MC Civ Pro - FL Flashcards
What does jurisdiction refer to
the power of a court to hear a case and render a binding judgment
What are the two broad divisions of jurisdiction
1) jurisdiction over the subject matter and
2) jurisdiction over the person of the defendant (in an in personam action) or over the thing (in an in rem or quasi in rem action)
Florida Constitution Article V
vests in certain specified courts the state judicial power (gives the state courts their jurisdiction)
What courts have the power of extraordinary writs
supreme court, DCAs, and circuit courts
what is the power of extraordinary wits, and what is the limitation
the authority to issue any writ necessary for the exercise of their respective jurisdiction. however, this authority cannot be used as a source of original jurisdiction; the “all writs” power extends only to cases that otherwise fall within the particular court’s ultimate jurisdiction
what are the 4 functions of the Florida S Ct
mandatory appellate review, discretionary appellate review, issuance of writs, advisory opinions
(Mandatory Appellate Review) - an appeal may be taken to the supreme court as a MATTER OF RIGHT from the following (4)
1) final judgment of trial courts imposing the death penalty;
2) decisions of district courts of appeal declaring invalid a state statute or a provision of the state constitution;
3) final judgments entered in proceedings for the validation of bonds or certificates of indebtedness; and
4) action of statewide agencies relating to rates or services of utilities providing electric, gas, or telephone service
(Discretionary Appellate Review) - the Florida Supreme Court has discretion to review the following (8)
1) decisions of DCA that expressly declare valid a state statute;
2) decisions of DCA that expressly construe a provision of the state or federal Constitution;
3) decisions of DCA that expressly affect a class of constitutional or state officers;
4) decisions of DCA that expressly and directly conflict with a decision of another DCA or of the s ct on the same question of law
5) decisions of DCA that pass upon a question certified by the district court to be of great public importance;
6) decisions of DCA that are certified by the DCA to be in direct conflict with a decisions of another DCA;
7) orders of trial courts certified by the DCA in which the appeal is pending to be of great public importance or to have a great effect on the proper administration of justice throughout the state, and certified to require immediate resolution by the s ct, and
8) questions of law certified by the US S Ct or a US ct of app that are determinative of the cause and for which there is no controlling precedent of the S Ct of FL
The FL S Ct has original jurisdiction to issue the following writs in cases coming within the ultimate jurisdiction of that court: (5)
1) writs of prohibition to other courts
2) writs of mandamus to state officers and state agencies
3) writs of quo warranto to state officers and state agencies;
4) writs of habeas corpus returnable before the supreme court or any justice, a DCA or any judge thereof, or any circuit judge; and
5) all writs necessary to the complete exercise of its jurisdiction
What writ does the FL S Ct not possess jurisdiction to issue
writs of common law certiorari
what is a writ of prohibition
a writ directing a subordinate to stop doing something the law prohibits (for example a superior court to the lower court directing it not to proceed with a case which does not fall under its jurisdiction)
what is a writ of mandamus
a court order compelling someone to execute a duty that they are legally obligated to complete (for example a writ telling a lower court or government agency to complete a duty to uphold the law or to correct an abuse of discretion)
what is a writ of quo warranto
latin for “by what warrant (or authority)?” it is used to challenge a person’s right to hold a public or corporate office
what is a writ of habeas corpus
a court order demanding that a public official deliver an imprisoned individual to the court and show a valid reason for that person’s detention
The Florida S Ct may issue advisory opinions at the request of the governor as to what?
as to the interpretation of any portion of the constitution concerning the governor’s powers and duties
The DCA has appellate jurisdiction over: (5)
1) all final orders not directly appealable to the supreme court or to a circuit court
2) certain nonfinal orders of the circuit courts
3) orders granting new trials or nonjury cases appealable to the district courts of appeal upon final decree
4) orders entered on motions filed under FL R of Civ Pro 1.540 (concerning mistake inadvertence, newly discovered evidence, fraud, etc.) and other nonfinal orders entered after final order on authorized motions; and
5) orders entered in probate and guardianship matters that make a final determination as to the rights or obligations of an interested person
What nonfinal orders of the circuit courts are appealable to the DCA? (11)
nonfinal orders that:
1) concern venue;
2) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions;
3) grant or deny the appointment of a receiver, or terminate or refuse to terminate a receivership;
4) determine jurisdiction of the person;
5) determine right to immediate possession of property;
6) determine right to immediate monetary relief or child custody in domestic relations matters;
7) determine whether a party is entitled to arbitration;
8) determine that a party is not entitled to workers’ compensation immunity as a matter of law;
9) determine that a class should be certified;
10) determine that a governmental entity has taken action that has, within the meaning of section 70.001 of the Florida Statutes, “inordinately burdened” real property; or
11) determine in a claim arising under federal civil rights laws, that a party is not entitled to absolute or qualified immunity as a matter of law
When may a DCA review nonfinal orders that aren’t expressly authorized in the rules of civ. pro and final orders of circuit courts acting in their review capacity
By way of the common law writ of certiorari where the petitioner shows that a clear departure from essential requirements of law has resulted in irreparable harm
May administrative action of a quasi-judicial nature be reviewed by a DCA?
