FL - Civ Pro Flashcards
JURISDICTION AND RELATED MATTERS
Circuit Court (20)
Exclusive Trial Jurisdiction
All Actions at law not cognizable by county courts (Civil OVER 15K)
probate and estate matters, guardianship, incompetency
all cases related to juveniles except traffic offenses
all felonies and misdemeanors arising out of the same circumstances as a felony that is also charges
all cases involving the legality of a tax assessment
all actions of ejectment
AND
all actions involving title or bounders to real property
JURISDICTION AND RELATED MATTERS
Circuit Court (20)
Shared Jurisdiction
EQUITY CASES involving 15K OR LESS may be heard in EITHER circuit or county court
JURISDICTION AND RELATED MATTERS
County Court (67)
All misdemeanors not confizable in circuit court
all violations of municiopal and county ordinances
all actions at LAW in which the matter does not exceed 15K exclusive of interests, costs, attorneys fees
proceedings relating to the right of possession of real property and to the forcible or unlawful detention of lands and tenements EXCEPT the circuit court also has jurisdiction if the amount in controverys exceeds 15K, UNLESS the matter otherwise falls within the exclusive subject matter jurisdiction of the circuit court
All matters in EQUITY within the jursidictional amount of 15K or less except as restricted by the florida constitution
JURISDICTION AND RELATED MATTERS
JURISDICTIONAL AMOUNT
In LAW cases where exclusive jurisdiction is not given the the circuit courts, the dividing line between circuit and county is 15K; jurisdiction is NOT however retroactively defeated by the fact that the amount actually recovered is LESS than the jurisdictional amount. All that is required to bring an action in the proper court is a good faith allegation that the amount in controversy exceeds or does not exceed the jurisdictional amount. In a CLASS ACTION suit, the claims of the class members MAY be aggregated to meet the jurisdictional amount
JURISDICTION AND RELATED MATTERS
Jurisdictional Amount
Amounts Includable
Punitive damages CAN be included in calculating the jurisdictional amount.
Interest MAY be included IF it is a part of the cause of action itself, but not if it is interest added to the cause of action.
Court costs are EXCLUDED in determining whether a claim exceeds 15K.
Attorneys fees are ADDED to the principal sum claimed IF recoverable by contract or statute.
JURISDICTION AND RELATED MATTERS
Jurisdictional Amount
Causes Cannot be Agrgregated
Aggregation of separate causes of action to reach the 15K is NOT PERMITTED; each separate cause of action is considered separately though joined in 1 suit
EXCEPTION: claims may be combined to confer jurisdiction in the circuit court when all arise from the same transaction or occurrence
There is ALSO authority for the proposition that a PLAINTIFF can bring, against a given defendant, a claim for less than 15K along with a claim for more than 15K even though the two claims are unrelated
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal Jurisdiction
Florida Bases of Personal Jurisdiction
Long Arm Statute
As to a claim for relief arising from doing any of the acts enumerated below, a natural person, corporation, partnership or unincorporated association who, either directly or through an agent:
***(ii) Commits a tortuous acting within FL (Note: a defendant who sends tortuous telephonic, electronic, or written communications into FL commits a tortuous act within FL for purposes of long arm jurisdiction
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Service of Process
Generally to acquire jurisdiction there must be service of process that (i) is authorized by statute or rule and (ii) meeting constitutional due process requirements of notice
Summons by the clerk of the court or judge – done automatically by the clerk when the initial pleadings is filed and a copy of the complaint are delivered to the sheriff or process server.
