FL Civ Pro Flashcards
A files suit against B and voluntarily dismisses it before B files an answer. One year later, A files the same action again. After 30 days, not having heard from B, A dismisses again. A year later, B sues A on a claim arising out of the same T/O. What result?
B’s compulsory counterclaim is not barred although it was never raised. Generally, any claim that a pleader has against an opposing party that arises out of the same t/o as the pleading responded to, must be asserted at the time a responsive pleading is served or it is forever lost. A’s claim is barred bc the action was dismissed w prejudice the second time A voluntarily dismissed. B’s counterclaim is not barred because B never filed a responsive pleading.
A files suit against B and voluntarily dismisses it before B files an answer. One year later, A files the same action again. After 30 days, not having heard from B, A dismisses again. A year later, B sues A on a claim arising out of the same T/O. A claims that B’s compulsory counterclaim is barred by failure to timely file. Result?
B’s claim is not barred for failure to timely file. A party must move for entry of default. Until a default judgment is entered by the court, the opponent can still plead or defend late. A failed to perfect judgment on B’s default.
P & D are involved in a car accident. P sues D for damages. After D’s request for summary judgment is denied, the case went to trial. At the close of the evidence presented by P, D moves for a directed verdict. Must the jury assent to an order directing a verdict?
No
Do you need a subpoena to compel attendance of a party to the case to a deposition?
If a deponent is a party to a case, a notice to appear is sufficient to compel attendance.
Where are deponents of defendants usually taken?
In the county of residence or business of the defendant if it differs from the venue of the action. However, parties may designate any place that is mutually satisfactory. The court may also order the depo be taken at any location for convenience of parties.
Do you need a subpoena to compel attendance of a non-party witness to a deposition?
Yes - nonparty deponent can only be compelled to attend by subpoena.
A nonparty witness deposition can be taken where?
Anywhere in Florida where the witness may validly be served or anywhere in US by using subpoena power of appropriate court in that place.
How can P voluntarily dismiss her own case? (3 ways)
- by filing notice of dismissal
- by stipulation of current parties AND
- by obtaining a court order
Can a P voluntarily dismiss by filing a notice prior to retirement of the jury in a jury case?
YES
Can a P always dismiss at any time before submission of nonjury case to court?
No - P can’t dismiss if summary judgment motion is pending, even if an action is tried to a judge.
A party may move for an involuntary dismissal on the gorund that the OP has not proved her case when..
when it’s a nonjury trial AFTER the party seeking affirmative relief has completed the presentation of her evidence
Does an involuntary motion to dismiss always operate as an adjudication on the merits?
No - Court can order involuntary dismissal w/o prejudice.
What are the 3 exceptions to the general rule that P may voluntarily dismiss her case prior to retirment of the jury/ submission to ct in nonjury case?
(1) can’t do so if Mx for summary judgment is pending
(2) can’t do so if property has been seized / in custody of ct
(3) can’t do so if counterclaim filed which can’t remain pending for independent adjudicaiton
What is the general rule regarding when P can voluntarily dismiss?
Generally, P can voluntarily dismiss her action by filing a notice or by so stating on the record at trial PRIOR to retirement of the jury OR submission to the court in a nonjury case.
A sues B. At close of B’s evidence, A moves for directed verdict. Judge doesn’t rule and jury returns verdict for B on April 5. on April 15, A moves to have the judgment set aside and entered in accordance with the motion for directed verdict. Does Judge have power to rule favorably on A’s motion?
Yes, even though the judge didn’t originally rule on the motion. The failure to rule on A’s motion reserves it for later determination. A may move at any time within 15 days after rendition of the verdict. (Note that the day the verdict is rendered is NOT counted)
If an action by P has begun and D has brought a counterclaim, P cannot move for a voluntary dismissal unless:
D’s counterclaim can remain pending for independent adjudication by the court
Ejectment is an equitable action over which the ____________ court has jurisdiction
the CIRCUIT COURT
A sues B for trespass and conversion. B answers, denying A’s allegations, asserting that A allowed him to enter, and countersuing A. A does not respond to B’s pleading. B files a motion for judgment on the pleadings. What result?