Yes, administrative action of a quasi-judicial nature may be reviewed as a matter of right by the DCA under the Administrative Procedure Act
Do DCAs have original jurisdiction to issue writs of mandamus, prohibition, quo warranto, common law certiorari, habeas corpus, and all writs necessary to the complete exercise of the court’s jurisdiction?
Yes, and the matter need not be pending before a court for this original jurisdiction to be invoked
When does a DCA have discretion to review a final order of a county court that would otherwise be appealable to a circuit court?
where the county court certifies the case to be of “great public importance”
If the DCA accepts the discretionary appeal from the county court, what will the court decide besides that which is certified to be of “great public importance?”
All orders or rulings that would have been subject to appeal had the appeal been taken to a circuit court
What will happen if a DCA declines to accept a discretionary appeal from a county court when the issue is certified to be of great public importance?
The case will be transferred to the appropriate circuit court
Each circuit court has exclusive trial jurisdiction over: (7)
1) all actions at law not cognizable by county courts;
2) probate and estate matters, guardianship, incompetency;
3) all cases relating to juveniles except traffic offenses;
4) all felonies and misdemeanors arising out of the same circumstances as a felony that is also charged;
5) all cases involving the legality of a tax assessment;
6) actions of ejectment; and
7) all actions involving title or boundaries to real property
What court has jurisdiction over equity cases involving $30,000 or less?
shared jurisdiction - either by the circuit court or the county court
Circuit courts have jurisdiction of all appeals from county courts except: (3)
1) appeals of county court orders or judgments when the amount in controversy exceeds $15,000,
2) appeals of county court orders or judgments declaring invalid a state statute or a provision of the state constitution, and
3) judgments of a county court that are certified by that court to the DCA to be of great public importance and are accepted by the DCA for review
What is the extent of circuits courts’ certiorari jurisdiction?
to review nonfinal orders of the county courts that are not subject to direct appeal
When may circuit courts review agency action not of a quasi-judicial nature?
They may issue writs of mandamus and prohibition in reviewing agency action or inaction that is so egregious or devastating that the available administrative remedy is too little or too late
what writs are under the original jurisdiction of circuit courts?
writs of mandamus, prohibition, quo warranto, common law certiorari, habeas corpus, and all writs necessary to the complete exercise of the court’s jurisdiction
What is under the jurisdiction of the county courts? (7)
1) all misdemeanors not cognizable in circuit court;
2) all violations of municipal and county ordinances;
3) all actions at law in which the matter in controversy does not exceed $30,000 exclusive of interest, costs, and attorneys’ fees, except those within the exclusive jurisdiction of the circuit court;
4) proceedings relating to the right of possession of real property and to the forcible or unlawful detention of lands and tenements, except the circuit court also has jurisdiction if the amount in controversy exceeds $30,000, unless the matter otherwise falls within the exclusive subject matter jurisdiction of the circuit court;
5) all matters in equity within the jurisdiction amount of $30,000 or less, except as restricted by the FL Const. and statutes;
6) matters involving the dissolution of marriage under a simplified dissolution procedure or in cases where the matter is uncontested; and
7) dispute occurring in homeowners’ associations
In law cases where exclusive jurisdiction is not given to the circuit courts, what is the dollar amount of the dividing line between circuit and county courts
$30,000
How much proof is needed of the jurisdiction amount in order to bring an action in the proper court?
A good faith allegation that the amount in controversy exceeds or does not exceed (as the case may be) the jurisdictional amount
May claims of class members in a class action suit be aggregated to meet the jurisdiction amount?
yes
Are punitive damages, interest, attorneys’ fees and/or court costs included in calculating the jurisdiction amount and whether it meets the threshold
punitive damages are included. interested may be included if it is part of the cause of action itself, but not if it is interest added to the cause of action. Attorneys fees’ are added to the principal sum claimed if recoverable by contract or statute. Court costs are excluded from the calculation.
May separate causes of action be combined to reach the $30,000? Any exceptions?
aggregation of separate causes of action to reach $30,000 is not permitted; each separate cause of action is considered separately though joined in one suit. Exception: claims may be combined to confer jurisdiction in the circuit court when all arise from the same transaction or occurrence.
Against a given defendant, may a plaintiff bring a claim for less than $30,000 along with a claim for more than $30,000, even when the two claims are unrelated
Yes, there is authority for this
What is the primary agency jurisdiction doctrine?
When a party seeks to invoke the original jurisdiction of a trial court by asserting an issue that is beyond the ordinary experience of judges and juries, but within an administrative agency’s special competence, the court should refrain from exercising its jurisdiction over that issue until the issue has been ruled on by the agency.
