Florida Civil Procedures Flashcards
Florida Statutory Basis for PJ:
(1) Defendant present in FL when served;
(2) Domiciled in Fl
(3) Incorporated in Fl
(4) Defendant has engaged in substantial activity in FL
(5) commits a tort in FL;
(6) owns, uses, possesses property in FL;
(7) operating a business in FL
What is the PJ Constitutional standard?
does D have such minimum contacts w/ the forum so that exercise of jurisdiction doesn’t offend traditional notions of fair play and substantial justice
Exclusive SMJ of circuit courts:
(1) probate/ guardianship matters;
(2) cases involving juveniles;
(3) matters in equity exceeding 30k;
(4) actions at law exceeding 30k;
(5) cases involving title; and
(6) ejectment cases where tenant is evicting
Jurisdiction of county courts:
(1) actions at law/ equity not exceeding 30k
(2) HOA disputes; and
(3) landlord evicting tenant and case involves 30k or less.
What county is venue proper?
(1) where defendant resides; (2) where the COA accrued; (3) County where property in litigation is located; and/or (4) any county if defendant is not a Florida resident
If defendant moves to change venue and venue is originally improper:
venue will be transferred if plaintiff pays transfer fee within 30 days - if not case will be dismissed w/o prejudice
When must motion to transfer venue be made?
within 60 days of service of process
What is the procedure to transfer venue where venue was originally proper?
(1) Defendant will not receive a fair trial –> court can transfer to ANY venue
(2) Another court is the center of gravity and will be more covenant –> court will dismiss or stay
What factors does the court consider when determining whether to transfer venue because of fair trial?
(1) opponent has undue influence in the county; (2) moving party is so odious he can’t get a fair trial; (3) impracticable to get a qualified jury
Who may serve process in Florida?
(1) sheriff or sheriff’s appointee; OR (2) nonparty adult, appointed by the court (elisor)
What is required for substituted service on an individual?
(1) process is left at D’s home; (2) with someone at least 15 years of age who resides there; and (3) server tells the person the contents of the document
When can nail and mail service of process be used?
(1) landlord is dispossessing tenant; (2) landlord failed twice at least 6 hours apart to make personal or substituted service of process; (3) landlord posts process conspicuously on the premise; and (4) has the clerk mail process to tenant at those premises
Waiver of service:
(1) Plaintiff mails process and waiver to defendant via certified mail; (2) within 20 days of receipt defendant can return it by first class mail
- if Defendant does not return the waiver then Plaintiff must serve Defendant and defendant has 60 days from receipt of the waiver for to respond
how long does a defendant have to respond to a complaint to avoid default?
within 20 days of being served with process; response can be answer or motion
If a defendant makes a preanswer motion and it is denied, by when must the defendant file an answer?
within 10 days after the courts order on the motion EXCEPT a motion to strike does not extend the time to answer
What are the waivable defenses?
Lack of PJ; Improper venue; Improper process or service of process
When is plaintiff required to reply to defendant’s answer?
If plaintiff wishes to avoid an affirmative defense raised in the answer; reply must be served within 20 days after service of the answer
When does plaintiff have right to amend their complaint?
once before defendant serves an answer
When does defendant have a right to amend?
once within 20 days of serving his answer
Where do depositions take place?
(1) plaintiff is deposed where case is pending; (2) defendant is deposed in county of residence; and (3) nonparty is deposed at county of residence/ business unless agreed otherwise
When is court order required for an examination?
If the condition in controversy is not physical (i.e. mental condition); party seeking the exam must show good cause
When is a physical/ mental examination available without court order?
if the physical condition of the party is at controversy; person seeking the exam must serve notice of scope, time, place, manner, and person who will conduct the exam; the party who will be examined must respond within 30 days either accepting or stating objections
When is a party necessary?
(1) w/o the party the court may not be able to accord complete relief (I.e. potential for multiple suits); or (2) parties interest may be harmed in a practical way if not joined
- if either is met the party should be joined if the court has PJ
When is there a right to implead?
within 20 days of serving answer; after that you need court permission
Who enters default judgment?
- clerk if defendant has not filed anything;
- judge if defendant has filed
What is the effect of entry of default?
defendant can’t answer or file a motion
When may a party move for summary judgment?
after 20 days from commencement of the action or after service of a motion for SJ by an adverse party
When must motion for summary judgment and supporting material be served?
at least 40 days before hearing on the motion; opponent of the motion can serve its evidence 20 days before hearing
How to do you serve the state of Florida?
service on the state attorney’s office
How do you serve a city?
service is permitted by service on the mayor
An award for punitive damages may not exceed:
the greater of three times compensatory damages; or 500k
When must objections to proposed jury instructions be made for the issue to be preserved for appeal?
