Florida Civil Procedure Flashcards
1
Q
What are the 5 major topics in Civil Procedure?
A
- Right court?
- Learning about the case
- Complex cases
- Adjudication
- Appellate Review
2
Q
Personal jurisdiction is power over the _____.
A
parties
3
Q
Whether there is PJ is a 2 step processs. You must satisfy a _____ and the _____.
A
- Satisfy a statute
2. satisfy the constitution
4
Q
What are the Florida statutory bases of in personam jurisdiction?
A
- Presence: D is present in Florida when served with process.
- D is domicied in Florida.
- D is incorporated in Florida
- Substantial, non-isolated activity in FL
- Long -arm statute
- Nonresident Motorist Act (NMA)
5
Q
D is a Georgia resident served with process in a Florida lawsuit while in Tallahassee to attend a poetry reading. Personal Jx?
A
Yes because D was present in FL When served.
6
Q
Does presence as a method of gaining personal jurisdiciton lead to general or specific jx?
A
General
7
Q
What is general jurisdiction?
A
D can be sued in Florida on a claim arising anywhere in the world.
(specifc = suit arises from the D’s contacts with the forum)
8
Q
What is specific jurisdiction?
A
Where the suit arises from the D’s contacts with the forum.
9
Q
If D was coaxed or forced into the state and then served with process - PJ?
A
No, Florida courts will not exercise PJ in this circumstance.
10
Q
D is served with process whie in FL to attend as party or witness in an unrelated lawsuit. OK for PJ?
A
No - immune from service in this circumstance.
11
Q
D is a Florida domiciliary and the suit (in Florida) involves a claim for damages sufferd by plaintiff in an auto accident in Iceland. PJ?
A
Yes - domicile gives general jurisdiction.
12
Q
Dunder Mifflin Co., a Pennsylvania corporation, has an office in FL and engages in substantial interstate and intrastate business here. It is sued in FL on a claim that arose in Iceland. PJ?
A
Yes. Substantial and not isolated activity in FL gives general PJ.
13
Q
T/F: Substantial and not isolated activity in FL gives general PJ for corporations and natural persons?
A
True.
14
Q
What are the four ways to get general personal jurisdiction in Florida?
A
- D is present in FL when served with process.
- D is domiciled in FL.
- D is incorporated in FL
- D has substantial and not isolated activity in florida
15
Q
What are the two ways to get specific jx. in FL?
A
- through long-arm statutes
2. through nonresident motorist act
16
Q
When suing a nonresident of Florida and using a long arm statute, the claim arising from the D doing one of the following things in FL:
A
- operating a business in FL (or having an office in FL
- owning, using, or possessing land or holding a mortgage or lien on FL land
- committing a tortious act in FL
- commit tort outside FL causing injury in FL if extra behavior test is met
- breaching contract in FL (failing to do what the k req’d him to do in FL
17
Q
D, a NV citizen, slugs P, a california citizen, while in the airport in Tampa. Can P sue D in Florida?
A
Yes because D committed a tortious act in FL.
18
Q
Can a nonresident commit a tortious act in FL by sending telephonic, electronic, or written communications into the state.
A
Yup, but it is imperative that the tort cause of action arise from the communications.
19
Q
If a nonresident commits a tortious act outside Florida that causes an injury Florida. PJ is ok if:
A
- D engaged in solicitation or service activities in FL OR
2. Its products are used in FL in the ordinary course of commerce.
20
Q
Chad (GA) contracts with Anita to squeeze oranges for Anita in Florida. Chad refuses to squeeze. Can Anity sue Chad in FL? Why?
A
Yes because he breached the contract in FL by failing to do wthat the K required him to do in FL.
21
Q
What is the nonresident motorist act?
A
Allows to sue a nonresident who owns or operates a motor vehicle, watercraft or aircraft (including one who navigates or maintains an aircraft) involved in an accident or collision in FL.
Grants specific jurisdiction.
22
Q
What is the constitutional test for personal jx?
A
Does the D have such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.
Minimum contacts: purposeful availment forseeability Fair Play & substantial justice: relatedness of c/a and forum convenience state's interest
23
Q
What are the factors to be evaluated when determining PJ under the constitutional test?
A
Minimum contacts:
purposeful availment (reach out to forum)
forseeability (to be sued in this forum)
Fair Play & substantial justice:
relatedness of c/a and forum
convenience
state’s interest
24
Q
Must you always show relatedness in constitutional analysis of personal jurisdiction?
A
No, contact and relatedness work together. If D has a small amount of contact with the forum, then relatedness becomes really important and the claim must arise from D’s contact with the forum. If the contact with Florida is continuous and systematic, so that D is essentially at home in FL, then the Ct has general jurisdiction and D can be sued here for a claim that arose anywhere in the world.
25
In evaluating convenice in re to personal jurisdiction ask _______.
whether the forum puts D at a severe disadvantage in defending the suit. If not, then ok. Very hard to show.
26
What is in rem and quasi in rem jurisdiction?
Court exercises power over the person's PROPERTY in Florida, not the person. Attachment statute allows the court to seize property. The constitutional test is the same as in in personam, so D must have contacts with the forum, etc. that satisfy International Shoe.
27
Subject matter jurisdiction is power over the ____.
case
28
FL is divided geographically into 20 circuits. They have exclusive state court SMJ over what types of cases?
1. probate and estate matters, guardianship, incompetence
2. cases involving juveniles (except traffic offenses)
3. cases involving title or boundaries to realty
4. ejectment cases **EXCEPT landlords evicting tenants.
5. equity suits exceeding $15,000 (not equal to)
6. actions at law exceeding $15,000
29
What types of civil cases go to county court?
1. actions at law not exceeding $15,000 unless otherwise vested exclusively in Circuit Court. EXCLUSIVE.
2. equity cases not exceeding $15,000 (NOT EXCLUSIVE)
3. disputes in homeowners' associations
4. landlords evicting tenants. If teh eviction case involves $15,000 or less it MUST go to county court. If more than $15,000, it can go to either county or circuit court.