B is entitled to judgment on the counter claim because A failed to answer. Counterclaims must be answered either admitting or denying or stating insufficient knowledge (denial) to the allegations of the pleading (counterclaim).Failure to deny constitutes an admission of all allegations EXCEPT for damages.
However, A need not reply to B’s defense (asserting that A allowed him to enter). A reply is only required where the answer to a pleading contains an affirmative defense and the opposing party seeks to AVOID it. No response required if denied instead of avoided.
Perpetuating testimony
A person who desires to perpetuate another’s testimony may file a petition in the circuit county of the residence of any expected adverse party. The petition must show
(1) that P expects to be a party to an action in FL ct, but can’t presently bring the action
(2) the facts P wants to establish by testimony and reasons for perpetuating it
(3) subject matter of the expected action
(4) names / addresses of ppl P expects will be adverse parties and
(5) names and addresses of ppl to be examined and substane of testimony
if a demand made in a counterclaim exceeds the jurisdiction of the county court the case is…
transferred to the circuit court of that county. the party filing the counter claim must pay the service fee of the clerk of the transferee court and failure to pay prevents the transfer and reduces the fee to $50k.
Interrogatories to a party are limited to 30 unless..
unless the court permits a larger number on motion and notice for good cause.
P sues in tort for serious bodily injury. D asks P to submit to a physical examination. P is entitled to a copy of the report, but…
P waives any further privilege flowing from any other physical examinations she has had relating to the same condition
P goes to two medical experts. Dr. A says P’s injuries are very serious and Dr. B says P’s injuries aren’t serious. P intends to call Dr. A as an expert. Who can D compel P to disclose?
Only Dr. A. A party must disclose those experts the party intends to call at trial. P need not disclose Dr. B.
What must an initial complaint state?
(1) a short and plain statement of the court’s jurisdiction
(2) short and plain statement of the ultimate facts showing P entitled to relief and
(3) demand for judgment for rlief
A class action may be maintained by a home owner’s association…
only after control passes to unit owners other than the developer. Condos need not comply with class action requirements.
Annie and Cathy have a contract by which Annie will pay Cathy monthly for work via disbursements from Bank. Bank is required to disburse monthly payments to Cathy. On the third month, Annie tells Bank not to disburse to Cathy. Cathy sues Bank. If Cathy files a declaratory action against Bank, Cathy should
plead generally that conditions precedent of cathy have been performed. Performance of conditions precedent need only be pleaded generally.
Annie and Cathy have a contract by which Annie will pay Cathy monthly for work via disbursements from Bank. Bank is required to disburse monthly payments to Cathy. On the third month, Annie tells Bank not to disburse to Cathy. Cathy sues Bank. Bank isn’t entitled to reasonable attorney’s fees unless:
Bank demonstrates it’s a disinterested innocent stakeholder in the action interpleading Annie and Cathy. If the stakeholder claims no interest in the fund or property, the order of interpleader will require stakeholder to deposit the fund or property with the court, dismiss her as a party, and award reasonable attorney’s fees.
P sues A & B. P serves interrogatories on both. Are A’s answers binding on B?
No - neither party’s answers are binding on the other
P & D each file for summary judgment. What can the judge not consider in ruling on the motions?
A. Affidavits from the parties
B. Deposition testimony
C. Answers to interrogatories
D. Oral testimony
D. Oral testimony is not permitted.
Indispensable party
one who must be brought into suit to either
(1) protect the absent party or
(2) protect a current party from being prejudiced by a judgment that doesn’t include the absentee
What is a classic situation for finding an absent party indispensable?
Claims against a limited fund, like a trust fund or estate
Does P need to file a motion seeking the issuance of a summons?
No, he can get a summons from the clerk of court by oral request too. Need not await filing of motion.
Eviction notice by attaching a copy to resident’s door and providing clerk copy for mailing to D is only available…
in eviction suits where ACTUAL resident service has failed, notwithstanding 2 efforts made at least 6 hours apart.
