Fl Bar - Civ Pro

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SMJ of Trial Courts

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Courts of general jx. Default ct for most disputes.

County - SMJ over actions 15k or less.

Circuit - SMJ over actions over 15k.

Can add together claims to get over 15k only if those claims arise out of same TO.

Exam Tip 2: This rule is different from the rule that applies at the federal levelfor subject matter jurisdiction of the federal courts. Under the federal rule, theplaintiff can add together all the claims he has against a defendant.

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When it comes to trial courts, how do equitable actions work when it comes to jx?

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For equitable actions (seeking an injunction): if thevalue of the injunction is 15k or less, the circuit and county courts haveconcurrent jx. However, if above 15k, then circuit ct has exclusive jx.

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The circuit and county courts have concurrent jurisdiction over:

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Landlord-tenant cases in which the amount in controversy is $15,000 or less;

Actions seeking to possess real property,if more than $15,000; and

Any disputes involving homeowner's associations,regardless of the amount

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FL jx over persons and corporations:

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Any person or entity that engages in “continuous and systemic”activity in FL; and equivalent of being a resident.

Example 4: A “snowbird,” who lives in the state during the winter

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Activities under FL long arm statute

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• Operating or conducting a business or business venture in the state;

• Committing a tort in the state of Florida;

• Owning, possessing, or using real property in Florida;

• Contracting to insure a person, property, or risk in Florida;

• In an action for alimony, support, or the distribution of property, the long-armstatute is satisfied if the person maintains a residence in Florida at the time theaction is filed or if she had resided in the state in a marital relationship before theaction was filed;

• Causing an injury to a person in Florida by an act or omissionoutisde of FL if, atthe time of the injury, the non-resident defendant was involved in thesolicitation or distribution ofproducts in Florida;

• Breaching a contract by failing to perform acts that were required by the contact tobe performed in Florida; and

• In a matter involving paternity, engaging insexual intercourse in the state by which the child at issue may have been conceived.

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Requesting waiver of process:

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o P sends a writing to D by certified mail, returnreceipt requested, requesting waiver

o The complaint must also be included, as well as aprepaid means of responding.

o The writing must inform D about waiver of process and state the date on whichit was sent.

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How long does D have to decide if he will waive service and what is the benefit to D?

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20 days to waive process. If D does not agree to waive, then P will have to pay for formal service. D will be responsible for those costs b/c failure to waive unless D has a good reason for failure to waive.

Benefit = If D waives, then D does not have to respond to complaint for 60 days.

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How long does P have to serve D after filing complaint with the court?

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120 days to serve D. Can be extended if good cause or excusable neglect is shown.

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Does filing the complaint with the ct stop SOL from running?

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Yes.

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Who May Serve Process?

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Any person authorized by law or any person who is at least 18 yrs old, competent, and a resident of FL (so long as person does not have an interest in the subject matter of the action).

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Can you deliver service to a person at D's residence?

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Yes. Person must reside there, be 15 or older, and you must inform the person of the contents of what you are giving them.

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Service on minors (under 18) or incompetent persons

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Minor - who has never been married, service made on the minor’s parent or guardian.

Incompetent - on guardian or person who has care/custody of incompetent.

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Service on Sole Proprietor

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A natural person, a single human being doing business, so one could serve her asdiscussed above

You could also go to the business and serve the person there.

If you have tried to serve the person at the business twice and were not successful, you may serve the sole proprietor bysubstitute. (By serving the person “in charge of the business at the time ofservice.”)

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Partnerships and Limited Partnerships

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Service on any partner or any person designated to accept service.

If you make one attempt to serve a partner at the place of businessand it is not successful, you may then serve the “person in charge of the partnership” atthe time of service, so long as service is made during regular business hours.

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Corporations service

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You may serve a corporation by personally serving a president, vice-president, or other“head” of the corporation. If you cannot serve these people, then you may affect service on the corporation’streasurer, secretary, or general manager. If that does not work, the next level allows you to serve a board of directors. If even that does not work, you may serve an officer or business agent of thecorporation residing in Florida.

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Public Agencies/Officers (e.g., a town council) service

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You may serve the head (e.g., president, chair, mayor, etc.).

In their absence, the vice-president, vice-chair, vice-mayor, etc.