Note: application of the doctrine is a matter of deference, policy, and comity, not subject matter jurisdiction
the question of whether a state may exercise judicial power over a person or a res (jurisdiction) may be divided into: (2)
1) whether state law authorizes this basis of jurisdiction (can be found in state statutes, as construed by state courts); and
2) whether this basis meets the constitutional requirements of due process (a matter of federal constitutional law)
When does general jurisdiction arise
when a defendant engages in sufficient business within the forum state; i.e., carries on a continuous and systematic part of its general business in the forum state such that it is “essentially at home” in there
For what sort of matters does general jurisdiction allow assertion over a defendant
for all matters, including matters unrelated to the defendant’s particular activities within the forum state
Where is a corporation considered “at home”
in states in which it is incorporated and/or in which it has its principal place of business
when does specific jurisdiction arise
arises when a defendant has far more limited contacts with the forum state. assertion of personal jurisdiction is still proper, but only as to claims that relate to or arise from the defendant’s activities in the forum
the S Ct has indicated that it is prepared to accept a much lower level of contacts between the defendant and forum to meet personal jurisdiction in what instance
when there is a tight nexus between the claim asserted and the defendant’s activities in the forum state
What is the due process required to establish personal jurisdiction in product liability cases
Due process requires more than the mere likelihood that a product manufactured and sold out of state will find its way into the forum state and cause injury there. “It is critical for due process that there be purposeful contacts between the defendant and the forum state so that given the defendant’s conduct and connection with the forum state he can reasonably anticipate being haled into court there.”
What is the stream of commerce rule for personal jurisdiction?
Where a manufacturer sells its product in interstate commerce INTENDED for markets in others states, the manufacturer-seller can be subjected to personal jurisdiction in the states where those products cause injuries. However, the S Ct raised doubt about the constitutionality of exercising personal jurisdiction over a foreign component manufacturer under a stream of commerce rationale
What are three major consequences (for the defendant) of a court’s exercising personal jurisdiction over a defendant?
1) the judgment may be satisfied out of any property owned by the defendant;
2) the adjudication is res judicata on the cause of action and, in addition, raises collateral estoppel as to all issues that actually were litigated and upon which the judgment actually rests; and
3) the judgment is entitled to full faith and credit in other states
What are the bases upon which personal jurisdiction may be founded in Florida? (8)
1) presence within the state when served, if not fraudulently induced or privileged; but persons (not residents of FL) coming into FL to attend court as parties or as witnesses in connection with one suit are immune from service in another suit, unless the second suit is a part of, or continuation of, the suit in which the person appeared;
2) a general appearance without timely objection
3) consent
4) domicile of a natural person within FL
5) incorporation of a corporation in FL
6) a place of business in FL of a foreign corporation
7) substantial and not isolated activity of a defendant within FL, whether such activity is wholly intrastate, interstate, or otherwise and whether or not the claim arises from that activity (this provision, unlike the long arm statute, uses a theory of general jurisdiction; i.e., that the defendant has a sufficiently substantial level of activity in the state that it may be subjected to suit here even on unrelated causes of action.)
8) long arm statute: as to a claim for relief arising from doing any of certain enumerated actions by either a natural person, corporation, partnership, or unincorporated association either directly or through an agent
What are the 10 enumerated acts that give rise to reach for personal jurisdiction under FL’s long arm statute?
as to a claim for relief ARISING FROM doing any of the acts enumerated below, a natural person, corporation, partnership, or unincorporated association who, either directly or through an agent:
1) operates, conducts, engages in, or carries on a business or business venture or has an office or agency in FL;
2) commits a tortious act within FL
3) causes injury to persons or property in FL arising out of an act or omission outside FL, if at or about the time of the injury i) he was engaged in solicitation or service activities in FL; or ii) products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed in FL in the ordinary course of commerce, trade, or use;
4) breaches a contract in FL by failing to perform acts required by the contract to be performed in FL;
5) owns, uses, possesses, or holds a mortgage or lien on real property within FL;
6) contracts to insure any person, property, or risk located within FL at the time of contracting;
7) in marital dissolution or support actions, maintains a marital domicile in FL at the time the action is commenced, or resided in the state preceding the commencement of the action, whether cohabiting during that time or not, even if the defendant is no longer a resident of the state;
8) in a paternity action, engages in sexual intercourse in FL by which the subject child may have been conceived;
9) enters into a contract with a valid choice of law provision and a provision agreeing to submit to the jurisdiction of FL courts (however this MAY NOT be the sole basis for exercising personal jurisdiction);
10) if a defendant in his pleadings demands affirmative relief on causes of action unrelated to the transaction forming the basis of the plaintiff’s claim, the defendant shall thereafter in that action be subject to the jurisdiction of the court for any cause of action that plaintiff may by amendment assert against the defendant, regardless of its basis
What is in rem jurisdiction
results in no personal liability or obligation upon anyone, but rather affects the interest of all persons in a thing
In what way are in rem judgments not res judicata and are res judicata
in rem judgments are generally not res judicata, except as to the property itself. but if another person comes in to defend his interest, then there will be a collateral estoppel effect as to factual issues actually litigated and decided
When may an in rem judgment be rendered (what is the basis)
in rem judgments may be rendered where the court has power over the thing itself, as, for example, in condemnation actions, actions to quiet title in land, or confiscation actions, where the property in dispute is physically located in the state
What is quasi in rem jurisdiction
quasi in rem jurisdiction affects the interest of particular persons in a thing. The court must have physical power over the property itself, generally through attachment
In what ways are quasi in rem judgments not res judicata and are res judicata
a quasi in rem judgment is limited to the property attached, and is generally not res judicata beyond the property. However, if another person should come in to defend his interest in the property on the merits, he subjects himself to in personam jurisdiction
When defending an interest in property on the merits, does the person then necessarily subject himself to in personam jurisdiction?
