FL Rules of Civil Procedure Flashcards
1
Q
Timing
FL Civ Pro
A
- Don’t count first day.
- Count last day except weekends and holidays.
- < 7 days = don’t count weekends and holidays.
- Service by mail = add 5 days.
- Service complete by mail = when mailed.
2
Q
Enlargement
(List 7 that CANNOT be enlarged)
FL Civ Pro
A
- Any time prescribed may be enlarged by the court with or without motion if a request is made before the time expires (just ask and show good cause).
- The court may NEVER extend time for the following (memorize these):
- Motion for belated directed verdict: 15 days after return of verdict if timely MDV made
- Motion for new trial or rehearing: 15 days after return of verdict
- Sua sponte grant of a new trial
- Motion for relief from judgment: Before appeal docketed w/o leave (clerical mistakes), within reasonable time (voidness, judgment satisfied, revered or vacated); within 1 year (mistake, inadvertence, surprise, excusable neglect, misconduct of a party, or newly discovered evidence)
- Motion for amendment of judgment: 15 days after filing of judgment.
- Notice of appeal: 30 days from date of order being appealed.
- Petition for certiorari: within 30 days of action to be reviewed.
3
Q
Venue
FL Civ Pro
A
- Venue is proper (1) county where cause of action occurred or (2) county where any defendant resides.
- When filed in wrong venue, the court may transfer to any county where venue could have been brought.
- When venue might have been in 2 or more counties, plaintiff may select county to which is it transferred to.
- If no selection is made, the court will determine which venue to transfer to.
- Method: Plaintiff must pay service charge to the clerk of court where the action is being refiled within 30 days from date the transfer order is filed.
- If not paid within 30 days, action is dismissed without prejudice by the court that ordered the transfer.
4
Q
Pleadings (Listed)
FL Civ Pro
A
- Complaint
- Answer
- Reply to Answer
- 3rd Party Complaint (Impleader)
- Answer to 3rd Party Complaint
- Counter Claim
- Answer to a Counter Claim
- Cross Claim
- Answer to Cross Claim
5
Q
Contents of a Claim
FL Civ Pro
A
- Short, plain statement of the grounds of jurisdiction;
- Short, plaint statement of the ultimate facts showing the pleader is entitled to relief; and
- A demand for judgment for relief to which the pleader deems himself entitled, which may be in the alternative for several different types. (must state “I want an injunction / I want monetary damages, etc.)
6
Q
Pleading Special Matters
(List 4)
FL Civ Pro
A
Certain matters must be plead with specificity:
- Capacity or authority to sue on behalf of a minor (must state minor’s age) or to challenge the capacity of any person.
- Fraud, mistake, condition of mind
- Non-occurrence of a condition precedent (NOTE: Generally, conditions precedent are plead generally, however its non-occurrence must be plead with specificity).
- Special damages (determined by a specific dollar amount)
- Ex. Lost wages, property damage, medical treatment (past and future), etc.
7
Q
Defense Motions (4 listed) (and Timing)
FL Civ Pro
A
- Motion for More Definite Statement: (complaint is vague or ambiguous): Any time before responsive pleading is filed. PRE-ANSWER MOTION.
- Motion to Strike (pleading is redundant, immaterial, scandalous): Brought at any time.
- Motion to Strike Sham Pleading (Fla. R. Civ. P. 1.150)
- Motion for Judgment on the Pleadings (after pleadings are closed)
- NOTE: Motion for Judgment on the Pleadings = Similar to MSJ; asks judge to dismiss action because the plaintiff did not file a proper complaint. Usually filed by D to test the sufficiency of a complaint, but can also be used by P to test the sufficiency of the answer.
- Differs from MSJ - Judge only looks at pleadings. Happens right after the pleadings.
8
Q
Defense’s Pre-Answer Motions: Motions to Dismiss
FL Civ Pro
A
A motion making any of these defenses MUST be made before pleading if a further pleading is permitted. .
(NOTE: Bolded ones may be waived by D if not contained in pre-answer motion or answer, not bolded can be brought at ANYTIME):
- Lack of SMJ
- Lack of PJ
- Improper venue
- Insufficiency of process
- Insufficiency of service of process (must be 15 years of age or older)
- Failure to state a claim upon which relief can be granted
- Failure to join an indispensable party
9
Q
Timing for Responsive Pleadings Following Defense’s Pre-Answer Motions
FL Civ Pro
A
- If court denies the defense motion or postpones, a responsive pleading (i.e. an answer) must be filed within 10 days after notice of the court’s order.
- NOTE: Defendant usually has 20 days from filing of pleading to file an answer.
10
Q
Answer
FL Civ Pro
A
- Timing: 20 days after service of complaint.
- Either admits or denies allegations of the pleading.
- Failure to deny constitutes an admission.
- Defenses must be stated in short, plain terms.
- General denials are permitted but not favored.
