Florida Civil Procedure Flashcards

Question

DESCENDING ORDER RULE

Answer 1

CORPORATIONS Can sue any of the following people, but have to start at the top of the latter and only descend if no one of a higher rank can be found 1. P, VP or other head of the corp. 2. Cashier, Treasurer, Secretary, General Manager 3. Director 4. Any officer or business agent residing in FL

Answer 2

A defendant may be served out of state by any method allowed by FL law, with the service made in the other state by any officer authorized to serve process there

Answer 3

1. Resident Agent - who has an office in FL or has done business in FL 2. FL Sec of State plus serve D personally out of state or by certified mail (Def. has no registered agent)

Answer 4

Serve FL Sec. of State then mailing process by registered or certified mail, return receipt requested of the nonresident

Answer 5

Always requires that dilligent inquiry has been made into th ename and whereabouts of any person who should be servied

Answer 6

If minor has guardian, service on the guardian if No legal guardia, serve a parent anda the court will appoint a guardian ad litem Incompetent person - if no legal guardian, serve two copies on the person having custody and ask the court to appoint a GAL

Answer 7

P mails process and waiver form by certified mail, within 20 days D can return by first class mail, waives formal service, but does not waive PJ or Venue if does not return - plaintiff must serve by an authorized method and the court can require that the defendant pays for it Defendant has 60 days from receipt of the waiver to respond to the complaint

Answer 8

FL Process runs through state, but not out of the state EXCEPTIONS: 1. Serving under LAS or NMA or Publication - can run out of state

Answer 9

Filing the complaint tolls the SOL P must have D served within 120 days of filing, if not can dismiss without prejudice or allow more time if good cause for not serving shown

Answer 10

Unless P gives an affidavit that P has reaason to belive D will leave the state under protection of Sunday

Answer 11

Less formal - motions, discovery, … Generally served on parties attorney or the pro se party by email unless other method ordered by the court Each atty must designate a primary email address, if service sent by efiling, service completed when electronically filed, otherwise complete when electronically sent If no email, delivered by snail mail - five days added to response time if by snail mail

Answer 12

Must have case caption - name of the court and case file number, the names of the parties, the name address and phone number of teh atty, atty FL Bar number and email, designation of pleading, each claim or defense stated in numbered paragraphs

Answer 13

Signing certified: 1. Read the doc 2. Grounds to support 3. Not interposed for delay 4. No confidential or sensitive info or any such info has been properly protected Basically not frivolous

Answer 14

Must be pleaded with particularity or specificity 1. Circumstances establishing fraud 2. Facts supporting punitive damages (intentional misconduct or gross negligence) 3. Special damages (don't normally flow from an event) NOTE LACK OF CAPACITY TO SUE IS AN AFFIRMATIVE DEFENSE DOES NOT MEED TO BE ALLEGED BY PLAINTIFF A dollar figure for damages is not requires Special damages must be listed separate (as must be punitive damages) Can't have Punitives in the initial complaint - must make a motion and present evidence showing a reasonable basis for punitives (involves intentional misconduct or gross negligence) - then move to amend the complaint to add

Answer 15

Must respond within 20 DAYS Can respond by motion or answer (same as Fed Court)

Answer 16

**_Motions:_** Are not pleadings - requests for a court order, can be answer or motion to dismiss talking about: 1. Issues of Form - more definite statement, motion to strike (a motion to strike can be made by any party at any time) 2. Major Defenses - Lack of SMJ, lack of PJ, improper venue, insufficiency of process (problem with summons or complaint), insufficient service of process, failure to state a cause of action on which relief can be granted, failure to join an indispensable party * Waivable Major Defenses: Venue, PJ, defects in service or process of service MUST BE INCLUDED IN FIRST DEFENSIVE RESPONSE (answer or request for ***_affirmative relief_***) - broader than Rule 12