If none of that can be done, then any member of the body may be served, such as amember of the town council.

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The State of Florida service

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You must serve either the state attorney or an assistant state attorney in the circuit inwhich the action is filed; and

Send two copies of the process by registered or certified mail to the Florida AttorneyGeneral

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Substituted Service on Nonresidents

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• In a limited range of circumstances, a nonresident who does a certain thing in Florida will bedeemed to have appointed the Florida Secretary of State as her agent to accept process.

• By statute, these persons are:

o Owners or operators of cars in the state;

o Persons who operate and maintain a watercraft in the state;

o Persons who operate and maintain an aircraft in thestate; and

o Persons operating, conducting, or engaging in a business or business venture in the state.

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Service by Publication (Constructive Service)

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Service by Publication (Constructive Service)• We are hostile to service by publication because it is not likely to provide notice.• You cannot use service by publication if you could use personal or substituted service.• May only be made in a defined set of caseso Several of the categories concern claims about ownership or division of property, as well ascertain family law related matters, such as custody of children, adoption, and paternity.• Required to submit a sworn statement laying out why service by publication is allowed andnecessary in that case

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Service of Motions or Other Subsequent Papers

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After service of process, other papers, such as, motions will be served. They should be served by e-mail. Service will be effected on the date sent.

If e-mail is excused or person does not have an e-mail address, serve by personal delivery, mail, or by giving it to the clerk of ct. Can also serve to person's residence (family member over 15), fax, or leave at their atty's office.

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Venue rules in FL are based on:

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Counties.

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Two types of actions for venue purposes:

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(1) Local actions - Property has a fixed location (e.g. action to quiet title to real prop). Venue is where prop is located.

(2) Transitory actions - Not local action. Most are transitory. Venue lies in either the county where D resides or county where cause of action accrues. (exception: promissory note action can only be brought in county where note was executed).

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When is residence determined?

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When the action is filed.

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Agreement as to Venue

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o Generally, parties can agree in a contract to have venue in a particular place, includingoutside of Florida.

o Any such agreement calling for venue outside of Florida in a contract for the improvementof real property is void as against public policy if the action concerns a resident contractoror sub-contractor.

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Venue in Actions against the State or State Agency

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o In the county in which it maintains its principle headquarters.

o Exceptions:

A statute can change the general rule;

In a suit concerning a plaintiff’s constitutional rights, then in the county in which theinvasion of those rights is threatened or has occurred;

When a state agency is a joint tortfeasor in a case, then in the county in which the causeof action accrued; or in cases in which a party files a petition for access to a public record.

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Change of Venue (transfer the case)

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Strong presumption against transfer.

Can even transfer to another county for convenience in interests of justice.

• Grounds are really based on fairness:

o The party opposing transfer has undue influence over the minds of the county’s residents;

o The party that wants the change is so disliked that a fair trial cannot be had; and

o When it otherwise appears impracticable to get a fair jury in the county

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A pleading asserting a claim for relief must contain three basic things (R. 1.110(b)):

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1) Why am I here: short, plain statement showing that the court has jurisdiction, unlessthe court already has jurisdiction

2) Why do I win: “short and plain statement of the ultimate facts showing the pleader isentitled to relief”

• Different from the federal standard of notice pleading

• Florida uses “ultimate fact pleading.”

o Cannot simply plead the legal elements of a claim (e.g., duty, breach causationand harm).

o Must plead the “ultimate facts” that make out those elements

3) What do I want: A demand for the relief being sought (e.g., damages or an injunction).

• No specific dollar amount is necessary (except to make a jurisdictional allegation).

• In a claim for relief, the pleader must set out each allegation in separately numbered paragraphsand each claim for relief in a separately marked count (or claim).

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In an answer, lack of knowledge is treated as a

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denial.

If a defendant fails to say one of these three things, everything other than the amountof damages is deemed to have been an admission.

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Time for Filing an Answer

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20 days from complaint served (if formal service)

60 days from date of waiver of service requested if service waived.

(E.g. If the complaint is served on March 1st, the 20-day period at issuestarts on March 2nd.)

