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FL > FL Civ Pro > Flashcards

FL Civ Pro Flashcards

1
Q

FL

Personal Jurisdiction “power over parties”

A

Statutory
1. present in FL
2. Domiciled in FL
3. Incorporated in FL
4. Substantial activity in FL
5. Long arm (specific jurisdiction)
6. non-resident motorist act

FL resident: FL auto jurisdiction for FL residents atleast 1 day

U.S. Constitution
- Federal standards

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2
Q

FL

Long arm:

A

Allows personal jurisdiction to foreign entitites with minimum contact.

Personal jurisdiction:
1. running business in FL
2. tort in FL
3. breaching contract in FL

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3
Q

FL

Non-resident motorist act (NMA)

A

non-residen owns or operates a motor vehicle, water craft, or aircraft and is involved in an accident or collision if FL is also subject to PJ in FL.

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4
Q

FL

Subject matter jurisdiction

A

Circut court:
1. probate and estate matters, guardianship, and incompetency proceedings
2. Cases involving juviniles (except traffic offenses)
3. Cases involving title or boundaries to realty
4. Ejectment cases. Exception: landlords evicting tenants
5. Equity suits exceeding $50,000
6. Actions at law exceeding $50,000

County court:
1. actions at law not exceeding $50,000
2. equity cases not exceeding $50,000
3. dispute in homeowner associations and
4. landlords evicting tenants - $50,000 or less, it must go to county court - if more than $50,000 then it can go to either court.

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5
Q

FL

Venue

Where can you sue

A
  1. local action deals with land (in rem)
  2. transitory action - any case that is not local.
  3. if D resides in FL
    1. D resides
    2. cause of action accrued
    3. property in litigation is located.
  4. if D is not a resident, venue ok in any county
    • where case of action accrued
    • where property is located
    • where they are served in FL

Contract to improve realty in FL: suit must be brought in FL

Retail installment contract:
1. where contract was signed
2. where buyer resided either at purchase or when suit filed
3. county where product affixed to land

Corporation:
1. resides in any county in which it has or usually keeps an office for the transaction or its customary business.

always based on D, can pick which D

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6
Q

FL

Improper venue requiring transfer

A

P must pay transfer fee within 30 days

If P does not pay, case is dismissed.

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7
Q

FL

Venue proper - but can transfer if:

A
  1. will not recieve a fair trial (can transfer to any county even if improper)
    • opponent has unide influence in the county
    • the moving party is so odious he cannot get a fair jury
    • its impracticable to get qualified jury
  2. convenience of parties and interest of justice. (transfer must be to proper venue)

party making transfer pays the fees

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8
Q

FL

Forum non convenium

A

must be made within 60 days of service

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9
Q

FL

Personal jurisdiction: corporations

A
  1. incorporated in state of FL or
  2. Principal place of business in FL or
  3. Registered in FL
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10
Q

FL

General Jurisdiction

A

can claim anything!

Has to be more than minimum contact (sufficient min activity)

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11
Q

FL

Specific Jurisdiction

A

can only adjudicate claims in reference to the conduct that gave the court jurisdiction

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12
Q

FL

Service of process: regular individuals

A
  1. serve them personally
  2. usual place of abode
    • individually or anyone 15 years or older - must inform of contents and they must live there.
  3. landlord/tenant
    • if tried serving tenant 2 times within 6 hours, can tape it to door.

no service on sundays

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13
Q

FL

Service of process: individual is a minor or incompetent

A

Serve thier legal guardian and guardian ad litem must be appointed if their parents are not their guardian.

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14
Q

FL

Service by publication

A

after diligent search, if still cannot find D, can serve by publishing notice.

Can only be done in rem and quasi jurisdiction:
1. leins
2. partitioning
3. real property
4. disolution of marriage

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15
Q

FL

Pleadings

A

Short and plain statement that describes:
1. grounds for court jurisdiction and
2. Ultimate facts showing the pleader is entitled to relief and
3. the relief requested (prayer for releif)

Requires the pleader to use facts to show thayre entitled to relief. Facts itself must show that the cause of action exsists.

