FL Civil Practice Flashcards
What are the 4 types of service?
(1) Personal
(2) Constructive (publication)
(3) Substitute
(4) Waiver
Rule 1.010 – Scope and Title of Rules
construed to secure the just, speedy, and inexpensive determination of every action
Rule 1.050 When is an Action Commenced?
when the complaint or petition is filed
How does df attorney know df was served?
Process server affidavit to ct
Can parties stipulate to another forum?
yes, to agree to move the action to another jxn, parties can agree FL is Forum Non-convenience when a party:
1. file motion to dismiss; on grounds of FNC; must state grounds supported by an affidavit showing case would be better heard in other forum
2. Serve the motion on all parties; must state date/time of hearing on the motion
3. provide notice to non-parties
4. Attend hearing; ct discretionary decision; ct must balance interests of party and justice
Does granting a motion to dismiss for forum Non-convenience change the date of the original complaint?
no, new jxn keeps original date of the complaint
How many writs of process can the ct issue?
as many as pl’s attny asks for
Do all pleadings need to be verified?
No, pleadings only need to be verified when required by statute or rule. Such pleadings include:
- Residential mortgage foreclosure proceedings
-sham pleadings 1.150
Do you need to plead specific facts that support service of a FL nonresident?
No, you just need to quote the statute as to why you think service is proper; generally
How much time after filing complaint does pl have to serve df?
120 days
What happens if you don’t serve process on df within the required 120 days?
The action gets dismissed w/o prejudice
Before the 120 days: can ask judge for extension if you show efforts to serve the df
When an action is dismissed with prejudice it can be brought again
FALSE
How much time does df have after waiving service of process? When does the time start?
60 days; When waiver is filed with ct
What does a pl have to set forth a constitutional challenge to state or city ordinance?
- Name attorney general or state attorney in notice
- send notice by registered/ certified mail
What venue is Rule 1.061 dealing with?
Jurisdiction outside of FL; forum non conveniens
to move to dismiss for forum non conveniens, what must the df show?
Df has burden to show:
-Substantial inconvenience or
-Undue expense or
-Requires a change for the convenience of a party/ essential witness
to rule on a motion to dismiss for forum non conveniens, what must the ct find?
-Adequate alt forum exists which possess jxn over whole case,
-All dfs agree
-All relevant factors of private interest favor alt forum or
-Balance of private interest close and public interest favors alt forum, and
-Ensure pl can reinstate suit in alt forum w/o undue inconvenience or prejudice
-60 days after service on date df served to make motion
T/F Original court loses all jurisdiction after a case is dismissed for forum non conveniens.
FALSE. Original court keeps limited jxn to enforce orders, dismissal, or conditions it has put on things
Does a motion have to be in writing?
Yes, unless made orally
When is civil coversheet filed?
When initial complaint is filed
You have to state grounds for motion with
Particularity- requ (facts that give rise to)relief sought,
specify all motions in notice of hearing you will be arguing,
caption,
case number,
parties who the motion is against
Do you need to aver/allege capacity to be sued?
No
How must you plead to say all conditions precedent were met?
Generally
Which affirmative defense must be alleged specifically?
Fraud or mistake; detailed + date/time/place
Multiple count complaints must
each count must stand on it’s own as a cause of action without being redundant to the original count
Can personal jurisdiction be waived?
Yes
Can subject matter jurisdiction be waived?
No
If you file a M2D and the court denies it, how many days do you have to answer?
10 days; (can ask judge for more time) 1.140(e)
When can you raise motion for judgment on the pleadings?
After pleadings are closed 1.140
What are responsive pleadings?
answer and counterclaim
What is a compulsory counterclaim?
- cause of action rises out of same occurrence of OG claim and
- involved the same parties and
- cant be brought if not at the specific proceeding; will be barred
e.x.- auto accident; df hit someone; bc you ran red light
What is a permissive counterclaim?
another claim arising out of different txns but involves the same parties
What is a cross claim?
suing fellow pl/df; same side of v
What is a third party claim?
claim against person/entity involved with action but not necessarily present; Must be either:
-contribution,
-subrogation,
-indemnification
i.e bringing in brake co in auto accident
What do you do if you forget to bring a counterclaim
- Ask the judge to file
- show excusable neglect
What is subrogatgion?
substitution of one party to another
Who can move to strike/sever 3p claim?
