FL Civ Pro CMR

Question 1

cross claims

Answer 1

21 days after service

Question 2

counterclaims

Answer 2

21 days after service

Question 3

If the defendant resides in Florida, venue is OK in the county where:

Answer 3

The defendant resides when the complaint is filed OR
• The cause of action accrued (for example, a tort accrues
where the injury occurred) OR
• The property in litigation is located (for example, owner- ship of an antique car, where the car is located)

Question 4

If venue is originally improper

Answer 4

the court will transfer to a proper venue if plaintiff pays transfer costs within 30 days. If she does not pay, the case will be dismissed without prejudice

Question 5

improper venue: party will not receive a fair trial in that venue:

Answer 5

• The opponent has undue influence in the county
• The moving party is so odious he cannot get a fair jury
• It is impracticable to get a qualified jury (for example, because of pretrial publicity)

Question 6

Motion for improper venue:

Answer 6

When must the motion be made? Within 60 days of service of process.

Question 7

service of process basic idea

Answer 7

plaintiff must have a summons (order issued automatically by the judge or court clerk telling defendant to appear and defend)
and a copy of the complaint to served on each defendant.
Together, what are these two documents called? Process.

Question 8

In Florida state court, process may be served by

Answer 8

the sheriff or his appointee OR by a nonparty adult who is appointed by the court. What do we sometimes call someone who is appointed by the court to serve process? An elisor.

Question 9

Proof of Service

Answer 9

The person making service notes the date and time of service and her identification number, and she initials the process.

She should file a signed proof of service form, which is prima facie evidence that service was made.

If made by a civilian, proof of service is by affidavit.

If by an officer, it need not be by affidavit.

Does failure to file proof of service affect the validity of service? No.

Question 10

Substituted service

Answer 10

For substituted service,

(1) process is left at the defendant’s usual place of abode (that is, the defendant is actually living there at the time of service),
(2) with someone who is at least 15 years old and resides there, and
(3) the server tells that person the contents of the documents

Question 11

Special Substituted Service on Spouse

Answer 11

You can serve Defendant’s spouse if the case is not between the spouses, the spouse requests the service or is a party
to the case, and the spouse and Defendant reside together. This service need not be at their dwelling.

Question 12

Nail and Mail Service for Landlord v. Tenant Actions

Answer 12

In some circumstances, the landlord may have process posted conspicuously on the premises and have the clerk mail process (by first class mail) to the tenant at those premises

The landlord failed twice at least 6 hours apart to make personal or substituted service of process.

Question 13

Non Resident Motorist act

Answer 13

the Florida Secretary of State may be served and then mailing process, by registered or certified mail, return receipt requested to the nonresident.

Or the nonresident motorist may be served by personal service.

Question 14

Service by Publication

Answer 14

Service by publication is allowed only by statute, in cases involving realty, construction of a will or other written instrument, for dissolution of marriage or adoption.

The plaintiff must give a sworn statement that the defendant cannot be found in Florida after diligent search and inquiry.

The plaintiff also must state whether the defendant’s residence is known or unknown. If known, the plaintiff must state the residence (in or out of Florida).

A copy of the published notice is mailed by the clerk to the defendant at her last known address.

CMR exam tip: Service by publication always requires that diligent inquiry has been made into the name and whereabouts of any person who should be served

Question 15

Waiver of service

Answer 15

The plaintiff can mail process and a waiver form to the defendant by certified mail.

Within 20 days of receipt, the defendant can return the waiver form by first-class mail; if the defendant does so, she waives service but not objections
to PJ or venue. 

If the defendant does not return the waiver form, P must serve by an authorized method, and the court can required the D to pay the costs of such service.

The defendant has 60 days from receipt of the waiver form to respond to the complaint.

Question 16

Timeliness of Service

Answer 16

Filing the complaint tolls (stops) the statute of limitations. BUT, for this rule to apply, the plaintiff must have the defendant served within 120 days of filing

If not, the court can order a different time or it can dismiss without prejudice unless the plaintiff shows good cause for delay in serving.

If the plaintiff does show good cause for not serving within 120 days (remember, in federal court it’s 90 days), the court will extend time for service to an appropriate period.

Question 17

If an attorney is excused from having an email address (or if a pro se party doesn’t have email),

Answer 17

subsequent documents can be delivered or snail mailed. Five days are added to the time in which to respond if service is made by snail mail.

Question 18

Pleadings: basic idea

Answer 18

the name of the court and case file number;

the names of the parties;

the name, address, and phone number of the attorney;

the attorney’s Florida Bar number and email address;

designation of pleading;

each claim or defense separately stated; and

numbered paragraphs.