30
What types of cases does county court have exclusive jx over?
1. actions at law not exceeding $15,000 unless otherwise vested exclusively in circuit court
2. landlors evicting tenants if involves less than $15,000 (can go if more than $15,000).
31
What is the only situation in which a county court might hear a dispute over greater than $15,000?
If a case involves more than $15,000 and is a landlord evicting a tenant, it can go to either circuit or county court.
32
When calculating the amount at stake for purposes of SMJ, does the amount in controversy include costs or interest on the claim?
No.
33
County or Circuit court for SMJ?
P sues D for specific performance of a contract (value of claim is $15,000)
Equity not exceeding $15,000 --> can go to either county or circuit, county has non-exclusive jx.
34
County or Circuit court for SMJ?
P sues D for specific performance of a contract (value of claim is $20,000)
Circuit only. Circuit has exclusive jx of equity cases exceeding $15,000.
35
County or Circuit court for SMJ?
Probate case involving $12,000?
Circuit only always b/c probate
36
County or Circuit court for SMJ?
Landlord wrongfully changes teh lock on an apartment, so Tenant sues to eject landlord and regain apartment.
circuit only - ejectment case and doesn't meet the landlord suing tenant excpetion
37
P sues D for $10,000 damages in contract and $6000 damages from a completely unrelated tort; he brings suit in Circuit court. OK?
No - can aggregate claims only if they arise from the same transaction or occurrence.
38
What does the Circuit court do if a case is wrongfully filed there and should be in county court?
Transfer the case to county court if the P pays transfer costs within 30 days. Transfer costs are charged by teh clerk of the court to which a case is transferred. If P doesn't pay them within 30 days, case is dismissed without prejudice.
39
What happens if P wrongfully files in circuit court and P does not pay the transfer costs?
case is dismissed without prejudice
40
P sues D for $10,000 damages in contract and $6000 damages from a tort arising from the same transaction or occurrence; he brings suit in Circuit court. OK?
Yes action at law exceeding $15,000. Can aggregate since same T/O
41
P sues D for damages of $17,000 for one claim and joins an unrelated claim for $3000. Ok in circuit court?
Yes - once one claim satisfies circuit court jx., the P can join claims that do not meet circuit court jx even if unrelated.
42
County or Circuit court for SMJ?
| F sues to evict his tenant Ricky and the amount in controversy is $6,000.
County only - landlord evicting tenant and doesn't exceed $15000
43
F sues to evict his tenant Ricky and the amount in controversy is $6,000. Ricky counterclaims for $20,000. What to do?
counterclaim is in the exclusive jx of the circuit court. Entire case is transferred to circuit court if Ricky pays the transfer costss. If not, cut his counterclaim to $15,000.
44
What is the basic idea behind venue?
Whether in circuit or county court, what county do we sue in?
45
Local actions must be brought in the county _________.
where the land lies
ejectment, forclosure on mortgage of land
trespass to land
quiet title to land
partition of land
forcible entry and unlawful detainer or land
46
Any case that is not local is ______.
transitory
47
For transitory actions venue is ok in:
1. county where defedant resides when complaint filed or
2. county where cause of action accrued (tort = where injury occurred; contract = where performance was due)
3. county where property in litigation is located
48
P sues D-1 who resides in county A and D-2 who resides in County B. We want to lay venue where teh defendant resides. Where to go?
either county A or county B. Can sue where any defendant resides.
49
P sues a nonresident and serves process on her in Florida. What are the venue choices?
1. county where D served with process
2. county where cause of action accrued
3. county where propertly in litigaiton is located
50
P sues a nonresident who is served outside FL. Where is venue ok in FL?
in any county
51
Where is venue appropriate if one defendant is a resident of FL and one is non-resident?
Must be proper for the resident defendant
52
In a contract to improve realty in FL, a provision requiring that a suit against a FL contractor, subcontractor, or materialman be brought out of state is ____.
void
53
A suit on a retail instllment sales contract can be brought (1) in the county where the contract signed (2) county where buyer resided either at purchase or when suit files; or (3) county where product affixed to land. Can the parties stipulate to a different venue?
Nope.
54
A FL corporation resides in any county in which it has, or usually keeps, _________.
an office for the transaction of its customary business
55
If venue was originally improper, the court will transfer to a proper venue if ______ pays transfer costs within ____ days. If she does not, case will be __________.
If more than one county is available for the transfer, ________.
Plaintiff
30 days
dismissed without prejudice
the plaintiff chooses one
56
If venue was originally ok, but a motion was made to change venue, ok to transfer for either of 2 reasons:
1. party won't receive fair trial where case was originally filed.
2. convenience of parties or witnesses, or interest of justice
57
What are the factors relevant to determining whether a party won't receive a fair trial where the case was originally filed?
1. opponent has undue influence in the county
2. moving party is so odious he cannot get a fair jury
3. it is impracticable to get a qualifed jury (pretrial publicity)
*Motion must be based on the reason - these are only factors and not the basis for transfer.
**For factors 1 and 2, must file a verified petition supported by affidavits of two reputable citizens unrelated to the moving party or her lawyer.
58
If original venue is proper, the party making the transfer venue motion must pay the transfer costs within _____ days of the transfer order.
30
59
How are forum non conveniens and venue different?
Forum conveniens results in a dismissal, improper venue results in a transfer.
60
What is forum non conveniens?
A court may dismiss (not transfer like venue) because another court is proper and is far more convenient. That other court is one to which transfer is not possible because it is in a different judicial system, e.g., another state or a foreign country.
61
Courts look to a series of _____ factors (e.g. what law will apply) and _____ factors (e.g. convenience for witnesses and parties) to determine whether dismissal under forum non conveniens is appropriate.
public & private
* one party being a FL resident is relevant but non-determinative factor
62
When must a motion be made for forum non conveniens?
Within 60 days after service of process.
