Florida Civil Procedure

Question 1

A Counter-Claim or Cross-Claim must be raised, if at all, in the _____________.

Answer 1

ANSWER

Question 2

There are three alternative “responses” to a REQUEST FOR ADMISSION. These are

(i) an _________ to the request,
(ii) a ________ Response to the request (whether an admission, denial, qualified admission or denial, or statement of the responding party’s inability to admit or deny), or
(iii) no ________ at all.

Note: Failure to timely respond to a request for admission constitutes an __________.

Answer 2

i. Objection
ii. Written
iii. Response

Constitutes an ADMISSION!

Question 3

A plaintiff in a breach of contract case sent the same set of interrogatories to each of two joint defendants, who are represented by separate counsel. Defendant A answered the interrogatories with a confession of guilt, while Defendant B did not answer the interrogatories at all.

Is Defendant A’s confession binding on Defendant B?

Yes, because answers made by a party are binding on a co-party.

Yes, because Defendant B did not answer the interrogatories.

No, because Defendant A’s answers would not bind Defendant B.

No, because the parties are not jointly represented.

Answer 3

No, because Defendant A’s answers would not bind Defendant B.

INTERROGATORIES are NOT THE SAME as REQUESTS FOR ADMISSION

Answers made by a party are not binding on a coparty. Whether Defendant B answered the interrogatories or not is irrelevant. And unlike requests for admission that go unanswered, failure to answer an interrogatory DOES NOT constitution an admission.

Question 4

T/F: The FILING of a complaint stops the running of a statute of limitations,

Answer 4

TRUE

Question 5

T/F: The time limit for service of process in Florida is measured from the filing of a summons and complaint with the clerk of the court in the county in which the case is brought. Usually, Service of Process must be made within ______ Days of the filing.

Answer 5

120

Question 6

Mary sues a toy manufacturer based on products liability. The manufacturer learns that Mary and her attorney have retained an expert. The manufacturer seeks to get as much information as possible about the expert and his opinions, and would like to depose the expert. Through interrogatories, the manufacturer learns that Mary does not intend to call the expert as a witness at trial.

What is the best advice to the manufacturer?

The manufacturer may not obtain discovery about the witness absent a showing of exceptional circumstances.

The manufacturer may inquire about the expert’s experience and qualifications, but may not depose the expert.

The manufacturer may inquire about the expert’s experience and qualifications, and may also depose the witness, but must pay the expert a reasonable fee for his time.

The manufacturer may inquire about the expert’s experience and qualifications, and may also depose the witness at Mary’s expense.

Answer 6

The manufacturer may not obtain discovery about the witness absent a showing of exceptional circumstances.

To obtain discovery about an expert who is not a prospective witness, there must be a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means

Question 7

T/F: In Florida, attorneys’ work product consisting of OPINIONS relating to the PREPARATION or PRESENTATION of a case is not subject to discovery under any circumstance.

Answer 7

TRUE

Question 8

Which of the following judicial records would be viewable by the public?

Drafts of opinions and orders not filed as part of the court record.

Complaints against judges alleging misconduct, after probable cause has been established.

Evaluations to assist judges in their performance.

Memoranda that relate to court administration regarding facilitation of a criminal investigation.

Answer 8

Complaints against judges alleging misconduct, after probable cause has been established.

While complaints against judges alleging misconduct are generally not available for public viewing, they are viewable once probable cause has been established. Generally, the public is entitled to access to all judicial records.

Question 9

T/F: District courts of appeal must review, by appeal, non-final orders that concern venue.

Answer 9

TRUE

Question 10

T/F: Punitive Damages must be capped at 3x the award of compensatory damages.

Answer 10

FALSE

There is no limit on an award of punitive damages if the fact-finder determines that the defendant had a specific intent to harm the claimant and that the defendant’s conduct actually did harm the claimant.

Question 11

Parties

A PROPER party “_______” be joined.

A NECESSARY party “__________” be joined.

An INDISPENSABLE party “___________” be joined.

Answer 11

MAY

-rights of party can still be adjudicated in a separate action.

SHOULD

-has a material interest in the case BUT absence of this party won’t dismiss the case.

MUST

-absence of party would prevent a complete resolution of the controversy; case should be dismissed if not joined.

Question 12

Joinder

Permissive Joinder

“Any person MAY at any time be made a party if that persons presence is ____________ or ___________ to a complete determination of the cause.”

