FL Civil Procedure Flashcards
When computing time on a calendar, follow these rules:
- Don’t count the _____________ day.
- Do count the ______ day, unless it is a Saturday, Sunday, or legal holiday.
- When the time period is less than _____ days, don’t count Saturdays, Sundays, or legal holidays.
- When the time period is ______ days or longer, do count Saturdays, Sundays, and holidays (unless they are the last day).
When computing time on a calendar, follow these rules:
- Don’t count the FIRST day.
- Do count the LAST day, unless it is a Saturday, Sunday, or legal holiday.
- When the time period is less than 7 days, don’t count Saturdays, Sundays, or legal holidays.
- When the time period is 7 days or longer, do count Saturdays, Sundays, and holidays (unless they are the last day).
The court may not extend the time for what 7 post trial motions?
The court may not extend the time for the following post trial motions: Motion for belated directed verdict; Motion for new trial or rehearing; Sua sponte grant of new trial; Motion for amendment of judgment; Motion for relief from judgment Notice of appeal; or Petition for certiorari.
When a party may or must act within a specified time after service of a document, and service was made by ____________ U.S Mail, add _____ days to the deadline.
Do not add any extra time if the document was served in any other way, including via _____________ or online portal.
When a party may or must act within a specified time after service of a document, and service was made by REGULAR U.S Mail, add 5 days to the deadline.
Do not add any extra time if the document was served in any other way, including via EMAIL or online portal.
A legal action begins when the _______________ is filed.
A legal action begins when the COMPLAINT is filed.
The plaintiff has ________ days to serve the summons and a copy of the complaint on the defendant.
This time period can be extended for _______ or _________.
You cannot serve process on a _______________ (unless the person to be served is evading service).
The plaintiff has 120 days to serve the summons and a copy of the complaint on the defendant.
This time period can be extended for GOOD CAUSE or EXCUSABLE NEGLECT.
You cannot serve process on a SUNDAY (unless the person to be served is evading service).
What happens to the summons if the plaintiff cannot render service within 120 days? What can the court issue next? What about the third time?
If the plaintiff was not able to render service after 120 days, the summons is no longer valid.
The trial court has discretion to issue a second summons, which is called an alias summons.
Notice the word “alias” here does not refer to the name of the plaintiff or a double identity. It’s just what we call the second issuance of a summons.
Any summons after the alias is called a pluries summons.
Who may effect service?
Service may be effected by any of the following persons:
The sheriff,
A special process server appointed by the sheriff, or
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.
Name the 3 ways Personal service can be effected on an individual adult
1) Service can be made by personal delivery.
2) Service can also be made by delivery to the person’s “usual place of abode,” to any person who (i) resides at the abode (ii) is at least 15 years old, and (iii) is made aware of the contents of the delivery.
3) Service can be made upon the spouse of the person to be served at any place in the county where the party resides…as long as the action is not between the spouses, AND
a) The spouse requests such service OR
b) The spouse is also a party to the action and the spouses reside together.
The party being served initial service of process can __________________ formal service, and accept service by mail. It must be sent by ______________ mail, return receipt requested. Not just regular mail or even first class mail.
The party being served initial service of process can WAIVE formal service, and accept service by mail. It must be sent by CERTIFIED mail, return receipt requested. Not just regular mail or even first class mail.
Why would someone accept service by mail?
The person served gets 60 days to respond to the complaint instead of the usual 20 days.
If the person served doesn’t waive formal service, he must pay for the plaintiff’s costs of making personal service.
Service by email, fax, text, or any other method is not effective for ____________ service of process.
HOWEVER, service by _______ or _______ is required for service of all documents after initial service of process.
Service by email, fax, text, or any other method is not effective for INITIAL service of process. (summons and complaint)
HOWEVER, service by EMAIL or E-PORTAL is required for service of all documents after initial service of process.
In an action for possession by a landlord against a tenant, the landlord can effect service by “_________ and _______” – leaving a copy of the service at the premises, followed by process via mail.
What are the requirements for this kind of service?
In an action for possession by a landlord against a tenant, the landlord can effect service by “NAIL and MAIL” – leaving a copy of the service at the premises, followed by process via mail.