SIGNATURE AND DUE DILIGENCE REQUIRED – signed by clerk or judge w Court seal and the plaintiff must use due diligence in seeing that service on the defendant is made promptly
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Service of Process
By Whom Made
Sherriff, special process server appointed by the sheriff OR any person over the age of 18 WHO IS NOT A PARTY or otherwise itnerested in the outcome of the case and who is specially apppointed by the court to serve process
“ELISOR” - court’s appointee to serve process when the sheriff is unable to do so
formal service of process by a sheriff or person appointed to serve papers or by publication can be waived upon request and replaced with service by mail
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Service of Process
Time
NO SERVICE ON SUNDAY unless the plaintiff by affidavit states that he has reason to believe the defendant will “ESCAPE FROM THE STATE UNDER PROTECTION OF SUNDAY”
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Service of Process
Alias Summons and Pluries Summons
Alias: when a summons is not served for whatever reason and a second summons is issues, the second summons is the alias summons
pluries: a third or subsequent summons is termed a pluries summons
No motion to issue process is required when the return from the first process issued shows service was not perfected, but a motion is required when the earlier process has NOT been returned to the clerk’s office
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Service of Process
Time Limit
Unless good cause or neglect is shown, a summons must be served on a defendant within 120 days of filing the initial pleading directed to that defendant
if deadline is not met, the court may direct that service be made within a specified time, dismiss the cause against the defendant without prejudice, or drop the defendant as a party — this is true regardless of whether the defendant files a motion to dismiss for noncompliance of this rule
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
Substitute or Abode Service
An individual may also be served leaving a copy o the summons and complaint at his usual place of abode with any person residing therein age 15 or older and informing that person of the contents
usual place of above means the place where the defendant is actually living at time of service
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
Service on Spouse
Service may be on spouse of the person to be serviced if the action is NOT an adversary proceeding between spouse and person to be served, the spouse requests such service and the spouse and person served are residing together in the same dwelling
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
Service on Tenant in Action for Possession of Residential Premises
ESSAY
In an action for possession of residential premises if the tenant cannot be found in the county or there is no person 15 years of age older residing at the tenants usual place of abode in the county after at least attempts 6 hrs apart then service may be made by attaching process to a conspicuous place on property and by clerk thereafter mailing a copy of the summons and complaint by first class mail to the defendant at the premises involved
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
On a Partnership
Service can be made by delivery of process to any partner and is as valid if served on each individual partner
if a partner is not available during reg biz hours, she may designate an employee to accept
after one attempt to serve a partner or designated emloyee has been made process may be served on the person in charge of the partnership during regular business hours
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
On a Corporation
Service on Registered Agent
On Corporate head or other agent in Descending order
- president VP or head
- cashier treasurer secretary or gm
- any director
any officer or biz RESIDENT of fl
if a foreign corp has none in FL process may be served on any agent transacting bis for it while within state
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
On a Corporation
Foreign Corporation Doing Biz in FL
When a corporation engages in SUBSTANTIAL and not isolated activities within FL, OR has a business office within the state and is actually engaged in the transaction of business therefrom, service on any officer or business agent, WHILE ON CORPORATE BUSIENSS WITHIN THIS STATE, may be personally made.
It is NOT necessary in such a case that the proceeding against the corporation shall have a risien our of any transaction or operation connected with or incidental to the business being transacted within the state
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
On a nonresident, natural person, partnership, foreign cor or former Resident who operates a business or has an office in FL
If a nonresident person, a partnership composed of nonresidents, a foreign corporation, or a FL resident who subsequently becomes a nonresident or conceals his whereabouts has accepted the privilege of engaging in buisness in FL or having an office or agency in FL, that person or entity thereby appoints the secretary of state as his agent on whom all process may be served in an proceeding against him arising out of any trasnaction cnnected with or incidental to the business.
Minimum contacts are satisfies because the cause of action must arise out of the business being done within the state
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
On a nonresident, natural person, partnership, foreign cor or former Resident who operates a business or has an office in FL
Substituted Service
Sub service may be made on the secretary of state as an agent of such persons or entities with:
(1) notice by registered or certified mail to the defendant outside FL OR
(2) service personally to the def outside FL by a public officer authorized to make service by FL or by the state where service is made
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
Under General Long Arm Statute
Service under the long arm statute may be made out of state in the same manner as service is authorized in FL, by any officer authorized to serve process in the state where the person is served. No order of court is required.
The statute required that service on person outside the country may have to conform to certain international standards.
