Florida Civil Procedure Flashcards
What are the 5 major topics in Civil Procedure?
- Right court?
- Learning about the case
- Complex cases
- Adjudication
- Appellate Review
Personal jurisdiction is power over the _____.
parties
Whether there is PJ is a 2 step processs. You must satisfy a _____ and the _____.
- Satisfy a statute
2. satisfy the constitution
What are the Florida statutory bases of in personam jurisdiction?
- 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)
D is a Georgia resident served with process in a Florida lawsuit while in Tallahassee to attend a poetry reading. Personal Jx?
Yes because D was present in FL When served.
Does presence as a method of gaining personal jurisdiciton lead to general or specific jx?
General
What is general jurisdiction?
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)
What is specific jurisdiction?
Where the suit arises from the D’s contacts with the forum.
If D was coaxed or forced into the state and then served with process - PJ?
No, Florida courts will not exercise PJ in this circumstance.
D is served with process whie in FL to attend as party or witness in an unrelated lawsuit. OK for PJ?
No - immune from service in this circumstance.
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?
Yes - domicile gives general jurisdiction.
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?
Yes. Substantial and not isolated activity in FL gives general PJ.
T/F: Substantial and not isolated activity in FL gives general PJ for corporations and natural persons?
True.
What are the four ways to get general personal jurisdiction in Florida?
- 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
What are the two ways to get specific jx. in FL?
- through long-arm statutes
2. through nonresident motorist act
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:
- 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
D, a NV citizen, slugs P, a california citizen, while in the airport in Tampa. Can P sue D in Florida?
Yes because D committed a tortious act in FL.
Can a nonresident commit a tortious act in FL by sending telephonic, electronic, or written communications into the state.
Yup, but it is imperative that the tort cause of action arise from the communications.
If a nonresident commits a tortious act outside Florida that causes an injury Florida. PJ is ok if:
- D engaged in solicitation or service activities in FL OR
2. Its products are used in FL in the ordinary course of commerce.
Chad (GA) contracts with Anita to squeeze oranges for Anita in Florida. Chad refuses to squeeze. Can Anity sue Chad in FL? Why?
Yes because he breached the contract in FL by failing to do wthat the K required him to do in FL.
What is the nonresident motorist act?
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.
What is the constitutional test for personal jx?
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
What are the factors to be evaluated when determining PJ under the constitutional test?
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
Must you always show relatedness in constitutional analysis of personal jurisdiction?
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.
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.
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.
Subject matter jurisdiction is power over the ____.
case
FL is divided geographically into 20 circuits. They have exclusive state court SMJ over what types of cases?
- probate and estate matters, guardianship, incompetence
- cases involving juveniles (except traffic offenses)
- cases involving title or boundaries to realty
- ejectment cases **EXCEPT landlords evicting tenants.
- equity suits exceeding $15,000 (not equal to)
- actions at law exceeding $15,000
What types of civil cases go to county court?
- actions at law not exceeding $15,000 unless otherwise vested exclusively in Circuit Court. EXCLUSIVE.
- equity cases not exceeding $15,000 (NOT EXCLUSIVE)
- disputes in homeowners’ associations
- 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.
What types of cases does county court have exclusive jx over?
- actions at law not exceeding $15,000 unless otherwise vested exclusively in circuit court
- landlors evicting tenants if involves less than $15,000 (can go if more than $15,000).
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.
When calculating the amount at stake for purposes of SMJ, does the amount in controversy include costs or interest on the claim?
No.
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.
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.
County or Circuit court for SMJ?
Probate case involving $12,000?
Circuit only always b/c probate
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
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.
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.
What happens if P wrongfully files in circuit court and P does not pay the transfer costs?
case is dismissed without prejudice
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
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.
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
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.
What is the basic idea behind venue?
Whether in circuit or county court, what county do we sue in?
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
Any case that is not local is ______.
transitory
For transitory actions venue is ok in:
- county where defedant resides when complaint filed or
- county where cause of action accrued (tort = where injury occurred; contract = where performance was due)
- county where property in litigation is located
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.
P sues a nonresident and serves process on her in Florida. What are the venue choices?
- county where D served with process
- county where cause of action accrued
- county where propertly in litigaiton is located
P sues a nonresident who is served outside FL. Where is venue ok in FL?
in any county
Where is venue appropriate if one defendant is a resident of FL and one is non-resident?
Must be proper for the resident defendant
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
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.