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16
Q

FL

Answers

A

Admit or deny allegations in the complaint.

If did not deny, then presumed admitted - except damages.

Must also state affirmative defensnes must be plead with paticularity - need to have facts to back it up.

example: no seatbelt = substantially aggrevated injuries therefore contributory.

Must be served within 20 days

if motion to dismiss is filed and denied - then 10 days to file answer.

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17
Q

FL

Replies

A

usually used to introduce new facts to the deny affirmative defenses

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18
Q

FL

Motions to dismiss
(same as Fed. Civ. Pro.)

A

Waivable (waived if not asserted)
1. personal jurisdiction
2. venue
3. insufficient ptocess
4. service of process

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19
Q

FL

Discovery

A
  1. oral depositions
  2. written depositions
  3. interrogatories
  4. request to product/inspect
  5. request for physical/mental exams
  6. Request for admissioons
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20
Q

FL

Standard for obtaining materials in discovery

A

relelvant or “reasonably calculated to lead to discovery of evidence”

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21
Q

FL

Discovery: Privileged Matters

A

work product is never discoverable!

Work product: any evidence preped in anticipation of litigation/trial

Claims file = work product

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22
Q

FL

Depositions

A

testimony of a person under oath

oral: atty is with person deposed and court reporter

can object to:
1. form - witness still needs to answer
2. privilege - witness does not have to answer

written: send something to person being deposed and respond under oath

reasoanble notice must be given for any depo

must subpeona if person is not a party in the lawsuit!!

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23
Q

FL

Subpoena duces tecum

A

requires that they bring specified items with them

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24
Q

FL

Use of deposition at hearings/trials

A

can be used for:
1. impeachment and
2. substantive evidence
- to prove the elements

Hearsay Exceptions:
1. admission by party opponent
2. expert witness (expert does not need to be present)

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25
Q

FL

Interrogatories

A

Max 30 questions and only between the parties!!

Family law: must use the standard court interrogatories

If you want more questions - ask the judge.

Must respond in writing and under oath - response is due in 30 days.

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26
Q

FL

Request to produce/ inspect

A

directed to another party to inspect documents and other things.

They have 30 days to inspect/copy.

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27
Q

FL

Request for admissions

A

request that they afmit the:
1. truth of the matter
2. admit facts/law analysis
3. authenticity of documents

30 request for admissions and 30 days to respond - must admit or deny - if no response considered admitted.

If something is denied that shouldve been admitted, the proving party can claim fees for proving that the denial was true - court determines if it shouldve been admitted or not.

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28
Q

FL

Sanctions for failure to comply with discovery

A
  1. nothing happens until a motion to compel is filed.
  2. judge will give them 10 additional days - if that is violated then sanctions (court gives least severe sanction)
29
Q

FL

Voluntary dismissal

A

notice of dismissal by plaintiff

1st dismissal: w/o prejudice
2nd dismissal: q/ prejudice

30
Q

FL

Involuntary dismissal

A

failure to prosecute

Will be dismissed automatically if no record on the docket for 10 months.

Notice of vacation counts as a record! ANY RECORD.

31
Q

FL

Default

A

can win if:
1. no papers have been filed in the clerks by D
2. if papers have been filed, clerk cannot enter default. Judge must award default about legit paperwork.

Default judgement: must still prove damages to judge

32
Q

FL

Case management conferences

A

not required by can be:
1. ordered by court
2. requested by parties

Can be used to schedule trial - can be scheduled 30 days after conference day.

Can be used to hear pending motions and motions in lim.

33
Q

FL

Pre-trial conference

A

Required for ALL cases pending trial.

Must be given with 20 days notice!! Done so there are no outstanding matters when trial begins.