Answer 12

NECESSARY

PROPER

Question 13

Joinder

Mandatory Joinder

• Any existing party may FORCE the inclusion of a NECESSARY party by filing a motion to add that party.
• an ____________ party MUST be included in the litigation.

If a dismissal occurs for failure to join an ____________ party, the dismissal MUST be WITHOUT prejudice.

Answer 13

INDISPENSABLE

INDISPENSABLE

Question 14

Define: Interpleader

Answer 14

“A person who is liable to only one of two or more persons having conflicting claims can force the presence of all those persons before the court by demanding the Interpleader of any person who has not yet been made a party to the litigation.”

Additional defendants joined when plaintiff may be exposed to multiple liability.

And vice versa, additional parties joined when defendant may be exposed to double or multiple liability.

Question 15

Define: Impleader

Answer 15

After action commenced, defendant may serve summons and complaint on person not a party to the action who is or may be liable to the DEFENDANT (not plaintiff) for ALL or PART of the plaintiffs claim against the defendant; he may also assert ANY other claim that arises out of the SAME TRANSACTION or OCCURRENCE that is the subject matter of the plaintiffs claim.

Question 16

Discovery

Work Product- Trial Preparation Materials

What work product is admissible for discovery?

Answer 16

For trial STRATEGY and PREPARATION purposes only: protected work product.

For material REASONABLY expected or INTENDED to be disclosed at trial/to the jury: NOT protected work product- can be discovered.

Question 17

Discovery- Experts

Step 1: Will expert testimony be used at trial?

Step 2:

Yes, Expert disclosed as prospective witness: opposing party can take experts ____________. Opposing party must _______ the expert for his time.

No, Expert will not be a witness: party must show “______________ _____________” which would prevent party from gaining the facts by other means.

Answer 17

Step 2

DEPOSITION

FEE

“Exceptional circumstances”

Question 18

Discovery

Depositions

A. Types: 1. By _______ examination, 2. By _____________ questions, 3. Depositions of ____________ witnesses.

B. Oral Depositions- notice

1. Notice to party requires only __________.
2. Notice to nonparty witnesses requires a __________.

Note- production of tangible items (only notice).

Answer 18

A:

1. Oral
2. Written
3. Expert

B:

1. Notice
2. Subpoena

Question 19

Discovery- use of interrogatories

T/F: answers made by a party are NOT binding on a co-party.

Answer 19

TRUE

Question 20

Subject Matter Jurisdiction:

Jurisdictional Amount in Controversy (AIC)

CIRCUIT Courts- amount must EXCEED $__________

COUNTY Courts- amount must be $___________ or LESS.

Answer 20

CIRCUIT: $15,000

COUNTY: $15,000

Question 21

Subject Matter Jurisdiction:

The Plaintiff can ADD TOGETHER their claims to go above $15,000 but ONLY IF they arise out of the same _____________ or ____________ .

Answer 21

TRANSACTION

OCCURRENCE

Question 22

Subject Matter Jurisdiction:

The COUNTY and CIRCUIT courts have ___________ Jurisdiction over:

1. _______-_______ cases in which the AIC is $15,000 or LESS.
2. Actions seeking to possess _______ _________ when valued at $15,000 or LESS.
3. Any disputes involving _________ ________, regardless of the amount.

Answer 22

CONCURRENT

1. LANDLORD-TENANT
2. REAL PROPERTY
3. HOMEOWNERS ASSOCIATIONS

Question 23

Personal Jurisdiction:

1. Any person who __________ .
   
   • in a contract
   • the litigation ITSELF: agreement to be sued, failure to object to jurisdiction.
2. A Corporation __________ in Florida
3. Non-Florida Corp. with a ______ of ________ in
   Florida.

Answer 23

citizens of the state- automatic PJ over them.

1. CONSENTS
2. INCORPORATED
3. PLACE of BUSINESS

Question 24

Personal Jurisdiction: Non-Residents of Florida

Florida Long-Arm Statute

- \_\_\_\_\_\_\_\_ or conducting a business venture in the state;
- Committing a \_\_\_\_\_\_\_\_\_ Act in the state of Fl.
- Owning, Possessing, or using real \_\_\_\_\_ in Fl.
- Contracting to \_\_\_\_\_\_\_\_a person, property, or risk in   Florida.
 - In an action for ALIMONY, SUPPORT, or the DISTRIBUTION of PROPERTY, the long-arm statute is satisfied if the person maintains a \_\_\_\_\_\_\_\_\_\_ in Florida at the time the action is FILED or if he resided in Florida before the action was filed. 
 - Causing an injury to a person in Florida by an \_\_\_\_ or \_\_\_\_\_\_\_ outside the state, so long as at the time of the injury, the nonresident defendant was involved in the \_\_\_\_\_\_\_\_\_\_\_ or distribution of products in Florida.  
 - Breaching a contract 
 - Paternity matters
 - K which says FL law will govern.