Substitute service
service to D’s abode to person 15 years of age or older residing there and informing that person of the contents of the papers.
Notices of appeal are filed with…
the TRIAL court from which the appeal is taken
An appellant must first seek a stay of enforcement from..
the lower court itself
In cases involving mixed issues of law and equity…
legal issues are first tried by a jury and any factual determinations reached by the jury are binding on the court in resolving the equitable issues.
Objections to propose jury instructions MUST be made at…
the court’s conference preceding final argument
the case management conference requires ____ notice and the pretrial conference requires __________ notice
the case management conference requires REASONABLE notice.
the pretrial conference requires 20 DAYS notice
Case management conferences are…
discretionary
Pretrial conferences are…
mandatory upon timely motion of a party
The order setting a case management conference must…
specify the matters to be considered
P sues D for negligence. At the close of P’s evidence, D offers no evidence to the jury. What should P do?
ask the court to instruct the jury that the element of negligence has been established, since the totality of the evidence indicates that only reasonable finding is that D was negligent.
A jury awards P $500k in compensatory and punitive damages without specifying the basis for each. Is that okay?
No - the trier of fact must itemize the amount to be awarded to the claimant into categories of compensatory and punitive damages.
How can a litigant get documents from a non-party?
They can subpoena the nonparty, provided that the other parties get 10 days advance notice of the subpoena
Summary judgment timing
Party may move for SJ AFTER 20 days from commencement of action or after svc of motion for SJ by OP. The motion and supporting material must be served at least 40 days before hearing on the motion. The OP may serve its evidence 20 days before the hearing.
Can the FL Supreme Court review a decision by the district court of appeal that expressly construes a state statute?
No - only reviewable if some other factor (e.g. certification by dist court app or an express conflict between 2 district court of appeal decisions) was present
When must the FL sup ct hear an appeal from a dist court app?
decisions of dist. ct. app in which a state statute or provision of the state constitution is declared invalid
When MAY the FL Sup. Ct. hear an appeal from dist. ct. app?
decisions of dist. ct. app construing a state statute if there is a conflict of authority or the court expressly upheld validity of the statute
PJ + foreign corporations
a foreign corporation that is sued based on its provision of a component part that has been incorporated into a defective product has a strong claim that PJ in an American court is unreasonable.
How can you service the state of FL?
Serve the local state attorney and attorney general
P serves interrogatories on D requesting the name and address of D’s liability insurer as well as any statements D made to insurer and the insurer’s present opinion as to the liability of D for P’s injuries. What must D answer?
D only needs to produce the name and address of liability insurer. The statements of D and insurer’s opinion are protected by the work product rule, which applies to insurers as well as attorneys.
D responded to P’s interrogatory saying “to my knowledge, the tiers on the car were in good shape and had no defects.” some months after serving the answer, D learns from her husband that the tire had a slow leak he’d failed to repair. What is D’s duty?
D is under no duty to supplement her answer to P. If a respondent’s answer to discovery is complete when made, there is no duty to supplement that answer with information subsequently acquired
P hurts himself at on college property. The college has liability insurance. Should P join the insurer and the college?
He can’t join the insurer until there is a judgment against the insured party.
When can a case proceed without an absent “necessary party”?
if her interest in the litigation can be separated from the case and the court can grant complete relief to all parties without
her and without affecting her interest in the subject matter of the litigation. If the absentee’s interest cannot be so separated or complete relief cannot be granted, and the absentee cannot be joined to the case, she is labeled as “indispensable” and the case is dismissed.
When is an absentee a necessary party?
(1) without A, the court may not be able to accord complete relief (worried about multiple suits if we don’t bring in A), or
(2) A’s interest may be harmed in a practical way if she isn’t joined. If either of these is met, the court should order joinder of A. Note that it’s rare in tort cases to have a necessary absentee.
When can P conduct depos?
P can’t conduct depos within 30 days of serving process unless a court orders or notice sets forth facts indicating that depo will leave court’s subpoena power within 30 days (inapplicable to properly served Ds who are already subject to court’s power and need not be subpoenaed)
when is a court order required to take a depo?