Things that can happen here:
1. settlement
2. simplify issues by amending pleadings
3. parties to agree to admit to evidence
4. anything else left over from case management

34
Q

FL

Notice for trial

A

must be filed to get trial date

tells court that pleadings are closed

Must wait 20 days after pleadings are closed to file notice.

Do not need to wait until discovery is done!!!

35
Q

FL

Jury trial

A

no automatic!

Waived unless:
1. requested in a pleading or
2. within 10 days after closing of pleadings.

6 jurors except in condemnation cases - then 12.

Jury selection: unlimitted for cause strikes

3 pre-emps per side for “any reason” except rpotected classes.

36
Q

FL

Directed verdict

A

motion made at the end of P’s case but before D begins thier case.

Basically D saying there isnt enough evidence.

37
Q

FL

Who may serve process

A

service:
1. sheriff
2. sheriff apointee
3. non-party adult appointed by court

Nom-party person making service must file doc stating:
1. date
2. time of service
3. ID #
4. signed proof of service force

Lack of filing does not make service inadequate.

38
Q

FL

Special substituted service of spouse

A

can serve D’s spouse if:
1. case is not between them
2. spouse requests the service
3. is a party to the case and they reside together
4. Does not need to be served at thier dwelling.

39
Q

FL

Service on director (descending order rule)

A
  1. president, vice president, or other head of corporation
  2. cashier, treasurer, secretary, or general manager
  3. any director
  4. any officer or business agent residing in FL
40
Q

FL

Service on resident (or registered) agent

A

serve the registered agent: if not, any employee at principal place.

Service under long arm statute: out of state service buy by methods allowed in FL

Service on non-resident:
1. resident agent
2. FL secretary of state

Non-resident motorist act: serve the secretary of state

Publication service: P must give sowrn statement that D cant be found. Must state if D’s address is known. If known - a copy of the notice is sent by the clerk to D’s last know address.

41
Q

FL

Waiver of service

A

P can mail process and waiver form to D by certified mail. D can waive within 20 days of receipt. D is only waiving service, not jurisdiction.

If no response to certified mail - P must serve thru the courts and require D to pay for costs. D has 60 days to respond.

42
Q

FL

Service of subsequent documents

A

motions, discovery request, and other docs are usually served by mail unless the court holds different.

If by snail mail - additional 5 days to respond.

43
Q

FL

Pleading special matter

A

must be plead with particularity

usually used for:
1. fraud
2. support of punitive damages
3. special damages that dont usually arise from an event

44
Q

FL

Punitive damages & complaint

A

punitive damages must be stated seperately.

Cannot be in original complaint - must draft motion and if approved move to amend complaint.

45
Q

FL

Defendant’s response

A

20 days to respond!!!

Must respond by:
1. motion
2. answer

Motions:
1. Issue to form
- vague
- inmaterial
- allegations
2. Major defenses
- lack of SMJ
- lack of PJ
- improper venue
- insifficient process
- failure to state a claim
- failure to join indispensable party

failure to state claim and join indispensable party can be brought at any time

46
Q

FL

Motion to strike

A

DOES NOT EXTEND TIME FOR THE ANSWER IN 20 DAYS

47
Q

FL

Compulsory counterclaim

A

arise out of the same transaction/occurance. If not filed together cant claim later.

48
Q

FL

Permissive counterclaim

A

does not arise from same transaction.

Plaintiff must respond within 20 days.

49
Q

FL

Crossclaims

A

claim against co-party. Same transaction or occurance - not compulsory.

D v D or P v P

50
Q

FL

Right to amend

A

P has the right to amend before D answers

Motions do not count as an answer here

51
Q

FL

Videotaping deposition

A

ok, if given name and address of the operator and subpeona states that it will be recorded.

52
Q

FL

Depositions and court orders

A

Court orders are usually not required for depostions unless:
1. deposed person is about to leave the state
2. D has already taken a deposition

53
Q

FL

Physical and medical examination

A

Must respond in writing within 30 days - if served with complaint must answer in 45 days

Must tate time, place, manner and scope of the examination and the person who will be conducting the exam.