Answer 17

The answer is a pleading Have to answer even if you file a pre answer motion, or risk default Timing: no later than 20 days after SoP if no motions, if motion made and denied, answer within 10 days of order on motion EXCEPTION: Motion to strike does not extend the time in which to answer ***What Goes Into the Answer:*** 1. Respond to the allegations: admit, **_deny_**, or without knowledge (effect of denial) - never deemed to have admitted damages, but all other failure to respond are admissions 2. Raise affirmative defenses - SOL, Assumption of Risk, Legal Capacity, Comparative Negligence…

Answer 18

Got to be raised in the first defensive response - broader than rule 12 - answer or a request to the court for affirmative relief * 4 waivable defenses must be in this first motion or defensive response or they are waived * Can raise other defenses with the wiavable in the first response NOTE: indispensable party or failure to state a cause of action on which relief can be granted are not waived if not brought first - can be brought any time up to trial SJM is NEVER WAIVED

Answer 19

If the answer contains an affirmative defense which plaintiff wishes to avoid, does so in a ***reply*** Must serve reply within 20 days after service of the answer If the plaintiff which to just deny the allegations of the answer, no action is needed

Answer 20

Claim against an opposing party - usually D back against the P Part of the Ds answer, but labeled as a counterclaim (serve on the Ps lawyer or on her if pro se)

Answer 21

Arises from the same Transaction or occurrence as the opposing party's claim Cannot be asserted separately THIS IS THE ONLY COMPULSORY CLAIM ANYTHING ELSE IS PERMISSIVE IF SHOULD HAVE SET FORTH A COUNTERCLAIM BUST DIDN'T COURT MIGHT ALLOW IF 1. Excusable neglect or 2. Justice so requires If never required to answer and did not defaault then there's no bar on bringing the claim in a new suit. (I.e. A dismisses before B can answer and raise)

Answer 22

Any claim not arising from the same TO - can do it in the same suit, or in a new suit A must respond to the new claim (permissive or compulsory) within 20 days of service of the counter claim

Answer 23

Claim against a co-party - has to arise under the same TO as the original claim Never compulsory

Answer 24

**_Right:_** Plaintiff has a right to amend once, before the D serves their answer! (remember a motion is not an answer, if D brought a motion first, P still has right to amend before the D serves the ***answer***) D has a right to amend once within 20 days of serving answer **_No Right To Amend:_** If no right to amend, can seek leave of court to amend, granted if justice so requires. Proposed amended pleading must be attached to the motion. Opposing party must respond to the motion within 10 days of service

Answer 25

Evidence at trial does not match what was pleaded (same as Fed Court) Amendment and SOL (relation back) also works the same as in Fed Court

Answer 26

No required disclosure in FL but same five tools as fed court 1. Depositions 2. Interrogatories 3. Requests to Produce 4. Physical or Mental Evaluations 5. Requests for Admission No duty to supplement one's answers in discovery if the answers were complete when made (this is different from Fed court where there is a duty to supplement)

Answer 27

Can depose a party or non-party If non-party, have to subpoena to ensure the attendance Video Taped is ok if the notice and subpoena state that it will be recorded and state the name and address of recorder must be recorded steno-graphically unless otherwise agreed by the parties Need Court Order only if: 1. Fewer than 30 days after serving the complaint (court order needed unless the P notice states that the person to be deposed is about to leave the state or the D has already taken the depo) 2. Before the case is filed to preserve evidence because witness will not be available at trial Generally, can't object at trial to any evidentiary issue that could've been remedied at the depo Usually takes place for P where the case is pending, D in county of residence or business, non party county of residence or business unless agreed to otherwise

Answer 28

1. Impeach the deponent 2. For any purpose if adverse party 3. For any purpose if deponent is dead, ill, or over 100 miles from the site of trial, or beyond the subpoena power

Answer 29

Binding only on party making them limited to 30

Answer 30

Request another party to make available for review aand copying: documents, ESI, or things Receiving party must respond within 30 days Can't use to requiest from non-parties - need a subpoena

