: DEFINITION AND BURDEN
no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Judge looks at the case in the light most favorable to the plaintiff to determine if there is a case. This happens before the jury file
Burden to show this lies on the party with the burden at trial
SUMMARY JUDGMENT: MOTION AND JUDGMENT
MSJ must be served at least 40 days before the hearing and a response is due 20 days before the hearing
there must be evidence on which a jury could reasonably find for the nonmoving party
Summary judgment can be partial.
Summary judgment is a final order, with prejudice and is res judicata
MOTION FOR JUDGMENT ON THE PLEADINGS
Final ruling based on the pleadings, on the merits; before discovery
Occurs if:
- The pleadings do not indicate that any facts are in dispute (and therefore there is nothing for the factfinder to evaluate), OR
- The plaintiff’s complaint has failed to allege a cause of action, OR
- The defendant’s answer has failed to state a sufficient defense.
Judge concludes that moving party is entitled to a judgment as a matter of law on the basis of the allegations made by the opposing party
Motion can be made after the time has expired for the last responsive pleading
The judge may only review the pleadings themselves and any exhibits attached to the pleadings. The judge may not consider affidavits or other evidence
MOTION TO STRIKE SHAM PLEADINGS
Sham pleadings are demonstrably false, such that the movant can show the pleading party knows of the falsity
The sham:
- Must be “verified” and may be supported by an affidavit.
- Must be followed by an evidentiary hearing with both sides presenting evidence
A motion to strike sham pleading prompts a “mini-trial” - full-blown evidentiary hearing, that may include live testimony. A motion for summary judgment does not involve a mini-trial.
If the motion is sustained, the judge may allow the other party to amend his pleadings and fix the error.
DIRECTED VERDICT
when a judge determines that no reasonable jury could return a verdict in favor of the non-moving party
The motion must be made at the close of evidence for the other side.
The judge will consider the evidence presented, and make all assumptions, in the light most favorable to the non-moving party.
If the motion is denied, the trial continues. If the motion is granted, the decision is res judicata
BELATED DIRECTED VERDICT
A motion for belated directed verdict is made after the trial is over
judgment non obstante veredicto: judgment notwithstanding verdict
It is made to undo a jury decision that is wrong
judge will look at the evidence in the light most favorable to the non-moving party and determine if a reasonable jury could have rendered this decision
The motion must be filed within 15 days after the verdict or the date that the jury was discharged.
In order to make a motion for a JNOV, the moving party must have made a motion for a directed verdict at the close of the other party’s evidence.
The moving party is not required to “renew” the motion at the close of all evidence
MOTION FOR A NEW TRIAL
A party may file a motion for a new trial within 15 days after the entry of the judgment
Granted if there was a prejudicial error during the trial:
- Jury tampering
- Error in evidentiary ruling
- Error in jury instructions
- Verdict contrary to the weight of the evidence (but JNOV not granted)
- Newly discovered evidence that could not have been discovered with diligence, though in existence
A party can move for a JNOV or new trial in the alternative.
The court can also award a new trial sua sponte, within 15 days
MOTION FOR RELIEF FROM JUDGMENT
Clerical errors: A motion to correct a clerical error can be made by a party at any time, or by the judge sua sponte
Nonclerical errors: Must be resolved by a motion to set aside judgment, within one year after judgment for:
- Mistake, inadvertence, surprise, or excusable neglect,
- Newly discovered evidence that could not have been discovered in time to move for a new trial, or
- Fraud, misrepresentation, or misconduct of an adverse party
MOTION FOR RELIEF FROM JUDGMENT (TIMING)
Can be filed at any reasonable time for:
- Void judgment,
- Judgment has been satisfied, released or discharged, or
- A final divorce judgment was based on fraudulent financial affidavits
MOTION FOR CONTINUANCE
Make this motion to pause the trial for some reason
Motion must be:
- In writing and signed by the party requesting the “pause” (unless there is good cause why they can’t sign), OR
- Made in open court at trial
The motion shall state the facts that justify the continuance. If the reason for the pause is unavailability of a witness, the motion must show when it is believed he will be available
MOTION FOR A MISTRIAL
If some statement or act during trial is so prejudicial that in all probability, it would be impossible to have a fair and impartial trial, a party can move for a mistrial
The motion should be made at the time the wrongful conduct occurs
The motion is granted at the discretion of the judge.
The judge can attempt to avoid a mistrial with a “curative instruction” – striking the statement/conduct from the record and advising the jury to disregard it
MOTION FOR COSTS AND ATTORNEY’S FEES
The winner can file a motion for costs and fees 30 days after the judgment is filed or notice of the voluntary dismissal is served
JURIES AND JUDGES: JURY TRIALS
There is a right to jury trial for all cases at law, but not cases arising solely in equity.
A jury demand must be filed no later than 10 days after the last pleading is filed. Failure to file on time constitutes a waiver.
Once a party files a jury demand, it cannot be withdrawn unless all parties consent
The judge can order a jury trial on her own, even if the parties do not want one.
Civil juries consist of 6 people.
All jury verdicts in Florida must be unanimous.
Jury verdicts must state punitive damages separately
JURY SELECTION: CHALLENGES FOR CAUSE
Each party has an unlimited number of challenges “for cause”:
Juror is interested in the outcome of the case,
Juror has already formed an opinion about the outcome (biased),
Juror can’t read, write, or do simple math, etc.
JURY SELECTION: PEREMPTORY CHALLENGES
Each party gets 3 peremptory challenges
Peremptory challenges allow a party to disqualify a juror for any reason (other than race, ethnicity, nationality, etc.).
Each party also gets 1 additional peremptory challenge to use against the alternate.
There must be the same number of peremptory challenges on each side of the v.
If the number of challenges do not divide equally, the judge will allocate the remainder in their discretion
FLORIDA JURORS
Can ask witnesses questions - question is given to the judge and given to the lawyer, the lawyer then poses the question
Can have note books - can take those notebooks to deliberations
JURY: MOTION TO VIEW SCENE
A party can request to transport the jury to an off-site location to view real property or physical objects
The party requesting the “field trip” must advance the costs of the trip. If the requesting party prevails, he may be able to recover the cost of the trip from the losing party
JURY: POLLING
After the verdict, a party may request to have the jury polled. Each juror must state his or her individual verdict.
This motion must be made before the jury is discharged.
JURY: INTERVIEW
A party may move to interview any juror(s) to determine whether the verdict was subject to challenge.
This motion must be served within 15 days of the verdict, except for good cause
FLORIDA JUDGES
Judges can ask questions during jury selection.
Judges can ask questions to witnesses.
A judge can be disqualified, upon motion by either party, or on her own initiative, if any of the following exist:
- The judge is biased,
- The judge, judge’s spouse, or anyone related to the judge in the 3rd degree has an interest in the case
- The judge is a material witness, or
- The judge’s spouse or a person related to the judge in the third degree was a judge in a lower court proceeding to be reviewed by the current judge
If the same party moves to disqualify the successor judge, the successor may be disqualified only if the judge rules that she in fact cannot be fair or impartial in the case
INJUNCTIONS
a judicial order compelling the defendant to do something or not do something
Equitable Remedy