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The Reply

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• Required when a responsive pleading (some form of answer) contains an affirmative defense

• Must be filed within 20 days of the service of the document containing theaffirmative defense

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Supplementing a pleading

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o A supplemental pleading does not change what has been done

o Adds additional occurrences or events that took place after the filing of the initial pleading

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Amending a pleading

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May amend once as ofright at any time before the responsive pleading has been filed.

A complaint is a pleading to which a responsive pleading is required – an answer. Thus,a plaintiff may amend the complaint once at any time before the answer.

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What if the pleading you want to amend is one for which there is no responsive pleadingrequired (e.g., an answer with no affirmative defenses)?

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May amend once as of right within 20 days of its service, so long as the case has notbeen placed on the trial docket

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Amendment by consent or leave of court (after time period has passed)

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May amend a pleading with the written consent of the other parties or by leave of court.

Leave to amend should be given “when justice so requires.”

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Relation back:

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An amendment will relate back to original filing if new claim or defense arise out of same T/O from original pleading.

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Amendment and punitive damages:

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The party wishing to seek punitive damages must:

• File a motion for leave to amend the pleading to make the claim; and

• Demonstrate by the submission of evidence that it has made a prima facie case that it is entitled to an award of punitive damages.

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Fraud or mistake:

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Allegations of fraud or mistake (in a main claim or as part of a defense) mustbe pled with particularity (very specific).

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Pre-answer motion

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D is never required to make one.

Timing: A pre-answer motion needs to be filed on the same timeline as the answer -- 20 days ifthe complaint was served and 60 days if service was waived

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Motion to Strike

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Seeks to remove from a pleading any matters that are redundant, immaterial, scandalous, etc.

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Failure to state a cause of action

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Can be put in motion to dismiss.

Assuming that what plaintiff says is all true, the law still does not let the plaintiff win

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What defenses do you lose if not made pre-trial?

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Lack of PJ, venue, insufficient process, and insufficient service of process.

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Motion to Strike a Sham Pleading

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Claims that a pleading is so lacking in merit it should be dismissed. Can be made before answer.

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Motion for Judgment on the Pleadings - when can it be filed?

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May be filed any time after answer.

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If you do not assert a compulsory counter claim, it is

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waived.

May assert permissive counterclaim. Not required to.

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Cross-claims

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• Co-parties may (but are not required to) assert such claims when they arise out of the sametransaction or occurrence as either:

o The plaintiff’s original claim against the defendants; or

o Any counterclaim asserted against the plaintiff.

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Computation of Time

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o The day on which the act or event occurs does not count.

o Any days in the middle that are weekends or legal holidays count.

o If the last day falls on a weekend or a legal holiday, it is the nextbiz day that counts.

o If service is to be by mail or e-mail, add 5 days to whatever time isprovided.

o The court, in its discretion, can extend a deadline.

Ct can retroactively extend period of time if it finds excusable neglect.

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Who can be sued (natural persons)?

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Anyone 18 or older (minor sued through parents) who is not deemed legally incompetent.

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Legal Entities can be sued?

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Corporations, partnerships, homeowner's associations can sue and be sued.

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(joinder) Do FL cts have discretion to severe claims and parties?

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Yes.

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When there is an indispensable party that cannot join the case and the case is dismissed, is it dismissed with or without prejudice?

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Without prejudice. So the case can be brought again.

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Intervention

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• Allows a person outside the litigation to force his way into the case

• The decision about whether to allow intervention is in the discretion of the trial judge.

Intervenor cannot bring in new claims.

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When can you implead?

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Any time in the action. D will not need cts permission if done within 20 days of D serving its answer. After that period, D will need ct permission.

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Can D include other claims against impleaded (third-party D)?

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Yes, D may (but need not) include any other claim against third-party D that arises from same T/O as P’s claim.

o Third-party D gets one special right: It may assert any defenses against original P that D had.

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Can P assret other claims against impleaded (third party D)?

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Yes, P can assert a claim against the third-party D and vice versa so long asthose claims arise from thesame T/O asP’s original action against D.

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(impleader) If D asserts a counterclaim against original P:

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P can claim there is a non-party who is or may be liable should the P be liable to D on the counterclaim.

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FL will not hear a class action when:

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the action is based on a state statute that is designed to provide a remedy for only in-state injuries.