Question 19

Attorney Certificate

Answer 19

At least one attorney of record must sign all pleadings. If there is no lawyer (a pro se litigant), the party signs the pleading, including her address and telephone number. By signing, the lawyer or pro se litigant is certifying that:

She has read the document

To the best of her information, there is good ground to support the document

It is not interposed for delay AND

The document contains no confidential or sensitive information or that any such information has been properly protected

(The Florida rule is less elaborate than Federal Rule 11)

Question 20

Florida’s Tort Reform statute

Answer 20

the prevailing party in a tort case can recover attorneys’ fees if the losing party raised a claim or defense that was not supported by facts or law

The award is to be paid 50/50 by the losing party and his lawyer. But the lawyer will not be liable if she acted in good faith, based on what the client told her.

at any time in a case, a party can move to recover damages (including attorney’s fees) for delay in litigation.

To win, she must show by a preponderance of the evidence that the opposing party took an act primarily for unreasonable delay.

Question 21

Florida’s Tort Reform statute

Answer 21

the prevailing party in a tort case can recover attorneys’ fees if the losing party raised a claim or defense that was not supported by facts or law

The award is to be paid 50/50 by the losing party and his lawyer. But the lawyer will not be liable if she acted in good faith, based on what the client told her.

at any time in a case, a party can move to recover damages (including attorney’s fees) for delay in litigation.

To win, she must show by a preponderance of the evidence that the opposing party took an act primarily for unreasonable delay.

Question 22

Complaint: (filing of complaint commences the action).

Requirements for claim for Relief

Answer 22

A statement of a ground for SMJ

If a nonresident is being sued, grounds for PJ must be alleged

A short and plain statement of the _ultimate fact_s showing that pleader is entitled to relief AND

A demand for judgment (“prayer”). This is sometimes a demand for damages and is called an “ad damnum” clause

What must the plaintiff file with the clerk at the time the initial complaint is filed? A civil cover sheet. If the cover sheet is not included, the complaint is filed but proceedings are stayed until the plaintiff files it.

Question 23

Pleading special matters:

Special matters that must be pleaded with particularity or specificity are:

Answer 23

Circumstances establishing fraud

Facts supporting punitive damages (intentional miscon- duct or gross negligence)

Special damages (they normally don’t flow from an event)

Question 24

Pleading Damages

Answer 24

In the demand for judgment, is a dollar figure for damages required? No. Special damages must be stated separately. Punitive damages must also be stated separately. (This just means identify them as separate from general damages.)

The plaintiff cannot originally plead for punitive damages. Instead, she must make a motion and present evidence from which the court concludes that there is a reasonable basis for a claim (which is intentional misconduct or gross negligence). Then what does the plaintiff do? She must move to amend the complaint to add punitive damages.

Question 25

Defendant’s Response (either by motion or answer)

Answer 25

To avoid default, the defendant must respond within 20 days of being served with process.

She has a choice of how to respond, either by motion or by answer.

Question 26

Motions raising issues of form are:

Answer 26

A motion for more definite statement, when a pleading is so vague that the defendant can’t frame a response

A motion to strike, which pares out immaterial allegations, cheap shots, and so on. Any party may make a motion to strike at any time

Question 27

Major Defenses

Answer 27

• Lack of SMJ
• Lack of PJ
• improper venue
• insufficiency of process (problem with the summons and copy of complaint)
• insufficient service of process
• a failure to state a cause of action on which relief can be granted
• a failure to join an indispensable party

Question 28

Waivable defenses (must be included in the Defendant’s first defensive response)

Answer 28

• lack of PJ
• improper venue
• defects in service of process

Must be in first defensive response (an answer or request to the court for affirmative relief)

Question 29

Defendant’s Answer

Answer 29

the answer is a pleading. the D may decide not to file a pre answer motion or her pre answer motion may be denied. In either event, she will have to answer or risk default.

Question 30

Timing of Defendant’s answer

Answer 30

the defendant must serve the answer no later than 20 days after service of process if no motions are filed. If a motion is made and denied, the D must answer within 10 days after the court’s order on the motion.

Question 31

if the defendant fails to deny an allegation:

Answer 31

he has admitted it.

Question 32

raising affirmative defenses

Answer 32

defendant must also raise affirmative defenses, for example, the expiration of the statute of limitations, assumption of risk, a lack of legal capacity, comparative negligence, a lack of capacity to sue or be sued, res judicata, and the answer.

Question 33

Reply

Answer 33

If the answer contains an affirmative defense which plaintiff wishes to avoid, he does so in a “reply.” The plaintiff must serve the reply within 20 days after service of the answer.

If the plaintiff just wishes to deny allegations of the defendant’s answer, he need do nothing.

Question 34

Counterclaim

Answer 34

A counterclaim is a claim against an opposing party, for example, a claim by the defendant against the plaintiff.

A counterclaim is part of the defendant’s answer, labeled as “counterclaim.”

The defendant serves the answer containing the counterclaim on plaintiff’s lawyer if she has one; other- wise, if she has no lawyer (that is, she is proceeding “pro se”), it’s served on the plaintiff.

