FL CIVIL PROCEDURE Flashcards
Service of subsequent documents (docs other than the complaint) must be served on:
the party’s attorney (or the pro se party)
Signed proof of a service form is:
prima facie evidence that service was made BUT failure to provide proof of service does NOT affect the validity of the service
substituted service is allowed if (must meet all 3):
1) process is left at the Ds usual place of abode (aka D is actually living there at the time of the service)
2) with someone who is at least 15 years old
3) and who resides there
publication is service is allowed
only by statute and ALWAYS requires that diligent inquiry has been made into the name and whereabouts of any person who should be served
judge can never enlarge/extend time for:
4MNSP
M- motion for directed verdict
M- motion for new trial or rehearing
M- motion for amendment of judgment
M- motion for relief of judgment
N- notice of appeal
S- sua sponte grant of new trial
P- petition for certiorari
To make a motion for belated directed verdict (JNOV) a party must
have made a timely directed verdict motion at trial
When may a motion for belated directed verdict (JNOV) be filed
within 15 days after return of a verdict
Service of process includes what documents?
summons and complaint
Service of process must be made to
EACH DEFENDANT
they must EACH get ONE summons and ONE complaint – even if there are multiple defendants
If the deponent is a party, what do you need to compel attendance?
Notice of depo is enough
If the deponent is a non-party, what do you need to compel attendance?
you need a subpeona
Depositions of a party deponent must occur
Plaintiff: where case was filed or where P lives
Defendant: where D lives
Depositions must occur where the non-party deponent:
lives, works, or transacts business in person
A court may order deposition be taken at any location for
the convenience of the parties
Deposition testimony of a party may be used at trial for:
any purpose, regardless of where the depo was taken
How is publication of service given to defendant?
court clerk mails to the defendant’s last known address
service of process may be made by:
- any non-party over the age of 18
- anyone appointed by the court (elisor)
- sheriff
court clerk may file a default notice if
the defendant has NOT APPEARED AT ALL!
if D answered something, clerk can’t enter default notice – party has to apply for default with the court
if a motion for directed verdict is denied
the case goes on, and parties can present evidence
if a motion for directed verdict is granted
the matter is res judicata (claim preclusion)
a third party defendant may raise any defense or defensive motion that is available to the defendant… true or false?
true
1st voluntary dismissal is dismissed
without prejudice
2nd voluntary dismissal is dismissed
with prejudice, even if the second dismissal occurs by court order rather than by notice
When a motion to dismiss for failure to prosecute is made and notice is given to the parties, the party that has failed to prosecute may:
at least 5 days before the hearing on the MTD, show good cause in writing why the action should remain pending
An action may be voluntary dismissed by the plaintiff once without court order and without prejudice at any time EXCEPT when…
a motion for SJ is pending with the judge
the jury has retired
the issue has been submitted to the judge
generally an involuntary dismissal is presumed to be
WITH PREJUDICE–unless the court says otherwise
in a bench trial, the defendant can move for involuntary dismissal
at the close of the plaintiff’s case (aka after plaintiff has presented their evidence)
if lis pendens if filed and then the action is voluntarily dismissed,
the lis pendens is automatically dissolved (do not need court order)
the failure of a judge to rule on a motion
reserves it for later determination
if an action by the Plaintiff has begun and the Defendant has brought a counterclaim, the Plaintiff cannot move for a voluntary dismissal and have the motion granted UNLESS
the counterclaim can remain pending for independent adjudication by the court
If landlord is ejecting tenant, what court must the case be brought it?