At the court’s conference for jury instructions held before final argument or the issue is waived
in an interpleader case where the stakeholder claims no interest in the fund/property:
the order of interpleader will require the stakeholder to deposit the property w/ the court, dismiss her as a party, and award reasonable attorney’s fees/ costs
What is the proper procedure to perpetuate another person’s testimony in a matter cognizable in any court?
(1) file a verified petition in the circuit court where the expected adverse party is located; (2) showing the petitioner expects to be a party in cognizable action in Florida; (3) the subject matter and petitioner’s interest; (4) facts the petitioner wants to establish with the proposed testimony; (5) names + addresses of expected adverse parties; and (6) names + addresses of persons to be examined + substance of testimony sought
What is the number of interrogatories limited to a party?
30 (including all subparts)
What may the court consider when ruling on a motion for summary judgment?
pleadings, deposed, interrogatory answers, and admissions in the file + affidavits filed w/ the motion
What is interpleader?
action where a stakeholder forces all potential claimants of property into a single lawsuit
When can a Condo association sue on behalf of all association members?
(1) the case involves matters of common interest; and (2) control of the association rests w/ the unit owners, not with a developer
In Florida class action lawsuits notice….
is required in all class action types and must inform class members (1) they can opt out; (2) they are bound by the judgment if they don’t; and (3) they can enter a separate appearance in the case through counsel
What is the procedure to obtain sanctions for a partial failure to respond to discovery requests?
STEP 1: seek an order compelling answers to the unanswered questions
STEP 2: if party violates order compelling merits sanctions may then be imposed
What is a prerequisite to get any sanctions for failure to comply with discovery requests?
moving party has to certify that they tried to confer with the other party to figure out the discovery dispute
How is PJ satisfied in FL?
presence of D in FL when served; Consent; domicile in FL; incorporated/ PPB in FL; domiciled in FL; or pursuant to the long arm statute
how many days does a defendant have to respond to a complaint if he waives service?
60 days from date of the request for waiver
Is the movant’s failure to support its motion for SJ with supporting material grounds to deny the motion?
No
must evidence be admissible at trial to be considered in a motion for summary judgment?
Yes
The basis for SJ and any supporting material must be filed…
within 40 days of the hearing date
What cases can the FL Supreme Court review?
(1) decision by a DCA that construes a constitutional provision; (2) a decision by a DCA that construes a state statute directly conflicting with the decision of another DCA; or (3) a decision by a DCA expressly upholding the validity of a state statute
What are grounds to suspend a deposition?
annoyance, embarrassment, or oppression
The exclusion of a party from a deposition:
would be grounds for objecting to the use of that deposition
A plaintiff cannot conduct a deposition:
within 30 days of serving process unless a court orders; OR unless notice sets facts indicating the deponent will leave the court’s subpoena power within 30 days
A demand for a jury trial:
- must be made within 10 days after service of the last pleading directed to that issue (if defendant filed a counterclaim, this would be 10 days from the plaintiff’s answer)
- if it is a case with mixed issues of law and equity, the equitable part is determined by a judge AFTER the legal issue is tried by the jury
What can the court or a party do when all pleadings have been served and there are no motions pending on the pleadings?
court can set the case for trial for a date no sooner than 30 days from service of the courts notice; or plaintiff can file and serve notice that the case is ready for trial and trial may be set for a date no sooner than 30 days from the date of serving the notice
A motion to amend the judgment must be made…
within 15 days of a judgment’s entry
When can a motion to set aside a judgment for fraud be made?
within one year of the judgment’s entry
What are a party’s options when responding to a request to produce documents?
(1) refuse to produce disputed docs pending a resolution to an objection to production; (2) present docs as they are kept in the ordinary course of business; or (3) produce docs and identify them to correspond with the categories in the plaintiff’s request
Communications between an attorney and their public entity client:
generally is available for inspection unless the document was prepared for litigation and reflects the attorneys mental impressions, legal theory, or strategy (in which case the document is exempt from disclosure until litigation ends)
A person who wishes to perpetuate testimony regarding a matter that hasn’t been filed:
(1) must file a verified petition; (2) serve the expected adverse parties and person to be deposed; and (3) obtain a court order granting the deposition
Where can subpoenas compel the attendance of non Florida residents?
county where the nonparty deponent was served or other convenient place ordered by the court
When a pleading that requires a responsive pleading is amended the opposing party must respond:
within 10 days after service of the amendment pleading
When can a case proceed without joining an absent necessary party?