Any party
When is leave of ct required to file a 3p claim?
Before responsive pleading
How do you file a motion for leave to amend?
Have to attach proposed amended complaint ; need it in order to respond
When will ct grant motion for leave to amend when its filed?
Freely, with liberality when justice so requires (but still ends at some point)
How long do you have to respond to amended complaint?
10 days
Does ct have discretion to deny amended complaint before responsive pleading?
No; you get one amendment prior to responsive pleading
Is a M2D a responsive pleading?
No, its not even a pleading
What are pleadings?
Complaint
Counterclaim
Cross claim
3p claim
Answer
What is an amendment to conform with the pleadings?
An exception to the rule if you dont ask for something in pleadings, it cannot be deliberated
when does an amendment relate back to OG complaint?
When it comes from same cause of action
Can you allege punitive damages in complaint?
NO, you have to wait for until evd, after discovery is closed, and move to amend to add claim for PDs
Jan 6, 2022 FL SCOTUS expanded the list of
non-final orders that you can appeal on motion to add punitive damages
What is the APEX doctrine?
current/former high level govt agent/ business officer, doesn’t have to go to depositions
Must show they don’t have any particular info relating to the issue
Can indemnity agmt become discoverable?
yes
Do you need a court order to dipose an expert?
no
What documents can you NOT obtain from discovery?
if the evidence involves:
-mental impression of an attny,
-conclusions made by attorney,
-Opinion of attny, or
-legal theory of attorney
Is discovery under the rules limited?
Generally not limited but by the rules; e.x.- Interrogatories- 30 questions
Service of process of the complaint may not properly be made by:
A. counsel for the Plaintiff
B. An officer authorized by law to serve process
C. any court appointed person who is not interested in the action
D. none of the above; all are properly permitted to make service.
A
Pleadings within the meaning of the Florida Rules of Civil Procedure include:
A. the complaint
B. a motion to dismiss the complaint
C. a reply to affirmative defenses
D. Two of the above
D
Motions
A. May ask the court what it’s ruling would be if counsel were to raise certain matters.
B. May be made either in writing or orally at any time
C. Must state generally the grounds for the motion
D. none of the above
D
As part of a claim for relief, which of the following alleges sufficient “ultimate facts”
A. A defrauded B
B. A failed to provide B accurate information, thus misleading B.
C. A had no legal justification for defrauding B.
D. None of the above
B
A alleges in count I against B that B negligently fell into A, injuring him. In count II, A alleged that B intentionally injured A. Which of the following is/are true?
A. Because these counts are clearly inconsistent, they cancel each other out and both counts should be dismissed.
B. There is absolutely nothing wrong here on the part of A.
C. It is discretionary with the court to find that these counts are sufficiently inconsistent, then dismiss either or both of them.
D. none of the above
A
Regarding conditions precedent:
A. In pleading the performance or occurrence of conditions precedent, it is sufficient to alleged generally that all conditions precedent have been performed or have occurred
B. In denying that conditions precedent have been performed or have occurred, it is permissible to allege general denial
C. Neither A nor B is correct
D. Both A and B are correct
A
Which of the following must be verified:
A. Motion to strike a sham pleading under Rule 1.150 (b)
B. Motion to strike for redundancy under Rule 1.140 (f)
C. Commercial mortgage foreclose complaint
D. None of the above
D
A party may move for judgment on the pleading:
A. Anytime after the Complaint is filed
B. Anytime after a response is filed to the complaint
C. After discovery is closed.
D. None of the above
D
A court obtains the right to hear issues in a case when:
A. The complaint is filed
B. The complaint is served
C. The clerks’s cover sheet is filed
D. The Defendant responds to the complaint
B
Which of the following are waived if not timely raised:
A. improper venue
B. Subject matter jurisdiction
C. Personal Jurisdiction
D. Two of the above
D
Which entity has the authority to adopt rules of practice and procedure for the Florida courts?
The Florida Legislature
The Governor
The Florida Supreme Court
The Florida Bar Civil Rules Committee
The Florida Supreme Court
Where can an action against the State of Florida and its political subdivision be filed?
