Florida Civil Procedure Flashcards
Florida Court System
Florida Supreme Court
MANDATORY appellate review applies to (the rest is discretionary)
- District court decisions striking down a state statute or a state constitutional provision;
- Final judgments for the validation of bonds or certificates of indebtedness;
- Action of statewide agencies relating to rates or service of utilities; and
- Final judgments of trial courts that impose the death penalty
- When requested by the attorney general, the Florida supreme court is required to render an advisory opinion of the justices.
Issuance of writs (Supreme and Apellate Ct.)
- writ of mandamus – compels a public officer to perform a ministerial duty. Granted upon a showing of a clear legal right and a corresponding breach of an indisputable legal duty
- A writ of prohibition – prevent a court or local administrative tribunal from unlawfully exercising jurisdiction over a case.
Appellate Courts - 6 District Courts of Appeal
District courts of appeal MUST review, by appeal:
- Final Judgment Appeals - Primarily hears appeals taken as a matter of right from final judgments and orders of the trial courts
Exceptions to the final-judgment rule (i.e., interlocutory appeals):
* Orders that deal with injunction (granting, denying, modifying, etc.);
* Decisions concerning venue;
* Matters dealing with personal jurisdiction;
* Class certifications;
* Motions granting a new trial; and
* Motions granting relief from judgment
Other Interlocutory Orders determining:
- The right to immediate possession of property
- The right to immediate monetary relief or child custody in family law matters
- The entitlement of a party to arbitration, or to an appraisal under an insurance policy
- That a party is not entitled to workers’ compensation immunity
- That a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law or
- That a governmental entity has taken action that has inordinately burdened real property.
Trial Courts County Court (50k and less); Circuit Court (Above 50k)
- Aggregating Claims – ONLY if the claims arise out of the same transaction or occurance
- Counterclaims/Crossclaims – If counterclaim or cross-claim exceeds $50,000, then the action must be transferred to the circuit court, even if P’s original claim is less than 50K.
Circuit Court Exclusive Jurisdiction
- Actions at law over 50k
- Injunction more than $50,000
- The settlement of an estate
Concurrent Jurisdiction over certain actions
- Injunctions $50,000 or less
- Landlord-tenant cases $50,000 or less
- Actions seeking to possess real property of more than $50,000
- Any disputes involving homeowners associations
County Court Exclusive Jurisdiction
- Actions at law 50k and less
Personal Jurisdiction of Florida Courts
Personal Jurisdiction of Florida Courts
Residents
- Always permitted over Florida RESIDENTS
- Nonresident who engages in “continuous and systematic” activity in Florida (snowbirds);
Corporations
- A corporation incorporated in the state of Florida;
- A non-Florida corporation with a place of business in Florida; and
Property - or a specific thing that is within the State
- in rem
Can be established by consent:
- failing to object during litigation
- by Contract
FORUM SELECTION clauses are enforceable as long as the contract:
- Includes a Florida choice-of-law provision;
- Includes consent to Florida’s personal jurisdiction;
- Involves consideration of not less than $250,000;
- Does not violate the United States Constitution; and
- Bears a substantial or reasonable relation to Florida or has at least one party who is a resident of Florida or incorporated under its laws.
Non-Residents of Florida - two-step process to determine whether a non-resident is subject to jurisdiction in Florida.
1) Long-Arm – Does the claim “arise from” one of the statute’s activities? Florida’s long-arm statute permits the exercise of personal jurisdiction over a nonresident when the cause of action arises out of the following acts by the defendant:
- Carrying on a business within Florida
- Committing a tortious act within Florida
- Owning, using, or possessing real property within Florida
- Contracting to insure anything located within Florida at the time of contracting
- Maintaining a domicile or residing in Florida prior to the action being filed (alimony, support, and property distribution issues)
- Causing injury to a person in the state by an act or omission outside the state involving the solicitation or sale of services or products within Florida
- Breaching a contract by failing to perform required acts within Florida
- Engaging in sexual intercourse in Florida by which a child may have been conceived (paternity proceedings)
- Entering into a contract that specifies that it is governed by Florida law and that the person agrees to Florida court jurisdiction.
2) Does the exercise of jurisdiction violate Due Process?
- There must be sufficient contacts such that it does not offend traditional notions of fair play and substantial justice
SERVICE OF PROCESS
“Service of process” refers to how those papers must be delivered.
Waiver of Service of Process – A plaintiff may—but is not required to—ask a defendant if the defendant will agree to waive formal service of process.
- The carrot: The defendant will have 60 days from the date the request is recieved to respond to the complaint instead of regular 20 days to respond after formal service.