Answer 24

OPERATING

TORTIOUS

PROPERTY

INSURE

RESIDENCE

ACT

OMISSION

SOLICITATION

Remember to Note: 14th AM DP Clause may prevent jurisdiction if not “fair”

Question 25

Service of Process:

Can service of process be waived in Florida?

Answer 25

YES

• Plaintiff sends certified letter which includes COMPLAINT and WAIVER form.
• Defendant gets 20 DAYS (30 if outside USA) to decide whether he will waive.
• “Carrot” this means he will have a total of 60 DAYS in which to respond to the complaint if he decides to waive service.
• “Stick” If Defendant elects formal service he must pay costs of service (unless for good cause).

Question 26

Service of Process:

-Plaintiff must file the complaint with the ______ (this commences suit)

FILING——120 days(or good cause)——> SERVICE

Answer 26

COURT

NOTE: Federal Rules- time is 90 days//Florida is 120.

Question 27

Service of Process:

Who can serve process?

Answer 27

SHERIFF, OR

ANY PERSON

• RESIDENT OF FLORIDA
• 18 OR OVER
• COMPETENT
• UNINTERESTED

Question 28

Service of Process:

How can Service be made in Florida?

3 Types:

PSC

Answer 28

PERSONAL SERVICE

SUBSTITUTED SERVICE

CONSTRUCTIVE SERVICE

Question 29

Service of Process:

1. Personal Service

• Delivery can be _________ .
• Employer MUST allow access to ________ areas of business to make service.

Answer 29

ANYWHERE

PRIVATE

Question 30

Service of Process:

Specific Parties-

1. Minors: Service made on _______ or _________ .
2. Sole Proprietor:
   
   • a _______ person so one could serve just like personal service.
   • can also serve at the __________ .
   • if tried at the business _________ may serve by substituted service which is the “person in charge of the __________ at the time.”
3. Partnerships:
   
   • serve ANY ________ or anyone designated to _________ service. IF, after _________ attempt can serve “person in charge of partnership at the time.”

Cont…..

Answer 30

1. PARENT GUARDIAN
2. NATURAL

BUSINESS

TWICE

BUSINESS

3. PARTNER ACCEPT

ONE

Question 31

Service of Process:

Specific Parties Cont.

4. Corporations
   - can be served by personal service to the PRESIDENT, VICE-PRESIDENT, OR OTHER “HEAD” OF THE CORP.
   - If not possible, you can serve the corps _________ , ___________ , __________ or general manager.
   - next, can serve the ___________ .
   - next, business agent or officer of the corp residing in Fl.
5. Public Agencies: can serve the _________ of the agency.
6. Must serve either the state attorney in the circuit in which the action is _________ AND send two copies of the process by registered/certified mail to the __________ __________ .

Answer 31

CASHIER, TREASURER, SECRETARY, or GENERAL MANAGER.

DIRECTOR

5. HEAD
6. FILED

ATTORNEY GENERAL

Question 32

Service of Process:

Substituted Service on Non-Residents

By law, these people are:

Owners or Operators of ________ in the state
Owners or Operators of ________ in the state
Owners or Operators of ________ in the state
Persons Operating, conducting, or engaging in a business or _________ venture in the state.

Answer 32

CARS

WATERCRAFT

AIRCRAFT

BUSINESS

Question 33

Service of Process:

Service by Publication (Constructive Service)

• Not likely to provide _________ notice but still an option.
• CANNOT be used if ________ or _______ service is available.
• Required to submit a SWORN _________ laying out why this service required.
• May only be made in certain cases: ownership or division of property, family law related matters.

Answer 33

EFFECTIVE

PERSONAL SUBSTITUTED

STATEMENT

Question 34

Service of Process:

• Service of documents under Florida law is preemptively done by _______ .
• Treated as service by mail so the time period if service of documents by email is always +____ DAYS

Answer 34

EMAIL

5

Question 35

Venue

Local vs. Transitory Actions

Define: Local

Define: Transitory

Whats the exception?

Answer 35

Local Actions- action against property having a FIXED location.
**Venue lies in the county in which the PROPERTY is located.

