FL Civ Pro sandon

Question 1

Capacity

Answer 1

You do not need to allege capacity to sue or be sued in any filings.

However, the initial pleading served on behalf of a minor party shall specifically state the age of the minor party.

A minor or incompetent who does not have an appointed representative may sue by next friend or guardian ad litem.

Question 2

Public Officers

Answer 2

When a public officer is sued in her official capacity (e.g. for injunctive relief), there is an automatic substitution if the officer dies or leaves office. Names may be changed in court papers at any time.

Any misnomer in the papers not affecting substantial rights is disregarded.

Question 3

Substitute or Abode Service:

Answer 3

An individual may be served by leaving a copy of 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.

The term “usual place of abode” means the place where defendant is actually living at the time of service

Question 4

Service by Mail:

Answer 4

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 defendant 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 complaint.

Question 5

Who may serve process?

Answer 5

Service may be effected by any of the following persons:

(1) The sheriff, (2) A special process server appointed by the sheriff, or (3) an “elisor” (Any person appointed by the court who is over the age of 18, and has no interest in the outcome of the case).

Service may not be rendered by a party to the action.

Question 6

Claim for Relief

Answer 6

each claim for relief should contain:

1. a short, plain statement of the grounds of jurisdiction (e.g., this is an action for damages that exceed $30,000);
2. a short, plain statement of the ultimate facts showing that the pleader is entitled to relief; and
3. 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.

Question 7

Defense Motions

Answer 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).

However, the following defenses may be made, at the option of the pleader, by a pre answer motion: lack of jurisdiction over the subject matter or person, improper venue, insufficiency of process or service of process, failure to state a cause of action upon which relief can be granted (including an affirmative defense on the face of the claim); and failure to join an indispensable party.

Defensive motions are treated as motions to dismiss.

Question 8

Responsive Pleading:

Answer 8

If the court denies a defense motion (improper service of process, venue etc.,) or postpones disposition until trial, a responsive pleading must be filed within 10 days after notice of the court’s actions, unless a different time is fixed by the court.

Question 9

Time to Answer

Answer 9

Unless a different time is prescribed in a Florida statute, an answer must be filed within 20 days after service of the pleading containing the claim(s) to which the answer is made.

Exceptions:

1. 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 court’s order.
2. If a preanswer motion for more definite statement is granted, the time to answer is 10 days after service of the more definite statement.
3. If the court permits or requires the filing of an amended or more responsive pleading this pleading must be served within 10 days of notice of the court’s action.

Note: A motion to strike as redundant, immaterial, or scandalous or as a sham does not toll the time to answer.

Question 10

Amendment

Answer 10

As a matter of course, a pleading may be amended once before a responsive pleading is served or, if no responsive pleading is required and the action has not been placed on the trial calendar, within 20 days of service of the pleading.

The party filing a motion to amend a pleading must attach the proposed amended pleading to the motion.

Filing a pre-answer motion (like a motion to dismiss) does not preclude or alter the right to amend.

Question 11

Relation Back:

Answer 11

Amendments relate back to the date of the original pleading when the conduct, transaction, or occurrence set forth in the amended pleading was set forth or attempted to be set forth in the original pleading (i.e., the amendment relates to the same transaction or occurrence).

This is significant when the statute of limitations period has run between the filing of the original pleading and the amended pleading.

Note, however, that the statute of limitations does bar causes of action in the amended pleading that are new and distinct from those set forth in the original pleading.

Question 12

Administrative Provisions of Class Action Suits

Answer 12

• Dismissal or Compromise: Once determined to be maintainable on behalf of a class, a claim or defense may not be voluntarily dismissed or settled without judicial approval after notice to all members of the class
• Homeowner, Condominium, or mobile Homeowners’ Associations: A homeowner, condominium, or mobile homeowners’ association may sue in its name on behalf of all association members concerning matters of common interest, including claims involving the common elements and the representations of the developer pertaining to any existing or proposed commonly used facilities.

Question 13

Pretrial conference

Answer 13

A meeting of the parties to simplify issues, amend pleadings, obtain admissions, discuss experts, and discuss juror notebooks.

Pretrial conferences are not mandatory in all cases. The court can order a conference to occur, or a party can make a motion for it.

However, once the court makes an order or a party makes a motion, it BECOMES mandatory and now must occur.

Parties must appear on at least 20 days’ notice and failure to attend may result in dismissal of action, strike the pleadings, etc.

Question 14

Case management conference

Answer 14

A meeting of the parties, mostly about scheduling, logistics, discovery, and settlement. It is also voluntary or ordered by the court.

We can have both a pretrial conference and a case management conference—they’re not exclusive.

Question 15

Intervention

Answer 15

Intervention is a device by which a nonparty enters the case on his own motion.

