FLORIDA CIVIL PROCEDURE Flashcards
FLORIDA CIVIL PROCEDURE: PRE-ANSWER MOTIONS
WHEN A DEF FILES A PRE-ANSWER MOTION, WHICH ONE WOULD NOT LIKELY ALTER THE PERIOD OF TIME FOR FILING OF THE ANSWER?
Generally, the service of a motion by a defendant prior to filing an answer to the plaintiff’s complaint will alter the period of time for filing the answer—the answer must be served within 10 days after the court files its order on the defendant’s motion (Choices A, B, & D). However, a motion made by a defendant to strike immaterial or scandalous matter from a complaint does not alter the 20-day period in which the defendant has to file an answer.
FLORIDA CIVIL PROCEDURE - QUASI-IN REM JURISDICTION
HOW DOES A FLORIDA COURT HAVE AUTHORITY TO ADJUDICATE THE RIGHTS OF A PARTY AGAINST AN OUT OF STATE DEFENDANT?
WHAT ARE THE BASES UPON WHICH PERSONAL JURISDICTION AGAINST AN OUT OF STATE DEFENDANT CAN BE ASSERTED?
Florida court must have authority to adjudicate the rights of the parties (personal jurisdiction) as well as the power to resolve the issues presented by the case (subject matter jurisdiction). The three types of personal jurisdiction are in personam jurisdiction, in rem jurisdiction, and quasi-in-rem jurisdiction. Quasi-in-rem jurisdiction is the power of a court over the defendant’s interest in property that is within the jurisdiction of the court.
Florida courts can assert quasi-in-rem jurisdiction if a defendant owns property, whether real or personal, within the court’s jurisdiction
FLORIDA CIVIL PROCEDURE - FORUM-SELECTION CLAUSES
IS A CONTRACTUALLY AGREED UPON FORUM SELECTION CLAUSE BETWEEN THE PARTIES SUFFICIENT TO CONFER PERSONAL JURISDICTION ON OUT OF STATE DEFENDANTS?
A forum-selection clause is a clause in a contract by which the parties agree to have any disputes relating to the contract resolved in a specified forum. Unlike some jurisdictions, Florida does not treat a forum-selection clause by itself as sufficient to confer personal jurisdiction on Florida courts over the contracting parties.
Parties to a contract may confer personal jurisdiction on Florida courts if the contract
- includes a choice of law provision designating Florida Law as the governing law,
- includes a provision whereby the non-resident agrees to submit to the jurisdiction of the courts of Florida,
- involves consideration of not less than $ 250,000,
- does not violate the United States Constitution, and
- either bears a substantial or reasonable relation to Florida or has at least one party who is a resident of Florida or incorporated under its laws.
FLORIDA CIVIL PROCEDURE - ANSWER TO A PRE ANSWER MOTION ON THE PLEADINGS
WHEN MUST A DEFENDANT GENERALLY SERVE AN ANSWER TO THE ORIGINAL PLEADING WHEN HE HAS FILED A PRE-ANSWER MOTION FOR A MORE DEFINITE STATEMENT?
A defendant generally must serve an answer within 20 days after service of original process of the initial pleading on the defendant or not later than the date fixed in a notice by publication. However, if a defendant files a pre-answer motion for a more definite statement, then the defendant’s answer must be served within 10 days of service of the more definite statement. The plaintiff’s more definite statement must be served within 10 days of the court’s order granting the defendant’s motion.
FLORIDA CIVIL PROCEDURE - PL FAILURE TO PROSECUTE
WHAT HAPPENS TO A PL’S CLAIM IF THE PL FAILS TO APPEAR AT TRIAL DESPITE RECEIVING A NOTICE?
A claim should be dismissed if the plaintiff fails to appear at trial despite receiving notice. But the plaintiff must be served notice of an application of default before a default judgment is granted.