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Service by Mail
WAIVER
A plaintiff can request a defendant to waive formal service of process by a sheriff or person appointed to serve papers or by publication and to accept service by mail
acceptance of service by mail does not waive any objection to venue or personal jurisdiction
if a def is served by mail after waiving her right to personal service she has 60 DAYS from the date of the requested waiver to respond to the complain
JURISDICTION AND RELATED MATTERS
Venue
DEFENDANT
Venue refers to the location within FL of a lawsuit. that is, assuming jurisdiction over the subject matter, a valid juridictional basis for an in personam or in rem action, and valid service, venue determines the county in which the action may be brought
JURISDICTION AND RELATED MATTERS
Venue
Where transitory Actions may be Brought
Any action not subject to the local action rule is designated transitory
local action - where property located
JURISDICTION AND RELATED MATTERS
Venue
Where transitory Actions may be Brought
General Rule - Residents of FL
If the def is a resident, venue exists only in the county in which any defendant resides at the time the action is commenced where any cause of action accrued or in which the property in littigation is located
JURISDICTION AND RELATED MATTERS
Venue
Where transitory Actions may be Brought
Multiple Defendants who Reside in Different COunties
If multiple in different counties, venue exists in the county of residence of any one of them
JURISDICTION AND RELATED MATTERS
Transfer of Actions = Motion to Change Venue
Method of transfer
$$$$
When plaintiff files suit in wrong court or county —– Service charge must be paid by the party who commenced the action within 30 days from the date order of transfer is entered. If NOT paid wthin 30 DAYS,, the court must dismiss WITHOUT PREJUDICE.
Where DEF coutnerclaim / cross claim exceeds the subject matter of court – clerk fee is transferred , and the failure to pay that clerk fee will result in reduction or elimination of the counterclaim to the amount within the jurdiiction of the first court
JURISDICTION AND RELATED MATTERS
Choice of Forum
Time For Filing
A motion to dismiss based on forum non convenes must be served no later than 60 DAYS after service of process of moving party
JURISDICTION AND RELATED MATTERS
Waiver (don’t use it u lose it)
Some matters are waived if not raised on first opportunity – subject matter jurisdiction cannot be waived
SMJ -NEVER – can be raised any time up to and through appeals
Jurisdiction over the Defendant (or Property) PJ- YES
An object to the basis of jursidiction is waived if NOT raised in the defendants first response to the complain ,whether that be an answer or a pre-answer motion. However, a motion to transfer venue filed simultaneously with a timely assserted object to PJ does NOT waive the jurisdiction objection
Service of Process - YES
A challenge to the sufficiency is waived if NOT raised in def 1st response to complaint, whether that be in his answer or pre-answer motion
Venue - YES
The question of proper venue is waived if NOT waived in defendant’s first response to complaint, whether that be the answer or motion to dismiss made prior to the answer
PLEADINGS
In General (7)
Complaint Answer Reply Third Party Complaint Third Party Answer Answer to a Counterclaim Answer to a Cross Claim
A counterclaim or cross claim is raised ,if at all, in an answer
PLEADINGS
In General (7)
Motion
A motion is NOT a pleading, it is an application to the court for an ORDER.
PLEADINGS
In General (7)
Ultimate Fact Pleading
In contract to the very liberal “notice pleading of the FRCP, the FLorida rules are a bit more rigorous and REQUIRE a STATEMENT of “THE ULTIMATE FACTS SHOWING THAT THE PLEADER IS ENTITLED TO RELIEF”
One must plead facts rather than conclusions of law. Statement of facts can be general rather than highly details
PLEADINGS
Claim for Relief
Contents
Contains a complaint, counterclaim third party complaint and cross claim
Each CLAIM for relief should contain:
(i) a short plain statement of the grounds for jurisdiction
(ii) a short plain statement of the ultimate facts showing that the pleader is entitled to relief
AND
(iii) a DEMAND FOR JUDGMENT for the relief to which the pleader deems himself entitled, which may be in the alternative or of several different types – ASK FOR REMEDY
PLEADINGS
Special Pleading
Fraud Or Mistake
Circumstances that establish fraud or mistake MUST BE STATED W PARTICULARITY
Conditions Precedent
The performance of conditions may be alleged generally. DENIAL OF PERFORMANCE or occurrence must be made specifically and with particularity.