- Affirmative defenses must be plead with specificity (i.e., SofF, latches, accord and satisfaction - basically, defenses raised in a tort or contracts action).
11
Q
Reply
A
- If an answer contains an affirmative defense, P is required to file a reply.
- Timing: Within 20 days of service of the answer (same timing as answer).
12
Q
Amendment to Pleadings
FL Civ Pro
A
- A pleading may be amended ONCE as a matter of course before a responsive pleading (i.e. answer or reply) is served OR within 20 days of service of the pleading without approval fo the court.
- After 20 days, need court approval before amending.
13
Q
Crossclaim
FL Civ Pro
A
- Claim against party on the same side of “v” (P vs. P for D vs. D)
- Must come out of same transition or occurrence OR same property that is subject of the suit.
- Can be filed in answer OR separate pleading.
14
Q
Counterclaim
FL Civ Pro
A
- Claim against P by D
- Compulsory Counterclaim: Same transaction or occurrence = Counterclaim MUST be filed in answer or permanently waived.
- Permissive Counterclaim: Not the same transaction or occurrence (i.e. car accident action, dog bite counterclaim). Can be filed in answer or separate pleading.
15
Q
Impleader
(NOTE: Will 100% be tested)
FL Civ Pro
A
- Party brings third party into the action who may be liable to party for all or part of the claims against them (can be brought by both P and D)
- D can bring in third party liable for P’s claim OR P can bring in third party liable for D’s counterclaim.
- Can be brought at any time after commencement of the action.
- Defendant: Leave of court needed, unless brought within 20 days after D serves answer.
- Third-party defendant must file answer to D’s claims, and can make counterclaims against D and assert claims against P. Can also implead another party.
- Arises out of same transaction or occurrence (obviously)
- NOTE: Remember, IMpleader brings 3rd party IN to the action.
16
Q
Intervention, Interpleader, and Impleader
(Will be tested)
FL Civ Pro
A
- Intervention: Anyone with an interest can join (“intervene”) at any time. NOTE: At the discretion of the judge. Can make a motion to intervene at anytime during the action before jury enters. Rule 1.230
- Interpleader: P lets parties fight. NOTE: Usually with insurance companies. A holds property that he does not own, but that both B and C are claiming. A can sue B and C in an interpleader action where they can litigate who actually owns the property. Rule 1.240
- Impleader: Brings third party into fight. Rule 1.180
17
Q
Timing on Pleadings
FL Civ Pro
A
- Complaint: Served within 120 days
- Pre-Answer Motion: 20 days. Service of motion (not motion to strike/judgment on the pleadings) extends time to file answer by 10 days.
- Answer: Within 20 days of service of complaint.
- Reply: Within 20 days of service of answer.
- Compulsory Counterclaim: MUST be brought in answer or permanently waived; within 20 days after service of complaint.
- Permissive Counterclaim and Crossclaim: Can be brought in answer or separate pleading.
- Impleader: Party must bring within 20 days after service of answer; after service must get leave of court.
- Amended Pleading: Can amend once as a matter of course before response OR within 20 days if no response required & not on trial calendar.
- Response to Amended Pleading: 10 days after service.
18
Q
Voluntary Dismissal
(Heavily tested)
FL Civ Pro
A
- P can dismiss any time before trial, or during trial before jury deliberates (unless property seized, or a hearing on MSJ has been scheduled).
- Before trial: serve notice of dismissal;
- During trial: state it on the record;
- Or can have a stipulation signed by all current parties.
- 1st time = Without prejudice, next time becomes an adjudication on the merits (with prejudice).
- NOTE: Very likely to be hit with attorneys fees if you dismiss.
19
Q
Involuntary Dismissal
FL Civ Pro
A
- Motion to Dismiss for failure to comply with the rules or any order of the court.
- Can be brought by judge or either party for ANY claim (including counterclaims, crossclaims, etc.
- Notice of Hearing required.
- Can bring during trial after completion of evidence by other party. (Not the same as a motion for directed verdict!)
- Judgment acts as an adjudication on the merits (with prejudice) except for dismissal based on:
- Lack of jurisdiction
- Venue
- Failure to join an indispensable party
- Court orders otherwise
20
Q
Motion to Dismiss for Failure to Prosecute
FL Civ Pro
A
- No activity (no filing of pleadings, order of court, etc.) for 10 months (roughly 300 days, to help you remember) after complaint filed.
- No stay has been issued.
- Any interested person (need not be a party), court, or clerk can file.
- Notice of no activity is sent.
- Hearing required.
- Dismiss by court or on motion of any interested person if no activity within 60 days of notice; or
- If no good cause in writing 5 days before hearing.
- Mere inaction for a period of less than one year is not sufficient cause for dismissal for failure to prosecute.
21
Q
Lis Pendens
FL Civ Pro
A
- = a filed notice to third parties that parties are litigating over real property.
- Must be filed in county where property is located.