Yes, Florida does not permit limited appearance, which would permit the defendant to defend the claim on the merits without subjecting himself to in personam jurisdiction
According to the S Ct, when is it unconstitutional to exercise in rem jurisdiction over a person
when the person who is really being sued and the cause of action being sued upon lack such minimum contacts with Florida that exercise of jurisdiction in Florida is not within traditional notions of fair play and substantial justice; i.e., the minimum contacts standard applies
Why are status suits (e.g., divorce, adoption) often spoken of as in rem?
The court may adjudicate the status of a citizen of the state even though it may not have personal jurisdiction over other interested persons
What are the two requirements of service of process (in acquiring jurisdiction)
1) it is authorized by statute or rule and
2) meets constitutional due process requirements of notice
what are the mechanics for service of process via issuance of a summons by the clerk of the court or the judge?
the issuance is done automatically by the clerk when the initial pleading is filed; a motion requesting this action is unnecessary
What does the summons notify the defendant?
It notifies the defendant that a claim has been lodged against him and that he must respond or he will lose by default
What two items are required on the process service
a signature by the clerk or judge and the court’s seal
What does plaintiff owe for valid service of process
The plaintiff must use due diligence in seeing that service on the defendant is made promptly. When the plaintiff does not know where the defendant may be found, he uses due diligence if he makes reasonable efforts to find him.
Who may service of process be made by
a sheriff, a special process server appointed by the sheriff, or by any person over the age of 18 who is not a party or otherwise interested in the outcome of the case and who is specially appointed by the court to serve process
What are the rules for serving process on Sunday?
service on Sunday is a nullity unless the plaintiff by affidavit states that he has reason to believe that the defendant will “escape from this state under protection of Sunday.”
When a summons is not served for whatever reason, what is the second summons termed? what is the third or subsequent summons termed?
alias summons; pluries summons
In what instance is a motion to issue process required after service of original process? When is it not required?
No motion to issue process is required when the return from the first process issued shows service was not perfected, but a motion is required when the earlier process has not been returned to the clerk’s office
What are the requirements of the return or proof of service
the return of service form must be signed by the process server and filed with the court by either the person requesting service or the person authorized to serve. The process server must list on the return all pleadings served along with the process. When the service is not made by a sheriff, an affidavit is required
Does failure to make a return affect the validity of the service?
no
Unless good cause or excusable neglect is shown, a summons must be served on a defendant within ___ days of filing the initial pleading directed to that defendant.
120 days
What are the options of the court if plaintiff does not meet the summons service deadline?
the court may direct that service be made within a specified time, dismiss the cause against the defendant without prejudice, or drop the defendant as a party
What are the requirements for delivery of personal service on an individual who is not a minor or incompetent when the individual refuses to accept service of process?
If the defendant refuses to accept service of process, and the process server is able to identify the defendant, process may be left somewhere in the defendant’s presence
What are the requirements for delivery of personal service when the person is not there to accept service?
An individual may be served by leaving a copy of the summons and complaint at his usual place of abode, with any person residing therein age 15 or older, and informing that person of the contents (usual place of abode means the place where the defendant is actually living at the time of service)
Must the service of process rules be followed or is defendant’s actual knowledge of the lawsuit enough?
The statute must be strictly and literally observed to constitute valid service. The defendant’s actual knowledge of the lawsuit does not suffice.
Substituted service may be made by service of the summons and complaint on the spouse of the person to be served at any place in the county if what three conditions are met
1) if the cause of action is not adversarial proceeding between the spouse and the person to be served,
2) the spouse requests such service or the spouse is also a party to the action, and
3) the spouse and person to be served are residing together in the same dwelling regardless of whether the dwelling is located in the county where substituted service is made
When may a process server serve process by leaving a copy of the process with an individual in charge of a private mailbox or office
Only when the only address discoverable through public records for a person to be served is at that private mailbox or shared office space with a common receptionist AND is the process server determines that the person to be served still maintains a private mailbox or office at that location
When may an individual be served through an agent
by delivering a copy of the summons and complaint to an agent when authorized by appointment or by law to receive service of process
What are the rules for service of process in an action for possession of residential premises?
if the tenant cannot be found in the county or there is no person 15 years of age or older residing at the tenant’s usual place of abode after at least two attempts at least six hours apart to obtain personal service, then service may be made by attaching a copy of the summons and complaint to a conspicuous place on the property and by the clerk thereafter mailing a copy of the summons and complaint by first-class mail to the defendant at the premises involved in the proceeding
Must a residential community, condominium association, cooperative, or other gated community grant unannounced entry into the community, including its common areas, to a person who is attempting to serve process on a defendant or witness who resides within or is known to be within the community
Yes
On whom must service be processed for a minor or incompetent with and without a legal guardian
with a legal guardian - the legal guardian
minor without - serving a parent or guardian of the minor. Thereafter, the party seeking service must obtain a court order appointing a guardian ad litem to represent the minor or obtain a court order that no representative is necessary
incompetent without - the party seeking service should serve two copies of the process on the person who has care and custody of the incompetent and, thereafter, cause the court to appoint a representative who can be served unless excused
How does service of process work when serving a partnership?
Service on a partnership may be made by delivery of process to any partner, and is as valid as if served on each individual partner. After one attempt to serve a partner or designated employee has been made, process may be served on the person in charge of the partnership during regular business hours
What is the difference in effect of service of process on a partner as opposed to service on a designated employee or other person in charge?