It is not compulsory; i.e. a person is not compelled to intervene.

It is also discretionary with a court whether to permit the intervention.

When is the motion made? At any time while case is pending (e.g., intervention is no longer timely during jury deliberation).

Question 16

Impleader-Third Party Practice:

Answer 16

Impleader is a device a defendant may (but is not required to) use to bring in a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiff’s claim against her.

She does so by filing a third-party complaint and having it served upon the third-party defendant.

• Note: If the defendant asserts a counterclaim, the plaintiff is now also able to implead third parties related to that counterclaim.

Question 17

Interpleader

Answer 17

Interpleader is a 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.

Question 18

Oral Depositions: *Any Party May Depose Anyone*

A party by Notice:

Answer 18

• If the deponent is a party or an officer, director, or managing agent of a party, mere notice is enough to compel attendance.

Question 19

Oral Depositions: *Any Party May Depose Anyone*

Nonparty by Subpoena:

Answer 19

If the deponent is anyone other than a party, his attendance can be compelled only by subpoena.

The subpoena (including one for a videotaped deposition); must state the methods for recording the testimony.

Employees of a party (other than officers or managing agents) are nonparties.

Question 20

Oral Depositions:

Place

Answer 20

The plaintiff is usually required to go where the action is pending for her deposition if she does not reside there.

The defendant’s deposition is usually taken at her county of residence or business if it differs from the venue of the action.

A corporate defendant’s deposition is usually taken at its principal place of business.

A deposition of a nonparty witness can be taken in any county in Florida where the witness may validly be served or anywhere else in the United States by using the subpoena power of an appropriate court at that place.

Question 21

Oral Depositions:

Before Complaint Has Been Filed (by Court Order):

Answer 21

A person wishing to perpetuate her own testimony or that of another person regarding any matter cognizable but not yet filed in a Florida court may (upon verified petition) obtain a court order for oral or written deposition.

Service must be made upon all expected adverse parties and the person to be deposed, following rules for service of process.

The motion will be granted if the court is satisfied that perpetuation of testimony may prevent a failure or delay of justice.

Question 22

Videotape Depositions:

Answer 22

Oral depositions by videotape are authorized without order of the court.

The notice must state that the deposition will be recorded by videotape, and must give the name and address of the operator.

The deposition also must be stenographically recorded, unless otherwise agreed by the parties.

Question 23

Use of Part of Deposition

Answer 23

If only part of a deposition is offered by a party, any adverse party may require him to introduce any other part that ought to be considered in fairness.

Question 24

Costs: Oral Depositions

Answer 24

A nonparty may condition the preparation of deposition copies on payment in advance of the reasonable cost of preparing the copies.

In turn, the requesting party must provide copies of the deposition to all other parties, also upon the payment of reasonable costs.

Question 25

Depositions, Oral and Written – Nonparty Deponent

Answer 25

• Failure of Party Given Notice to Attend: The court may order a party who fails to attend a deposition for which she had notice, to pay any other party who attended in person or through counsel the reasonable expenses incurred by him in attending, including attorneys’ fees.
• Failure of Party to Serve Subpoena on Witness: A party who fails to serve a subpoena on a witness who fails to attend the deposition may also be sanctioned as described above.

Question 26

Affirmative use of deposition at trial:

Answer 26

A deposition may be used affirmatively if the deponent, whether or not a party:

1. is dead;
2. is farther than 100 miles from the place of trial or outside of the State of Florida and thus beyond the subpoena power of the court (unless the party offering the deposition procured the absence);
3. is unable to attend or testify because of age, sickness, infirmity, or imprisonment;
4. is unable to be found for the purpose of being subpoenaed, or having been subpoenaed, refuses to come; or
5. is an expert or skilled witness even if she is available. (i.e., an expert does not need to come back and testify in person, if we have a deposition. No need to pay the expert fees again!)

Question 27

Discovery Costs:

Answer 27

Each party bears her own costs of discovery.

The winning party is usually awarded costs at the end of the case (i.e., the losing party reimburses the winning party for the winner’s costs).

However, the cost of depositions can be recovered only if they served a useful purpose in the trial.

Normally, the cost of the original deposition, the court reporter’s per diem, and the cost of one copy are recoverable items of expense if the deposition is used as evidence or for impeachment purposes.

Question 28

Voluntary Dismissal

Answer 28

The law in Florida is that an action can be voluntarily dismissed without prejudice only once; the second time will be with prejudice even if the second dismissal occurs by court order rather than by notice. Voluntary dismissal is not allowed if:

1. A counterclaim has been filed that cannot be adjudicated independently,
2. A motion for summary judgment is pending, or
3. Property has been seized and is in the custody of the court.