Requirements:
1. The tenant cannot be found in the county and there is no suitable person to accept service at the abode,
2. The plaintiff has made 2 attempts to serve process, at least 6 hours apart,
3. The plaintiff attached a copy of the summons and complaint to a conspicuous place on the property, and
4. The clerk mailed a copy of the summons and complaint by first-class mail to the defendant at the premises.
WARNING: “Nail and mail” is effective for landlord/tenant disputes only. It cannot be used in a foreclosure action!
What is the order of preference of individuals for service on a corporation?
Service on a corporation can be made upon individuals in the following order of preference:
First: The president, vice president, or other head of the corporation.
Then try: The cashier, treasurer, secretary, or general manager.
Next try: Any director.
Lastly: Any officer or business agent residing in the state.
You may also serve a corporation by serving the registered ____________ of the corporation.
If the corporation failed to designate an agent, process is permitted upon any employee at the corporation’s _________ or any employee of the _________.
You may also serve a corporation by serving the registered AGENT of the corporation.
If the corporation failed to designate an agent, process is permitted upon any employee at the corporation’s PRINICPAL PLACE OF BUSINESS or any employee of the REGISTERED AGENT.
How can you serve a foreign corporation?
If the foreign corporation has none of the persons in the rule for normal corporations in Florida, process may be served on any agent transacting business within the state.
But you still need to satisfy constitutional minimum contacts to obtain personal jurisdiction (i.e., substantial activities in state)
Service on a partnership may be made by delivery of process to any _________________, or an employee designated to accept service.
Service on a partnership may be made by delivery of process to any PARTNER , or an employee designated to accept service.
Due process issues for service on a partnership:
If you serve only _______ partner, you can only execute your judgment against the partnership and the individual partner who was served.
If you serve an __________, you have obtained jurisdiction over the partnership only, and cannot execute the judgement against individual partners.
If you want joint and several liability for multiple partners, you must serve __________ partners.
Due process issues for service on a partnership:
If you serve only ONE partner, you can only execute your judgment against the partnership and the individual partner who was served.
If you serve an EMPLOYEE , you have obtained jurisdiction over the partnership only, and cannot execute the judgement against individual partners.
If you want joint and several liability for multiple partners, you must serve ALL partners.
When is service complete?
Service by mail: when ________________
Hand delivery: when __________
By fax: When transmission is _______________. The deadline for faxes is ____________ and must be followed by another form of delivery.
By e-mail or e-portal: On the date ______or electronically ___________.
When is service complete?
Service by mail: when MAILED
Hand delivery: when DELIVERED
By fax: When transmission is COMPLETE. The deadline for faxes is 5:00PM and must be followed by another form of delivery.
By e-mail or e-portal: On the date SENT or electronically FILED.
What is a lis pendens? What happens to it when a case is dismissed?
A lis pendens is a notice filed in the public records to alert third-parties of litigation affecting real property.
If the case is dismissed, the lis pendens is automatically dissolved.
What is venue?
Venue refers to the geographic location of a court that can hear a case.
If what counties does venue exist?
Venue exists in any of the following counties:
- Where the defendant resides at the time the action commences,
- If there are multiple defendants, in the county where any defendant resides.
- Where the cause of action arose, OR
- Where the property in litigation is located.
The defendant must raise the issue of venue in his __________ response or it is _______.
The defendant must raise the issue of venue in his FIRST response or it is WAIVED.
When may a court transfer a case to another venue?
The court may also transfer the case for convenience of the parties, or in the interest of justice, to another county that also qualifies as a proper venue.
Who pays for change of venue?
If the defendant requests a change of venue, the defendant will pay for the cost of relocating.
If the case is relocated because the plaintiff brought the action in an improper venue, the plaintiff will pay.
If the action was brought in the wrong venue, the __________ can transfer the case to another venue. If 2 or more alternative venues are proper, the person _________________ the action choses where the case is moved.
If he does not make a selection, the current (wrong) court chooses the new venue.
If the action was brought in the wrong venue, the COURT can transfer the case to another venue. If 2 or more alternative venues are proper, the person BRINGING the action choses where the case is moved.
If he does not make a selection, the current (wrong) court chooses the new venue.
What is a claim for relief? What are some examples?
Claim for relief: A pleading where a party asks the court for some remedy.
Includes: Complaints, counterclaims, third-party complaints, and cross-claims.
What is an answer? How many days does the answering party have to respond to a claim for relief?
Answer: Admits or denies the allegations contained in the claim for relief.