The court can order service on the plaintiff even if she has a lawyer.

Question 35

compulsory counterclaim

Answer 35

A compulsory counterclaim arises from the same transaction or occurrence (“T/O”) as the opposing party’s claim.

Why is it “compulsory?” Because it must be filed in the pending case. The failure to do so waives the claim; it can’t be asserted in another case.

It’s the only compulsory claim. No other claim is compulsory.

compulsory= mandatory

Question 36

permissive counterclaim

Answer 36

A permissive counterclaim doesn’t arise from the same T/O as claimant’s claim, so it doesn’t have to be filed in the same case.

If the defendant files a permissive counterclaim, what must the plaintiff do?

She must respond within 20 days of service of the counterclaim.

Question 37

Cross Claim

Answer 37

A cross-claim is a claim against a co-party. It must arise from the same T/O as the original claim or counterclaim (under- lying suit).

Must a party file a cross-claim? No. Cross-claims are never compulsory.

Question 38

Plaintiff has a right to amend their complaint:

Answer 38

only once before the D serves their answer. The defendant has a right to amend once within 20 days of serving his answer.

Remember, a motion is not an answer. What if the defendant hasn’t served an answer, but has brought a motion? Would the plaintiff still have a right to amend? Yes. A motion is not an answer.

Question 39

Any time an amended pleading seeking relief is filed, what must the opposing party do?

Answer 39

Respond within 10 days of service.

Question 40

Depositions

Answer 40

A court order is required if the plaintiff wants to take the deposition less than 30 days after serving the complaint unless (1) the plaintiff’s notice states that the person to be deposed is about to leave the state and won’t be available after the 30 days or (2) the defendant has already taken a deposition

Question 41

Any party can use depositions at trial to:

Answer 41

To impeach the deponent

For any purpose if the deponent is an adverse party

For any purpose if the deponent (regardless of wheth- er a party) is dead, ill, over 100 miles from the site
of trial, or beyond the subpoena power of the court (unless the party seeking to introduce the evidence procured the absence)

Question 42

Interrogatories

Answer 42

The basics of interrogatories are the same as in federal court. They are answered in writing under oath within 30 days
after service (45 days if the interrogatories accompany the complaint).

What is the limit on the number of interrogatories (including subparts) a party may serve on another? 30.

Question 43

Requests to produce

Answer 43

The receiving party responds in writing within 30 days (45 days if the request accompanies complaint), either agreeing to furnish material or objecting.

Need subpoena if request to produce is to a non-party

Question 44

Issuing subpoena

Answer 44

to issue a subpoena, notice must be given to all parties of the request for subpoena
at least 10 days before the subpoena is issued (at least 15 days if the notice is sent by snail mail). If a party objects,

no production is ordered. In that case, what can the party seeking discovery do?

(1) Move for a ruling on the objection; or
(2) take the nonparty’s deposition, using a subpoena duces tecum, which requires the deponent to bring requested materials with her.

Question 45

Physical or Mental Exam

Answer 45

The party being examined must respond in writing within 30 days (45 days if request accompanies complaint), either agreeing to the exam or stating objections.

Question 46

Certain Exams need motion

Answer 46

if the condition in controversy is not physical (for example, mental health or blood group in paternity case), examination is available only on motion. The party seeking the examination must show good cause for it.

Question 47

copy or report may be requested

Answer 47

the person examined may get a copy of the report by asking for it, but doing so waives his privilege on reports by examining physicians the person has seen or will see.

Question 48

Request for admission

Answer 48

As in federal court, a request for admission is a request by one party to another party to admit the truth of any discoverable matters.

Failure to deny is tantamount to an admission.

Are admissions binding in other litigation? No, they are binding only in the present case.

A party must respond to the request for admission within 30 days (45 if the requests accompany complaint), either admitting, denying, or objecting.

The party can indicate lack of information only if they have made a reasonable inquiry.

What is the maximum number of requests for admission that may be served on a party (unless the parties agree to more or the court orders more for good cause)? 30.

Question 49

Duty to supplement

Answer 49

There is no duty to supplement one’s answers in discovery if the answers were complete when made. (Different from federal court.)

Question 50

Discoverable material

Answer 50

party may discover anything that is “relevant” to the subject matter of the case.

This means anything “reasonably calculated to lead to admissible evidence,” which, as in federal court, is broader than what is “admissible.”

Question 51

Privileged Matter Is Not Discoverable

Answer 51

Privileged matter is not discoverable. But the party claiming privilege must assert the privilege expressly and describe the materials in detail (in a “privilege log”).

Question 52

Inadvertent Disclosure Does Not Waive Privilege

(unintentional disclosure)

Answer 52

Inadvertent disclosure of privileged material doesn’t waive privilege if the party producing it serves a written notice within 10 days of discovering the disclosure.

She must specify the materials, the privilege, and the date on which the inadvertent disclosure was made.