(1) before case is filed to preserve evidence bc witness won’t be available at trial or
(2) P wants to take depos less than 30 days after serving complaint (unless P’s notice states the person to be deposed is about to leave the state and won’t be available after 30 days or d has already taken a depo)
How can depos be used at trial?
(1) to impeach the deponent
(2) for any purpose if deponent is OP and
(3) for any purpose if deponent is dead, ill, over 100 miles from site of trial or beyond subpoena power of court
when does a party request jury trial?
no later than 10 days after service of the last pleading directed to that issue
Does a pending motion for discovery preclude P from serving notice that the case is ready for trial?
No - when all pleadings have been served in a case and there is no motion directed to those pleadings pending, a party or court itself may take action to set trial date. D may request a continuance pending resolution of motion for discovery but the pending mx doesnt per se preclude the setting of trial date.
when can a party amend a pleading
A party can amend a pleading once as a matter of course any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action hasn’t been placed on the trial calendar, the party may amend w/in 20 days of serving. (an answer to an amended complaint is generally required). After this period, court permission or written consent is required to amend.
When must a motion to amend a judgment be made?
within 15 days of judgments entry
What is the timing for a motion to set aside for fraud by the opposing party?
Reasonable time not exceeding 1 year
What is the timing for a motion to set aside based on mistake, excusable neglect, or surprise?
Reasonable time not to exceed 1 year
What is the timing for a motion to set aside for clerical errors?
any time
What is the timing for a motion to set aside for newly discovered evidence not previously available?
reasonable time not to exceed 1 year
What is the timing for a motion to set aside for a void judgment?
reasonable time - no maximum
Who can sign an affidavit?
only one who has personal knowledge of the facts set out in the affidavit
A sues B. 21 days after the action commences, B files a motion for summary judgment. Is her motion timely?
Yes - a party may move for summary judgment after 20 days from commencement of action nor after svc of motion for SJ by adverse party.
Which actions must be brought in circuit court?
JIGPET30+
Juvenile
Incompetency
Guardianship
Probate
Ejectement (except landlord tenent)
Title and boundaries
Actions at law and equity above $30k
What actions must be brought in county court?
(1) actions at law under 30k (unless otherwise vested to circuit court)
(2) equity cases not exceeding 30k (but can also go to circuit court)
(3) disputes in HOAs and
(4) landlords evicting tenants under 30k (if over 30k can go to either county or circuit)
How must documents being submitted as discovery be organized?
Either as they are kept in the ordinary course of business or identified to correspond to the categories in P’s request
How many peremptory challenges does each side get?
3
How many jurors on a jury?
6 - unless eminent domain, then 12
Communications between a lawyer and a public entity client are…
generally available for inspection. However, if the public record was prepared for litigation, it is exempt from disclosure until the conclusion of litigation
Process when there has been no record activity in 10 months
any interested person may serve notice to all parties that no record activity has occurred.
If no record activity within 60 days after notice, action will be dismissed for lack of prosecution.
Motion will be set for hearing and will be granted unless 5 days prior to hearing, P shows good cause in writing why action should remain pending.
Process for perpetuating testimony
may file verified petition and obtain court order for oral or written depo. Service must be made on all expected adverse parties and person to be deposed.
Are stenographers required at a depo?
Yes, unless parties agree otherwise
Where will depos be taken?
P: where case is pending
D: county of residence
Nonparty: county of residence or business unless agreed otherwise
Subpoenas to nonparties who are nonresidents of Florida
Subpoenas can compel attendance of a nonresident of FL only in the county where the nonparty deponent was served or other convenient place as is fixed by the court.
subpoenas for nonparties for information
Notice must be given to all parties at least 10 days before the subpoena is issued (15 if sent by snail mail).
Subpoena duces tecum to nonparty
May require production in the county in which
(1) nonparty resides or
(2) nonparty conducts business or
(3) material is located
If D is served by mail after waiving her right to personal service how many days does she have to respond to the complaint?