Question 29

Lis Pendens:

Answer 29

Lis pendens an instrument filed with the court that operates as constructive notice that there is pending litigation with respect to an interest in, or ownership of, property.

If a lis pendens has been filed against a party in the action, a notice or stipulation of voluntary dismissal of that party or of the entire case shall be recorded and cancels the lis pendens in the public records without the necessity of an order of court.

Question 30

Motion to View:

Answer 30

On a motion by either party, the jury may be taken to view the premises or other tangible things relating to the controversy.

The party making the motion must advance the sum to defray the expenses which expense shall be taxed as costs if the party who advanced it prevails.

Question 31

Motion for Judgment on the Pleadings:

Answer 31

After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings. This might occur if:

1. The pleadings do not indicate that any facts are in dispute (and therefore there is nothing for the factfinder to evaluate), OR
2. The plaintiff’s complaint has failed to allege a cause of action, OR
3. The defendant’s answer has failed to state a sufficient defense.

Question 32

Motion for judgment on the pleadings

Answer 32

A motion for judgment on the pleadings seeks a final adjudication of the issues presented in the lawsuit.

The judge concludes that the moving party is entitled to a judgment as a matter of law on the basis of the allegations made by the opposing party.

This motion can be made after the time period has expired for the last responsive pleading.

The judge may only review the pleadings themselves and any exhibits attached to the pleadings. The judge may not consider affidavits or other evidence.

Question 33

Summary Judgment

Answer 33

A motion for summary judgment will be granted where there is no issue of material fact and the moving party is entitled to judgment as a matter of law.

This often occurs where the parties stipulate as to the facts of the case.

1. A claimant may move for summary judgment at any time after 20 days from commencement of the action, or after service of a motion for summary judgment by an adverse party.
2. A defending party may move at any time.
3. The summary judgment maybe partial or complete and supported or opposed with affidavits, depositions, pleadings, admissions, and answers to interrogatories.

Question 34

Directed Verdict:

Answer 34

A directed verdict in favor of a moving party is appropriate if, considering only the evidence in favor of the nonmoving party, and drawing all reasonable inferences therefrom in her favor, the judge concludes that no reasonable jury could return a verdict in favor of the nonmoving party.

Question 35

Motion for a Belated Directed (also called a JNOV):

Answer 35

It must be in writing and filed within 15 days after rendition of the verdict.

To make a motion for JNOV the party must have moved for directed verdict during trial.

This motion may be made in the alternative for a motion for a new trial.

In other words, both motions can be made simultaneously.

Question 36

Motion for a New Trial

Answer 36

A party may file a motion for a new trial within 15 days after the entry of the judgment.

The court can also award a new trial on its own motion within 15 days after the entry of judgment.

The motion will be granted if there was a prejudicial error during the trial:

• Jury tampering
• Error in evidentiary ruling
• Error in jury instructions
• Verdict contrary to the weight of the evidence (but JNOV not granted)
• Newly discovered evidence that could not have been discovered with diligence, though in existence.

Question 37

Motion in arrest of judgment (civil):

Answer 37

There is such a thing as a civil motion in arrest of judgment, and it is different from the criminal motion. It is a common law motion, similar to a JNOV but it is only available to the defense (the plaintiff cannot use this motion).

Question 38

Polling of Jury:

Answer 38

After the verdict is returned by the foreman but before the jury is dismissed, the losing party may have the jury polled; i.e., each individual juror questioned as to his or her verdict.

Question 39

Post-Verdict Interview of Jurors:

Answer 39

A party who believes that grounds for legal challenge of a verdict exist may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to challenge.

The motion must be served within 15 days of the verdict (can be extended for good cause shown).

The motion must state the grounds for challenge.

The interview may take place only upon order of court, and the court may prescribe the place, manner, conditions and scope of the interview

Question 40

Motions for Costs and Attorney’s Fees:

Answer 40

Any party seeking a judgment for costs, attorneys’ fees, or both must serve a motion no later than 30 days after filing the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal concluded the action as to that party.

Question 41

Relief from Judgments

Answer 41

• Within One Year After Judgment: A motion for relief from final judgments or orders may be filed within one year after judgment for:

1. Mistake, inadvertence, surprise, excusable neglect;
2. Newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial; or
3. Fraud (whether intrinsic-inside the courtroom, e.g. perjury; or extrinsic-outside the courtroom), misrepresentation, or other misconduct of the adverse party.

• At any reasonable time: A motion for relief from judgments may be filed at any reasonable time when:

1. The judgment is void;
2. The judgment has been satisfied, released or discharged; a prior judgment on which it was based has been reversed or otherwise vacated, or it is no longer equitable that the judgment have prospective application; or
3. A final divorce judgment was based on a fraudulent financial affidavit.

