Motions & Other Pre-Trial Things

Question 1

Before filing an answer, a defendant may move to dismiss the plaintiff’s complaint based on 7 things:

Answer 1

1) lack of subject matter jurisdiction
2) lack of personal jurisdiction
3) improper venue
4) insufficiency of process
5) insufficiency of service of process
6) failure to state a cause of action
7) failure to join indispensable parties

Question 2

Standard of review for a motion to dismiss:

Answer 2

A motion to dismiss must be denied unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

Question 3

How must the court construe the complaint in a motion to dismiss?

Answer 3

Construe the complaint in the light most favorable to plaintiff

Question 4

If a motion to dismiss is granted, the court will usually allow the plaintiff to:

Answer 4

amend the complaint.

Question 5

Generally, the courts look to the pleadings only when considering a motion to dismiss. However, there are two exceptions, including:

Answer 5

1) the court may take judicial notice of facts universally known or accepted; or
2) the court may consider whether the movant’s allegations cure any defect in the challenged pleading, and if the movant also presents affidavits or other evidence going to the merits, the court may treat the motion as one for summary judgment.

Question 6

Four defenses that are waived if not raised in a pre-answer motion or if not raised in the answer or any amendment as of the right to the answer:

Answer 6

1) Lack of jurisdiction over any person
2) improper venue
3) insufficiency of process
4) insufficiency of service of process

Question 7

Two defenses are able to be brought at any time during the initial action, but raising them at trial is up to the discretion of the judge:

Answer 7

1) Failure to state a cause of action

2) failure to join an indispensable party

Question 8

What is a defense that can never be waived and raised at any time by any party or the court, and may be raised for the first time on appeal?

Answer 8

Lack of subject matter jurisdiction

Question 9

A motion for judgment on the pleadings is analogous to a motion to dismiss; however, it is made:

Answer 9

after the pleadings are closed but within such time as not to delay the trial

Question 10

A motion for a more definite statement can be made before filing a responsive pleading if:

Answer 10

If the pleading is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading.

Question 11

A motion to strike can be made at any time but does not toll the time to answer. It is appropriate for any pleading that is:

Answer 11

redundant, immaterial, impertinent, or scandalous material

Question 12

A verified motion to strike a sham pleading may be made:

Answer 12

at any time before the cause is set for trial.

Question 13

A motion must be:

Answer 13

1) in writing, unless made during a hearing or trial
2) state with particularity the grounds upon which it is based; and
3) set forth the relief or order sought

Question 14

Service of a motion (except motions to strike and motions for judgment on the pleadings) extends the time for filing an answer until:

Answer 14

10 days after notice of the court’s action upon the motion.

Question 15

A pre-answer motion must be filed:

Answer 15

within the time allowed for serving the answer

Question 16

A pleading may be amended:

Answer 16

once before a responsive pleading is served, or, if no responsive pleadings are required and the action has not been placed on the trial calendar, within 20 days of service of the pleading

Question 17

After the time period for amendment as of right has expired, a party must:

Answer 17

make a motion to amend the pleading.

Question 18

An amended pleading is substituted for:

Answer 18

the former pleading

Question 19

Unless the court otherwise orders, every pleading subsequent to the initial pleading and every other paper filed in the action, except applications for a witness subpoena, must:

Answer 19

be served on each party to the action

Question 20

No service need be made on parties against whom:

Answer 20

a default has been entered.

Question 21

An answer must be filed:

Answer 21

within 20 days of service of the pleading to which it is responding.

Question 22

A third-party complaint (impleader) is:

Answer 22

a device that allows a defendant to bring in a 3d party who is or may be liable to the defendant for all or part of the plaintiff’s claim.

Question 23

Intervention:

Answer 23

when a non-party enters the action on his own motion, becoming a 3d-party plaintiff.
It may be made at any time up to the verdict.
The court has discretion to permit intervention.

Question 24

Interpleader:

Answer 24

persons having conflicting claims against a stakeholder may be joiend as defendants and required to interplead so tht the stakeholder may avoid exposure to double liability.

Question 25

Service of pleadings is now mandatory by:

Answer 25

email.

Question 26

Historical methods of service that are appropriate when no email address is available:

Answer 26

Hand delivery; mail; fax

Question 27

For parties who have a default entered against them, the only service that must be made is:

Answer 27

1) Notice of final hearing
2) Copy of final judgment
3) Any amended complaint

Question 28

Minors and incompetent persons must be served:

Answer 28

through a guardian or other fiduciary

Question 29

If the minor or incompetent has no guardian:

Answer 29

Next friend (mother or father) or guardian ad litem appointed by the court

Question 30

Why does Florida authorize liberal joinder of parties?