After service on a partner, a judgment will be valid and can be executed against that partner individually and against the assets of the partnership. After service on a designated employee or other person in charge, judgment may be executed against partnership assets, but not against the individual assets of any partner
What are the three ways to accomplish service of process on a corporation
1) by serving its registered agent
2) by delivery of process to one of the officers, or
3) serving the registered agent, officer, or director at the address provided for the registered agent, officer, director, or principal place of business when it is a residence or private mailbox or some other type of shared office space
When may service of process be made on the secretary of state as the agent on whom all process may be served for a nonresident natural person, partnership, foreign corporation, or former resident who operates a business or has an office in Florida
when the cause of action arises out of the business being done within the state and as long as there is noticed by registered or certified mail to the defendant outside Florida; or service personally to the defendant outside Florida by a public officer authorized to make service by Florida or by the state where service is made. Also, the corporation must have no resident agent or officer in the state
Is any person or entity that sells, consigns, or leases personal property through brokers, jobbers, wholesalers, or distributors to any person or entity in Florida conclusively presumed to be both engaged in substantial and not isolated activities within FL and carrying on a business venture?
Yes, these activities make the nonresident person or corporation subject to general jurisdiction of the Florida courts
How can service on the state of Florida be accomplished?
by delivery of process to the state attorney or one of her assistants for the judicial circuit in which the action is brought and on the attorney general. (This may be done by registered or certified mail).
How must service be made under the long arm statute to a person out of state
in the same manner as service is authorized in FL, by any officer authorized to serve process in the state where the person is served. (no order of court is required)
How may service be accomplished on a nonresident owner or operator of a motor vehicle or on a nonresident who operates, navigates, or maintains any aircraft or watercraft when the instrumentality is involved in an accident or collision in Florida
the nonresident may be served by delivery to the secretary of state AND (i) by mailing (by plaintiff) a copy to the defendant (with return receipt), or (II) personal delivery of a copy outside Florida by any public officer authorized by FL or by the law of that state to make service
When is service by publication allowed
When a defendant is outside Florida, cannot be found for personal service in the state after a diligent search, or is unknown. It is only allowable in certain actions (usually property, estate, or family claims) and the plaintiff must first file a sworn statement (affidavit) made on personal knowledge of certain facts about defendant and his residence
Does acceptance of service by mail waive any objection to venue or personal jurisdiction
No, but a defendant is given 60 days from the date of requested waiver to respond to the complaint
what does venue refer to
the location within FL of a lawsuit (the county in which the action may be brought)
according to common law rule, where must certain actions that directly affect real or personal property be brought. Also, what is this rule called?
only where the property involved is located. This is the “local action” rule
any action that is not a “local action” is a _____
transitory action
What is the general rule for where transitory actions may be brought against a resident of Florida
venue exists only in the county in which any defendant resides at the time the action is commenced, where any cause of action accrued, or in which the property in litigation is located
where is the proper venue for bringing action against a nonresident defendant in a transitory action
a nonresident defendant in a transitory action may be sued in any county. However, defendants who are residents of Florida and joined with nonresident defendants may still assert the venue privilege for residents of Florida (the general rule)
for venue purposes, what is the residence of 1) a domestic corporation, 2) a foreign corporation, and 3) a partnership and union?
1) domestic partnership - in any county in which it has, or usually keeps, an office for transaction of its customary business
2) in any county in which it has an agent or other representative
3) in any county in which its principal office as designated by the secretary of state is located. if no such designation has been made, then it resides in any county of residence of any partner or member
Where does venue exist when there are multiple defendants residing in different counties?
in the county of residence of any one of them
Where does the venue exist if there are multiple causes of action?
in the county in which any one of the causes of action arose
What is the venue for a suit on a promissory note (3 options)
1) where the note was signed or the maker resides if the note is unsecured;
2) where the note was signed or the maker resides if the note is secured and the plaintiff sues to recover on the note rather than foreclose on property; or
3) where the property is located if the note is secured and the plaintiff sues to recover the property
In a suit against the state, or an agency or subdivision of the state, where is venue proper? (and what is this rule’s name?)
Venue is proper only in the county in which the state, agency, or subdivision maintains its principal headquarters. this is known as the “home venue privilege.”
What are the four exceptions to the “home venue privilege” granted to the state, agencies, or subdivisions of the state?
1) the legislature has, by statute, waived the privilege;
2) direct judicial protection is sought from an unlawful invasion of a constitutional right of the plaintiff, which is directly threatened in the county in which the suit was instituted (the “sword-wielder” exception);
3) the governmental defendant is sued as a joint tortfeasor; or
4) a party petitions the court for an order to gain access to public records, if the records sought are by law confidential and cannot be made public without a determination by the court that good cause exists for public access
If the defendant in a suit does not object in defendant’s first response that the venue is improper under venue statutes, is the objection waived?
Yes
Even where previously stipulated in a prior retail installment contract, the contracted venue is valid only: (3 circumstances)
1) where the contract was signed,
2) where the buyer resided at the time of purchase or at the time suit is brought, or
3) where the goods have been affixed to land
(Venue may not be waived or otherwise stipulated)
For contracts for the improvement of real property which contain a provision that a legal action involving a resident contractor or materialman be brought outside Florida, what is the rule and what is the exception?