- Protects plaintiff from any intervening liens on the property filed after the lis pendens. yf5ts
- Automatically dissolved if claim is voluntarily dismissed
- Must record dismissal to remove the lis pendens
22
Q
Temporary Injunctions
FL Civ Pro
A
- Can be granted Ex Parte (without notice to adverse party) only if:
- Affidavit w/ specific facts showing immediate and irreparable damage will result before adverse party can be heard.
- Certificate in writing stating any efforts made to give notice and reasons why notice should not be required.
- No additional evidence besides affidavit and certificate unless party appears and has notice.
- Every temp. injunc. granted w/o notice must:
- Be endorsed w/ the date and hour of entry
- Be filed w/ the clerk
- State the reasons why injury may be irreparable
- State why it was granted w/o notice.
- Will remain in effect until further order of the court.
- NOTE: Bond amount (LIQUIDATED DAMAGES) MUST be set by the court that will go to D if injunction is improperly issued.
23
Q
Motion for Summary Judgment (General)
(Will be tested)
FL Civ Pro
A
- Either party can make motion
- Can be made for all or part of the claim (partial MSJ)
- Decision is on the merits (with prejudice)
- Evidence must show that there is “no genuine issue of material fact and the moving party entitled to judgment as a matter of law.”
24
Q
MSJ: Timing
FL Civ Pro
A
- Claimant: Party seeking to recover on a claim, counterclaim, cross claim, or 3rd party claim can file a MSJ 20 days after the commencement of the action OR anytime after the other side files an MSJ.
- Defending Party: Party against whom a claim, counterclaim, etc. can file an MSJ at any time.
- Moving party must serve MSJ at least 20 days before the hearing.
- Adverse party must respond by mailed notice at least 5 days before hearing, OR hand deliver at least 2 days before hearing before 5pm.
25
Q
Substitution of Public Officer
FL Civ Pro
A
If sued in official capacity and leaves office/resigns/dies, successor automatically substituted. No new action required.
26
Q
Discovery Definition
FL Civ Pro
A
Parties can discover anything “reasonably calculated to plead to the discovery of admissible evidence”
27
Q
Depositions
(Heavily tested)
FL Civ Pro
A
-
Must wait 30 days after service of process of initial pleading on defendant, or need court order, unless:
- Witness is leaving the state and will be unavailable, or
- Defendant has served discovery request.
- Subpeona witnesses (do not need to subpoena parties to action, just serve notice.)
- Must give reasonable notice in writing to all parties stating time, place, and person to be deposed.
- Can videotape w/ notice.
- Need court order if deposition via telephone or if the witness is in prison.
28
Q
Subpoenas
FL Civ Pro
A
- Issued by clerk (oral request) or lawyer.
- Can move to quash or modify.
- Who can serve?:
- Authorized by law t serve process
- < 18 yrs. old and NOT a party (proof by affidavit)
- Depo can be taken only where deponent lives, works, or transacts business in person.
- Failure to comply: Held in contempt unless adequate excuse; may have to pay costs.
29
Q
Deposition Needed Before Action
FL Civ Pro
A
- Party must file a Motion to Perpetuate Testimony.
- Used to preserve testimony of an expected defendant before action is filed.
- Must be filed in the Circuit Court in county where potential adverse party lives.
- Verified petition must state:
- Expects them to be party to an action in FL
- Currently unable to bring case
- Subject matter of the expected action & petitioner’s interest
- Names/addresses or description of deponents
- The testimony expected to be elicited from them
- Notice and Service:
- At least 20 days before hearing.
- Served like a summons.
- Court can order service by publication if service cannot be made with due diligence.
30
Q
Production of Documents
FL Civ Pro
A
- Served on parties
- Applies to documents in possession or control of party
- Right to inspect & copy
- Documents, tangible things, land
- Response: Inspection allowed or objections.
- Timing: Within 30 days after request sent, or 45 days if defendant is answering.
31
Q
Production of Documents from Non-Parties
FL Civ Pro
A
- Applies to documents needed from non-parties.
- Subpoena duces tecum without deposition
-
Must give notice to parties of intent to serve subpoena:
- 10 days before issuance if delivered
- 15 days before issuance if mailed
- Party can object within 10 days of service.
- Motion to Quash or Modify: A court may on motion quash or modify the subpoena if unreasonable or oppressive
- If no objection, subpoena is issued.
- Production required in person only in county where documents custodial lives, works for conducts business.
Rule 1.351
32
Q
Discovery: Testifying Experts
FL Civ Pro
A
-
Can send interrogatories to identity:
- Expert
- Subject matter
- Facts/opinions
- Summary of grounds for opinion.
-
Can be required to tell:
- Payment received for case
- Litigation experience (% defendant/plaintiff)
- Other cases worked on
- % hours, # hours for % income as expert
-
CANNOT ASK FOR:
- Income as expert for other jobs
- Financial records.