63
Is it OK to dismiss under FNC even if the entire dispute cannot be litigated in a single alternative forum?
Yes.
64
What two documents make up process?
1. summons
| 2. copy of the complaint
65
Process may be served by the sheriff or his appointee or by any person who is (1) ______ and (2) _______.
1. a non-interested adult (non-party) and
| 2. appointed by the court
66
Person making service notes the ____ and _____ of service, her ID number, and initials the process. She should then file a signed ________, which is prima facie evidence that service was made. If made by a civilian, proof of service is made by _____. If by office, it does not need to be by _______.
date and time
proof of service
affidavit
affidavit
67
Does failure to file proof of service affect the validity of service?
Nope.
68
Plaintiff himself serves D and then failes to file proof of service. Service is invalid for what 2 reasons?
1. server is a party and not a non-interested adult
2. he's not appointed by the court
NOT because he failed to file proof of service
69
What do we call someone appointed by teh court to serve process?
elisor
70
Personal service is valid _______.
wherever the D is found in FL.
Andy the sheriff serves process on Otis in a bar in Ocala. OK.
71
What are 4 (common) types of service?
1. personal service
2. substituted service
3. corporate service
4. nail and mail
72
Substituted service is ok if:
1. D's usual plae of abode (actually living there at the time of service),
2. process is left with one who is at least age 15 and who resides there and
3. server tells that person teh contents of the docs
73
Server knocks on the door of D's house. An unidentified voice from inside yells to "go away!" Server leaves process at the door. Good service?
No. Substituted service fails because:
1. not left with proper person
2. didn't state the contents
74
What is the spouse rule for substituted service?
You can serve D's spouse if the case is not between those spouses, the spouse requests the service, and the spouse and D reside together.
75
T/F: Process can be delivered to D's agent for service of process?
True
76
What is nail and mail?
A method of service. Landlord sues tenant to dispossess him of premises. May have process posted conspiculously on the premises and have the clerk mail process (first class) to tenant at those premises if:
failed twice at least 6 hours apart to effect personal or substituted service
* Only for landlord -tenant dispossessory actions
77
Landlord sues tenant to dispossess him of premises. May have process posted conspiculously on the premises and have the clerk mail process (first class) to tenant at those premises if:
failed twice at least 6 hours apart to effect personal or substituted service
78
What are the two basic choices for effecting service on a corporation?
1. Officer or Director (descending order rule). Can only descend the list if no one in a higher rank can be found.
1. President, VP, or other head of the corp
2. cashier, treasurer, secretary or general manager
3. any director
4. any officer or business agent residing in FL
2. Resident Agent
79
If no resident agent was designated by a corporation who can you serve?
Directors, etc. but you may serve any EE at the company's principal place of business.
80
How do you serve out of state?
Long arm statute: Serve out of state in any method allowed by FL law, with the service made in the other state by any officer authorized to serve process there.
81
How to serve under nonresident motorist act?
serve FL Secy of state and have D served personally out of state by a proper officer or by registered or certified mail, return receipt requested.
82
when is publication service ok?
only by statute in cases involving realty, construction of a will or other written instrument, for dissolution of marriage or adoption. P must give sworn statement that D cannot be found in FL after diligent search and inquiry.
83
Service on minors & incompetents rules:
1. if has legal guardian, serve guardian as you would any other adult
2. if no legal guardian, serve parent and ask the court to appoint a lguardian ad litem
3. if incompetent has no legal guardian, serve 2 copies on the person having custody and ask court to appoint guardian ad litem
84
Waiver of formal service rules:
P can mail process and a waiver form to D by certified mail. W/in 20 days of receipt, D can return the waiver form by 1st class mail; if D does so, she waives formal service but NOT objections to PJ or venue. If D does not return the waiver form, P can effectuate formal service of process and the court can require D to pay the costs of such service. D has 60 days from receipt of the waiver form in which to respond to complaint.
85
P files suit against D one day before teh statute of limitations expires. Service is effected by teh sherriff a week later. Is P time barred?
No. Filing the complaint tolls the statute of limitations BIT P must have D served within 120 days of filing. If not, court can order a different time or can dismiss without prejudice unless P shows good cause for delay in serving. If P does show, then court will extend time for service to an appropriate period.
86
T/F: You cannot serve process on a Sunday unless plaintiff gives an affidavit that she has reason to believe D will leave the state under protection of Sunday.
True
87
After process has been served, subsequent documents can be served by _____. If no ____, then by mail or personally delivered.
email
88
The time in which to respond to any document is increased by ____ days if service is made by ____ or ______.
5 days
mail
email
89
All pleadings must contain:
```
name of court
case file #
name of parties
name, address, phone #, & email address of atty
atty's FL Bar #
designation of pleading
each claim or defense separately stated
numbered paragraphs
```
90
At least one attorney of record must sign all _____.
pleadings
91
Lawyer or pro se litigant by signing pleadings is certifying that:
1. she has read the doc
2. to the best of her information, there is good grounds to support it; and
3. it is not interposed for delay.
92
What if the lawyer or pro se party fails to sign a document?
Court can strike the doc.
93
Under the tort reform rules, the prevailing party in a case can recover attorney's fees if losing party raised a claim or defense ________.
not supported by facts or law (or good faith argument for modification of law).
94
Under the tort reform statute, an attorneys fees award is to be paid ____ by the losing party and his lawyer, but the lawyer will nto be liable if she acted in good faith, based on what the client told her.
50/50
95
Under tort reform statute, at any time in a case, a party can move to recover damages (Including atty's fees) for delay in litigation. To win, she must show:
by a preponderance of the evidece that teh opposing party took an act primarily for unreasonable delay
96
What is the Complaint?
the principal pleading by the plaintiff (filing commences the action).
97
Filing what commences an action?
complaint
98
What are the requirements for any claim for relief in a complaint?
1. statement of ground for SMJ (if suing nonresident, also must allege grounds for PJ)
2. short and plain statement of the ultimate facts showing that pleader is entitled to relief AND
3. demand for judgment (prayer) (Sometimes a demand for damages is called an "ad damnum" clause.
