FL Civil Procedure Flashcards
Special damages (e.g., loss of business and loss of earning capacity) May or Must be specifically stated in a pleading?
MUST
Do Federal courts use Federal common law in a diversity jx action?
No
Final process to enforce a judgment solely for the payment of money may be by:
“FJ wants just wants to get paid, but only WOES get laid”
1) Writ of Garnishment; or
2) Other appropriate process/proceedings
3) Execution;
Orders for pretrial conference must be served at least _________ before the date set for the conference
“IF you wanna PC, the order gotta serve 20 days before the C g”
20 DAYS
When must discovery be completed in an expedited trial?
“When we expedite trial, Discover within 60, of Court’s Order Filed”
Within 60 days of court’s order adopting the stipulation
How many requests for admissions may a party generally propound?
“ADMIT DIRTY 30 confessions”
Imagery: party got sued after throwing bday party for dirty 30s, gets served admissions
30 (including all subparts)
Two or more claims for damages may be added together to reach the jurisdictional limit of the circuit court as long as those claims _________________
arise out of the same transaction
In computing any period of time prescribed or allowed by the rules of civil procedure, by order of the court, or by any applicable statute, is the day of the act, event, or default from which the designated period of time begins included?
No
What are the three classifications of service of process?
1) Personal,
2) Substituted,
and
3) Constructive
If a defendant makes WRITTEN SETTLEMENT OFFER served on plaintiff at least 45 days before trial,
and plaintiff rejects or fails to respond within 30 days,
defendant will be entitled to recover reasonable costs + attorney’s fees incurred from the date of the offer if:
i) Judgment is one of no liability; or
ii) Judgment obtained by plaintiff is at least 25% LESS THAN such offer
Under the general venue statute, actions must be brought only in the county in which:
(1) Defendant resides
(2) Cause of action accrued; or
(3) Contested property is located
If an attorney’s work product is intended to be used at trial, must it be disclosed?
Yes
What three categories of cases must the district court of appeals review by appeal?
1) Trial Court final orders NOT directly reviewable by supreme court or circuit court,
2) General law administrative actions, and
3) Certain non-final orders of circuit courts
Who is allowed to serve an answer to a complaint or cross-claim or a reply to a counterclaim within 40 days after service?
i) State of Florida;
ii) Agency of the state; and
iii) State officer/employee sued in an official capacity
When can a voluntary dismissal not be exercised by a party?
1) Property has been seized or is in court custody,
2) Fraud is committed on the court (counterclaim/cross-claim served before notice of dismissal), or
3) Motion to amend/add a counterclaim/cross-claim to the answer has been served (unless it can remain pending or defendant consents to dismissal)
4) MSJ is pending
How many interrogatories may be served generally?
30
May a plaintiff join a liability insurer in a civil action against a defendant insured by the company?
No
In responding to a preceding pleading (i.e., an answer), a party must set forth_______________.
affirmative defenses
What is the Statute of Limitations for Negligence?
2 years
While COUNTY courts may hear civil actions involving an amount in controversy that is _______________, CIRCUIT courts have jurisdiction over civil actions ________________
$50,000 or less;
Exceeding $50,000
In FL, 2 or more claims for damages can be added together to reach the jx $ limit for circuit court if
those claims arise out of the SAME TRANSACTION
If 2 or more SEPARATE claims arise out of DIFFERENT transactions, at least 1 of those claims MUST independently exceed the jurisdictional limit (>$50k)
In FL, when a defendant makes written settlement offer to plaintiff at least 45 days prior to trial, and the plaintiff rejects or fails to respond to the offer, the defendant is entitled to recover _______________________ WHEN ______________________
reasonable costs and attorney’s fees incurred after making the offer WHEN the amount awarded to the plaintiff is AT LEAST 25% percent LESS than the SETTLEMENT OFFER
(e.g. pre-trial settlement offer: $100k
Plaintiffs damages awarded at Trial: $70k) = 30% LESS than settlement offer = meets at least 25% less standard –> Defendant will get reasonable attny fees/costs after offer back
Under Apex Doctrine, current/former high-level government OR corporate officers can seek protective order preventing them from being deposed
When Court issue a protective order (e.g. preventing party from deposing), the burden shifts to the other party to show that:
- it has exhausted other discovery
- the prior discovery is inadequate, and
- the officer has unique, personal knowledge of discoverable information
A deposing party must serve a subpoena upon a NONparty witness to ensure that the nonparty witness will appear and testify at a deposition
But a deposing party only needs to provide ___________________ to a party to the action (i.e. defendant) to depose that party
reasonable notice in writing
PERMANENT INJUNCTION are issued AFTER a hearing/trial has been concluded
The party seeking PERMANENT INJUNCTION injunction must show:
- irreparable harm
- a clear legal right
- an inadequate remedy at law
AND - consideration of the public interest.