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Class action Requirements

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Judge must "certify the class." 4 requirements:

(1) Numerosity (more than 100) - Not practical to join them all;

(2) Commonality - Common question of law or fact for all members of class;

(3) Typicality - Class representative has a claim typical of other class members; AND

(4) Class representative can “fairly and adequatelyrepresent” the class members’ interests.

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The class action must be deemed appropriate (one of three groups)

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Group 1: Litigating each individually could end up with incompatible standards for party opposing the class or claims of other class members would be disposed of or impaired.

Group 2: When the party opposing the class has acted or refused to act in away common to the class and the relief sought is injunctive or declaratory.

Group 3: Questions of law or fact common to the class“predominate” over individual questions, and the class action is “superior to other availablemethods for fair and efficient adjudication of the claim.”

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Notice (class action)

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Once a class is certified, notice must be sent to all members of the class notifying themof the pendency of the action.

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Settlement or Dismissal (class action)

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• Cannot settle or dismiss an action in which a class has been certified without thepermission of the court

• With regard to settlement, the court must provide notice to class members and give them anopportunity to object to the settlement.

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Information is presumptively discoverable if it satisfies two conditions (Rule 1.280(b)):

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• Must be “relevant to the subject matter of the pendingaction”; or

• “reasonably calculated to lead to the discovery ofadmissible evidence.”

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Indemnity Agreements

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o Indemnity agreements (usually insurance contracts) for claims in a case are discoverable

o Promote settlement of cases

o Not necessarily admissible at trial

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If a party intends to use work product at trial

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it must be disclosed.

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(Discovery) Protective Orders

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• To enforce the various limitations on the scope of discovery among other things.

• A party may make a motion for an order to protect the person from discovery that could subjectthe person to annoyance, embarrassment, oppression, or undue burden or expense.

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Number and Length of Depositions

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• No set limit on number of depositions a party may take.

• No limit on the length of depositions

• Could be limited by a protective order

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Timing of deposition

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• In general, a party may take a deposition at any time within the course of the litigation.

• A plaintiff may not take a deposition within 30 days of service of process on thedefendant without court approval.

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Oath at deposition

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Person at deposition testifies under oath.

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Recording of deposition

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• Usually recorded by a stenographer

• A party may, without the court’s permission, videotape a deposition so long as certainconditions are satisfied, such as:

o Stating the intention to videotape the deposition in the notice, and

o Providing for a stenographer unless all parties agree otherwise.

• A telephone deposition is only allowed by order of the court.

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Objections at a depo

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• At a deposition, a lawyer is required to object to any question for which the objection could befixed.

• The failure to do so waives the objection later.

• Even after objection, the witness at deposition is generally required to answer the question.o The objection is preserved for later determination

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A lawyer may tell a witness not to answer a question at a deposition in three circumstances:

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1) To prevent disclosure of information protected by a privilege;

2) To enforce an existing court ordered limitation on discovery (something obtainedusually by a motion for a protective order); or

3) To present a motion to limit or terminate the deposition.

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Post-Deposition Procedure

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• The witness has the right to review the transcript and make changes.

• Thereafter, the witness signs the deposition.

• The witness can waive the right to read and sign either expressly or by implication.

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Use of Depositions in Court Proceedings

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• Generally, the deposition of a party-opponent can be used against any party substantively aswell as by impeachment.

• The deposition of any person may be used substantively if the witness is not available throughreasons such as death, age or infirmity, or being beyond the subpoena power of the court.

• May only be taken after a lawsuit has been commenced

• Other than collection matters, may not be taken after judgment has entered

o Court may allow a deposition in either of these situations upon the filing of a petition orappropriate motion if cause is shown.

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Interrogatories

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• A written question that a party must answer under oath subject to an objection by its lawyer

• May only be used against a party

• Must answer interrogatories within 30 days of service unless the plaintiff serves interrogatorieswith the initial complaint, in which case the defendant has 45 days to answer.

o In the same time frame, objections must be lodged or they will be deemedwaived.

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Motion to compel:

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If a party objects, the party propounding the interrogatories may file amotion to compel a response.

• A party may also, in lieu of answering an interrogatory, refer the requesting party to records.

o Only when the burden of deriving the answer is substantially the same for the parties

• May only propound 30 interrogatories without showing good cause to a judge

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Production of Documents/Tangible Things/Entry to Land

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Can be made to a party by notice or non-party by subpoena.