99
What must P file with the clerk at the time the initial complaint is filed?
civil cover sheet
100
What special matters must be pleaded with particularit or specificity?
1. circumstances establishing fraud
2. facts supporting punitive damages (intentional misconduct or gross negligence)
3. special damages (do not normally flow from an event)
101
Does P need to allege capacity to sue in the complaint?
No, that is an affirmative defense for the D.
102
How does P allege conditions precedent in complaint?
May allege satisfaction generally, dont'have to go through point by point.
103
In teh demand for judgment is a dollar figure for damages required?
No.
104
____ damages and _____ damages must be stated separately from general damages in a complaint.
special
| punitive
105
P cannot originally plead for punitive damages. Instead, seh must present evidence from which the court concludes that there is a reasonable basis for a claim. Then what does P do?
She moves to amend to add punitive damages.
106
To avoid default, D must respond within _____ days of being served with process. She can respond either with_____ or by _______.
20 days
| motion or by answer
107
Defense motions are not ______; they are requests for court ___.
pleadings; order
108
What are the 2 major types of defense motions?
1. issues of form
| 2. major defenses
109
What are examples of defense motions that are related to issues of form?
1. motion for more definite statement
| 2. motion to strike
110
What are the major defense motions?
1. lack of SMJ
2. lack of PJ
3. improper venue
4. insufficiency of process (prob. with the docs - rare)
5. insufficient service of process
6. failure to state a claim on which relief can be granted
7. failure to join indispensable party
111
T/F: Major defenses can be raised either in the answer or by motion.
True, but waivable ones must be asserted in first defensive response.
112
What are the waivable defenses? Meaning?
lack of PJ
improper venue
insufficiency of process
insufficiency of service
Meaning these defenses MUST be asserted in the first defensive response or else they are waived.
113
For the waivable defenses rule, is asking that P file an increased bond a "defensive response"?
Yes.
114
P sues D. D files a timely motion to dismiss for defective service of process. The court denies the motion, after which D files and serves his answer, asserting as defenses lack of PJ and improper venue. OK?
Nope, because lack of PJ and improper venue are waivable, D waived them when he didn't assert them in his motion to dismiss.
115
At trial, D moves to dismiss for failure to join an "indispensable party" and for failure to state a claim on which relief could be granted. OK?
Yes - these two defenses can be asserted at any time through trial.
116
After trial, D asserts for the first time that the court lacks SMJ. OK?
Yes, this defense is never waived.
117
An Answer must be served no later than ____ days after service of process if no motions filed. If motion is made and denied, must answer within _____ days after court's order on the motion. The one exception is _______.
20 days
10 days
A motion to strike does not extend the time to answer
118
What does D do in the answer?
1. respond to allegations of complaint
| 2. raise affirmative defenses
119
What are D's options in responding to the allegations in the complaint?
1. admit
2. deny
3. state that you are without knowledge which has the effect of denial
120
If D fails to deny an allegation in his answer then he has _____. The exception is ______.
admitted it.
| Exception = D never deemed to have admitted damages
121
P alleges that D ran a red light in the complaint. In his answer, D alleges "P cannot prove that I ran a red light." result?
He has admitted it because he didn't deny it.
122
P sues D for breach of contract; D answers, denying material allegations. At trial, D seeks to introduce evidence that the contract was procured by P's fraud and is therefore unenforceable. P objects. Why?
The evidence is inadmissible because D failed to pelad the affirmative defenses. Must be in the Answer.
123
If the answer contains an affirmative defense which P wishes to ___, he does so in a reply. If P wishes to deny allegations of D's answer, he need do _______.
avoid
| nothing
124
A reply must be served within _____ days after service of the answer.
20
125
D asserts an affirmative defense that the contract is unenforceable under teh statute of frauds. P thinks the statute of frauds does not apply because of part performance. Where does P allege this?
In a reply. (wants to avoid the aff. defense rather than just deny).
126
What is a counterclaim?
A claim against an opposing party (D v. P)
127
When is a counter claim filed?
With the responsive pleading (answer). Serve both the answer and counterclaim on P's lawyer if she has one; otherwise, on the pro se litigant.
128
What is a compulsory counterclaim?
A counterclaim that arises from the same transaction or occurrence as the opposing party's claim and so MUST be filed in THIS case if it is ever going to be asserted.
*Only compulsory claim in the universe.
129
A is involved in a car collision with B. A sues B to recover for personal injuries. B answers and litigates that case. Then B files a separate action against A to recover for his injuries from the same wreck. What result?
B's case will be dismissed because it was a compulsory counterclaim and he failed to file it.
130
B realizes after serving his answer that he should have set forth a compulsory counterclaim against A. The court might allow it if:
excusable neglect or that justice so requires
131
A sues B. B files a compulsory counterclaim. A voluntarily dismisses his original claim. The case proceeds on B's claim. Is A making a mistake?
Yes - A's claim is now a compulsory counterclaim.
132
A sues B. Before B answers, A voluntarily dismisses. Can B sue A in a separate case for his transactionally related claim?
Yes - if never had to answer, then didn't have compulsory counterclaim.
133
What is a permissive counterclaim?
A counterclaim that does not rise from the same transaction or occurrence as the claimant's claim. It does not have to be filed in the same case. Can be filed later.
134
If B counterclaims, what does A have to do?
respond within 20 days. A is now a D in the case.
135
What is cross-claim?
A claim against a co-party that must arise from teh same transaction or occurrence as teh original claim or counterclaim. Never compulsory.
136
What's the difference between a counterclaim and a cross claim?
```
counterclaim = against an opposing party (can be compulsory if same T/O)
cross-claim = against a co-party (must be same T/O, but never compulsory)
```
137
What are the 3 potential ways to amend pleadings?
1. right to amend
2. motion to amend
3. variance
138
Plaintiff has a right to amend ONCE before D serves his ______.