*For temporary—not permanent—injunctions, no evidence other than the affidavit or verified pleading may be used to support its application
*P/I are NOT considered liberally, they are considered EXTRAORDINARY REMEDIES granted SPARINGLY
MOTION FOR NEW TRIAL
GENERAL RULE–(NON-CAPITAL CASES) In FL, defendant has 10 days after verdict rendered to file motion
CAPITAL CASES– defendant has 10 days to file motion after _________________________
after WRITTEN FINAL JUDGMENT OF CONVICTION and SENTENCE OF DEATH/OR LIFE IMPRISONMENT
The court MUST grant a new trial if:
* the jurors decided the verdict by lot
* the verdict is contrary to the weight of the evidence
OR
* new and material evidence emerged that
(i) the defendant could not have discovered with reasonable diligence
AND (ii) would have changed the case outcome
In Florida, PERSONAL SERVICE on an individual is made by:
- delivering to the person to be served a copy of the complaint, petition, or other initial pleading or paper
OR - leaving the copies at the person’s usual place of abode with any person residing therein who is 15 years of age or older and informing the person of the contents
Personal service is preferred, substituted (i.e., delivery to someone authorized to receive service) or constructive (i.e., made by publication of notice of the litigation) service…
may be permitted under specific circumstances
True or False:
In Florida, personal, substituted, or constructive service may be made on an individual.
TRUE
True or False:
Service against a partnership may be served on any partner and is as valid as if served on each individual partner.
TRUE
In civil or criminal cases, evidence of
* withdrawn guilty pleas
* pleas of no contest (i.e., nolo contendere)
* statements made while negotiating a plea with a prosecutor
AND
* statements made during a plea proceeding are generally
*NOT admissible.
*Evidence is admissible, if another statement made during the same plea/negotiation has already been admitted and fairness requires that the statement in question be admitted
If the statements were false, made under oath, on the record, and with counsel present, they are also admissible in a later PERJURY prosecution
In Florida, are district courts of appeal required to review nonfinal orders that concern venue?
Yes.
Are VENUE provisions in a contract between a FL RESIDENT subcontractor and real property that require legal action to be brought OUTSIDE Florida void?
Yes.
Any legal action must be brought in the Florida county where the defendant resides, the cause of action accrued, or the litigated property is located.
A party may amend a pleading once as a matter of course at any time before a responsive pleading is served.
Once a response is served, the pleading may only be amended by
*Leave of court OR
*w/ adverse party’s written consent
In Florida, expert witnesses who are not expected to testify at trial may not be deposed unless the party requesting discovery shows
ONLY UPON PROPER SHOWING
–> exceptional circumstances that make obtaining facts or opinions on the same subject impracticable by other means
In Florida, a deposition of an expert witness may be used by any party for
ANY PURPOSE
When a party does not serve answers or objections to interrogatories within the time specified in a court order, can the court dismiss all or part of the claim?
Yes.
The court has wide discretion to impose sanctions and/or remedies in these situations.
The circuit court docket was quite busy. To speed up the process, the resident and landlord both agreed to participate in voluntary binding arbitration proceedings.
Which is correct?
Answers:
If there is an appeal from the arbitrator’s decision, the circuit court will hear the appeal and may review the record for arbitrator failure to comply with evidentiary rules.
The arbitrator must serve the parties with a decision within 20 days of the final adjournment.
The court is not required to accept the arbitrator’s decision.
The arbitrator’s decision must be appealed within 21 days.
If there is an appeal from the arbitrator’s decision, the circuit court will hear the appeal and may review the record for arbitrator failure to comply with evidentiary rules.
*CANT review it de novo; –> appeal is limited to a review of the record
In a Florida civil case, APPEALS for BINDING VOLUNTARY ARBITRATION MUST be appealed to CIRCUIT COURT
The record may be reviewed for:
- failure of arbitrator to comply w/ rules
- partiality/misconduct by arbitrator that prejudiced a party’s rights
- results contrary to the U.S. or FL constitutions
INTERLOCUTORY APPEALS
In FL, Appeals to the district courts of non-final orders (i.e., interlocutory appeals) are limited to when the order concerns
“VIP JARS (Justices) Can Create Big Legal Changes”
- CONCERNS Venue, Injunctions, or Receiverships;
OR
- GRANTS a New Trial, Relief, or Immunity:
– Civil rights claim under federal law
– State representative
– Torts claim;
OR
- DETERMINES:
– Jx of the person
– Right to immediate possession of property
– Right to immediate monetary relief or child custody in family law matters
– Entitlement to arbitration or insurance policy appraisal
– Party is not entitled to workers’ compensation immunity
– Class certification
– Party not entitled to absolute/qualified immunity in federal civil rights claim
– Governmental action that inordinately burdens real property
The prospective jurors shall be sworn collectively or individually, as the court may decide. The form of oath shall be as follows:
Do you solemnly swear that you will answer truthfully all questions asked of you as prospective jurors?
Who selects between counts in an inconsistent verdict situation?
The state need not elect between inconsistent counts,
but the trial court shall submit to the jury verdict forms as to each count with instructions applicable to returning its verdicts from the inconsistent counts..”
So the JURY
In a which the jury requests to have the transcripts of trial testimony, the following procedures must be followed:
(1) The trial judge must deny the requests for transcripts
(2) The trial judge must instruct jurors that they can, however, request to have any testimony read or played back, which may or may not be granted at the court’s discretion
(3) In cases in which jurors make only a general request for transcripts, The trial judge must instruct jurors that they specify the particular trial testimony they wish to have read or played back.