The answering party has 20 days to respond to a claim for relief (60 days if the initial answer is responding to service by mail).
What defenses are waived if not raised in the defendant’s first response?
The following defenses are waived if not raised in the defendant’s first response to the complaint (pre-answer motion or answer):
Lack of personal jurisdiction,
Improper venue, or
Insufficient service of process.
Failure to state a cause of action and failure to join an indispensable party can be raised at any time ____________ trial.
Failure to state a cause of action and failure to join an indispensable party can be raised at any time DURING trial.
Lack of subject matter jurisdiction is ____________ waived even on appeal.
Lack of subject matter jurisdiction is NEVER waived even on appeal.
A party has the right to amend any pleading _________________, at any time __________a responsive pleading is filed.
If no response is required, the party has _____ days to make the amendment.
After the first amendment, amendments are only permitted with the __________ of all parties or with _______________.
A party has the right to amend any pleading ONCE, at any time BEFORE a responsive pleading is filed.
If no response is required, the party has 20 days to make the amendment.
After the first amendment, amendments are only permitted with the WRITTEN CONSENT of all parties or with PERMISSION FROM THE JUDGE.
Generally, every ________________ to a claim for relief must be asserted in a responsive pleading
Generally, every DEFENSE to a claim for relief must be asserted in a responsive pleading
What 7 defenses may be made in a preanswer motion? What is a motion containing these defenses treated as?
the following defenses may be made in a preanswer motion:
- Lack of subject matter jurisdiction
- Lack of personal jurisdiction
- Improper venue
- Insufficiency of process
- Insufficiency of service of process
- Failure to state a cause of action upon which relief can be granted
- Failure to join an indispensable party.
Each of these motions is treated as a motion to dismiss.
What is a counter-claim?
Counter-Claims: “Other side of the v.”
The defendant can assert claims against the plaintiff.
What is a compulsory counter-claim?
Compulsory: If the claim arises from the same occurrence as the plaintiff’s claim, it must be pleaded as a counterclaim or it will be barred.
What is a permissive counter-claim?
Permissive: If the claim arises from any other circumstance, the defendant may assert it but is not required to.
What is a cross claim? What must a cross claim relate to? Are cross claims compulsory or permissive?
Cross-Claims: “Same side of the v.”
Cross-claims must relate to the subject matter of the principal claim.
All cross claims are permissive.
When must counter claims and cross claims be filed?
Counter and cross claims must be included in the answer
What is intervention? Is it voluntary? What is the test? When can it be made?
Intervention: Anyone with an interest in the outcome of the case can voluntarily join, on any side.
Intervention is voluntary: “I wasn’t joined in this lawsuit, but it affects me! Let me in!”
The test is whether that party will “gain or lose directly” as a result of the judgment. Intervention is in the judge’s discretion.
Can be made at any time before the verdict.
What is impleader? When must it be done? Is a motion required?
Impleader (a.k.a. third-party practice): A defender may bring a third-party into the lawsuit, if that third party may be liable for some or all of the plaintiff’s claim, or if the claim arises out of the same transaction or occurrence.
Impleader is pulling in parties: “Hey third-party, this was really YOUR fault but I got sued. I’m bringing you into this lawsuit.”
A party can implead a third party without a motion, within 20 days of filing her answer.
After 20 days, a motion is necessary and the impleader is granted at the court’s discretion.
What is interpleader?
Interpleader: A stakeholder can join multiple parties into a lawsuit, usually to determine ownership or liability from among multiple parties (e.g., who is entitled to the payout from an insurance policy.”). Anyone who believes they have an interest can join.
“I don’t know who this thing belongs to, and I don’t care. Let’s get everyone with a claim in one room, and the judge will decide.”
What happens if a public officer is a party to a lawsuit, and she leaves office before or during the lawsuit?
If the lawsuit was against the individual in their official capacity, the successor to the office will be automatically substituted as the party.
Who must notify class action members? Which members must be notified? What does the notice have to say?
The court must notify all members who can be identified and located. The notice must say they can opt out, and the judgment will include all who don’t opt out
Once a class action claim or defense has begun, it cannot be _________ _______, ________, or __________ without notice to the class, a court hearing and court approval.
Dismissal or compromise: Once a class action claim or defense has begun, it cannot be VOLUNTAIRLY WITHDRAWN, DISMISSED, or SETTLED without notice to the class, a court hearing and court approval.