Defendant has a right to amend ONCE within ____ days of serving his answer.
answer
20
139
If D has not served an answer, but has brought a motion does P still have right to amend?
Yes, right to amend once before D serves answer.
140
If you have no right to amend, you can file a _______. It will be granted if _______. Must attach the _____ to the motion.
motion to amend
Justice so requires
proposed amended pleading
141
Anytime an amended pelading seeking relief is filed, what must the opposing party do?
Respond within 10 days of service -- don't rely on the old answer.
142
What is variance?
When the evidence at trial does not match what was pleaded.
143
P sues D for breach of contract. D answers. At trial, P introduces evidence that D assaulted him.
1. D does not object and the evidence of assault comes in. What then?
2. D does object. What then?
1. If D does not object, then the evidence comes in and due to VARIANCE, P can amend the compalint to conform to the evidence.
2. The evidence of assault would be inadmissible because it is at VARIANCE with the pleadings and D objected.
144
P files his complaint and has it served on July 1. The statute of limitations runs on July 10th. In August, P seeks leave to file an amended complaint adding a new claim. OK?
Can relate back if it concerns the same conduct, transaction or occurrence as the original pleading. If it relates back, then you treat it as though it was filed on July 1 and it will be timely.
145
When can a new claim in an amended complaint relate back for SOL purposes?
If it concerns the same conduct transaction or occurrence as the original pleading.
146
What are 5 discovery tools? Which can be used for parties and non-parties?
```
Depositions (P & NP)
Interrogatories (P only)
Requests to Produce (P & NP w/ subpoena)
Physical or Mental Exam (P only)
Requests for Admission (P only)
```
147
A nonparty deponent should be ______, or he is not compelled to attend a deposition.
subpoenaed
148
What is a subpoena duces tecum?
Requires the deponent to produce documents or things at the deposition.
149
A party deponent need not be subpoenaed; _______, properly served, is sufficient to compel attendance.
notice of the deposition
150
Generally no court order is needed to take a deposition. What are the two exceptions?
1. take deposition before case filed (e.g. to preserve evidence because witness won't be available at trial) OR
2. P wants to take the deposition less than 30 days after serving the C, unless (a) P's notice states that the person to be deposed is about to leave the state and wont' be available after the 30 days or (b) D has already noticed a deposition.
151
T/F: generally you cannot object at trial to any evidentiary issue that could've been remedied at the deposition.
True
152
What are interrogatories?
Questions propounded in writing by a party to another party (ONLY) to be answered in writing under oath within 30 days after service (45 days if interrogatories accompany complaint).
153
What is the limit on the number of interrogatories (inlcuding subparts) a party may serve on another?
30
154
ON whom are interrogatory answers binding?
only on the party making them.
155
Interrogatories must be answered with ____ days.
30 days after service or 45 days if interrogatories accompany the complaint
156
What are requests for production?
From one party to antoher, requesting that she make available for review and copying various documents or things, or to permit entry up on designated property for inspection, measuring etc.
OK for nonparties when accompanied by a subpoena.
157
Receiving party must respond in writing within ____ days to requests for production.
30 days; 45 if RPs accompany the complaint
158
When can requests to produce be made of nonparties?
When accompanied by a subpoena. Must give notice to all parties of request for subpoena at least 10 days before subpoena is to be issued by the court. If the party objects, no rpoduction is ordered.
Can move for the ruling over the objection OR take the non-party's depo and serve with subpoena duces tecum
159
A subpoena accompanying request for production to a non-party must be served on a nonparty by _____ or by mail with written confirmation of delivery, signed by person accepting the subpoena, and filed in court.
personal service
160
A physical or mental examination is available _______ if physical condition of the party (or one in party's control) is in _________.
without a court order
controversy
161
Party seeking a physical exam by qualified expert services notice stating reasonable __, ____, _____, and _____ of exam and _______.
The party of whom the exam is sought must respond in writing within ____ days, either agreeing to ethe exam or stating objections.
time, place, manner, and scope and person to complete exam
30 days; 45 if notice accompanies complaint
162
If condition in controversy is mental or otherwise not physical, examination is available only upon ______. Party seeking exam must show __________.
motion
good cause for the examination
163
Person being examined may have a _______ present unless there is a valid reason not to allow this.
representative
164
What is a request for admission?
A request by one party to another party (not non party) to admit the trust of any discoverable matters.
165
In a request for admission, failure to deny is tantamount to an ______.
admission.
166
Are admissions binding in other litigation?
Nope.
167
Requests for admission must be responded to within _____ days either _____, ______, or ______. There can be no more than _____ requests (including subparts), unless parties stipulate to more or court grants motion for more.
30 days (45 if requests accompany complaint)
admit, deny, object
30
168
T/F: In FL Civ Pro, there is no duty to supplement one's answers in discovery if the answers were complete when made.
TRUE - different than federal.
169
What is the general standard for the scope of discovery?
You can discover anything that is relevant to the subject matter of the case. Anything that is reasonably calculated to lead to admissible evidence.
170
P serves interrogatories on D. D objects, stating that his answers woudl be hearsay and not admissible at trial. Good objection?
No - admissibility is not the test.
171
P wants to discover information about D's net worth. Relevant?
Yes if she is suing for punitive damages
172
T/F: Privileged material is not discoverable.
True
173
Inadvertent disclsoure of privileged material does not wiave the privilege if the party producing the material serves _________. She must specify the _____, the ___, and the date on which the inadvertent disclcosure was made. The other party must ______, ______, or ______ the material, but can then challenge the assertion of privilege.
a written notice within 10 days after discovering the disclosure
materials, the privilege,
return, sequester, or destroy
174
What is work product?
Material prepared in anticipation of litigation.
175
What type of work product is absoluted protected?
mental impressions, legal theories, opinions, and conclusions
176
Does work product have to be generated by a lawyer?
No - by the party, or any representative of the party (private investigator, e.g.)