The rule is that venue provisions of this type are void as a matter of public policy. The exception is that arbitration in another state may be required by contract because the Federal Arbitration Act preempts this statute
The court may transfer a case to the proper court in another county on what two grounds?
1) on the ground that the party will not receive a fair trial where the action was brought (from undue influence over the minds of inhabitants of the county, the movant is so odious to inhabitants that he wouldn’t receive a fair trial, or it is impractical to obtain a qualified jury); or
2) for the convenience of the parties or witnesses, or in the interest in justice when the case could have been filed originally been filed in another county in accordance with the venue statutes
When a case is brought in a court in which there is wrong venue, what is the options for the court
it may transfer the case to the proper court in any county where it might have been brought in accordance with the venue statutes. If two or more counties are proper, the plaintiff may select the county to which the suit will be transferred.
What should a court do when a suit brought in the court properly lies only in the circuit court (of the same county) or in the county court (in the same circuit)?
Transfer the suit to the proper court of the same county
What happens when a suit has been brought properly within the jurisdiction of the county court, and a counterclaim or cross-claim is filed exceeding that jurisdiction?
The case is transferred to the circuit court if the party asserting the demand that exceeds the court’s jurisdiction deposits with the court a sum sufficient to pay the clerk’s fee of the transferee court. Otherwise, the claim is reduced to an amount within the jurisdiction of the first court.
Before dismissing a cause of action when satisfactory remedy may be more conveniently found in a jurisdiction other than Florida (dismissing for forum non conveniens), the court must determine: (4 things)
1) that an adequate alternative forum exists that possesses jurisdiction over the whole case, including all parties;
2) That all relevant factors of private interest favor the alternative forum, weighing in the balance a strong presumption against disturbing the plaintiff’s initial forum choice;
3) if the balance of private interests is roughly equivalent, whether factors of public interest tip the balance in favor of trial in the alternative forum; and
4) that the trial judge will ensure that the plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice (e.g., by requiring the defendant to accept service of process and waive any statute of limitations defense in the new forum)
What matters are waived if not raised at the first opportunity (3)? What matter is never waived?
Waived if not raise at first opportunity:
jurisdiction over the defendant or property; sufficiency of service of process; proper venue.
Never waived: subject matter jurisdiction
What 6 things must be contained in the pleadings (as well as motions, orders, judgments, and other papers)
1) name of the court and file number of the case;
2) names of the parties (except for in rem and forfeiture proceedings);
3) name, current Florida Bar address, Bar identification number, telephone number, and one primary (and secondary, if any) e-mail address of the attorney;
4) designation of the pleading (complaint, answer, reply, etc.);
5) numbered paragraphs, each limited as far as practicable, to a single set of circumstances; and
6) each claim or defense in a separate count or defense
(the plaintiff also must file a “civil cover sheet” with the clerk when he files the initial complaint or petition)
The Florida Tort Reform Act of 1999 allows a court to award reasonable attorneys’ fees to the prevailing party if the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense, when initially presented to the court or at any time before trial: (2 instances)
1) was not supported by material facts necessary to establish the claim or defense; or
2) would not be supported by the application of law to those material facts
(However, the court will not award attorneys’ fees if it find that there was a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as applied to the material facts, with a reasonable expectation of success)
What must two things must a party do who files any court document that questions the constitutionality of a state statute, or a county or municipal charter, ordinance, or franchise?
1) file a notice of constitutional question, stating the question and identifying the document that raises the question; and
2) serve (by certified or registered mail) the notice and document on the attorney general or the state attorney of the judicial circuit in which the action is pending (joinder of the attorney general or the state attorney is not required)
What is a verification and what must it include?
Verification means that the party signs the pleadings and states that the facts alleged “are true.” When a verification is required, the document filed must include an oath, affirmation, or the following statement: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.” Verification on information and belief is insufficient.
What is the common term (category) that includes a complaint, counterclaim, third-party complaint, and cross-claim?
A claim for relief
What three things should each claim for relief contain?
1) a short, plain statement of the grounds of jurisdiction (e.g., this is an action for damages that exceed $30,000);
2) a short, plain statement of the ultimate facts showing that the pleader is entitled to relief; and
3) a demand for judgment for the relief to which the pleader deems himself entitled, which may be in the alternative or of several different types
May a complaint be amended even after verdict in a contested case to add or change the demand for relief?
yes
When is a party not allowed to add or change the demand for relief by amendment?
Where the facts pleaded and the issues presented by the pleadings and pretrial order are such that a specific item or type of relief may be deemed to unfairly surprise a party
What is the special rule for averring a condition of the mind (malice, intent, knowledge, etc.) in a pleading?
Conditions of the mind may be averred generally
What is the special rule for averring conditions precedent in a pleading?
Performance of conditions precedent may be alleged generally but denial or performance must be made specifically and with particularity
What are the special pleading rules regarding signatures on any instruments?
Unless specifically denied in the pleadings, each signature on an instrument is admitted
What is the rule for when a motion for a more definite statement is appropriate? If it is appropriate, when must it be made?
