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