A FL corporation resides in any county in which it has, or usually keeps, _________.
an office for the transaction of its customary business
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
If venue was originally ok, but a motion was made to change venue, ok to transfer for either of 2 reasons:
- party won’t receive fair trial where case was originally filed.
- convenience of parties or witnesses, or interest of justice
What are the factors relevant to determining whether a party won’t receive a fair trial where the case was originally filed?
- opponent has undue influence in the county
- moving party is so odious he cannot get a fair jury
- 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.
If original venue is proper, the party making the transfer venue motion must pay the transfer costs within _____ days of the transfer order.
30
How are forum non conveniens and venue different?
Forum conveniens results in a dismissal, improper venue results in a transfer.
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.
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
When must a motion be made for forum non conveniens?
Within 60 days after service of process.
Is it OK to dismiss under FNC even if the entire dispute cannot be litigated in a single alternative forum?
Yes.
What two documents make up process?
- summons
2. copy of the complaint
Process may be served by the sheriff or his appointee or by any person who is (1) ______ and (2) _______.
- a non-interested adult (non-party) and
2. appointed by the court
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
Does failure to file proof of service affect the validity of service?
Nope.
Plaintiff himself serves D and then failes to file proof of service. Service is invalid for what 2 reasons?
- server is a party and not a non-interested adult
- he’s not appointed by the court
NOT because he failed to file proof of service
What do we call someone appointed by teh court to serve process?
elisor
Personal service is valid _______.
wherever the D is found in FL.
Andy the sheriff serves process on Otis in a bar in Ocala. OK.
What are 4 (common) types of service?
- personal service
- substituted service
- corporate service
- nail and mail
Substituted service is ok if:
- D’s usual plae of abode (actually living there at the time of service),
- process is left with one who is at least age 15 and who resides there and
- server tells that person teh contents of the docs
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:
- not left with proper person
- didn’t state the contents
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.
T/F: Process can be delivered to D’s agent for service of process?
True
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
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
What are the two basic choices for effecting service on a corporation?
- Officer or Director (descending order rule). Can only descend the list if no one in a higher rank can be found.
- President, VP, or other head of the corp
- cashier, treasurer, secretary or general manager
- any director
- any officer or business agent residing in FL
- Resident Agent
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.
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.
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.
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.
Service on minors & incompetents rules:
- if has legal guardian, serve guardian as you would any other adult
- if no legal guardian, serve parent and ask the court to appoint a lguardian ad litem
- if incompetent has no legal guardian, serve 2 copies on the person having custody and ask court to appoint guardian ad litem
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.
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.
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
After process has been served, subsequent documents can be served by _____. If no ____, then by mail or personally delivered.
The time in which to respond to any document is increased by ____ days if service is made by ____ or ______.
5 days
mail
email
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
At least one attorney of record must sign all _____.
pleadings
Lawyer or pro se litigant by signing pleadings is certifying that:
- she has read the doc
- to the best of her information, there is good grounds to support it; and
- it is not interposed for delay.
What if the lawyer or pro se party fails to sign a document?
Court can strike the doc.
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).
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
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
What is the Complaint?
the principal pleading by the plaintiff (filing commences the action).
Filing what commences an action?
complaint
What are the requirements for any claim for relief in a complaint?
- statement of ground for SMJ (if suing nonresident, also must allege grounds for PJ)
- short and plain statement of the ultimate facts showing that pleader is entitled to relief AND
- demand for judgment (prayer) (Sometimes a demand for damages is called an “ad damnum” clause.
What must P file with the clerk at the time the initial complaint is filed?
civil cover sheet
What special matters must be pleaded with particularit or specificity?
- circumstances establishing fraud
- facts supporting punitive damages (intentional misconduct or gross negligence)
- special damages (do not normally flow from an event)
Does P need to allege capacity to sue in the complaint?
No, that is an affirmative defense for the D.
How does P allege conditions precedent in complaint?
May allege satisfaction generally, dont’have to go through point by point.
In teh demand for judgment is a dollar figure for damages required?
No.
____ damages and _____ damages must be stated separately from general damages in a complaint.
special
punitive
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.
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
Defense motions are not ______; they are requests for court ___.
pleadings; order
What are the 2 major types of defense motions?
- issues of form
2. major defenses
What are examples of defense motions that are related to issues of form?
- motion for more definite statement
2. motion to strike
What are the major defense motions?
- lack of SMJ
- lack of PJ
- improper venue
- insufficiency of process (prob. with the docs - rare)
- insufficient service of process
- failure to state a claim on which relief can be granted
- failure to join indispensable party
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.
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.