Question 42

Subpoenas may be Duces Tecum.

Answer 42

Subpoenas may direct the bringing of papers, records, films, etc.

Service of notice to an adverse party to produce evidence at trial has the same effect as a subpoena served on that party.

Question 43

The distance at which a person must respond for discovery varies with residency.

Answer 43

• A resident of Florida can be forced to respond only in the county where the deponent resides, is employed, or transacts business in person, or such other convenient place as is fixed by order of court.
• A nonresident of Florida can be forced to respond only in the county where the deponent was served or other convenient place as is fixed by order of court.

Question 44

Motion to Quash or Modify

Answer 44

A court may, on motion, quash or modify the subpoena if the subpoena is unreasonable and oppressive, or condition denial of the motion upon the advancement by the party issuing the subpoena of the reasonable costs of producing the papers, etc.

Question 45

Enlargement

Answer 45

Any time prescribed may be enlarged by the court with or without motion if a request is made before the time expires. If the request is made after the time expires, a motion is required and will be granted only for excusable neglect.

• EXCEPTIONS: The court may not extend the time for:

1. Motion for belated directed verdict;
2. Motion for new trial or rehearing;
3. Sua sponte grant of new trial;
4. Motion for amendment of judgment;
5. Motion for relief from judgment
6. Notice of appeal; or

Petition for certiorari

Question 46

Disqualification of a Judge:

Answer 46

Any party may move to disqualify the judge assigned to the action on any grounds provided by statute, by rule, or by the Code of Judicial Conduct. Fla. Stat. 38.02. Among the available grounds are:

1. The party fears that she will not receive a fair trial because of specifically described prejudice or bias of the judge;
2. The judge, the judge’s spouse, or someone related to the judge (within the third degree) has an interest in, or is a party to, the proceeding;
3. The judge is a material witness in the case; or
4. The judge’s spouse or person within the third-degree relationship to the judge participated as a lower court judge in a decision to be reviewed by the judge.

The judge has authority to enter an order of disqualification on the judge’s own initiative. Once a judge has been disqualified, the next judge can only be disqualified if the judge rules that she cannot in fact be fair or impartial in the case.

• A relative in the third degree is a great grandparent, or the descendent of a great grandparent.

Question 47

Temporary Injunction

Answer 47

• Without Notice: A temporary injunction may be granted without written or oral notice to the adverse party only if:

1. It appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition;
2. The movant’s attorney certifies in writing any efforts that have been made to give notice; and
3. The reasons why notice should not be required are stated.

Procedure: No evidence other than the affidavit or verified pleading may be used to support the application for a temporary injunction, unless the adverse party appears at the hearing or has received reasonable notice of the hearing.

• Bond: No temporary injunction may be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if wrongfully enjoined.

Question 48

Exclusions from Mediation and Arbitration

Answer 48

The following actions are excluded from mediation and arbitration:

1. Bond estreatures (forfeiture of a criminal bail bond);
2. Habeas corpus, certiorari, mandamus, and extraordinary writs;
3. Bond validations (issuance of a new municipal bond); and
4. Civil or criminal contempt.

Question 49

Motion in Lieu of Scire Facias

Answer 49

Scire Facias is an antiquated writ that is used to “revive” a judgment that has expired. For example, if a money judgment against defendant has expired without being paid, the plaintiff can return to court and seek to “revive” the judgment.

Scire facias would then require the defendant to appear in court and “show cause” why the judgment should not be revived and enforced.

Florida has abolished the writ of scire facias.

However, any relief available by scire facias may be granted on motion after notice instead.

Question 50

a case management conference

Answer 50

discretionary meeting that may include encouraging settlement, narrowing complex matters, and the like.

Typically, amendment of the pleadings is one of the issues considered at a pretrial conference, which is a mandatory proceeding for cases pending trial in Florida. It is not properly the subject of a case management conference

Question 51

To obtain an in camera review (sexual assault case)

Answer 51

a defendant must establish a reasonable probability that the privileged matters contain material information necessary to his defense.

. In Florida, victims of sexual assault or sexual battery have a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made to a sexual assault counselor or trained volunteer, any record made in the course of advising, counseling, or assisting the victim, and any advice given by the counselor in the course of the relationship.

However, under the due process clause, a defendant in a criminal case may obtain access to the victim’s privileged communication with the sexual assault counselor

Question 52

Intervenor

Answer 52

The rights of an intervenor are subordinate to the rights of the parties.

This rule prevents the intervenor from filing new or additional claims after a motion to intervene has been granted.

The intervenor must accept the pleadings in the pending case and may not raise any new claims.

Intervention is designed to protect the interest of the intervenor only in those matters that have been raised in the main action.