54
Q

FL

Request for admissions

A

Admissions are only bound to this case!!!!

55
Q

FL

Inadvertent disclosure

A

Does not waive privilege.

Party mistaken must give written notice within 10 days of discovering the disclosure.

56
Q

FL

Disclosure of expert expected to testify at trial

A
  1. name
  2. substance of fact and opinions
  3. grounds for opinions

can be deposed after interrogatories

57
Q

FL

Disclosure of expert not expected to testify at trial

A

if not testifying, no disclosure unless aboslutely needed.

58
Q

FL

Parties and Joinder of parties

A

can join if: common interest in relief req. and subject.

Exception: spouse, parent, children can jonitly sue in tort cases.

Necessary parties:
1. without them cant get complete relief or
2. absentee;s interest may be harmed if not joined

To be joined court must have PJ - if no PJ, can proceed without them or dismiss case.

Interventions waive PJ - up to the court to allow it.

Impleader: D adds new party who may be laible to D for indemnity or contribution.

Interpleader: Put all claimaints into 1 suit!
person with property: stakeholder
people who want property: claimaint
Put all claimaints into 1 suit!

59
Q

FL

Class actions

A

Requirements:
1. numerosity
2. commonality
3. typicality
4. adequare representation

Notice: sent to all types of classes (cost beared by the rep)

Voluntary dismissal of class action or settlement: only with court approval and notice to ALL members.

HOA can sue in its own name on behalf of the association

60
Q

FL

Termination of a case without trial:

A
  1. voluntary dismissal by filing a notice to dismiss
    • not available if pending summary judgment, court has property, pending counterclaims that cant stand alone
  2. voluntary dismissal by written stipulation of parties
    • not available if pending counterclaims that cant stand alone
  3. voluntary dismissal by court order
    • not available if pending counterclaims that cant stand alone
61
Q

FL

Involuntary dismissal

A
  1. failure to prosecute
  2. failure to comply with procedural rules of the court
  3. defense motions for dismiss.
  4. failure to show in non-jury trial that P is entitled to relief
62
Q

FL

Court may appoint cases to a magistrate

A

general magistrate list is kept in each court.

special magistrate is appointed case by case - they do not need to be a member of the bar.

63
Q

FL

Jury can submit questions to witnesses

A

Jury can give questions to bailiff - who then gives it to the judge.

In the courts discretion as to who answers it - if question is improper, judge will not ask.

64
Q

FL

Punitive damages

A

cannot exceed the greater of three time compensatory damages or $500,000

No limit to punitive damages if the defendant had specific intent to harm the plaintiff or under the influence of drugs or alcohol.

65
Q

FL

Motion for a new trial

A
  1. prejudicial error at trial
  2. new evidence that could not have been discovered
  3. prejudicial juror misconduct
  4. judgment is against weight of evidence

15 days!!

66
Q

FL

Relief from judgment

A
  1. clerical errors - any time
  2. mistake, excusable neglect, surpise - reasonable time, cant exceed 1 year.
  3. fraud by opposing party - reasonable time, cant exceed 1 year.
  4. Newly discovered evidence not prev. avail: reasonable time, cant exceed 1 year.
  5. judgment is void: reasonable time
67
Q

FL

Decisions from the Disctrict Court of Appeals

A

Supreme court may hear:
1. construing a state statute if there is a conflict of authority or
2. court expressly upheld validity of the state

Supreme court must hear:
1. state statute or provision of the state constitution is decalred invalid.

68
Q

FL

Day limitations

Fed v State

A

Federal: 14-21-28

State: 10-20-30

69
Q

FL

lis pendens

A

A lis pendens puts a “cloud” on the title.

It doesn’t prevent you from selling your home, but it does make the title uncertain, which could affect your ability to sell.

FL (15 decks)

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