PLEADINGS
Defense Motions
Motion To Strike
A motion to strike is available when a pleading is redundant or contains material or scandalous matter. This motion can be made AT ANY TIME.
PLEADINGS
Defense Motions
Motion To Strike SHAM Pleading
Available when a party asserts that all or part of an opposing pleading is a sham. Thi mtion may be made AT ANY TIME BEFORE THE CASE IS SET UP FOR TRIAL. Must be verified and set forth all the facts relied upon. Court can take testimony to determine whether to grant. If granted, the court may enter a default or summary judgment or permit additional pleadings for cause shown
***Bribery or Paternity suits before being elected for office
PLEADINGS
Defense Motions
Motion for Judgement on the Pleadings (complaint, answer)
Available AFTER THE PLEADINGS ARE CLOSED (to test sufficiency of p’s pleadings, not the factual support of allegations), but not so late as to delay trial.
PLEADINGS
Defense Motions (7)
Every defense in law or fact to a claim for relief in a pleading must be asserted in the RESPONSIVE pleading, if one is required, but the following defenses may be made - at the option of the pleader - by a PREANSWER MOTION:
(i) Lack of SMJ
(ii) Lack of PJ
(iii) Improper Venue
(iv) Insufficiency of Process
(v) insufficiency of Service of Process
(vi) failure to state a cause of action upon which relief can be granted (including an affirmative defense on the face of the claim); and
(vii) failure to join an indispensable party
PLEADINGS
Defense Motions (7)
Defense Motions Treated as Motions to Dismiss (6)
All below is a Motion to Dismiss ::: (NOT VENUE)
(i) Lack of SMJ
(ii) Lack of PJ
(iv) Insufficiency of Process
(v) insufficiency of Service of Process
(vi) failure to state a cause of action upon which relief can be granted (including an affirmative defense on the face of the claim); and
(vii) failure to join an indispensable party
PLEADINGS
Defense Motions (7)
Responsive Pleading
If the court denies a defense motion or postpones disposition until a trial, a responsive pleading must be filed WITHIN 10 DAYS AFTER NOTICE of the courts action, unless a different time is fixed by court
PLEADINGS
Defense Motions
Consolidation of Defenses in Motion
If any motion is made on any of the grounds listed (7 defense motions) all such defenses or objections then available MUST BE RAISED
(ii) failure to state a cause of action, failure to join an indispensable party and failure to state a legal defense MAY BE RAISED in ANY pleading, by motion for judgement on the pleadings or at TRIAL on the merits DESPITE any previous motions made
PLEADINGS
Defense Motions
Waiver
The following defenses are WAIVED if not raised by the defendnant in his first response to the comaplin – i.e., in his answer or preanswer motion
(i) lack of jursidiction over the person
(ii) improper venue
(iii) insufficiency of process AND
(iv) insufficiency of service of process
PLEADINGS
Answer
Affirmative Defense
Affirmative Defenses must be specifically pleaded:
(i) accord and satisfaction
(ii) arbitration and award
(iii) assumption of risk
(iv) comparative negligence
(v) discharge in bankruptcy
(vi) duress
(vii) estoppel
(viii) failure of consideration
(ix) fraud
(x) illegality
(xi) injury by a fellow employee
(xii) laches
(xiii) license
(xiv) payment
(xv) release
(xvi) res judicata
(xvii) statute of Frauds
(xviii) statute of limitations
(xix) waiver
(xx) and any other matter constituting an avoidance or affirmative defense
However, doesn’t need to be specifically pleaded if papers on face of a prior pleadings and the defense is asserted as the basis for dismissing that pleading for failure to state a cause of action
PLEADINGS
Answer
Time
Within 20 days after service of the pleading comtaining the claim to which the answer is made
EXCEPT:
(i) if a PREANSWER MOTION to dismiss or for a more definite statement is DENIED OR POSTPONED FOR TRIAL, the time to answer is 10 DAYS AFTER THE COURTS ORDER
(ii) if a PREANSWER MOTION for a more def statement is GRANTED, the time to answer is 10 DAYS AFTER SERVICE OF THE MORE DEF STATEMENT
(iii) if the court permits or required THE FILING OF AN AMENDED OR MORE RESPONSIVE PLEADING, this pleading MUST BE SERVIED WITHIN 10 DAYS OF NOTICE OF THE COURTS ACTIONS. Any response to this pleading must be filed WITHIN 10 DAYS OF THE SERVICE OF IT
PLEADINGS
REPLY
Whether a party must file a reply to answer depends on whether he waints to raise new matter in response to the affirrmative defense.