60 days form the date of the requested waiver
Attorney files custody for wife in divorce. Judge awards custody to husband pending final resolution. Attorney learns that judge went through bad divorce in which his wife was granted custody and he’s not biased against women. What should Attorney do?
File a verified motion with the judge to disqualify him on grounds of prejudice and, within 20 days of his recusal, seek a reconsideration of the custody decision after he recuses himself.
Summary judgment timing
A party may move for SJ at any time after 20 days from commencement of action. The movant must serve the motion at least 40 days before the hearing and the nonmovant must respond at least 20 days before the hearing.
Borrower obtains loan from Lenders Inc, a Georgia Corp. Borrower gave Lenders a mortgage on land in Orange County when Borrower was a resident of Dade County. He signed the note in Dade. Borrower now lives in Broward County. What venue is proper for a suit against Borrower?
Broward, Orange, or Dade. If D resides in FL, venue is ok in the county where D resides (Broward), where the cause of action accrued (Dade), or where property in litigation is located (Orange).
D makes a discovery request. P objects that it’s work product being requested. How can D prevail?
If D can show that he has a substnatial need for the docs for preparation of his case and he’s unable without undue hardship to get the sbustantial equivalent by other means.
P sues D. P serves D with a complaint and a few hours later, serves a set of 30 interrogatories. When must D respond to the interrogatories?
Normally, a party must answer interrogatories within 30 days after service, however D has at least 45 days from service of complaint to respond to interrogatories. Because the interrogatories were served on the same day the complaint was served, D has 45 days to respond.
P serves D with a complaint and serves a set of 30 interrogatories. One of the questions asks for the names and addresses of any buyer with a complaint regarding D’s services within the last 10 years. To get this info, D would have to go through approximately 25 boxes of customer survey files. How can D respond?
D can permit P to examine the files to compile an answer to the questions. This is allowed where it would be just as easy for the party seeking discovery to discern the answer to a question fro ma given set of materials as it would be for the party responding to the question.
Peter is the named plaintiff in a class action lawsuit alleging that a local cell phone store had engaged in unfair or deceptive trade practices in its sales of cell phones. In the complaint, Peter sought damages on behalf of himself and a class of all other customers who had purchased cell phones from the store. In order for Peter to maintain the class action, the court must find that:
(A) The class members’ claims contain no questions of law or fact that affect only individual members of the class.
(B) Peter can fairly and adequately protect and represent the interests of each class member.
(C) Allowing separate claims from individual class members risks inconsistent or varying adjudications
(B) Peter can fairly and adequately protect and represent the interests of each class member.
The court referred a civil case for mediation on April 1. On April 10, the mediator set an initial mediation conference for April 30. Plaintiff’s attorney served a set of interrogatories one week before the case was referred to mediation. Which is true?
(A) A referral to mediation tolled the time for Defendant to respond to Plaintiff’s interrogatories from April 10 to April 30.
(B) Defendant did not have to respond to the interrogatories until the mediator declared an impasse.
(C) The referral to mediation automatically added 30 days to the time period to respond to any discovery.
(D) The referral to mediation did not affect the time period for Defendant to respond to Defendant’s interrogatories.
The referral to mediation did not affect the time period for D to respond to the interrogatories
At the close of all the evidence in a jury trial, Defendant moves for a directed
verdict. After much argument, the court denies the motion. Subsequently, the jury returns a verdict for Plaintiff.
The day after the jury returns its verdict, the court enters judgment for Plaintiff. One week later, Defendant moves to set aside the verdict and have judgment entered in accordance with its motion for directed verdict. In the motion, Defendant raises arguments that were not raised at trial. Plaintiff’s counsel objects to the court even hearing the motion to set aside the verdict. Should the court consider the motion?
(A) Yes, because Defendant has raised new grounds.
(B) Yes, because Defendant had ten days after the jury returned its verdict within which to move to set aside the verdict.
(C) No, because the court denied the motion for directed verdict rather than
reserving ruling.
(D) No, because the court entered final judgment for Plaintiff before the motion to set aside the verdict was filed.
Yes because D had 10 days after the jury returned its verdict within which to move to set aside the verdict.