The other party must return, sequester, or destroy the material, but he can then challenge the assertion of privilege.

Question 53

Expert witnesses

Answer 53

Because Florida doesn’t have required disclosures, we must request discovery of the facts known by and opinions of any experts retained in anticipation of litigation.

Question 54

Expert Expected to Testify at Trial

Answer 54

If the expert is expected to testify at trial: you can send interrogatories to the other party, seeking what about expert witnesses?

(1) Her name; (2) the substance of the facts and opinions held by the expert; and (3) the grounds for her opinions.

You may also ask the party about the party’s relationship with that expert, for example, compensation, time retained.

Then, after the interrogatories are answered, what do you do? You may take the expert’s deposition.

Do you need a court order to take the expert witness’s deposition? No, but you will subpoena the expert and pay a reasonable fee for the expert’s time.

Question 55

Expert not expected to testify at trial

Answer 55

What if the expert is not expected to testify at trial? There is no discovery absent exceptional need (that is, the information is not available anywhere else).

So it is difficult to get discovery from such a “consulting expert.”

Question 56

How Discovery Disputes Are Presented to the Court

Answer 56

Responding Party Seeks Protective Order

The responding party may seek a protective order when, for example, the request is over burdensome or ESI is not reasonably accessible.

Partial Failure to Respond

A partial failure occurs when the responding party responds, but not fully. At worst, if her objection to discovery is no good, this is a partial failure, so we expect a light sanction.

Total Failure to Respond

A total failure occurs when the responding party willfully refuses to attend deposition, to be sworn for deposition, or to respond to valid discovery request. This is a total failure so we expect a heavy sanction.

Failure to Respond to Request for Medical Exam

How do we treat failure to respond to request for medical exam? It’s treated as a partial failure.

Question 57

Merits Sanctions

Answer 57

Merits sanctions may be imposed only after opportunity to be heard. Merits sanctions include:

An establishment order (that establishes facts as true)

Striking the pleadings of a disobedient party as to the issues contained in the discovery

Staying proceedings until discovery is given

Disallowing evidence by the disobedient party at trial

Contempt. But contempt is never available for what? A refusal to submit to a medical examination

Dismissing the plaintiff’s case or entering a default judgment against defendant, but this can be done only if an express written finding of willful or deliberate refusal to obey a discovery order is made

Question 58

PROPER PARTIES (PERMISSIVE JOINDER)

Answer 58

Persons may join as plaintiffs if they have a common interest
in the subject of the action or the relief requested;

however, persons who have separate and independent causes of action against the same defendant may not join together as plaintiffs even if the causes of action arise from the same T/O and present common questions of law or fact. There is an exception:

spouses and their children may join.

here is a special rule in tort cases: Spouses or parents and their children may join in tort cases.

May the plaintiff(s) sue the taxi driver and the cab company as co-defendants? Yes, because they each have “an interest adverse to the plaintiff.” This is very broad and vague. Does this include joint or several liability? Yes.

Question 59

NECESSARY AND INDISPENSABLE PARTIES

Answer 59

Some absentees (“A”) ought to be joined because they have some relationship with the action. Take it in three steps:

Is it necessary?

A is necessary if: (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.

Can you be joined?

The answer is yes if there is PJ over you. If so, the court will order joinder.

If Joinder Not Possible, Can Case Proceed?

If A (you in this hypo) cannot be joined, then the court must decide either to (1) proceed without you or (2) dismiss the whole case. The court has great discretion on this point. If the court decides to dismiss rather than proceed without A, what do we call A? Indispensable.

Question 60

Intervention

Answer 60

Now A (absentee) wants to join a pending suit.

When A has an interest in the pending litigation that would be affected by a judgment, joinder (intervention) is allowed in the discretion of the court.

The intervenor waives any objection to PJ.

Question 61

Impleader

Answer 61

As in federal court, if a defending party adds a new party,
the new party is the third-party defendant (“TPD”).

A TPD is or may be liable to the defending party for all or part of the underlying claim. So the defendant seeks indemnity or contribution from the TPD.

What might this be called instead of impleader? Third-party practice.

Question 62

Impleader timing

Answer 62

There is a right to implead within 20 days of serving your answer. After that, you need court permission.

the TPD can assert a claim against the plaintiff (and the plaintiff can assert a claim against the TPD), as long as the claim arises from the same T/O as the underlying case.

Question 63

Interpleader

Answer 63

Interpleader is a device by which one holding money or other property can force all potential claimants into a single lawsuit. The idea is to avoid multiple litigation and the possibility of inconsistent results.

The person with the property is called the “stakeholder.”

People who want the stake are called the “claimants.”

So the stakeholder wants to force all the claim- ants into a single case.

Question 64

Initial requirements of class action

Answer 64

The initial requirements in Florida state court are the same four requirements as in federal court: (1) numerosity, (2) commonality, (3) typicality, and (4) adequate representation.

