FL Civ Pro Flashcards
Timing to Respond to Interrogatories
30 days after service, or 45 days after service of the process and initial pleading on that defendant.
RULE 1.340.
Timing for Moving for Dismissal Based on Forum Non Conveniens
A motion to dismiss based on forum non conveniens shall be served not later than 60 days after service of process on the moving party.
Waiver of Service Requirements
The Notice and Waiver Request must:
- Be in writing, addressed directly to defendant, or officer/agent;
- Certified mail, return receipt requested;
- Include copy of complaint and identify court filed in;
- Inform D of the consequences of compliance and failure to comply;
- Allow 20 days from date received to return waiver (or 30 if outside the US); and
- Provide D w/ extra copy of notice and waiver AND prepaid means of returning
Consequences of Failure to Comply W/ Request for Waiver of Service
If D fails to comply w/ request in 20 (or 30 if outside US) days, the court SHALL impose the costs of service on D unless good cause shown.
Time Limit for Service of Process
120 days after filing of initial pleading. If not made timely, the court SHALL on its own initiative:
- Direct that service be effected w/in a specified time;
- Dismissed w/o prejudice; or
- Drop that D as a party.
NOTE: If P shows good cause, the court SHALL extend time for service.
Steps to Filing a Constitutional Challenge to a State Statute or County/Municipal Charter
- File a notice of constitutional question stating the question AND identifying the document that raises it; and
- Serve the notice an pleading, etc. on the attorney general or the state attorney of the judicial circuit in which the action is pending by certified mail.
What must be included in a claim for relief (Complaint, Counter/Crossclaim, Third-Party Claim)?
- A short and plain statement of the grounds upon which the court’s jurisdiction depends;
- A short and plain statement of the facts showing the pleader is entitled to relief; and
- A demand for judgment for the relief the pleader deems himself entitled.
What must be included in an answer?
- The pleader’s defenses to each claim asserted against him; and
- Shall admit or deny the claims asserted against him.
What Defenses Must Be Plead Specifically in Answer?
(Affirmative Defenses)
- Accord and Satisfaction
- Arbitration and Award
- Assumption of Risk
- Contributory Negligence
- Discharge in bankruptcy
- Duress
- Estoppel
- Failure of Consideration
- Fraud
- Illegality
- Injury by fellow servant
- Laches
- License
- Payment
- Release
- Res Judicata
- S of F
- Statute of Limitations
- Waiver
NOTE: Failure to deny = deemed admitted.
Timing to file an answer to complaint / crossclaim / counterclaim?
20 days after service; or if State of Florida, Florida agent or officer sued in official capacity = 40 days after service.
Compulsory Counterclaim
A pleading must state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim.
*NOTE: Any counterclaim maturing after service can be presented as a counterclaim via supplemental pleading w/ permission of the court.
Permissive Counterclaim
A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence.
Omitted Crossclaims / Counterclaims
When a pleader fails to set up a counterclaim / crossclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may set up the counterclaim or crossclaim by amendment with leave of the court.
Crossclaims
- Any claim by one party against a co-party
- Arising out of the same transaction or occurrence that is the subject matter of either the original action or a counterclaim therein,
- Or relating to any property that is the subject matter of the original action.
*Crossclaim may include a claim that the party against whom it is asserted is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.
When can you serve a third-party complaint?
At any time after commencement of the action.
*NOTE: Leave of court required if 20 days after service of original complaint.
Amending a Pleading
A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served.
Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party.
Relation Back of Amendments
When the claim or defense asserted in the amended pleading arose out of the the same transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.
Supplemental Pleadings
- Differs from amendments;
- = Transactions or occurrences or events which have happened since the date of the pleading.
- Court may permit upon motion of a party, upon reasonable notice and upon such terms as are just.
Amendment Asserting Punitive Damages
Motion for Leave to Amend shall make a reasonable showing (by evidence in the record or evidence to be later proffered) that provides a reasonable basis for recovery of such damages.
Motion to Amend can be filed separately and before any supporting evidence, but each shall be served on all parties at least 20 days before the hearing.
Notice - Pretrial Conference
Reasonable notice must be given for a case management conference, and 20 days’ notice must be given for a pretrial conference
Rule 1.200 Pretrial Procedure
Joinder
All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs
Any person may be made a defendant who has or claims an interest adverse to the plaintiff.
Any person may at any time be made a party if that person’s presence is necessary or proper to a complete determination of the cause.
Requirements for a Class Action
(1) Members of the class are so numerous that separate joinder of each member is impracticable,
(2) The claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class,
(3) The claim or defense of the representative party is typical of the claim or defense of each member of the class, and
(4) The representative party can fairly and adequately protect and represent the interests of each member of the class.
Special Pleadings
Certain circumstances must be plead w/ specificity:
- Capacity or authority to sue on behalf of a minor
- Fraud / mistake
- Non-occurrence of condition precedent
- Special and general damages
Defense Motions
Filed by the defendant after the complaint has been filed;
- Motion for more definite statement
- Motion to strike
- Motion to strike sham pleading
- Motion for judgment on the pleadings
Motion for Judgment on the Pleadings
- Defense motion; can be filed after complaint has been filed.
- “Hey judge, dismiss this action because P did not file a proper complaint.”
- Usually used by D to test the sufficiency of a complaint, but can be used by P to test the sufficiency of the answer.
- Differs from summary judgment’ judge only looks at the pleadings.
Pre-Answer Defense Motions
The following defenses can be made at the option of the pleader by a pre-answer motion, OR in the answer:
- Lack of SMJ
- Lack of PJ
- Improper venue
- Insufficient process
- Insufficient service of process
- Failure to state a cause of action for which relief can be granted
- Failure to join an indispensable party
When must a counterclaim or cross claim be brought?
Counterclaims and cross claims MUST be brought in an answer.