If the pleading is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, a motion for a more definite statement is appropriate. It must be made BEFORE filing a responsive pleading, and must point out the defects complained of and the details desired.
When is a motion to strike appropriate, and at what time is it available?
A motion to strike is available when a pleading is redundant or contains immaterial or scandalous matter. The motion can be made at any time
When is a motion to strike a sham pleading available and at what point can it be used?
A motion to strike a sham pleading is available when a party asserts that all or a part of an opposing pleading is a sham. This motion may be made at any time before the case is set for trial.
At what point is a motion for judgment on the pleadings available?
It is available after the pleadings are closed, but not so late as to delay the trial.
What 7 defenses may be made by a preanswer motion as opposed to the usual assertion in the responsive pleading?
1) lack of jurisdiction over the subject matter;
2) lack of jurisdiction over the person;
3) improper venue;
4) insufficiency of process;
5) insufficiency of service of process;
6) failure to state a cause of action upon which relief can be granted (including an affirmative defense on the face of the claim); and
7) failure to join an indispensable party
(Note that each of these is a motion to dismiss except improper venue)
What are the substantive particulars needed when bringing a preanswer motion to dismiss?
The ground and substantial matters of law relied on must be stated specifically and with particularity in the motion. Matters of fact may be presented in affidavit form. (The court may not grant any such motion without a hearing).
What 4 defenses are waived if not raised by the defendant in his first response to the complaint?
1) lack of jurisdiction over the person
2) improper venue;
3) insufficiency of process; and
4) insufficiency of service of process
(Note this not apply to filing of notice of appearance prior to filing any preanswer motion, it applies when one seeks affirmative relief in court)
Besides admitting or denying the allegations, what is the third allowed response and how does it operate?
Where it is true, respondent may respond that she is “without knowledge,” which operates as a denial
Failure to deny or allege insufficient knowledge constitutes an admission of all allegations except as to damages. How may this effect be eliminated?
This effect may be eliminated by an amendment
How should defenses be stated? Are general denials allowed?
Defenses must be stated in short and plain terms, fairly meeting the substance of the averments denied, except that any defense that could have been raised by motion shall be pleaded so that the grounds and substantial matters of law relied on are stated specifically and with particularity.
General denials ARE PERMITTED IF made in good faith, but they are not favored. (Note that the pleading must be signed by counsel, and this is a certification that counsel believes there is good ground to support it.)
With what particularity must affirmative defenses be pled?
Must be specifically pleaded, but not where the grounds for it appear on the face of a prior pleading (e.g., the plaintiff’s complaint) and the defense is asserted as the basis for dismissing that pleading for failure to state a cause of action.
Unless a different time is prescribed in a Florida statute, an answer must be filed within ____ days after service of the pleading containing the claims to which the answer is made
20 days
If a preanswer motion to dismiss or for a more definite statement is denied or postponed for trial, the time to answer is ____ days after the court’s order
10 days
If a preanswer motion for more definite statement is granted, the time to answer is ____ days after service of the more definite statement
10 days
Except when sued in a tort action pursuant to the waiver of sovereign immunity (which allow ___ days from the date of service to answer), the State of Florida, an agency of the state, or an officer or employee of the state sued in an official capacity must serve an answer to a complaint or cross-claim or a reply to a counterclaim within ____ days after service
30 days; 40 days
How may a plaintiff test the legal sufficiency of an answer or a defense within an answer
by filing a motion to strike for failure to state a legal defense or a motion for judgment on the pleadings or at trial
How does special or limited appearance work in Florida?
The special appearance is nonexistent in Florida practice, as sufficiency of jurisdiction over the person, of process, of service, and of venue are preserved for appeal if properly raised, even though the defendant then defends on the merits.
When should a party file a reply
It depends on whether he wants to raise new matters (i.e., new facts) in response to the affirmative defense. If the answer contains an affirmative defense and the opposing party wishes to avoid the legal effect of the affirmative defense with new matter, a reply is required. (However, if no new factual allegations are to be alleged, no reply is required and the affirmative defenses are deemed denied).
A reply must be filed within ____ days after service of the answer
20 days
Is amendment allowed before responsive pleading is served?
A pleading may be amended once before a responsive pleading is served (or within 20 days of service of the pleading if not responsive pleading is required). (Note that a motion is not a pleading. Thus, the defendant’s filing of a motion to dismiss or for summary judgment before answering does not preclude the plaintiff’s right to amend)
Once a responsive pleading is served, when may a pleading be amended?
By written consent of the adverse party or by leave of court. Leave of court is “freely granted when justice so requires.”
Does the statute of limitations bar causes of action in an amended pleading that are new and distinct from those set forth in the original pleading?
Yes
How must a claim be brought for punitive damages
A claim for punitive damages may not be pleaded in the original complaint. Rather, to assert a claim for punitive damages, the claimant must first, on motion, make a reasonable showing by evidence in the record or proffered by the claimant that would provide a reasonable basis for recovery of punitive damages. If the court finds the claim reasonably supported, the claimant may then amend the complaint to assert punitive damages.
Must an opposing party fully plead formerly ruled-on defenses and objections when plaintiff files an amended pleading? If so, how long does the opposing party have?