Answer 31

Notice to all parties of request of subpoena 10 days before issuing (15 if by snail mail) If objection, no subpoena production ordered Can move for a ruling on the objection, or take non-party depo with a subpoena duces tecum which requires deponent to bring requested materials with them

Answer 32

Court order is ***_NOT NEEDED IF_*** condition of party is in controversy Party seeking exam serves notice stating reasonable time, place, manner, and scope of exam, and who will conduct the exam The other party must respond in writing within 30 days (45 if requires accompanies complaint) agreeing or stating objections If not a physical condition - then exam is available only upon motion showing good cause (mental condition or blood test i.e. paternity) Representatives may be allowed to attend unless valid reason not Person examined can get a copy of report, but that waives privilege on examining physicians she has or wills ee

Answer 33

Request by one party to another to admit the truth of any discoverable information Responding party must admit, deny, or object within 30 days Binding only in this case **Respond:** within 30 days (45 if request accompany complaint) - request, deny, or object, don't know only if made a reasonable inquiry Limit to 30 requests per party

Answer 34

Anything Relevant to the subject matter - reasonable calculated to lead to admissible evidence (broader than admissible) Privileged matter is not discovered, but the privilege must be expressly asserted and a privilege log must be kept describing the materials in detail Accidental disclosure does not waive the privilege, if the party serves written notice within 10 days of discovering disclosure **Work Product: Same as in Fed Court**

Answer 35

**Expert Witnesses:** must request the discovery of facts and opinion of experts who are retained in anticipation of litigation If expert is expected to testify - interrogatories seeking name, substance of facts and opinions, and grounds for opinions (may also ask about relationship of party to expert) Then, (after answers to interrogatories) may take depo after interrogatories are taken - no court order needed, but must subpoena and pay reasonable fee for experts time If expert not expected to testify, no discovery absent exceptional need

Answer 36

**Protective Orders:** request is over-burdensome, ESI not reasonable accessible **Partial Failure:** does respond but not fully, light sanction if objection no good (including failure to respond to request for medical exam) **Total Failure:** willfully refuses to attend, be sworn, or respond to valid request, expect heavy sanctions Have to try and work it out first * if partial failure: two steps of sanctions - order compelling answers to unanswered+ cost and atty fees, second, if you get that order and it's violated, get merits sanctions + atty fees * If total failure: go straight to merits sanctions + costs False denial of request to admit - may recover only costs in having to prove the issue

Answer 37

Only imposed after an opportunity to be heard Include: 1. An establishment order (establishing facts as true) 2. Striking the pleadings of a disobedient party as to the issues contained in discovery 3. Staying proceedings until discovery is given 4. Disallowing evidence by the disobedient party 5. Contempt (never available for a refusal to submit to a medical examination) 6. Dismissing the P case or entering a default judgment against the D (only if an express written finding of willful or deliberate refusal to obey a discovery order is made)

Answer 38

1. Parties and Joinder of Parties

Answer 39

**_Permissive Joinder:_** may be joined, but don't have to be. Generally can only join if each has a common interest in the subject matter ***BUT:*** in tort cases, spouses or parents and their children may join together **_Interest Adverse to the Plaintiff:_** can join multiple defendants who each have an interest adverse to the P

Answer 40

1. Is the absent party necessary? **Necessary if:** without absentee court can't afford complete relief, or the absentees interest may be harmed in a practical way if not joined (rare in tort cases in FL) 2. Can you be joined? Yes - if there is PJ over you 3. If Joinder is not possible, can the case proceed? - Can proceed without you or dismiss the entire case (court has great discretion here) Note: A case can proceed against a necessary party if the party's interest in the litigation can be severed from the case and the court can grant complete relief to all parties without her and without affecting her interest in the subject matter of the litigation

Answer 41

Absentee wants to join pending suit - allowed in the discretion of the court When absentee has an interest in the litigation that would be effected by a judgment - not required to intervene though Intervenor waives any objection to PJ

