FL Civ Pro Flashcards
What are the requirements for a motion for leave to amend to assert a claim for punitive damages?
1) Plaintiff makes reasonable showing of evidence providing a reasonable basis for punitive damages recovery, AND
2) All parties served ≥ 20 days before hearing
interpleader
Interpleader allows a disinterested stakeholder to sue multiple claimants in order to avoid multiple inconsistent judgments.
Fill in the blank. The court of its own initiative may order a rehearing or a new trial not later than ___ days after entry of judgment or within the time of ruling on a timely motion for a rehearing or new trial made by a party.
15
True or False:
A party who has timely moved for a directed verdict doesnt need to renew that motion at the close of all evidence in order to make a motion to set aside the verdict.
TRUE
Fill in the blank. A(n) __________________ party is one having a material interest in the case.
necessary
If a defendant files a pre-answer motion to dismiss, then the answer must be served__________ after the court’s denial of the motion.
10 days
bc ur a clown now we cut ur time in half as punishment!!
On what two grounds may a party motion for a change of venue when venue is proper?
(1) When party believes that adverse party has an undue influence over the minds of the inhabitants of the county; or
(2) When party desiring change is so odious to inhabitants of the county that she could not receive a fair trial.
True or False: Multiple defendants having joint and several liability may be sued jointly or severally.
true
True or false:
A court may set aside a final judgment entering default judgment.
true
Can an intervenor file new or additional claims after a motion to intervene has been granted?
NO; an intervenor can’t file new/additional claims after a motion to intervene has been granted. They must accept the pleadings as they are.
yo everybdy get in here but just sit there u cant do anything
Service without actual physical delivery can be made where?
> D’s usual place of abode with anyone who lives there and is at least 15 years old + informing them of the contents
things the FL SC has *mandatory appellate jurisdiction on
> DCA decision declaring a state statute/constitution provision invalid
final judgments for validations of bonds or a certificate of indebtedness
to review a statewide agency actions relating to rates/service of utilities like electric, gas, telf
final judgments imposing death penalty
When can a defendant seek to dismiss an action brought by the plaintiff for failure to prosecute the action?
(1) when D serves notice on the plaintiff that no activity has occurred for 10 months, and
(2) waits at least an additional 60 days after providing notice during which time the plaintiff fails to act.
True or False:
When jury instructions are given prior to final arguments, the court must provide the jury with final procedural instructions after final arguments conclude but before deliberations begin.
true
in what county can a non-party be deposed?
> county where they reside
where they’re employed/transacts business
Does a defendant’s motion to strike immaterial or scandalous matter from a complaint alter the 20-day period they have to file an answer?
no
If a D serves a motion before filing their answer + the court files its order on it – how many days will D have at that point to answer?
the answer must be served within 10 days after the court files its order on the defendant’s motion
(if no motion D would’ve had 20 days)
What does the exercise of quasi-in-rem jurisdiction by a Florida court require the plaintiff to establish?
That the D or the cause of action has minimum contacts with Florida.
What is Quasi-in-rem jurisdiction?
Quasi-in-rem jurisdiction is the court’s power over a D’s interest in property that is within the jurisdiction of the court.
when is Interpleader proper?
when two or more ppl claim the same money or property held by a third party
Can a defendant implead another person who isn’t a party to the action if that person is/may be liable to the defendant for all or part of the plaintiff’s claim against the defendant?
Yes
What is required of an affidavit for it to be used in support/opposition of a MSJ?
> needs to be made on personal knowledge
needs to establish the affiant’s competency to testify on the matters stated
must set out facts that’d be admissible in evidence
When damages are awarded by a jury, when can the court increase (additur) or reduce (remittitur) the award?
if it is contrary to the manifest weight of the evidence
but cant be sought to argue that the jury unfairly divided the damages between parties with different levels of fault.
True or false:
If a motion for an order compelling discovery is granted, the court must generally require the party whose conduct necessitated the motion to pay the moving party the reasonable expenses, including attorney’s fees.