Question 65

Notice to the Class

Answer 65

The court gives individual notice to all class members reasonably identifiable. Notice must inform the class members that: (1) they can opt out of the class action; (2) they will be bound by the judgment if they do not opt out; and (3) they can enter a separate appearance in the case through counsel.

In federal court, this notice was required only for a Type 3 class action. What about in Florida state courts? Notice is required in all class actions, so class members can opt out of all 3 types. Who pays to give this notice? The class rep.

Question 66

Voluntary Dismissal of Class Action

Answer 66

Can the parties voluntarily dismiss or settle a certified class action? Only with court approval.

In deciding whether to approve voluntary dismissal or settlement of a certified class action, the court gives notice to all members.

The court can consider their feedback in deciding whether to allow voluntary dismissal or settlement.

Question 67

Voluntary Dismissal by filing a notice of dismissal

Answer 67

A voluntary dismissal by notice is not available:

(1) if the case has been submitted to the trier of fact or if a motion for summary judgment is presently pending;
(2) if property was seized or in court custody; or
(3) if there is a counterclaim in the case which cannot stand for independent adjudication.

Now assume that no property is seized and no counterclaim is pending. Before trial, a party moves for summary judgment and it is denied. Can the plaintiff now file a notice of dismissal? Yes, because a motion for summary judgment is not pending. Even at trial the plaintiff can take a voluntary dismissal on the record so long as it is before the case is submitted to the trier of fact.

Question 68

Voluntary Dismissal by Written Stipulation of Parties

Answer 68

A voluntary dismissal by written stipulation is not available if property is in court custody.

Question 69

Voluntary Dismissal by Court Order

Answer 69

A voluntary dismissal by court order is not available if there is a counterclaim in the case which cannot stand for independent adjudication.

That means that there is a counterclaim that is inextricably linked with the claim to be dismissed.

Question 70

Effect of Voluntary Dismissal

Answer 70

The first voluntary dismissal is without prejudice, so the case can be refiled.

When a claim is dismissed voluntarily, the defendant may be awarded costs.

Question 71

DEFAULT AND DEFAULT JUDGMENT

Answer 71

A party against whom a claim is filed fails to plead or otherwise defend the action in the time allowed by law (generally 20 days).

Question 72

Difference Between Entry of Default and Default Judgment

Answer 72

What’s the difference between entry of default and a default judgment? An entry of default is shown as an entry on the docket; the plaintiff, however, cannot collect any money on a default.

The plaintiff needs a judgment to enforce and recover money or other relief. Entry of default is a prerequisite to default judgment.

Question 73

Entry of Default

Answer 73

An entry of default may be made by the clerk of the court if the defendant has filed no paper; if some paper has been filed, it must be entered by the judge.

Either way, the plaintiff must make an application for entry of default. So entry of default is not automatic.

Does the defendant get notice of the plaintiff’s application for default? Only if he has filed some paper.

Question 74

Effect of Entry of Default

Answer 74

Once default is entered, the defendant can’t answer or file a motion. Up until then, however, she can. (Even if that’s more than 20 days.)

Question 75

Effect of Entry of Default

Answer 75

Once default is entered, the defendant can’t answer or file a motion. Up until then, however, she can. (Even if that’s more than 20 days.)

Question 76

Entry of Default Judgment

Answer 76

A default judgment can be entered only by the judge and never by the clerk.

The defendant gets notice of a hearing on damages.

A default admits all well-pleaded allegations of liability but not damages.

That’s why we have a hearing on damages.

Question 77

Relief from Default

Answer 77

After default but before judgment, the defendant can make
a motion to set aside the default.

He must show three things: (1) good cause for the default (for example, excusable neglect), (2) a meritorious defense, and (3) due diligence after learning of default. After entry of a default judgment, the defendant can make a motion to set aside the judgment (or for “relief from judgment”).

Basically, the defendant must make the same showing as in a motion to set aside a default.

Question 78

Involuntary Dismissal grounds for dismissal:

Answer 78

The grounds for involuntary dismissal are:

Plaintiff fails to prosecute. If there is no record action (no court order, no motion, etc.) for 10 months (and the case is not stayed), the court or a party may certify that fact to all parties. If the plaintiff takes no record activity (or if no stay is entered) within 60 days after service of the notice, this motion can be made. In a motion for failure to prosecute, the court will dismiss unless the plaintiff does what?

Shows good cause in writing at least five days before the hearing;

Fails to comply with procedural rules or court order;

Any of the defense motions for dismissal;

Fails to show in a nonjury trial that she is entitled to relief. Functionally, this is the same as directed verdict for the defendant.

Any involuntary dismissal is presumed to be with prejudice unless the court said otherwise or unless it was based upon jurisdiction, venue, indispensable parties, or failure to prosecute

Question 79

RULE NISI

Answer 79

Rule nisi is what most of the world calls an order to show cause.