Yes, otherwise, the defenses and objections are waived. The opposing party must plead in response to the amended pleading (or otherwise respond by appropriate motion) within 10 days after service of the amended pleading, unless the court otherwise orders.
(for counterclaims) Must any claim that a pleader has against an opposing party which arises out of the same transaction or occurrence as the pleading responded to be asserted at the time of the serving of a responsive pleading?
Yes, or it is forever lost (there are exceptions to this though)
What are the three exceptions to the rule for counterclaims that any claim that a pleader has against the opposing party which arises out of the same transaction or occurrence as the pleading responded to must be asserted at the time of the serving of a responsive pleading or it is forever lost
1) Where the counterclaim requires the presence of third parties over whom the court cannot acquire jurisdiction;
2) Where the claim was the subject matter of another pending action when the present action was commenced; or
3) When the claim to which a responsive pleading is being filed was not based upon in personam jurisdiction
When is a counterclaim deemed permissive?
A counterclaim is deemed permissive and therefore may, but need not, be asserted when it is based on a claim not arising out of the same transaction or occurrence as the pleading responded to
What is the difference in the role of the parties for a counterclaim?
The plaintiff assumes the role of the defendant as far as the counterclaim is concerned, and all rules apply. Responses to counterclaim are governed by the same rules that apply to responses to complaints.
What is the test stated as for the “same transaction or occurrence” requirement?
Does the claim depend on the same evidence, or is it “logically related”?
What are the limitations period for 1) compulsory counterclaims, and 2) permissive counterclaims?
compulsory counterclaims are calculated as of the filing of the plaintiff’s complaint. permissive counterclaims are calculated as of the filing of the counterclaim
What are the three main rules for cross-claims
1) a cross-claim is a claim by one party against a co-party
2) It must arise out of the same transaction or occurrence as does the original claim or a counterclaim, or relate to any property that is the subject matter of the original claim
3) cross-claims are permissive, i.e., a party is not compelled to file one, but the compulsory counterclaim rules apply to a pleading responding to a cross-claim
What is the rule for errors or defects in pleadings?
At every stage of the action, the court must disregard any error or defect that does not affect the substantial rights of the parties
What does the issue of capacity involve?
Whether a person or entity may sue or be sued.
May a minor or incompetent bring suit for themselves?
No, a minor or an incompetent may sue and be sued only though a guardian or like fiduciary.
What is the rule for filing suit and recovery against partnerships?
A partnership may sue and be sued as an entity. If sued as an entity, recovery may be had only out of the partnership assets and the personal assets of the general partner(s) who was served
What is the rule (plus exception) for filing suits against unincorporated associations or filing suit as an unincorporated association?
Generally, unincorporated associations may not sue or be sued as entities. However, the following may sue or be sued as entities: labor unions; fraternal benefit societies that issue insurance benefits; and condominium and mobile homeowners’ associations.
What persons may sue despite that fact that they are not the ultimate beneficiaries of the action? (6)
personal representative; administrator; guardian; trustee; promisee of a contract in favor of a third-party beneficiary; and a party authorized by statute
When is permissive joinder allowed and not allowed for plaintiffs?
All persons may join in an action if they have a common interest in the subject of the action and in obtaining the relief demanded; however, persons who have separate and independent causes of action against the same defendant may not join together as plaintiffs even though the causes of action arise from the same occurrence and present common questions of law or fact
When is permissive joinder allowed and not allowed for defendants?
All persons may be joined in an action if they have or claim “an interest adverse to the plaintiff.” The rule is quite broadly worded and vague, but definitely permits joinder of those jointly or severally liable
Can a liability insurance company be joined as a co-defendant by a person not insured under the terms of the insurance contract in a suit against the insured? Why or Why not?
No because a condition precedent to bringing an action against an insured’s liability insurance company is a judgment against the insured for a cause that is covered by the policy
What is a necessary party and what is the effect
When a court determines that an absent person has such an interest in the subject matter of the action that the suit may affect that interest, or the court may not be able to adjudicate the controversy fully without that person, she is deemed to be necessary and ought to be joined if at all feasible.
What is an indispensable party and what is the effect
When the absent party’s interest is such that it will inevitably, directly, and substantially be affected, or if in her absence the court will not be able to resolve the controversy completely and effectively without adversely prejudicing some party to the act, the absent part is deemed to be indispensable. If joinder of an indispensable party is not feasible because of jurisdiction or service of process problems, the suit will be dismissed. (Courts often will not label one an indispensable party if her interests are separable from those of the other parties so that the court can give complete relief to the present parties without adversely affecting the person not before the court).
What is an involuntary plaintiff and what is the effect
A necessary or indispensable party whose interest is aligned with that of the plaintiff and who refuses to join the suit voluntarily may be joined as a defendant and treated as an involuntary plaintiff
How may the absence of a necessary or indispensable party be raised?
It may be raised by a motion to dismiss (usually by defendant) before a responsive pleading is filed, in the answer, by a motion for judgment on the pleadings before trial, or at trial.
What is the rule regarding dismissal for failure to join an indispensable party?
An action should not be dismissed for failure to join an indispensable party until ample opportunity is afforded to join that party. The dismissal is without prejudice.
What is intervention?
Intervention is a device by which a nonparty enters the case on his own motion. It is also discretionary with a court whether to permit the intervention.
