Fla Civ Review 1 Flashcards
Pre-Suit Condition
Ripeness
Dismissal with prejudice DOES NOT BAR a subsequent claim once claim is ripe
Abatement appropriate if all waiting on is passage of time
Notice of Claim for State Agency
Written notice to the department within 3 YEARS of the accrual of the claim before suit may be filed against any state agency EXCEPT a Municipality
EACH CLAIMANT PROPER NOTICE
Statutory Notice Waived When PE
1) Actual Knowledge
2) Pursue an investigation
3) course of conduct that reasonably leads Plaintiff to believe that formal notice was not necessary
4) determimental reliance by the Plaintiff
MERE INVESTIGATION BY AGENTS OF GOV. NOT ENOUGH
When action is commenced
Every civil action is commenced when you file it with clerk of court
Issuance of process and filing fee don’t matter
How long to serve a Def once commenced action
120 days
When does SOL start running
generally from the time of the cause of action accrues, which is generally determined by the date when the last element of the action occurs
Only way to beat SOL
file timely
Will insurance stand in the shoes of their insured with respect to SOL against Tortfeasor?
Yep
Manifestation Theory of SOL
The SOL begins to run when the accumulated effects of the harmful substance manifest themselves to the claimant in a way which supplies some evidence of a causal relationship to the manufactured product
Statutes of Repose
runs from the date of discrete act on part of Def without regard to when cause of action accrued
Significant Relationship Test
In personal injury action, local law of state where injury occurred determines rights and liabilities of parties, UNLESS, with respect to a particular issue, some other state has a more significant relationship to occurrence and parties, in which case local law of the other state will be applied. To determine which state’s laws apply the courts will utilize the significant relationship test. The factors for the significant relationship test are as follows;
1) place where the injury occurred,
2) place where conduct causing injury occurred,
3) domicile, residence, nationality, place of incorporation, and place of business of parties, and
4) place where relationship was centered.
Service of pleadings and other documents
-When service is required or permitted to be made upon a party represented by an attorney, service must be made upon the attorney unless service upon the party is ordered by the court
-All documents required or permitted to be served on another party must be served by email, unless the parties otherwise stipulate or this rule otherwise provides
-Service by EMAIL is complete on the date it is sent…IF however the email is sent by the Portal or other e-service system, service is complete on the date the served document is electronically filed
When default is entered…
the defaulting party admits all well-pled factual allegations of the complaint
Period stated in days
a. Begin counting from the next day that is not a Sat, Sun or holiday;
b. Count every day, including intermediate Saturdays, Sundays and legal holidays; and
c. Include the last day of the period, BUT if the last day is a Sat. Sun or legal holiday, or falls within any period of time extended through an order of the chief justice, the period continues to run until the end of the next day that is not a Sat. Sun or legal holiday and does not fall within extended period
Period stated in hours
a. Begin counting immediately on the occurrence of the event that triggers
b. Count every hour, including hours during intermediate Sat. Sun and holidays; and
c. If period would end on a Sat. Sun or legal holiday, or during extended time, the period continues to run until the same time on the next day that is not a Sat. Sun or legal holiday
Period stated in days less than 7 days
a. When period is less than 7 days, intermediate Sat. Sun and legal holidays shall be EXCLUDED in the computation
Enlargement of time
When an act is required or allowed to be done at or with a specified time by order of court, FOR CAUSE SHOWN, the court at any time in its discretion, o with or without notice, may order period enlarged if request is made before the expiration of the original period
o (B) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of EXCUSABLE NEGLECT.
Excusable neglect when…
tickler or calendar breakdown, clerical error
How to establish excusable neglect
Affidavit
When service by mail is appropriate
YOU DO NOT GET EXTRA TIME ADDED AFTER SERVICE BY EMAIL *
You do get 5 extra days added after service by mail, BUT rule 2.514 requires ALL documents to be served by e-mail
-Upon motion and court order, lawyers who demonstrate NO INTERNET AND NO EMAIL
-A party who is in custody and who is NOT represented by an attorney is excused from email service
-Pro-se litigant who can demonstrate NO INTERNET AND NO EMAIL
Venue
Venue is proper for in state residents where the Def. resides, or where the cause of action accrued, or where the property in litigation is located.
When Defs reside in different for venue
can be brought in ANY county where they reside
Venue Corporations
- Actions against domestic corporations (Florida) shall be brough only in the county where such corp. has or usually keeps and office for transaction or customary business
- Where the Cause of action occurred
- Where the property in litigation is located
Venue Foreign Corps
- In a county where such corp. has an agent or other rep.
- Where cause of action accrued
- Where property in litigation is located