Where the cause of action accrued
Where the plaintiff resides
Where the property in question is located
In the county where the entity maintains its principal headquarters
In the county where the entity maintains its principal headquarters
What constitutes excusable neglect for an extension of time?
A. A breakdown of the tickler and calendar system in an attorney’s office
B. A clerical or secretarial error
C. Getting 50 yard line seats to the Super Bowl from a client
D. Both A and B
D. Both A and B
Which of the following MUST be asserted in a pleading which sets forth a claim for relief?
A. A statement if the court’s jurisdiction
B. Any affirmative defense or avoidance
C. A demand for judgment
D. Both A and C
D
Which of the following MUST be alleged with particularity?
A. Fraud
B. Capacity of a party to sue or be sued
C. Performance or occurrence of conditions precedents
D. Malice
A
Which defenses can be made by motion at the option of the pelader?
A. Failure to perform all conditions precedent
B. Comparative negligence
C. Failure to join an indispensable party
D. Failure to mitigate damages
C
When can a party file a motion for judgment on the pleadings?
A. Within 20 days after service of the summons and complaint
B. No sooner than 90 days before trial
C. After discovery has been completed
D. After the pleadings are closed
D, duh
Which defense are waived if not raised in the initial responsive pleading or motion?
A. Lack of jurisdiction over the person
B. Improper venue
C. Lack of subject matter jurisdiction
D. Both A and B
D
You are filing a civil action against a domestic corporation. Where can you file the action?
A. The county where the plaintiff (your client) resides
B. The county where your office is located
C. The county where the defendant keeps an office to transact its business
D. The county where the most witnesses reside
C
Which of the following are required in an answer?
A. The defense to each claim set forth in the complaint
B. A statement of the courts jurisdiction
C. Admission or denial of any averments on which the adverse party relies
D. Both A and C
D
When is the state of Florida or its political subdivisions NOT entitled to home venue privilege?
A. When the state, its agency or subdivision acts as a “sword wielder”
B. When the state, its agency or subdivision commits a tortious act
C. When the state, its agency or subdivision breaches a contract
D. When the subdivision is a municipality
A
What is required with respect to service of pleadings on all parties to an action?
A. All pleadings must be served by hand delivery
B. All pleadings must be served by US mail
C. All pleadings must be served by email
D. None of the above
C
When is service by email complete?
A. One the date that it is sent
B. Service through the E-portal is complete when upon e-filing
C. Upon confirmation of service by a Microsoft Outlook delivery receipt
D. Both A and B
D
Which of the following is TRUE with respect to the time for service of a responsive pleading or motion?
A. A non-government defendant must respond within 20 days
B. When sued under §768.28, governmental defendants must respond within 30 days
C. If NOT sued under §768.28, government defendants must respond within 40 days
D. All of the above
D.
T/F: An email serving pleadings must include the Florida Bar number of ALL counsel of record in the body of an email.
False
T/F: The summons and initial pleading MUST be served within 120 days of commencement of the action.
True
T/F: Improper venue is WAIVED if not raised in the initial pleading or motion.
True
A complaint for foreclosure of a residential mortgage MUST be verified.
True
T/F: The title of each document served by email is NOT required in the body of the email serving the documents.
False
T/F: A non-government defendant must serve its answer to responsive motion within 20 days of service of process.
True
T/F: Absent an order extending time, a defendant MUST serve its answer within 10 days of an order denying its Motion to Dismiss.
True
T/F: The clerk of court has the power and authority to enter a clerk’s default.
True
T/F: The clerk of court has the power and authority to enter a final default judgment.
False
T/F: A complaint MUST state a short and plain statement of ultimate facts showing the pl is entitled to relief.
True
T/F: A motion MUST be made in writing unless made during a hearing or trial.
True
T/F: A motion is a type of pleading?
False
T/F: Capacity to sue MUST be alleged with specificity.
False
T/F: The defense of failure to state a cause of action may be made by motion at the option of the pleading party.
True
T/F: A motion to strike a sham pleading does NOT need to be verified.
False
T/F: The court is obligated to hold an evidentiary hearing on a motion to strike sham pleading.
True