177
Items of work product that are not absolutely protected are still discoverable if the seeking party shows:
1. substantial need AND
| 2. not otherwise available.
178
If an expert is expected to testify at trial, the other party can seek waht information about experts?
1. names
2. substance of facts & opinions
3. grounds for opinions
Can also ask party about its realtionship with that expert (compensation, times retained, etc)
179
After interrogatories are answered re an expert, then you can take a ______ without a ______ _______.
deposition of the expert
court order
180
T/F: If you take an expert's deposition, you must pay his/her fee for that time.
True
181
If an expert is not expected to testify, what discovery are you entitled to?
No discovery absent exceptional need (info not availabel anywhere else). Very difficult to get discovery from a consulting expert.
182
How are discovery disputes presented to the court?
1. receiving party seeks protective order (overburdensome, ESI not reas. accessible, trade secrets)
2. receiving party answers some and objects to others (if objection not good, partial failure, light sanction)
3. receiving party willfully refuses to attend deposition, to be sworn for a depo, or to respond to a valid request. (total failure, heavy sancton).
183
Is a failure to respond to a request for a medical exam a partial or total failure?
partial (sensitive area)
184
What are the steps to get enforcement against a partial disovery failure?
1. certify that you tried to work it out (try to work it out)
2. seek an order compelling answers to unanswered questions (plus costs)
3. if violates the order compelling, then RAMBO sanctions
185
What are the steps to get enforcement against a total disovery failure?
RAMBO sanctions + costs
186
What are the potential RAMBO sanctions?
Judge can choose from:
1. establishment order
2. strike pleadings of disobedient party as to the issues re discovery
3. stay proceedings until discovery given
4. disallow evidence by disobedient party
5. contempt (never available for refusal to have med. exam)
6. dismissal or enter default judgment against D, but only if express written finding of willful or deliberate refusal to obey discovery order
187
What is a permissive joinder?
allows parties to be joined to form more complex litigation. You can only join if you have a common interest in the subject of the action.
188
O & S are injured when the taxi they're riding in crashes. May they sue together as co-plaintiffs? What if they're married?
Generally, no because you can only join if you have a common interest in the subject of the action. Here each has a spearate interest in his/her body.
The exception is for spouses or parents & their kids. They can join in tort cases.
189
O & S are injured when the taxi they're riding in crashes. May Sharon sue the taxi driver and the cab company as co-defendants?
Yes because they each have an interest adverse to the plaintiff.
190
What are necessary/ indispensable parties?
parties that ought to be joined because they have some relationship with the action.
191
What are the steps to determine whether a party ought to be joined?
1. Necessary?
a. Yes, if without absentee, court may not be able to accord relief (worried about multiple suits if don't bring in A; OR
b. absentee's interest may be harmed if she isn't joined
2. PJ over necessary party?
3. If no, court can either proceed without A or dismiss the whole case.
(If court decides to dismiss rather than proceed without A, then A is called indispensable.
192
If A is a necessary party, but canot be joined because no PJ, and court decides to dismiss, what is A?
indispensable party
193
Joinder rules starting with "C" are between _____ _____.
Joinder rules that start with "I" involve joining ______.
C = between existing parties
I = bringing someone new to the case
194
If A is a necessary party and there is PJ over her, what happens?
court will order joinder
195
What is intervention?
Absentee wants to join a pending suit. Court has discretion to allow/ disallow.
Not required of the absentee.
196
What is the test for whether an absentee can intervene?
Whether the absentee's interest could be affected in a practical way if not joined.
197
What is impleader?
The defending party adds a new party. New party is called the third-party defendant. Usually brought in for indemnity or contribution.
198
Impleader is also called
third party practice
199
P sues D to recover for breach of contract. D seeks indemnity from T, who had agreed contractually to indemnify D for any loss. How does D implead T?
1. File 3rd party complaint naming T as TPD; and
2. serve process on T (so must get PJ over TPD)
*Right to implead within 20 days of serving your answer. After that, need court permission.
200
There is a right to implead within ____ days of serving your answer. After that, _______.
20
need court permission
201
What can the TPD once joined?
1. raise defenses that the D could have raised against the P.
2. TPD can assert a claim against P as long as the claim arises from teh same T/O as the underlying case.
(P can also assert claim against P if claim arises from same T/O as the underlying case).
202
What is interpleader?
devise by which one holding money or other property can force all potential claimants into a single lawsuit. the idea is to avoid multiple litigation and the possibility of inconsistent results.
203
In interpleader, the person with the property is called the ______. People who want it are called the _____. So the ______ will force all of the _____ into a single case.
stakeholder
claimants
stakeholder; claimants
204
Insco holds a fund of $100,000 under a life insurance policy. After the insured dies, potential claimants to the fund are B, C, and D. Insco wants to avoid being sued on the policy in three separate actions. Insco should ______. What are the 2 stages?
interplead
1. stakeholder deposits the property in court; stakeholder recovers his costs and attorneys' fees and disappears (or remains involved as "interested stakeholder")
2. claimants litigate and the court decides who gets the property.
205
What is an interested stakeholder in an interpleader action?
stakeholder who doesn't want to disappear.
So if didn't want to give up the funds to the court because it holds that the contract had been breacehd by the insured, can stay in the litigation. Would deposit the proeprty but wouldn't disappear.
206
What are the requirements for a class action?
1. initial requirements
2. must fit case into one of three types
3. special pleading requirements
4. notice to the class
207
What are the intital requirements for a class action?
Must show all:
1. too numerous for practicable joinder
2. some questions of law or fact in common to class
3. representative's claims or defenses typical of those of the class
4. representative adequately and fairly represents the class.
208
After meeting the initial requirements, you must fit a class action into one of three types of cases:
1. prejudice - class treatment necessary to avoid harm either to class members or to the nonclass party
2. seek injunction or declaratory judgment because the class was treated alike by the other party (em. discrim)
3. damages - common questions predominate over individual questions and class suit is superior to other devices (mass tort, e.g.)