If the answer contains an affirmative defense and the opposing party wishes to avoid the legal effect of the affirmative defense with new matter, a reply is REQUIRED. If the opposing party doesntseek to avoid the affirmative defense with new matter, no reply required and after factual allegations containd in affirmative defense are deemed denied
PLEADINGS
Amendment
A pleading may be amended ONCE BEFORE a resonsive pleading is serviced, or if no responsive pleading is required, and the action has not been placed on trial calendar, WITHIN 20 DAYS of service of the pleading. A party filing a motion to amend a pleading must attached the proposed amended pleading to the motion
PLEADINGS
Amendment
relation back
Amendments relate back to the date of the original pleading when the CONDUCT, TRANSACTION OR OCCURANCE set forth in the amended pleading was set forth or attempted to be set forth in the original pleading.
When SOL has run ***
SOL DOES bar causes of action in the amended pleading that are NEW AND DISTINCT from those in the original pleading
PLEADINGS
Counterclaims
Compulsory (Use it or lose it)
Any claim that a pleader has against the opposing party which arises out of the same TRANSACTION OR OCCURANCE as the pleading responded to MUST BE ASSERRTED at the time of the servive of a responsive pleading or it is lost forever
PLEADINGS
Counterclaims
Permissive
A counterclaim is deemed permissive and therefore MAY but NEED NOT be asserted if it is based on a claim NOT arising out of the same Transaction or Occurance as the pleading responded to
PARTIES
Capacity
Whether a person may or may not be sued
PARTIES
Capacity
Minors and Incompetents
A minor (under 18) or incompetent MAY sue and be sued ONLY through a guardian or like fiduciary. If he has no guardian, he may sue through A NEXT FRIEND or a guardian ad litem. If not represented by a next friend or guardian ad litem, the court may appoint a guardian ad litem or make such other order as it deems proper for his protection
PARTIES
Intervention (Self Inflicting) & Time
Where a NONPARTY enters the case on his OWN MOTION
NOT COMPULSORY
Discretionary with a court whether to permit the intervention
TIME:
Jury Trial – any time up to the verdict
Non- Jury Trial - any time up to final judgement
Intervention after judgement for purposes of appeal has been allowed in exceptional cases
PARTIES
Interpleader
Device by which persons having conflicting claims against a stakeholder may be joined as defendants and required to interplead so that the stakeholder may avoid exposure to DOUBLE LIABILITY
** insurance companies – steak w dogs
May be used by plaintiff or defendant
PARTIES
Impleader - Third Party Practice
Decide a DEFENDANT may use to bring a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiffs claim against her. She does so by filing a third party complaint and having it served upon the third-party defendant
Note: avaialble to a defending party of any claim, including a counter cliam corss claim or third party claim – SO A PLAINTIFF COULD ALSO IMPLEAD
PARTIES
Impleader - Third Party Practice
Motion
NO MOTION NECESSARY IF the defendant files the TPC within 20 DAYS of filing her answer. Otherwise, a motion is necessary and depends on the discretion of the court
PARTIES
Class Actions
FL requires specific pleading requires and notice to class members in all class actions
PARTIES
Class Actions
Dismissal or Compromise
A claim or defense may not be voluntarily dismissed or settled WITHOUT JUDICIAL APPROVAL after NOTICE to all members of the class
PARTIES
Class Actions
Homeowner Condo and Mobile Homeowner Associations
A homeowner, condominium or mobile HOA may sue in its name on behalf of all association members concerning matters of common interest – common elements and the representations of the developer pertaining to any existing or proposed commonly used facilities