In Florida, is a forum-selection clause by itself as sufficient to confer personal jurisdiction over the contracting parties?
no
> there needs to be residence, incorporation, or some substantial or reasonable relation
Can expert who has been retained by an opponent in anticipation of litigation but is not expected to testify at trial be deposed?
No
> but a party may depose an expert who’s an employee of an opponent about things that are the subject of expert testimony that occurred prior to the incident that is the subject of the litigation.
what is the max number of interrogatories that can be served?
30 (matches # of days they have to answer)
this can be increased by the trial judge, in the court’s discretion, on motion and notice, upon a showing of good cause.
The work-product doctrine protects material prepared in anticipation of litigation from discovery. However, if protected materials are to be used at trial, they must be disclosed.
If P files a complaint > doesn’t show up to trial > D files motion to dismiss
Should it be granted?
Yes; a claim should be dismissed if P fails to appear at trial despite receiving notice
If party A makes a claim/counterclaim against party B and doesn’t respond, what can party B do?
> move for default judgment
> before a default judgment is granted, the defaulting party) must be served with notice of an application of default.
When should an insufficient service of process defense be made
pre-answer motion or answer
bc otherwise it’ll be waived
Is the Florida supreme court required to render advisory opinions of the justices?
only when requested by the attorney general
when can a party seek a jury trial?
A party that seeks a jury trial must:
make a written demand at any time after commencement of the action
and
not later than 10 days after the service of the last pleading directed to the issue.
Can depositions be introduced at trial?
Yes; depositions can be introduced at trial as substantive evidence or impeachment evidence
If its the depo of an opposing party and only part of it is being introduced then the opposing party may require the offering party to also introduce any other part of the depo for fairness
In cases involving multiple defendants, how can P sue the Ds?
In cases involving multiple defendants, the plaintiff has the option of suing the defendants individually or joining some or all of the defendants together in a single lawsuit.
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.
A party may amend a pleading once as a matter of course at any time before a responsive pleading is served.
Later, it may be amended only by leave of court or adverse party’s consent.
Who has jurisdiction over the settlement of an estate?
circuit courts—regardless of the amount in controversy.
A judge can be disqualified from hearing a case if the judge is related to one of the attorneys in the case. However, this disqualification can be waived by stipulation of the parties.
Can a case can be voluntarily dismissed while a summary judgment motion is pending?
Yes; so long as it is dismissed before the summary judgment hearing.
A party seeking affirmative relief may voluntarily dismiss the action once as of right. However, a case cannot be voluntarily dismissed when property has been seized or is in court custody.
If an expert is not expected to testify at trial, then the opposing party may obtain information about the expert only upon a showing of exceptional circumstances.
Time for filing an answer:
Period more than 7 days
Period less than 7 days
> you don’t count the first day; count the last
Period more than 7 days
> count weekends/holidays
> unless the last day is a weekend/holiday
Period less than 7 days
> don’t count weekends/holidays
could you serve process at someone’s rental home
not if its not their usual place of abode
Can a defendant serve a third-party complaint that arises out of the subject matter of the plaintiff’s complaint.
yes they may
Failing to timely respond to a request for admissions results in a deemed admission of the matter.
The admitted matter is considered conclusively established unless the court on motion permits withdrawal or amendment of the admission.
A party who has timely filed a motion for directed verdict may move to set aside the verdict within how many days of the return of the verdict.
15 days
true or false:
Special damages (e.g., loss of business and loss of earning capacity) MUST be specifically stated in a pleading.
true
True or False: Unless required by order of the court, written pretrial motions and defensive pleadings are not necessary in small claims matters.
true
Fill in the blank. Orders for pretrial conference must be served at least _________ before the date set for the conference.
20 days
How many requests for admissions may a party generally propound?
30 (including all subparts)
When must discovery be completed in an expedited trial?