• Must respond within 30 days unless the request is served by the plaintiffwith the complaint, in which case the defendant has 45 days to respond.

• The person responding may also assert objections in these time frames.

• Requesting party may file a motion to compel production or entry

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Examination of Persons

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• May only be used against another party

• Allows a party to request a mental or physical examination of another party, so long as thecondition to be examined is in controversy in the action

• Must respond within 30 days, but 45 days if the plaintiff served the request with the complaint

• If the examination deals with a non-physical condition, theparty seeking the exam must obtain a ct's permission.

• In all cases, the party seeking the examination must show good cause.

• The person conducting the exam is required to make a report of the exam should the personexamined make such a request.

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Requests for Admission

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• Takes matters out of contention at trial

o An admission is dispositive.

• May only be used against another PARTY.

• If a party does not respond within 30 days (45 if the request was served with the complaint), therequest will be deemed admitted by that party.

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Two-step process when the parties dispute whether something is discoverable.

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a. File a motion to compel the discovery that it hassought.

b. If the motion to compel is granted, but discovery was not produced or was incomplete insome manner, step two provides a range of sanctions.

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a. File a motion to compel the discovery that it has sought.

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A motion to compel may not be filed until the parties have conferred ingood faith to resolve their dispute.

• The fact of this conferral must be certified in the motion.

If the court grants the motion, it will enter an order compelling the discovery at issue.

• The presumption is that the court will order the party who refused discovery to paythe reasonable attorney’s fees expended in connection with the motion to compel.

• An award of attorney’s fees will not be made if:

o The motion did not contain a certification of conferral;

o The opposition was justified; or

o There are other reasons that would make an award unjust.

If the motion is denied, there is a presumption that the person making the motionwould have to pay the reasonable attorney’s fees of the person opposing the motion.

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b. If the motion to compel is granted, but discovery was not produced or was incomplete in some manner, step two provides a range of sanctions.

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The party from whom discovery was requested is in violation of a court order if thecourt finds that it has not produced what was ordered.

In addition to awarding attorney's fees, the court has a range of options including:

• Ordering that an issue be deemed in one party’s favor;

• Strike a pleading and enteringjudgment against a party;

• Holding a party in contempt; and

• Precluding a party from entering evidence on a point.

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When a party simply ignores a request for discovery:

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o Party A makes the motion to compel.

o If the court grants the motion, it can move directly to the more severe sanctions in step two.

The only sanction not available is contempt.

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Conferences and Hearings

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o Judges may— on their own or at the request of any party — hold (1) case-managementconferences and (2) pre-trial conferences.

o Used to tailor procedures to fit the case at hand, to narrow issues for trial if possible, to setschedules for the case, and to discuss settlement

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Timing

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The order must be served on the parties at least 20 days before the hearing (with moretime granted if served by mail)

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Complex Litigation

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Complex: likely to involve complicated legal or case management issues that will requireextensive judicial management

Some of the factors:

• The number of parties;

• The scope of the trial; and

• The level of pre-trial motion practice likely

Either party or the court can move for the action to be classified ascomplex.

The court must hold a hearing to determine if the case is “complex” and must rulewithin 10 days of the hearing.

An action designated as “complex” requires close judicial supervision through casemanagement and pre-trial conferences

Goal: at periodic points, the parties meet to consider the progress of the case andappear before the court to ensure the action is moving forward in an appropriatemanner

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Initial Case Management Conference

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Within 60 days of the date the court designates the matter as “complex,”the court must hold the initial case management conference.

At least 20 days before the initial case management conference, theattorneys for the parties must meet and confer.

No later than 14 days before the initial case management conference, the parties mustsubmit a written report to the judge.

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Final Case Management Conference

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The court is required to schedule a final case management conference no fewer than90 days before the trial.

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Voluntary dismissal

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Can file at any time before a hearing on a motion for summary judgment, or if there is no hearing or if the motion was denied, at any timebefore submission of the matter to a jury or to ajudge.

VD is w/o prejudice (can bring again). However, if P has voluntarily dismissed the claimonce in an earlier action, the dismissal will bewith prejudice.

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Exception to VD

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Cannot dismiss a matter in which property has beenseized or is in court custody.