Answer 30

to get a complete determination of the issues.

Question 31

Misjoinder is:

Answer 31

the joinder of parties or actions that are improper.

Question 32

When parties or actions are misjoined, and the case is not dismissed:

Answer 32

the misjoined party should be dropped from the case.

Question 33

The law compels joinder when there is an indispensable party, who is:

Answer 33

a person whose interest is such that there is no way judgment can be entered without impacting the parties’ rights.

Question 34

If an indispensable party is not joined:

Answer 34

case is subject to dismissal.

Question 35

A necessary party is a person:

Answer 35

whose interest may be affected by the judgment and should be joined if feasible.

Question 36

Class actions require four things to be met:

Answer 36

1) Numerosity of members
2) Commonality of legal and factual issues
3) typicality of claims and defenses
4) adequacy of protecting and representing the interests of each member

Question 37

Once a class has been certified:

Answer 37

it cannot be dismissed without court approval.

Question 38

Discovery is proper on:

Answer 38

any non-privileged matter relevant to the subject matter

Question 39

Matters sought to be discovered need not be admissible so long as:

Answer 39

the discovery is reasonably calculated to lead to discovery of admissible evidence.

Question 40

Work product consists of:

Answer 40

materials/documentes prepared in anticipation of litigation.

Question 41

Work product can be divided into 2 categories:

Answer 41

1) factual work product - facts of case prepared or obtained by attorney
2) opinion work product - attorney’s thoughts, stragtegies, etc.

Question 42

Even where factual work product is discoverable, mental impressions:

Answer 42

will generally still be protected

Question 43

Factual work product may only be discovered upon a showing of:

Answer 43

substantial need; or

inability without undue hardship to obtain substantially similar information

Question 44

Six methods of discovery:

Answer 44

1) oral depositions
2) written depositions
3) interrogatories to parties
4) requests to produce or permit inspection
5) physical or mental examinations; and
6) admissions

Question 45

Depositions may be taken of:

Answer 45

party or non-party

Question 46

If the deposition is to be videotaped:

Answer 46

required to provide notice of the videotaping

Question 47

The plaintiff must obtain leave of court to take a deposition:

Answer 47

within 30 days of service of process of the initial pleading on a party

Question 48

What kind of notice of a deposition must be given to all parties?

Answer 48

Reasonable notice

Question 49

Notice of a deposition to a party is complete by:

Answer 49

filing the notice of taking a deposition

Question 50

Notice of a deposition to a non-party is complete by:

Answer 50

notice of deposition AND subpoena

Question 51

Subpoena duces tecum:

Answer 51

“Bring with you.” Compels a person to bring documents to the deposition

Question 52

After a deposition, a witness may review the transcript and:

Answer 52

make corrections and note that on an extra sheet. Witness is allowed to make corrections in form OR substance. The examining lawyer may ask why the corrections are made.

Question 53

Objections during a deposition:

Answer 53

Evidence at a deposition is taken subject to objections, but the objections are not generally waived if they are not raised during deposition.

Question 54

Five objections that must be raised at the deposition or they are waived:

Answer 54

1) any defects in notice of taking depositions
2) court reporter not authorized
3) manner of taking it (ex: room hot)
4) conduct of the parties
5) form of the question (compound, confusing, etc.)

Question 55

A deponent may only be properly advised not to answer in 3 circumstances:

Answer 55

1) To preserve a privilege
2) Preserve a protective order
3) To termination deposition because of conduct (and file protective order to limit use of deposition)

Question 56

Three specific uses of depositions:

Answer 56

1) To proffer testimony
2) To impeach
3) To refresh memory

Question 57

Use of depositions is:

Answer 57

subject to the rules of evidence

Question 58

A deposition transcript can be used as substantive evidence in a trial if:

Answer 58

1) Deponent was a party or an expert - even if that person is present at trial.
2) Party is unavailable (dead, sick/in prison, or beyond 100 miles of the court or out of state)

Question 59

If only part of a deposition is offered by a party, any adverse party may compel:

Answer 59

the reading of other parts to put it in context. (Rule of Completeness)

Question 60

Interrogatories may only be served on:

Answer 60

parties to an action

Question 61

Interrogatories are limited to:

Answer 61

30 questions, including subparts. Must have court approval for more than 30 questions.

Question 62

Objections to interrogatories must be:

Answer 62

stated, or are waived.

Question 63

Answers to interrogatories may be:

Answer 63

done by providing an answer or by attaching documents that would answer the question.