If L ejecting T for $50k or less –> MUST be in county
If L ejecting T for $50k or more –> may be in county or circuit
affirmative defenses require a
reply !
motion for summary judgment must be served when?
at least 40 days before the MSJ hearing
response to an MSJ is due
20 days before the MSJ hearing
of ROGS allowed
30
testifying expert can be required to disclose
- how much they are being paid
- litigation experience (P or D)
- other cases
- % of hours worked, # of hours worked, % of income as an expert
testifying expert CANNOT be asked:
- overall income from last year from being an expert
- financial records
motion to pull jurors
what is it? when is it done?
done after the verdict
you are asking the jurors how they voted–last chance to ensure unanimous verdict
motion for continuance of trial
what is it? how is it made?
must be written unless made orally at trial
must be signed by party unless good cause is shown
motion for view
viewing the scene where the action occured
moving party pays costs
prevailing party can recover costs
how many juror challenges for cause ?
unlimited #
when must you challenge a juror for cause?
within 30 days before trial
how many peremptory challenges does each party get?
each party gets 3
alternate jurors … are they allowed?
at the judges discretion
for each one selected, each party gets 1 peremptory challenge
questions by jurors
jurors can submit questions after the lawyers have asked all their questions
- in writing, signed, to the baliff
judge reads the questions to lawyers outside jury presence and lawyers can object
juror notebooks
allowed at courts discretion
post verdict interview of jurors
what is it? when must it be made?
motion to determine if there is a legal challenge to the verdict
must be made within 1 days of the verdict unless good cause is shown
court may allow, but must prescribe: time, place, manner, scope, conditions
motion for attorneys fees and costs
when can it be done?
within 30 days after litigation finishes OR you can move for it after notice of voluntary dismissal
motion for new trial or rehearing
when must it be done?
15 days after (1) return of jury verdict or (2) filing of judgment in bench trial
when must opposing affidavits for Motions for New Trial or Rehearing be filed?
10 days after service of the motion
20 additional days is good cause or parties stipulate
relief from judgment
party is asking court to correct a mistake in the judgment
can be made sua sponte or on motion by either party
verdicts must state ___
punitive damages SEPERATELY
what is required procedure for med mal cases?
1) pre-suit investigation (another Doctor as an expert who will opine that med mal actually occurred)
2) notice of intent to sue
3) pre-screening process (90 days for D to look over suit and come back with a settlement)
4) discovery
5) voluntary binding arbitration (usual litigation procedure for med mal; alternative to going to court; caps Ps recovery)
To survive a motion for summary judgment, the non-moving party must
produce evidence
Florida supreme court has no jurisdiction to review district court of appeals decisions that
merely construe (interpret) state statutes
Service upon the state of FL is accomplished by
service on the local state attorney (or state attorney’s assistant) and the attorney general
suspension of a deposition is authorized upon grounds of
annoyance, embarrassment, or oppression (irrelevant questions is not a per se ground to suspend deposition)
If a respondent’s answer to discovery is complete WHEN MADE then
there is no duty to supplement the answer with information that is acquired after
only have a duty to supplement if your answer was incomplete when made
damages less than $50k must be filed in
county court
damages greater than $50k must be filed in
circuit court
to join in one suit, the parties must have
the same cause of action or a familial relationship
a subpoena of a non-party must be given by a court
that has jurisdictional power over the non-party!!
ex: if you want to depose a non-party that lives in Michigan, you need to get a subpoena from a Michigan court
once a pleading is amended it must be responded
within 10 days of service
a party may amend a pleading
once before a response is made or if no response is needed, within 20 days
a party may request a jury trial on an issue
no later than 10 days after service of the last pleading directed to that issue
court reporters are
optional and must be paid by the party requesting the reporter
claim for insufficient service of process is waived when
a party makes an appearance and does not raise the issue
an affidavit can only be signed by someone
who has personal knowledge of the events
Normally, unless the court states otherwise, a dismissal by the court is
with prejudice
communications between a lawyer and a public entity client are
generally available for inspection
oral depositions by videotape are
allowed without order of the court just need to state in the notice that it is going to be videotaped
subpoenas can compel the attendance of a nonresident of Florida only in
the county where the nonparty deponent was served or other convenient place as ordered by the court
a plaintiff can request a defendant to waive formal service of process by
- a sheriff
- or by publication
- and to accept service by mail
if a defendant waives personal service and is served by mail, defendant has
60 days from the date of the requested waiver to respond to the complaint
the only limitation on the power of the court to grant a voluntary dismissal is
when there is a counterclaim pending that cannot stand alone if the main action is dismissed UNLESS the counterclaimant waives his objection to the dismissal