209
T/F: to determine the amount in controversy for circuit court jx, aggregate all class claims?
true
210
What are the special pleading requirements for class actions?
designation of class representation next to caption of case and under heading "class action allegations" specifically allege that prerequisites (initial requirements and case fits into 1 of 3 appropriate cases) are met, define the class, and approximate membership.
211
The _____ gives individual notice to all class members reasonably identifiable. Notice must inform them:
court
1. they can opt-out of the class action
2. they will be bound by the judgment if they do not opt-out and
3. they can enter a separate appearance in the case through counsel.
212
Who pays for the individual notice in a class action?
the class representative
213
Who is bound by a class action judgment?
All members who didn't opt-out.
214
Can the parties dismiss or settle a class action?
only with court approval
215
A condo association can sue in its own name on behalf of all association members on matters of common interest if:
control of the association rests with the owners not with the developers
216
What are the three ways to bring about voluntary dismissal?
1. file notice of dismissal
2. stipulation of parties (written)
3. by court order
217
When is voluntary dismissal by filing notice of dismissal not available?
1. If the case has been submitted to trier of fact or if motion for summary judgment is CURRENTLY pending
2. if property seized or in court custody
3. if counterclaim pending which cannot stand for independent adjudication
218
Assume no property is seized and no counterclaim is pending. Before trial a party moves for summary judgment and it is denied. Can teh P now file a notice of dismissal?
Yes because the motion for summary judgment is not currently pending.
219
T/F: Even at trial P can state a voluntary dismissal on the record?
True as long as it is before the case is submitted to the trier of fact and is not otherwise not allowed. (property seized/ counterclaim pending)
220
When is a wirtten stipulation of the parties not available for a voluntary dismissal?
If there is property in court custody
221
When is a voluntary dismissal by court order not available?
If there is a counteclaim pending which cannot stand for independent adjudication.
222
Voluntary dismissal is ______ unless it is the second one.
without prejudice
223
T/F: When a claim is dismissed voluntarily, the defending party may be awarded costs on that claim.
True
224
P sues D and takes a voluntary dismissal. Because it was without prejudice, P files suit against D again. Now P takes a voluntary dismissal fo the second case. What result?
Dissmissal with prejudice.
225
J sudes K to foreclose a mortgage and has a lis pendens filed. After J voluntarily dismisses what happens to the lis pendens?
Automatically cancelled with the dismissal filed.
226
What is default? Default judgment?
Default = party against whom claim filed fails to plead or otherwise defend the action in the time allowed by law (generally 20 days).
Judgment = entered by the Judge after entry of default w/ the clerk/judge.
227
What is the difference between entry of default and default judgment?
Entry of default is shown as an entry on the docket; cannot collect any money, though, on a defulat; need a judgment to enforce and recover money or other relief. Entry of default is a prerequisite to default judgment.
228
Entry of default should be entered by the clerk of the court if _____ and by the judge if _______.
```
clerk = if the D filed no papers
judge = if the D filed something
```
229
Plaintiff must make an application for entry of default; so entry of default is not _______.
automatic
230
Does D get notice of the P's application for default?
Only if he filed some papers.
231
Once default is entered, D cannot ________.
answer or file a motion. (up until then he can even if more than 20 days).
232
Entry of default judgment is entred only by the _____.
judge
233
D gets a notice on hearing on damages after default judgmgent because
Default admits liabilty of the well-pleaded allegation but it does not admit damages.
234
P sues D for $20,000. D defaults. What is the most that P can recover by default judgment?
$20,000. In default, cannot get more than you pleaded.
235
P sues D1 and D2. D1 files a timely motion, but D2 fails to respond at all. Can P take D2's default?
Yes, but D1 still gets to litigate.
236
What are the options for relief from default and default judgment?
After default but before judgment = motion to set aside default.
After default judgment = motion to sed aside the judgment.
For both show:
1. good cause for the default
2. meritorious defense to the claim
3. due diligene after learning of the default
237
What are the grounds for involuntary dismissal?
1. Plaintiff fails to prosecute
2. Failure to comply with procedural rules or court order
3. any of the defense motions for dismissal
4. P fails to show in nonjury trial that entitled to relief. (functionally the same as directed verdict for D)
238
What is the procedure for involuntary dismissal due to P failing to prosecute?
1. If no record action for 10 months, the court of a party may certify that fact to all parties.
2. If P takes no record activity (or no stay entered) within 60 days after service of the notice, motion can be made.
239
For purposes of involvuntary dismissal due to failure to prosecute does a motion to disqualify the judge constitute record activity? order stetting a case management conference?
1. motion to disqualify = yes
2. order = no
Need to see initiative from Plaintiff
240
In failure to prosecute motion, the court will dismiss unless the plaintiff does what?
Shows good cause in writing at least 5 days before the hearing on the motion.
241
Any involuntary dismissal is presumed to be ______ UNLESS the court said otherwise or unless it was based upon _____, ____, or ________.
WITH prejudice
jurisdiction, venue, indispensable parties
242
What is rule nisi?
order to show cause. court tells a party it will enter a particular order unless she convinces the judge not to.
243
What is scire facias?
an order requiring one to show cause why some matter of record should not be vacated or why a dormant judgment should not be revived.
244
What are the ways to terminate a case without a trial?
1. voluntary dismissal
2. default/ default judgment
3. involuntary dismissal
4. rule nisi
5. scire facias
6. failure to state a cause of action
7. summary judgment
245
D can move to dismiss for failure to state a cause of action on which relief can be granted. In ruling on the motion, what question does the court ask?
If the facts that P alleged are true, would she win a judgment?
246
In ruling on a motion for failure to state a cause of action on which relief can be granted, what does the court look at?
the face of the complaint only. NO evidece.
247
If the court finds that P has failed to state a cause of action on which relief can be granted, what are the next steps?
1. either dismissal or
| 2. allow P to amend complaint
248
If a motion for failure to state a cause of action on whcih relief can be granted is filed after D answered, what it its name?