Question 64

Requests for Production or Inspection include:

Answer 64

Requesting documents, electronics, scene of the accident, property inquiries.
Cannot be made on a non-party. Instead, use subpoena duces tecum on a non-party

Question 65

A party producing documents may either:

Answer 65

produce as kept in the ordinary course of business, or organize to correspond with the request as made.

Question 66

A request for admissions is:

Answer 66

a request by one party to another for certain facts admitted as true.

Question 67

Responses to admissions include:

Answer 67

Admit fact as true;
Deny fact;
Indicate that they cannot admit or deny (must also indicate they’ve done a reasonable inquiry to determine); or
Object to a request for admission

Question 68

Requests for admission are limited to:

Answer 68

30.

Question 69

Requests for admission that are not responded to are:

Answer 69

deemed admitted

Question 70

A party may request that any other party submit to an examination by a qualified expert when:

Answer 70

physical or mental condition is in controversy

Question 71

Leave of court is not needed for _____ exam, but is needed for _____ exam.

Answer 71

Not needed for physical exam. Is needed for mental exam.

Question 72

A motion to compel discovery is for:

Answer 72

when a party fails to provide discovery, or the discovery provided is evasive.

Question 73

Before filing a motion to compel discovery, there is a duty to:

Answer 73

meet and confer about the issue in good faith.

Question 74

Voluntary dismissal by a plaintiff without order of the court is allowed before trial if:

Answer 74

P dismisses by filing notice of voluntary dismissal

Question 75

Voluntary dismissal by a plaintiff without order of the court is allowed during trail:

Answer 75

P states on record the case is being dismissed.

Question 76

Voluntary dismissal by a plaintiff without order of the court is allowed at any time:

Answer 76

P can dismiss with stipulation filed by all parties in the lawsuit.

Question 77

An action may not be dismissed without order of court:

Answer 77

1) once a hearing has begun on MSJ
2) counterclaim proceeding/pending
3) if jury has gone to deliberate or in a judge-tried case all evidence has been submitted

Question 78

A voluntary dismissal is deemed to be:

Answer 78

without prejudice - may be filed again.

Question 79

A party can only dismiss without prejudice:

Answer 79

once. A subsequent dismissal without prejudice is deemed to be “with prejudice” and it operates as an adjudication on the merits.

Question 80

Involuntary dismissal can occur when any party moves for dismissal due to:

Answer 80

1) failure to prosecute (no activity)

2) failure to comply with order of court

Question 81

An involuntary dismissal is deemed to be:

Answer 81

with prejudice and an adjudication of the case

Question 82

Default Judgment is appropriate when a party fails to respond to a claim. If no documents filed in the case, the ____ can enter the default. If even one document has been filed, the _____ must enter default.

Answer 82

No documents = clerk

1 or more documents filed = judge

Question 83

A motion to set aside default judgment has two criteria:

Answer 83

1) excusable neglect

2) meritorious defense

Question 84

Summary judgment standard:

Answer 84

No genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Question 85

Courts review MSJ in the light most favorable to:

Answer 85

the non-moving party.

Question 86

Summary judgment is:

Answer 86

a final order with prejudice and can be relied upon as res judicata in a subsequent action on the same cause of action

Question 87

A plaintiff may move for summary judgment:

Answer 87

at any time after 20 days from commencement of the action.

Question 88

A defendant may make a motion for summary judgment:

Answer 88

at any time.

Question 89

A MSJ must state with particularity:

Answer 89

the grounds upon which it is based and the substantial matters of law to be argued, and specifically identify any affidavits, answers to interrogatories, admissions, depositions, or other documents that would be admissible upon which the movant relies.

Question 90

What is required for settlement of a class action?

Answer 90

Court approval

Question 91

For all suits other than class actions:

Answer 91

all or any parties may settle all or some of the claims between them at any time while the action is pending.

Question 92

Any party may serve a proposal for settlement on another party:

Answer 92

at least 90 days after service or commencement of that action and at least 45 days before the action is set for trial.

Question 93

Can a proposal for settlement be used as evidence against a party?

Answer 93

No, except in an action to enforce the accepted proposal or determine sanctions for failure to accept the proposal.

Question 94

Case management conferences are used for:

Answer 94

scheduling the date of trial (no less than 30 days notice is required); and
hearing any motions, including motions in limine requesting the court to rule that certain evidence may or may not be introdued to the jury in trial.

Question 95

A pretrial conference is:

Answer 95

mandatory for all cases pending trial and each party must receive at least 20 days notice prior to the scheduling of a pretrial conference.

Question 96

Any party may serve notice that an action is ready for trial:

Answer 96

within 20 days after service of the last pleading; or

at any time after any motions directed to the pleadings have been decided