The court tells a party it will enter a particular order unless she convinces the judge (shows cause) not to

Question 80

SCIRE FACIAS

Answer 80

Scire facias is an order requiring one to show cause why some matter of record (like a judgment) should not be revived and enforced.

Generally, a judgment is good for 20 years. If it has not been enforced and the 20 years expires, a writ of scire facias can revive the judgment.

Question 81

FAILURE TO STATE A CAUSE OF ACTION

Answer 81

A defendant can move to dismiss for failure to state a cause of action on which relief can be granted.

Like the federal motion to dismiss for failure to state a claim under Rule 12(b)(6), the motion tests only the sufficiency of the plaintiff’s allegations of fact.

Question 82

Summary Judgment

Answer 82

To win a motion for summary judgment, the moving party must show that:

(1) there’s no genuine dispute on a material fact and
(2) she is entitled to judgment as a matter of law.

Remember, summary judgment weeds out cases that don’t need a trial. Why do we ever have a trial? To resolve disputes of material fact.

Question 83

Timing of Summary Judgment

Answer 83

A party may move for summary judgment after 20 days from the commencement of the action or after service of a motion for summary judgment by an adverse party. The motion and any supporting material must be served together at least

40 days before the hearing on the motion. In turn, the party opposing the motion may serve its evidence 20 days before the hearing.

NOTES

Question 84

CASE MANAGEMENT CONFERENCE

Answer 84

Any time after responsive pleadings or motions are due,
the court may convene a case management conference
on “reasonable” notice.

At the conference, the court may consider scheduling, discovery, setting a trial date, narrowing issues for trial, and so on. It’s a blueprint for the overall case. Note that there are special management procedures for complex cases.

Question 85

PRETRIAL CONFERENCE

Answer 85

When the case is at issue, the court may (and must if a party requests) hold a pretrial conference.

At least 20 days’ notice must be given. At this conference, the court may consider issues to prepare and simplify the trial, amending pleadings, limiting number of expert witnesses, stipulations, whether jurors will get notebooks with documents and exhibits, as so on. It’s a blueprint for the trial itself.

Question 86

FAILURE TO ATTEND CONFERENCE

Answer 86

If a party fails to attend a conference, the court can take appropriate action, including award of “merits” sanctions.

For the severest sanctions (striking pleadings, dismissal, or judgment), the court must find that failure to attend was willful.

Question 87

EFFECT OF PRETRIAL CONFERENCE ORDER

Answer 87

An order will be entered after the pretrial conference. It controls future events unless amended to prevent manifest injustice. The order supersedes the pleadings.

Question 88

TRIAL, JUDGMENT, AND POST-TRIAL MOTIONS: MAGISTRATES

Answer 88

With all of the parties’ permission, a circuit court may refer matters to a magistrate, who can hear and receive evidence as the court could. The magistrate files a written report with the court, usually setting forth findings of fact and suggested conclusions of law. The parties have 10 days after filing in which to serve objections to the magistrate’s report.

The ultimate decision in the case is for the judge. General magistrates are selected from a list kept in each court. Special magistrates are appointed on a case-by-case basis and need not be members of the bar.

Question 89

Initiation of Mediation or Arbitration

Answer 89

The presiding judge can order (or the parties can agree to) the use of mediation or arbitration.

The first mediation or arbitration conference must take place within 60 days of the court order.

The parties can move to dispense with ADR for good cause.

Question 90

Mediation

Answer 90

Mediation must be completed within 45 days of the first mediation conference unless extended by court order or stipulation of the parties.

Discovery can continue during mediation unless the court orders or the parties stipulate otherwise.

A party can be sanctioned for failure to appear unless the party shows good cause for the failure.

The mediator reports to the court if the case cannot be settled. If settled, the settlement terms are put in writing and filed; the case is then jointly dismissed.

Question 91

Arbitration

Answer 91

neutral arbitrator (or panel of three) listens to evidence and renders a decision. Arbitration must be completed within 30 days of the first arbitration hearing.

Question 92

Nonbinding Arbitration

Answer 92

Nonbinding arbitration is very informal, with evidence mostly summarized by counsel.

The arbitrator(s) send a written decision to the parties and the court, setting forth any conclusions and findings.

The decision becomes final unless a party requests trial de novo within 20 days.

Question 93

Binding Arbitration

Answer 93

For arbitration to be binding, two or more adverse parties must agree to it, and they will enter into a written agreement setting out the hearing procedures. (If they don’t do so, the court can set the procedures.)

A decision is sent to the parties and the court.

The decision can be appealed to the circuit court within 30 days.

If it’s not appealed, the decision becomes final. The grounds for appeal are narrow, for example, arbitrator misconduct or violation of the Constitution are grounds for appeal.

Question 94

Voluntary trial resolution

Answer 94

Voluntary trial resolution is similar to binding arbitration. The case is heard by an attorney with her decision being enforce- able in circuit court.