Within 60 days of court’s order adopting the stipulation
Fill in the blank. Two or more claims for damages may be added together to reach the jurisdictional limit of the circuit court as long as those claims _________________.
arise out of the same transaction
Fill in the blank. A(n) _________________ party is one whose interest in the subject matter of the action or defense is such that the absence of that party in the litigation will prevent a complete and efficient resolution of the controversy between the other parties.
indispensable
True or false:
If a party intends to use his own work product at trial, it must be disclosed to the other side.
true
Fill in the blank. In responding to a preceding pleading (i.e., an answer), a party must set forth_______________.
affirmative defenses
What is the Statute of Limitations for an action based on negligence?
2 years
If D waives service of process they now have 60 date from the day they RECEVEIED the request for waiver to respond to Ps complaint
if a P files a claim and then voluntarily dismisses it, then files again and dismisses it again, it will be with prejudice the second time
with prejudice as long as the action is based on or including the same claim
> even when the 1st voluntary dismissal was out of state
subject matter jurisdiction
> circuit:
has to be more than 50k
> county:
50K or less
An action against a foreign corporation doing business in Florida must be brought where?
> In a county where the corp has an agent/representative
> where the cause of action accrued
> where the property in litigation is located
A party’s failure to raise insufficient service of process in the first responsive pleading constitutes a waiver of the defense.
When is a a judge required to recuse themselves?
when a party to the proceeding is related to the judge within the third degree by either
(1) consanguinity (i.e., blood ties) or (2) affinity (e.g., marriage/in-laws).
once a learned treatise’s authority is established bc expert witnesses relied on it, it will only be admissible on cross-examination to attack the credibility of an expert witness.
A plaintiff is entitled to reasonable costs and attorney’s fees from the date a written, good-faith demand for judgment is served when the defendant rejected or did not timely respond to the demand and the plaintiff’s jury award is 25% greater than the offer.
aka:
If P offers to a good faith settlement and D:
> rejects/doesn’t respond on time
and
> if the jury ends up awarding P an amount that’s at least 25% more than what the plaintiff offered to settle for
then D has to pay their attorneys fees
deadline for filing a motion for relief of judgement
within 1 year of an entered judgement based on:
(1) mistake, inadvertence, surprise, or excusable neglect
(2) newly discovered evidence that a party acting with due diligence could not have discovered in time to move for a new trial or rehearing or
(3) fraud, misrepresentation, or other misconduct of an adverse party.
If a party commits intrinsic fraud, the court may relieve the other party from a final judgment upon a motion for relief filed within one year after the judgment is entered.
what does FL SC have mandatory appellate jurisdiction on?
> death penalty
bonds or certificates validations
invalid FL statutes or FL Const provisions
service of utilities
who are Roggs directed for?
parties only!!!
not experts, third parties etc.
SMJ can be asserted at literally any time even post trial
when are permanent injunctions granted?
> after the hearing or the trial ends
must show irreparable harm, clear legal right, inadequate remedy, and consideration of the public interest
a motion to vacate for an excessive sentence can be filed at any time
deadline for filing a motion to vacate in:
> capital case = within 1 year after a final death sentence
> non-capital case = within 2 yrs after final judgement
unless
(1) facts could not have been discovered without due diligence, (2) a new fundamental constitutional right arose, or
(3) the post-conviction counsel was neglectful in filing the motion.
when can an action be declared complex?
> after all Ds have been served and an appearance/default judgement was entered
and
any party or the court has motioned to declare the action complex
a party has to bring compulsory counterclaims when they arise out of the same transaction or occurrence AND don’t require presence of a third parties that the court has no control over
if there’s no activity in a case for 10 months
notice of that has been served
if after 60 days of the notice there is still no activity then the case will be dismissed WITHOUT prejudice
within how many days do u need to hold mediation/arbitration hearing after its ordered?
60 days
to file a med mal action:
> mail notice of intent to initiate litigation
then wait 90 days until filing
clerical mistakes can be corrected at any time
after receiving an amended pleading, a party has 10 days to respond