- The stick: If the defendant does not agree to waive service and the plaintiff effects formal service, the defendant will be required to pay the cost of formal service, unless there is good cause for the defendant’s failure to agree to waive.
Waiver Request Procedure
1) Plaintiff sends a written request to the defendant by certified mail, return receipt requested.
- Must include a copy of the complaint, as well as a prepaid means of responding
- Must inform the defendant about waiver of process and the date on which it was sent.
2) The defendant must be allowed 20 days to decide whether he will waive service (30 days if the defendant is outside the U.S.)
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Formal Service of Process
Initial Filing and Service – A plaintiff must file the complaint with the court. This commences the action and stops the SOL clock from running.
- The plaintiff has 120 days from filing the complaint to formally serve the defendant or notify the court that the defendant has waived formal service (FL distinction. MBE is 90 days)
Who May Serve Process? – Any person authorized by law (sherrif) or appointed by the court who is:
- at least 18 years old, competent, and a resident of Florida,
- so long as that person does not have an interest in the subject matter of the action
Service of Motions or Other Subsequent Papers
- Other papers (e.g., motions) also need to be “served,” but different requirements apply. Usually by Email.
How is Service Made?
How Can Formal Service be Made?
1) PERSONAL SERVICE
a) Physical delivery to the defendant
- Delivery can essentially be anywhere (e.g., at work)
- Florida law requires an employer to allow authorized service.
b) OR SUBSTITUTE (ABODE) SERVICE
- Leaving the required process at the defendant’s usual place of abode with any person residing therein who is 15 years of age or older; and
- Informing that person of the contents of what you are giving them.
c) Service by mail: A plaintiff can request a defendant to waive formal service by a sheriff or by publication and accept service by mail.
- Does not waive any objection to venue or personal jurisdiction.
- If defendant does waive right to personal service, she has 60 days from the date of the requested waiver to respond to the complaint (as opposed to the usual 20).
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c) SPECIFIC PARTIES
i) Minors
- parent or guardian
ii) Incompetent
- guardian
iii) Sole Proprietor -
- same as individual (personal service, service at abode, place of business)
- After two attempts – Place of business (POB) to “person in charge”
iv) Partnerships/Limited Partnerships
- May serve any Partner as individual (e.g., personal service, service at abode, etc.)
- After one attempt of Partner at Place of business – Place of business to “person in charge”
v) Corporations
- Registered Agent
- Directly to President, VP, CEO, or other “head” of the corp
- General Manager, Secretary, Treasurer
- Director
- Officer or Busuiness Agent residing in FL
- Any Employee at PPOB
vi) (Member-Managed) LLC
- Registered agent
- Member / Manager
- after one attempt – Place of business to “person in charge”
- Secretary of State
vii) Public Agency/Officers
- President, chair, mayor, etc (Head of Agency)
- Vice-President, vice-chair, vice-mayor, etc
- Member of the body
viii) State of Florida
- MUST serve State attorney or Assistant state attorney (in circuit in which action is filed)
- Mail two copies of the process to the Florida Attorney General
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2) Substituted service Physical delivery to someone other than the defendant (narrow range of cases)
May serve the Florida Secretary of State for a nonresident who:
- Owns or operates a motor vehicle in the state;
- Operates or maintains a watercraft in the state;
- Operates or maintains an aircraft in the state; and
- Operates, conducts, or engages in a business or business venture in the state.
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3) Constructive service: Notice of the lawsuit given by way of publication (highly unfavored). Last resort.
You are required to submit a sworn statement laying out why service by
publication is allowed and necessary in the situation.
May only be made in a defined set of cases
- ownership or division of property and
- certain family law related matters, such as custody of children, adoption, and paternity
Venue
Venue – Refers to where a case should be tried for the sake of fairness, convenience, or other commanding policy considerations. Judged at time complaint is filed.
Default rule – Venue is Proper
- The county where defendant resides; or
- The county where the cause of action accrues
Actions involving property having a fixed location (e.g., an action to quiet title to real property)
- Venue lies where the property is located
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Case Against More Than One Defendant
- where ANY defendant resides; or
- where COA accrues
Case with More Than One Cause of Action
- where ANY defendant resides; or
- where ANY COA accrued
Agreement as to Venue
- Parties can agree in a contract to have venue in a particular place.
- Exception: A contract for the improvement of real property in Florida that calls for venue outside of Florida is void as against public policy if the action concerns a resident contractor or sub-contractor.