(1) interest can be separated from the case; and (2) the court can grant complete relief to all parties w/o affecting her interest In the subject matter of the case
A defendant can bring in a third party by imp leader if:
the third party may be liable to him for some or all of the plaintiffs claim against him; no motion is necessary if the defendant files the third party complaint within 20 days of filing her answer
What objections are NOT waived by failure to make them at the time of the deposition?
competency of witnesses; relevancy of testimony; or evidentiary rules such as hearsay
When must motions for costs and attorneys fees be made?
must be served no later than 30 days after filing of the judgment
Service upon a corporation’s registered agent:
is always sufficient
Who may a plaintiff serve as an alternative to a corporation’s registered agent?
You have to go down the hierarchy in the FL statute: (1) president; (2) VP; (3) treasurer; (4) secretary; (5) directors; (6) other designated officers (CEO, CFO)
How many times may a party amend their complaint without leave of court?
once
Can interrogatories be served on the defendant with the complaint?
YES; and defendant generally has 45 days from service of interrogatories to respond
When may discovery be initiated?
Any time after the complaint is served
When may a nonparty be suponead without court order?
If no party objects after being served with notice of intent to subpoena the nonparty
To make a motion for JNOV:
(1) party must have made a timely motion for directed verdict at trial and (2) motion must be made within 15 days after the return of a verdict
Generally, any party may depose another party or nonparty…
more than 30 days after the initial pleadings and service, upon reasonable notice to all parties
When can plaintiff voluntarily dismiss her case?
by filing notice or stating on the record at trial at any time before the case is submitted to the jury or court in a nonjury case
What is the affect of a voluntary dismissal on a lis pendens?
The notice or stipulation of voluntary dismissal cancels the lis pendens w/o having to take further action
What court has jurisdiction over ejectment actions?
circuit court
Failure to answer a claim/ counterclaim by admitting, denying, or pleading insufficient knowledge is treated as:
an admission of all allegations, except damages
A reply to an affirmative defense is not required if?
The affirmative defense is being denied
What experts is a party required to disclose?
The experts the party intends to call to testify
What information regarding expert witnesses can be compelled with interrogatories?
substance of the expert’s testimony and grounds for the expert’s opinion; no court order is required
Where is notice of appeal filed?
with the trial court from which appeal is taken and an appellant generally first seeks stay enforcement of a lower court injunction from the lower court itself
Severe sanctions (i.e. default/ prohibiting further discovery) are authorized:
only when a party willfully refuses to allow discovery
How can a movant/ defendant support their motion for summary judgment?
On the basis that the respondent (plaintiff) has no evidence to show the movant is liable without submitting supporting materials to their motion
A plaintiff has the right to amend their complaint:
once BEFORE the defendant answers; a motion is not an answer
What cases does the Florida Supreme Court have jurisdiction to hear?
(1) decision by DCA that expressly upholds the validity of a state statute; (2) decision by a DCA that construes a state statute that directly conflicts with the decision of another DCA; (3) a decision by a DCA that expressly construes a constitutional provision
What doesn’t the Florida Supreme Court have jurisdiction to hear?
cases where DCA expressly construes a state statute
If the defendant is a resident of Florida, is it subject to venue in a county where it has just been served?
No- this is an avenue to establish venue with respect to nonresidents
What information is discoverable regarding a party’s liability insurer?
The name and address of its insurer; information regarding content of statements made and the insurance company’s opinion about the insured’s liability are protected work product.
What are grounds to suspend deposition?
embarrassment, harassment, or annoyance
How can a nonresident, nonparty be subpoenaed?
obtain a subpoena from an appropriate court in the state where the nonparty resides ordering the nonparty to appear at a deposition in an appropriate place within the other state’s jurisdiction
What is encompassed within the scope of discovery?
any matter, not privileged, that is relevant to the action, that may lead to the discovery of admissible evidence
is the fact that a piece of evidence will be inadmissible at trial grounds to object to its discovery?
no
What is the rule regarding no record activity?
if there has been no activity for 10 months, any interested person may serve notice to all parties of no record activity; if no record activity occurs within 60 days after notice is served the action is dismissed for lack of prosecution
the court may raise the issue on its own; a motion is set for hearing and its granted unless 5 days before the heading the plaintiff shows in writing good cause why the action should remain pending
When a nonparty is compelled to produce documents w/o being deposed, compliance of production is limited to
the county where the nonparty resides, or county where the documents/ items are located