Answer 42

Defending party is adding a new party who becomes the ***third party defendant for indemnity or contribution*** **_Procedure:_** right to implead within 20 days of serving your answer, after that you need court permission, File a third party complaint naming them as the third party defendant Not required to implead After Third Party D is joined - they can raise defenses that the D could raise against the P, and can assert claims against the plaintiff and the P can assert against TPD as long as same TO of underlying case

Answer 43

Device by which one holding money or other property can force all potential claimants to a single lawsuit (stakeholder forces all potential claimants into a single lawsuit) to avoid multiple litigation and the possibility of inconsistent results highly specialized Process: stakeholder (person with the property) deposits the property in court, the stakeholder recovers costs and attys fees and disappears (leaves the litigation). THEN the claimants (people who want the property) litigate and the court decides who gets the property Interested stakeholder - would deposit, but not disappear and would participate in the litigation to determine ownership

Answer 44

Initial Requirements: 1. Numerosity 2. Commonality 3. Typicality 4. Adequate Representation Fit within one of the three types of classes (same as in federal court) To determine AOC in state court aggregate all class claims **_Special Pleading Requirements:_**must have “class representation” next to the caption and specifically allege that the pre-reqs in step one and two are met, define the class and approx membership **_Notice to the Class:_** court gives individual notice reasonably identifiable. Notice must inform them that they can opt out, that they will be bound if they don't opt out, can enter sep. appearance in the case through counsel (only required in Type 3 in Fed, in FL required in ALL TYPES OF CLASSES)

Answer 45

1. Termination of the Case without Trial 2. Pre-Trial Judicial Management 3. Trial, Judgment, and Post-Trial Motions

Answer 46

1. Voluntary Dismissal

Answer 47

Three methods by which the P can pull the case: 1. ***Voluntary Dismissal by filing a notice of dismissal*** (not available IF: case has been submitted to the trier of fact, or motion for SJ is pending, if property has been seized or is in court custody, or if counterclaim is pending which cannot stand for independent adjudication) 2. ***Voluntary Dismissal By Written Stipulation of Parties*** - limitation not available if property is in court custody 3. ***Voluntary Dismissal By Court Order*** - limitation not available if there is a pending counter claim that cannot stand for independent adjudication First VD is without prejudice and case can be refiled - D may be awarded costs if case is voluntarily dismissed. If refile and VD again, the dismissal is WITH prejudice and P cannot refile Lis pendens is automatically dismissed when the dismissal is filed

Answer 48

Party against whom a case is filed does not plead or otherwise defend the action in the time allowed by law **Default:** entry by clerk or judge, can't get money or relief * Clerk if D has filed nothing at all, if filed anything at all judge must do it * P must make an application for entry of default * D gets notice ONLY if they filed some paper in the case * D can't answer or respond my motion if a default is entered and on the books **Default Judgment: ONLY BY THE JUDGE** D gets notice of a hearing on damages Can't recover more than was pleaded in default judgment and can't recover a different kind of relief than that sought in the complaint

Answer 49

After Default but before Default Judgment, D can motion to set aside. Must show: 1. Good Cause for the default 2. Meritorious Defense 3. Due Diligence after you learned about the default After entry of Judgment can make a motion to set aside the judgment on the same showing

Answer 50

Four basic grounds: 1. **P Fails to Prosecute the Case:** no record action for 10 months and case has not been stayed, a court or party may certify that fact to all parties. If P takes no record activity and no stay within 60 days of that notice can make a motion to dismiss for failure to prosecute - dismissal unless P shows good cause in writing 5 days before the hearing 2. **Fails to Comply with Procedural Rules or Court Order** 3. **Defense Motions for Dismissal Granted** 4. **P Fails to Show in Non Jury Trial that P is Entitled to Relief** Presumed to be with prejudice unless the court says otherwise or dismissal based on jurisdiction, venue, indispensable parties, or failure to prosecute

Answer 51

Order to show cause - will enter a particular order unless that party shows cause not to

Answer 52

Requires someone to show cause as to why some matter of record should not be revived and enforced Generally a judgment is good for 20 years If it hasn't been enforced and it's expired, the writ can revived