Motion for judgment on the pleadings.
249
What must the moving party for summary judgment?
1. there is no genuine dispute of material fact and 2. that she is entitled to judgment as a matter of law.
250
In summary judgment, can the court look at evidence?
Yes. Court can look at affidavits, deposition testimony or interrogatory answers -- things that are under oath and so can be considered evidence.
The court views the evidence in the light most favorable to the nonmoving party.
251
In SJ, the court views the evidence in the light most favorable to the _____ party.
nonmoving
252
P was hit by a car driven by D. P sues Da. alleging D ran a red light while P was in the crosswalka nd crossing the street on a green light. D answers and denies these allegations. D moves for SJ, attaching sworn statements from three witnesses saying that they saw the acident, D had the green light and that P jumped in front of D's car. In response, P relies on his complaint, which said D ran the red light. What result?
SJ probably granted because pleadings are not evidence. Based on the evidence presented, there is no dispute of fact. P should have offered some evidence.
253
Generally pleadings are not evidence unless they are _____. But the can be relevant for summary judgment how?
verified; under oath
They can still be relevant in that if D failed to deny an allegation by P, it can be treated as fact on summary judgment.
254
P was hit by a car driven by D. P sues Da. alleging D ran a red light while P was in the crosswalka nd crossing the street on a green light. D answers and denies these allegations. D moves for SJ, attaching sworn statements from three witnesses saying that they saw the acident, D had the green light and that P jumped in front of D's car. P responds with an affidavit from someone who swears that he heard about the accident and was told that D ran a red light. What result?
SJ probably granted. The affidavit is based on hearsay, so we ignore it. Evidence must be first hand knowledge for the SJ.
255
P was hit by a car driven by D. P sues Da. alleging D ran a red light while P was in the crosswalka nd crossing the street on a green light. D answers and denies these allegations. D moves for SJ, attaching sworn statements from three witnesses saying that they saw the acident, D had the green light and that P jumped in front of D's car. P responds with deposition testimony from an alcoholic, drug-addicted swindler who swears he saw the accident and that D ran a red light. What result?
SJ must be denied. Now there is first-hand evidence that creates a dispute on a material fact.
256
What is the timing for MSJ?
D may move for SJ anytime. P must wait 20 days after commencing action. Motion must be served at least 20 days before the hearing on the motion. Party opposing the motion may serve affidavits (1) by mailing them at least 5 days before the hearing or (2) by delivering them to movant's lawyer no later than 5:00pm two days before the hearing.
257
What is a case management conference?
Blueprint for the overall case. Anytime after responsive pleadings or motions are due, court may convene this on "reasonable" notice. At conference, may consider scheduling, setting a trial date, narrowing issues for trial, etc.
258
What is a pretrial conference?
Blueprint for the trial itself. When case is at issue, court may (and must if a party requests) holdl this; must give at least 20 days notice.
259
Court can take appropriate action for failure to attend including _____ sanctions. The court must find that failure to attend was ______.
rambo
| willful
260
A pretrial conference order controls future events unless amneded to prevent manifest injustice. The order _____ the pleadings.
supersedes
261
If judge orders arbitration or mediation, the first conference must take place within _____ days of the court order.
60
262
Parties can move to dispense with ADR for _____.
good cause.
263
A non-binding arbitration decision becomes final unless a party requests a trial de novo within ____ days.
20
264
Binding arbitration decision can be appealed to circuit court within _ days. If not, it becomes final.
30 days.
Grounds for appeal are narrow = arbitrator misconduct or violation of constitution
265
If P rejects a written offer settlement proposal from D and the final judgment is in D's favor or is for P, but is at least 25% less than the offer, then P is liable for ______.
(P can accept within 30 days)
P is liable for D's attorney's fees and costs, even if they exceed the judgment for P, incurred after the offer.
266
In a case for damages, P can file a written demand for judgment in a certain amount. If D accepts within ____ days, clerk enteres final judgment. If D rejects the offer and P wins judgment at least 25% greater than the offer, D is liable for P's attorney's fees and costs incurred after the demand.
30 days
267
What is expedited trial?
If parties stipulate, discovery is done in 60 days and trial in one day.
268
How/when must you demand jury trial?
Must demand in writing no later than 10 days after service of last pleading directed to jury-triable issue.
269
Can a party withdraw its demand for a jury trial?
Only i fthe other parties agree.
270
Under FL Constitution, civil litigants have a right to a jury trial in actions at law, not suits at equity. What if a case presents both issues of law and equity?
The jury decides the facts underlying the law claim but not the equity claim.
*Generally, try to jury issues first.
271
In civil cases, how many jurors? Eminent domain?
6
| 12 = eminent domain
272
How many strikes for cause does each party get in voir dire process?
unlimited # of strikes for cause
273
How many peremptory challenges of potential jurors does each party get?
3 (plus one for each alternate juror)
274
If the number of peremptory challenges is not equal for each side (P and D), then what?
each side gets the higher number
E.g. 2 Ps sue 3 Ds. EAch side will get how many? 9
275
Can the jury be permitted to view premises or objects involved in the case?
Yup. field trips are good.
276
T/F: The jury can submit written, unsigned questions directed to witness or the court.
True.
277
The jury can submit written, unsigned questions directed to witness or the court. Questions to a witness can only be submitted after that witness has completed her testimony. The jury gives these questions to the bailiff, who gives them to the judge. Counsel can object. What happens if the question is improper = if it asks for something that is not admissible?
Then the question is not read and the jury is told to ignore it.
278
If a jury question asks for admissible, proper information, how is the question answered?
by stipulation or additional testimony
279
If the jury asks a question of a witness, who asks it in court?
the court or counsel. in the court's discretion
280
Does the jruy get access to the jury instructions during its deliberations?
Yes - each juror must get them. Court can uthorize that jurors
281
When must a party object to jury instructions?
before the jury is charged -- otherwise you waive the objection