Question 95

OFFER OF JUDGMENT/PROPOSAL FOR SETTLEMENT

Answer 95

In a case for damages, the defendant can file a written offer to allow judgment against her for a certain amount.

If the plaintiff accepts the offer within 30 days, the clerk enters a final judgment.

If the plaintiff rejects the offer and the final judgment is in the defendant’s favor, or is in the plaintiff’s favor but is at least 25% less than the offer, the plaintiff is liable for the defendant’s attorneys’ fees and costs (including investigation expenses) incurred after the offer.

Question 96

Plaintiff’s Written Demand for Judgment

Answer 96

In a case for damages, the plaintiff can file a written demand for judgment in a certain amount. If the defendant accepts the offer within 30 days, the clerk enters final judgment. If the defendant rejects the offer and the plaintiff wins judgment

at least 25% greater than the offer, the defendant is liable for the plaintiff’s attorneys’ fees and costs (including investiga- tion expenses) incurred after the demand.

Question 97

Contents of Offer

Answer 97

The offer must state the total amount for claims being resolved and must state with particularity the amount offered to settle a claim for punitive damages.

Question 98

Court May Disallow Attorneys’ Fees and Costs

Answer 98

The court may disallow an award of attorneys’ fees and costs if it determines that the offer was not made in good faith.

Question 99

Expedited Trial

Answer 99

If parties stipulate to an expedited trial, discovery is completed in 60 days and trial is one day

Question 100

Requirement for Jury Demand

Answer 100

A jury demand must be in writing and presented no later than 10 days after service of the last pleading directed to a jury triable issue.

Question 101

Withdrawal of Jury Trial

Answer 101

Can a party withdraw its demand for a jury trial? Only if the other parties agree.

Question 102

Application of Seventh Amendment

Answer 102

Does the Seventh Amendment apply in Florida state courts? No.

Question 103

Number of Jurors

Answer 103

In civil cases, how many jurors are there? Six. But in eminent domain cases, how many jurors are there? 12.

Question 104

Peremptory Challenges

Answer 104

How many peremptory challenges does each party get? Three, plus one for each alternate juror.

If the number of peremptory challenges is not equal for each side (plaintiff and defendant), each side gets the higher number.

Question 105

Jury Viewing Premises or Evidence

Answer 105

Can the jury be permitted to view premises or objects involved in the case? Yes, if it’s relevant to a just decision; the decision lays in the court’s discretion.

Question 106

Directed Verdict

Answer 106

Directed verdict is an exceptional order, the effect of which is to take the case away from the jury.

A motion for a directed verdict is like the motion for JMOL in federal court.

NOTES

Question 107

Directed verdict- timing

Answer 107

Timing

You move for this after the other side has been heard at trial. So the defendant can move at the close of plaintiff’s case. Plaintiff can move only at the close of all evidence.

Question 108

Defendant May Still Put on Case- Directed Verdict

Answer 108

Making a motion for a directed verdict doesn’t waive the right to put on evidence, so the defendant need not reserve the right to put on evidence. The denial of the defendant’s motion also doesn’t discharge the jury.

Question 109

Standard for Directed Verdict

Answer 109

The standard for a directed verdict is: Reasonable people could not disagree on the result. The court will view the evidence in the light most favorable to the nonmoving party. It will also take inferences in favor of the nonmoving party.

Similar Motion in Nonjury Trial

In a nonjury trial, the motion that does the same thing as a motion for directed verdict for the defendant is a motion for involuntary dismissal.

Question 110

When credibility of a witness is at issue,

Answer 110

it is almost impossible to obtain a directed verdict.

Question 111

Jury’s Verdict

Answer 111

A jury’s verdict (the jury’s finding) must be unanimous unless the parties agree otherwise.

The verdict is approved by the judge and then read by the clerk.

When a party is held liable for damages, the jury must itemize (meaning they must be stated separately in the verdict) the amounts to be awarded in three categories.

Question 112

Damages that jury itemizes:

Answer 112

Economic Loss:

Economic loss (for example, lost wages, medical expenses, etc.) both before verdict and to be incurred in the future.

Noneconomic Loss

Noneconomic loss (for example, pain and suffering, anguish) both before verdict and to be incurred in the future.

Together, awards for economic and noneconomic losses are called what? Compensatory damages.

Question 113

Punitive Damages

Answer 113

Punitive damages (for intentional misconduct or gross negligence) must be shown by clear and convincing evidence.

What is the general cap on punitive damages? Cannot exceed the greater of three times compensatory damages or $500,000.

But there is no limit on punitive damages if the defendant had specific intent to harm the plaintiff or was under the influence of alcohol or drugs.

Question 114

Entry of Judgment

Answer 114

A party seeking judgment taxing costs or attorney’s fees
(or both) must serve a motion within 30 days after filing of judgment.