Answer 53

on which relief can be granted - tests only the sufficiency of the P's allegations of fact, doesn't look at evidence If the facts alleged are true, does the P win? Court might allow the P a chance to amend to try and state a claim If motion is brought after the D answers - It's a ***motion for judgment on the pleadings***

Answer 54

1. Moving party must show - no genuine dispute on a material fact and 2. Entitled to judgment as a matter of law Weeds out cases where there is no dispute of material fact and therefore no need for trial can look at evidence **_Timing:_** after 20 days from teh commencement of the case, must be served together at least 40 days before the hearing on the motion. Party oposing to serve its evidence 20 ays before the hearing

Answer 55

1. Case Management Conference

Answer 56

Scheduling, discovery, setting trial date, narrowing issues for trial Blueprint for the overall case - tells how spending the next several months moving the litigation along

Answer 57

Amending pleadings limiting expert witnesses, stipulations by parties, prepare and simplify trial - BLUEPRINT FOR THE TRIAL ITSELF Requires 20 days notice by the court Any party may request and court must hold

Answer 58

Either one - can take appropriate action including merits sanctions For the severest sanctions court must find that failure to attend was willful

Answer 59

Controls future events - supersedes the pleadings and becomes the roadmap for trial unless amended to prevent manifest injustice

Answer 60

\*\* note magistrates - adjuncts to the court, circuit court can refer matters to magistrate who files a written report with court setting forth findings of fact and law, parties have 10 days to serve responses to those findings (objections)

Answer 61

Initiation - presiding judge can order or the parties can agree to mediation or arbitration - first conference must take place within 60 days of court order **Mediation:** information and non-adversarial, neutral third party encourages resolution without prescribing an outcome - tries to work things out, complete 45 days of first conference unless extended by parties or court, can be sanctioned for failure to appear unless good cause. Reports back if the case cannot be settled, if settled, put in writing and filed anad case dismissed **Arbitration:** neutral arbitrator or panel of three - listens to evidence and renders a decision, zero-sum someone will win, complete within 30 days of the first hearing * Non-Binding - informal, sends conclusions and findings which become final unless a party request finding de novo * Binding - written agreement setting out procedures, aggreed to by parties, decision by the panel or person is sent to parties and court, can be appealed to circuit court wihtin 30 days otherwise becomes final (violation of constitutional right, misconduct) **Voluntary Tiral Resolution**

Answer 62

**D offer for Judgment** - P has 30 days to accept at which point entered, if P rejects and final J within D favor or P favor within 25% less than offer, P pays costs and atty fees after offer made **P Demand for Judgment -** if D accepts within 30 days enters for that amount. D rejects and P wins 25T% grater than offer, D is liable for atty fees and costs incurred by P after the demand Must state claims with particularity the amount offered to settle a claim for punitives

Answer 63

Discovery wrapped up within 60 days and a one day trial

Answer 64

Requirement for Demand - must demand in writing no later than 10 days after service of the last pleading directed to a jury triable issue Withdraw only if other parties agree 7th Amendment does not apply to FL state courts **_Right to Judy Under FL Constitution:_** works the same as the 7th A - jury decides fact underlying causes of action at law, but not causes of action at equity Generally 6 jurors unless eminent domain case in which case it's 12

Answer 65

Each party gets for cause - unlimited Peremptory - three, plus one for each alternative juror. If the number of Peremptory is not equal between the sides, each side gets the higher number 2Ps and 3D - each side gets 9!