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VD If the defendant has asserted a counterclaim or there are cross-claims:

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P can still dismiss his own claim (VD), but cannot dismiss entire claim. To dismiss the entire action, P must file a motion and dismissal would be withoutprejudice concerning the counterclaim or cross-claim.

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Joint stipulation of dismissal

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The parties may jointly file a stipulation dismissing the action.

Used most often in connection with settlement.

Unless the stipulation states differently, the dismissal would bew/o prejudice.

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Involuntary Dismissal

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o A way for an opposing party (generally a defendant) to force dismissal of a claim or action.

Technically available for any reason, including a failure by a plaintiff to establish a case.

o Most often used when the other party has failed to comply with a rule or court order.

o If granted, the judgment is generally with prejudice and on the merits.

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Failure to Prosecute

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o When there has been no activity in an action for 10 months (and there is no stayorder in the action), the court, the clerk or any interested party may serve a notice on allparties

o If no activity takes place in the 60 days period, or if no stay order is issued, the court, on its own initiative or on the motion of any interested party,should dismiss the case for failure to prosecute unless the other party shows good causewhy the action should not be dismissed.

o This involuntary dismissal would be without prejudice unless otherwise stated in the order.

Editor's Note 2: Dismissal for failure to prosecute is WITHOUT prejudiceunless the order states otherwise.

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Summary judgment timing

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o Either party can move for summary judgment.

Plaintiff: may move for summary judgment 20 days after commencement of the actionor at any point after the defendant moves for summary judgment

Defendant: may move for summary judgment at any time

o The movant must serve the motion, with copies of thesummary judgment evidence, "at least 20 days prior to the hearing.”

o The opposing party must serve copies of any evidence it willsubmit in opposing the motion on the movant either:

five days before the hearing, if mailed, or

by 5:00 p.m. 2 days before the hearing, if hand delivered.

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Bad Faith Affidavits

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o If an affidavit is submitted in bad faith, the party submitting the affidavit:

Can be held in contempt and

Can be required to pay the attorney fees associated with the delay

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Partial Summary Judgment:

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o The judge may grant partial summary judgment as to certain issues.

o The judge can grant summary judgment as to liability even if thereis a genuine issue of material fact as to damages.

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Requirements for Offer and Demand for Judgment

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o Offer must be in writing and identify that it is being madepursuant to the Florida law authorizing the offer.

o The offer has to contain:

1) The name of the party making the proposal;

2) The claim or claims subject to the offer;

3) The monetary amount of the proposal and specifically any nonmonetaryterms;

4) Any punitive damages part of the offer; and

5) Whether the amount proposed includes any for attorney’s fees.

o Must also be a certificate of service.

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Timing of Offer

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o Varies depending on whether the offer comes from a plaintiff or a defendant

The plaintiff may serve the offer on a defendant at any time 90 days afterthe defendant has been served with process.

The defendant may serve the offer on the plaintiff at any time 90 days after the actionhas been commenced (i.e., when the complaint isfiled).

Neither party can serve an offer later than 45 days before the trial date.

o The party to whom an offer is sent has 30 days to reply.

o Unless accepted, the assumption is that the offer has been declined.

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Importance of Offer

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o The offer impacts attorney’s fees depending on what is eventually recovered at trial.

o If a defendant makes the offer for judgment that the plaintiff rejects:

Defendant is entitled to recover its reasonable costs and attorney fees incurred fromthe dateafter the filing of the offer, solong as:

• The defendant is judged not liable, or

• The plaintiff’s judgment is at least 25% less than the offer.

o If the plaintiff makes an offer not accepted by the defendant and the plaintiff recovers atleast 25% more than the offer, the plaintiff is entitled to receive itscosts and attorney fees incurred after the date the offer was filed.

Editor's Note 3: The amount of costs and attorney fees is measured from thedate that the offer was served (not the date of the filing of the offer), whetherthe offer was made by the defendant or the plaintiff.

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Offer must be made in

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Good Faith. If not, the court has discretion to disallow the fee award.

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Arbitration

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o There is an actual facilitator; not just a facilitator

o Two basic forms of arbitration: binding and non-binding

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Voluntary Trial Resolution

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o Like arbitration, except there is only one decision-maker (a member of the Florida bar).

Many arbitrations have one or more decision-makers.