The prevailing party must file with the clerk a final disposition form at the time the court files the judgment disposing of the case

Question 115

BELATED DIRECTED VERDICT

Answer 115

A belated directed verdict is the same as a directed verdict, but later in the case.

It’s like a federal renewed judgment as a matter of law (“RJMOL”).

Question 116

BELATED DIRECTED VERDICT- Typical Situation

Answer 116

A typical situation is: The jury returns a verdict for one
party, and the other party files a motion for belated directed verdict, which, if granted, would result in entry of a judgment for the moving party.

It must be in writing and filed and served within 15 days after return of verdict.

Question 117

Standard and Preqs for Directed Verdict

Answer 117

Standard

The standard is the same as a directed verdict. So if granted, the court is saying that the jury reached a conclusion that reasonable people could not have reached.

Prerequisites

What is the absolute prerequisite to bringing a motion for belated directed verdict?

The party wanting to move for belated directed verdict must have done what? He must have moved for directed verdict at a proper time at trial.

Question 118

MOTION FOR A NEW TRIAL

Answer 118

A motion for a new trial is used when something went wrong, so let’s start over.

A verdict is returned or judgment entered, but errors at trial require a new trial.

Question 119

Motion for a new trial

Answer 119

The motion for a new trial must be in writing, filed, and served within 15 days after return of verdict (jury) or judgment (nonjury).

Question 120

Grounds for new trial

Answer 120

the grounds for a new trial are:

(1) prejudicial (not harmless) error at trial makes judgment unjust (for example, a party didn’t get notice of the trial date; there was a wrong jury instruction or evidentiary ruling);

(2) there’s new evidence that couldn’t have been discovered with due diligence for
the original trial;

(3) prejudicial misconduct of a party or juror (for example, a juror conducted an independent investigation of the accident scene) occurred;

and (4) the judgment is against the weight of evidence (serious error of judgment by jury). The party should object to any event that will serve as a basis for a new trial at the time of the event.

Question 121

Directed verdict compared to motion for new trial

Answer 121

The granting of a motion for new trial is less drastic. Why? It results in starting over, so the same party might still win. A belated directed verdict, on the other hand, takes a victory away from one party and gives it to the other party.

Question 122

Relief from judgment

Answer 122

A motion for relief from judgment is the same as a motion to set aside a judgment.

Clerical errors- any time

Mistake, excusable neglect, surprise (must show viable defense)-Reasonable time (not exceeding one year)

Fraud by opposing party- Reasonable time (not exceeding one year)

Newly discovered evidence not previously available despite due diligence- Reasonable time (not exceeding one year)

Judgment is void- Reasonable time (not max)

Question 123

EXECUTION OF JUDGMENT

Answer 123

After a judgment is entered, the clerk may issue a document to the sheriff that he is to levy on the defendant’s property to satisfy the judgment. (Proceeding in aid of execution.)

Execution is stayed for 15 days after entry of the judgment (to allow post-verdict motions).

The stay pending disposition of such motions is automatic. A stay pending appeal is not automatic, and the party must file a supersedeas bond in the amount of the judgment plus 15%

Question 124

Issues on Appeal

Answer 124

Generally, appeals from final judgments from the county courts and circuit courts are to the district court of appeals, then to the Florida Supreme Court. Of particular note are:

The appellant must file a notice of appeal in trial court within 30 days after final judgment

The appellant may raise issues on which they made timely objection at trial court

The Florida Supreme Court has discretion to hear an appeal from the district court of appeals construing a state statute if there is a conflict of authority or the court expressly upheld validity of the statute

The Florida Supreme Court must hear an appeal taken from a decision of a district court of appeals in which a state statute or a provision of the state constitution is declared invalid

Question 125

FINAL JUDGMENT RULE

Answer 125

Generally, a party can appeal only final judgments (ultimate decision by the trial court of the merits of the entire
action). Ask: after making this order, does the trial court have anything left to do on the merits? If so, it’s not a final judgment. Are these final?

The grant or denial of belated directed verdict? Yes. Ei- ther way, it’s final

The denial of a motion for summary judgment? No. The trial court still has the case before it

NOTES

Question 126

INTERLOCUTORY REVIEW

Answer 126

These interlocutory orders may be appealed even though they’re not final judgments:

Orders granting new trial

Orders regarding injunctions

Orders determining PJ or venue

Orders regarding the right to immediate possession of property

Orders on a distinct and separable claim

Question 127

Elisor

Answer 127

a civilian appointed to serve process

Question 128

Ad damnum

Answer 128

a demand for damages

Question 129

Rule nisi

Answer 129

an order to show cause why the court should not order something

Question 130

Scire facias

Answer 130

a specialized order to revive expired judgment

Question 131

General day limitations: FL

Answer 131

10-20-30

Question 132

General day limitations: Fed

Answer 132

14-21-28