Answer 66

Can be permitted to view premises or evidence in the court's discretion if relevant to a just decision for the case Written unsigned questions to the court or a witness (witness only after testimony is completed) Gives Qs to Bailiff who gives to judge, counsel can object to the Q. If the Q is improper then the Q is not asked and the jury is told to ignore it. If proper Q - the Q is answered by stipulation or additional testimony (court or counsel can ask in courts discretion)

Answer 67

Each juror must get a copy The court can order notebooks Standard Jury instructions and recommendations on when to use - standard instructions and recs must be followed unless judges finds it to be erroneous Must object to an instruction or courts failure to give BEFORE THE JURY IS CHARGED OR ITS WAIVED

Answer 68

Takes the case away from the jury Same as the JMOL in Federal Court, works the same way Move after the other side has been heard at trial Does not waive right to put on evidence and the right to put on does not need to be reserved **Standard:** reasonable people could not disagree on the result viewing evid in light most favorable to non-moving party **Non Jury Case:** Motion for Involuntary Dismissal *for the D*

Answer 69

What the jury says - must be unanimous unless stipulated otherwise Jury must itemize the damages in three categories: 1. Economic Loss 2. Non-Economic Loss 3. Punitives - general cap in FL can't exceed greater than 3x Compensatory or 500,000. No cap if D had specific intent to harm P or under influence of alcohol or drugs

Answer 70

Official entering by the court Court can and verdict can go in excess from the complaint or different type of relief - the complaint is not a complaint Previaling party must file a final disposition form at the time the court files the judgment disposing of the case

Answer 71

Same as RJMOL in Fed Court - post jury verdict returned within 15 days of return of the verdict Same standard as directed verdict - means the verdict was one that reasonable people could not have reached CAN ONLY BRING IF A DV WAS MADE AT THE PROPER TIME AT TRIAL

Answer 72

Something went wrong and the court allows a do over rather than getting reversed on appeal Motion in writing and must be filed and served within 15 days of return of verdict in jury or judgment in non jury Grounds: 1. Prejudicial error at trial 2. New Evidence that could have not have been discovered with due diligence 3. Judgment against weight of evidence showing serious error 4. Prejudicial misconduct of party or juror Should object to any event that could serve as the basis for a new trial when the event happens Motion for New Trial is less drastic - no final order and starting order, same party might still win BDV - takes a victory from one party and enters victory for the other party New Trial based on improper closing with no objection if the argument was so harmful, incurable, unfair that public interest demands a new trial

Answer 73

Attys fees for bad faith conduct even if no statutory authorization Attys fees for atty for bad faith conduct (in the litigation itself) Amount directly related to the costs incured as a result of the bad faith conduct

Answer 74

Motion to Set aside a judgment Can be based on various things: 1. Clerical Errors - can bring any time 2. Mistake, excusable neglect, surprise - reasonable time not exceeding one year (classic with a default judgment) and have to show viable defense 3. Fraud by opposing party - reasonable time not exceeding one year 4. Newly Discovered Evidence no previously available dispute due diligence - reasonable time not exceeding one year 5. Judgment is Void (i.e. no SMJ) - any reasonable time, no real maximum

Answer 75

Clerk may issue doc to the sheriff that he is to levy on the defendant's property to satisfy judgment Execution stayed for 15 days to allow for post verdict motions Stay pending appeal is not automatic - have to file supersedeious bond in amount of judgment +15%

Answer 76

Appeals from County and Circuit generally to the District Court of Appeals and then to the FL Supreme Court File Notice in the Trial court within 30 days of final judgment Can raise issues on which timely objections were raised and preserved at the trial court FL Supreme has discretion to hear from DCOA that construes state statute if conflict of authority or court expressly upheld the validity MUST hear state statute or provision of the staate constitution is declared invlad

Answer 77

On the merits of the entire action After making the order does the trial court have anything left to do on the merits of the case if so not a final judgment 1. Grant or denial of BVD - final 2. Denial of motion for summary judgment - no **_Interlocutory Review:_** appeal before final judgment: 1. Order granting New Trial 2. Orders regarding injunctions 3. Orders determining PJ or Venue 4. Orders about right to immediate possession of property 5. Orders on a distinct and separable claim

Answer 78

Elisor - civilian appointed to serve process Ad Damnum - demand for Damages Pro Se - representing self no lawyer Rule Nisi - order to show cause why the court should not order something Scire Facias - specialized order to revive an expired judgment