Transitory Actions-not a local action (most actions are transitory)

venue lies in the county in which property is located

RULE:

1. The county in which the DEFENDANT RESIDES; or
2. The county in which the cause of action ACCRUES.

EXCEPTION: If the action involves a PROMISSORY NOTE action may ONLY BE BROUGHT in the COUNTY in which the note was SIGNED by the maker.

Question 36

Venue

6. Objections to Venue
7. Change of Venue
8. Forum Non Convienes

Answer 36

6. Plaintiff makes the choice of initial venue. If Defendant does not object in a timely manner, any objection to venue will be waived.
7. Motion to change venue must be made WITHIN 10 DAYS of SERVICE. Motion based on fairness/convenience of the parties (where the evidence/witnesses are).
8. Venue is appropriate under the rules but the “better place” is outside the state of Florida.
   - the action in Florida is dismissed in favor of the “better place”
   - Trial courts have WIDE discretion for motions re: forum non-convenines.
   - balancing test re: adequate other forum/private interests/public interests/ dismissing case does not cause undue burden to plaintiff.

Question 37

Venue

Name the venue:

4. Corporation as Defendant
5. Venue in Actions against the State (or State Agency)
6. Objections to Venue

Answer 37

4. Venue is appropriate in the COUNTY in which the Cause of Action accrued; AND
   - in the county in which a FLORIDA CORPORATION has an office for the transaction of its business.

Non-Florida Corporation:

• Venue appropriate where the cause of Action accrues; AND
• in the county in which the Corp. has an AGENT or other representative.

Question 38

Venue

Name the venue:

4. Corporation as Defendant

Answer 38

4. Venue is appropriate in the COUNTY in which the Cause of Action accrued; AND
   - in the county in which a FLORIDA CORPORATION has an office for the transaction of its business.

Non-Florida Corporation:

• Venue appropriate where the cause of Action accrues; AND
• in the county in which the Corp. has an AGENT or other representative.

Question 39

Venue

Name the venue:

5. Venue in Actions against the State (or State Agency)

Answer 39

5. Venue appropriate in the county where the principle HEADQUARTERS maintained.

Exceptions

• statute can change the general rule.
• Suit concerning violation of constitutional rights: venue appropriate in county where violation occured.

Question 40

Florida Pleadings

What type of information is in a COMPLAINT?

1. Short, plain statement showing court has ________.
2. Short, plain statement of the ultimate ________ showing the pleader is entitled to relief.
3. A _________ for the relief being sought.

Answer 40

1. GROUNDS
2. FACTS
3. DEMAND

Question 41

Florida Pleadings

What type of information is in an ANSWER?

1. Defendant MAY/MUST respond to each factual allegation in complaint.
2. Three Responses: ADMIT, DENY,_____ __ _______
3. _________ Defenses must be plead or they are _________ .

Answer 41

1. MUST
2. LACK OF KNOWLEDGE (this is treated as a DENIAL).
   - If defendant fails to answer it is deemed ADMITTED.
3. AFFIRMATIVE WAIVED

Question 42

Florida Pleadings

Time for Filing an answer

1. Formal Service
2. Waiver of Service
3. Answers to Counter-Claims and Cross Claims

Answer 42

Formal Service——20 DAYS———-> Answer

Waiver of Service——-60 DAYS——>Answer

Answers to Counter-Claims and Cross Claims———————-> 20 Days——–>Answer

Question 43

Florida Pleadings

Calculating Time

1. The day of the act at issue DOES/DOES NOT count in terms of calculating time.
2. The last day of the period IS/IS NOT Counted.
3. Between the start and end of the period, weekends and legal holidays ARE/ARE NOT COUNTED.
4. IF the last day of the period is a weekday or legal holiday, the period IS/IS NOT extended to the next business day.
5. Service is timely if it takes place before _________ on the day it is due.

Answer 43

1. DOES NOT
2. IS
3. ARE
4. IS
5. MIDNIGHT

Question 44

Florida Pleadings

AMENDING

1. A party may amend a pleading _______ as of right at ANY TIME before the RESPONSIVE PLEADING has been filed.
   - if the pleading you want to amend is one for which no responsive pleading is required:
2. A party may amend _________ as of right within ____ DAYS of its service, so long as the case has not been placed on the trial docket.

Answer 44

1. ONCE

2. ONCE 20

Question 45

Florida Pleadings

1. Allegations of _______ or ________ must be plead with PARTICULARITY.
2. SPECIAL ________ must be plead with SPECIFICITY.

Answer 45

1. FRAUD MISTAKE

2. DAMAGES