FLORIDA CIVIL PROCEDURE - INSUFFICIENT SERVICE OF PROCESS DEFENSE
WHEN MUST A PARTY RAISE THE DEFENSE OF INSUFFICIENT SERVICE OF PROCESS?
A party who makes a pre-reply motion under Fla. R. Civ. P. 1.140 may join with it the other motions then available to that party. The party waives any defenses that are available to the party at the time of the motion that are not raised, including the insufficient service of process defense.
If a party makes a pre-reply motion, the party waives any defenses available to the party at the time of the motion that are not raised, including the insufficient service of process defense.
FLORIDA CIVIL PROCEDURE - SUPREME CT AND ADVISORY OPINIONS
WHEN CAN THE FLORIDA SUPREME COURT ISSUE ADVISORY OPINIONS?
When requested by the attorney general, the Florida supreme court is required to render an advisory opinion of the justices.
FLORIDA CIVIL PROCEDURE - DEPOSITIONS AT TRIAL AS SUBSTANTIVE EVIDENCE
CAN AN OPPOSING PARTY’S DEPOSITION BE INTRODUCED AT TRIAL AS SUBSTANTIVE EVIDENCE ?
Depositions can sometimes be introduced at trial as substantive evidence as well as impeachment evidence—such as when the deponent is an opposing party (Choice B). However, if only part of the the opposing party’s deposition is offered into evidence, then the opposing party may require the offering party to introduce any other part of the deposition that in fairness ought to be entered.
FLORIDA CIVIL PROCEDURE - JUDGE DISQUALIFICATION
MUST A JUDGE BE DISQUALIFIED IF HE IS RELATED TO ONE OF THE ATTORNEYS IN THE CASE? IS IT MANDATORY?
A judge can be disqualified from presiding over a case for several reasons, including when the judge is related to one of the attorneys in the case by a third degree of consanguinity or affinity (such as here). However, the parties may waive the disqualification by stipulation and allow the judge to hear the case despite the relationship (Choice A).
FLORIDA CIVIL PROCEDURE - VOLUNTARY DISMISSAL OF AN ACTION
WHEN CAN A PARTY SEEKING AFFIRMATIVE RELIEF DISMISS THE ACTION? ARE THERE LIMITS/EXCEPTIONS?
A party seeking affirmative relief may voluntarily dismiss the action once as of right. However, a case cannot be voluntarily dismissed when property has been seized or is in court custody.
FLORIDA CIVIL PROCEDURE - SERVICE OF PROCESS AND WHERE/WITH WHOM
Is service of process on the D effective by leaving it with a family member at their vacation renta home?
In Florida, a plaintiff can serve process in two ways:
- Delivering a copy of the process and complaint to the defendant or
- Leaving copies at the defendant’s usual place of abode with any person who resides there and is at least 15 years old (Choice A).
The vacation rental home is not the usual place of abode.
Would be okay if the actual defendant to the suit had been personally served there.
FLORIDA CIVIL PROCEDURE - REQUEST FOR ADMISSION
WHAT HAPPENS IF A PARTY FAILS TO RESPOND TO A REQUEST FOR ADMISSION?
A request for admission allows one party to ask another party to admit the truth about matters within the scope of discovery. If the responding party fails to timely respond to a request for admission, then the responding party is automatically deemed to have admitted the matter. However, courts have discretion to allow a party to overcome the deemed admission by demonstrating that the failure was a result of excusable neglect.
FLORIDA CIVIL PROCEDURE - MOTION FOR A DIRECTED VERDICT
EXPLAIN WHAT A MOTION FOR A DIRECTED VERDICT DOES.
At the conclusion of the plaintiff’s case in chief, the defendant may file a motion for a directed verdict (Choice A). A motion for directed verdict argues that, given all of the evidence presented by the plaintiff, no reasonable jury could issue a verdict in the plaintiff’s favor. Additionally, filing a motion for directed verdict allows the filing party to file a motion to set aside the verdict within 15 days of the return of the verdict