Corporation as a Defendant
- where COA accrued AND where corp has an office
- Non-Florida corp – where COA accrued AND where corp has an agent or other representative
State or State Agency as Defendant – Where it maintains its HQ;
- Exceptions:
- A statute can change the general rule;
- Suit concerning a claimed violation of a plaintiff’s constitutional rights: Venue is appropriate in the county in which the claimed invasion of those rights occurred or is about to occur;
- State agency is a joint tortfeasor: The normal rules apply, not the special rule for state agencies; or
- Cases in which a party files a petition for access to a public record
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Objections to Venue – D can object to venue. if not properly objected to, it is waived. Presumption against change of venue.
May NOT object on the ground of improper venue if suit brought:
- in which she resides,
- in which the cause of action accrued, or
- in which the property in litigation is located
Change of Venue (When venue is proper)– may move for such change by stating the belief that they will not receive a FAIR TRIAL in the court in which the action is pending:
- The party opposing transfer has undue influence over the minds of the county’s residents;
- The party moving for transfer is so disliked that a fair trial cannot be had; or
- It appears to be impracticable to get an impartial jury in the county.
Procedure
- The motion must be verified (i.e., signed under oath).
- The motion must be made within 10 days after the action is “at issue,” unless good cause is shown.
Convenience of Parties (where evidence is, where witnesses are)
- may transfer any civil action to any other court of record in which it might have been brought
- TO ANOTHER PROPER VENUE ONLY
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Forum Non Conveniens – Applies when venue is appropriate under the rules, but the “better place” for the lawsuit is OUTSIDE Florida. The action in Florida is dismissed. There is a presumption against dismissal.
Trial courts have wide discretion about motions for forum non convienens:
- The other forum must be an adequate forum (i.e., the cause of action must exist there);
- Private interest factors (e.g., the location of witnesses or evidence);
- public interest factors (e.g., the interest of the different forums being considered); and
- Dismissing the case does not cause an undue inconvenience to the plaintiff
PLEADINGS
Complaint
Unlike the Federal Rules, Florida requires ULTIMATE FACT PLEADING
- Cannot simply plead the legal elements of a claim (e.g., you cannot plead, “The defendant owed me a duty.”)
- Must plead the “ultimate facts” that show those elements (e.g., “I was a guest at a hotel operated by the defendant.”)
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Answer – Defendant has 20 DAYS from the date of service to file Answer (60 days from of request for waiver) 10 days to file after denial of a pre answer motion.
- start counting day after served w/ complaint
- between start and end: weekends and holidays are counted
- if last day is weekend/holiday: extend to next business day
- service by mail: extend by 5 days
Following a Defense Motion
- If the court denies a defense motion or postpones disposition until trial,a responsive pleading must be filed within 10 days after notice of the court’s actions, unless a different time is fixed by the court.
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Reply – Must be filed w/in 20 DAYS
- response to Affirmative Defenses
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Amending a Pleading – A party may amend a pleading
- Once as a matter of RIGHT at any time before a responsive pleading is served.
- Once a response is served, the pleading may only be amended by leave of court or with the adverse party’s written consent
- If no responsive pleading required to the pleading, then once as of right within 20 days of its service.
Amendment and Punitive Damages – Under Florida rules, a person may NOT claim punitive damages in the original complaint (or counterclaim, etc.); instead, the party must:
- Seek permission to add a claim for punitive damages by amending the complaint; and
- Submit prima facie evidence that the party would be entitled to punitive damages.
Relate Back
- Amendments relate back to the date of the original pleading when the conduct, transaction, or occurrence set forth in the amended pleading was set forth or attempted to be set forth in the original pleading.
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Pre-Answer Motion to Dismiss
Timing — A pre-answer motion needs to be filed on the same timeline as the answer
- 20 days after formal service of the complaint or 60 days if service was waived
1) Motions to Dismiss — CANNOT WAIVE
- lack of SMJ — can never waive, even on appeal
- failure to state a claim — until end of trial
- Failure to join indespensible party — until end of trial
2) Motions to Dismiss — WAIVED if not raised in answer or pre-answer motion
- Lack of PJ
- Improper Venue
- Insuffiicent service of process
NOTE — If defense is raised, it is preserved only so long as the defendant pleas to the merits of the case in active DEFENSE of the lawsuit.
- But WAIVER nonetheless occurs if the defendant seeks AFFIRMATIVE RELIEF.
- Affirmative relief includes permissive counterclaims and cross-claims
- but not compulsory counterclaims (can still raise those)
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When computing time for filing responses, if the deadline to respond is:
- less than 7 days – the period begins on the next day that is not a weekend or holiday. Additionally, a party should never count weekends or legal holidays.
- 7 days or more – the period begins on the next day, weekends and holidays are counted, but if the last day is on a weekend/holiday, period is extended to next business day.
Counterclaims and Crossclaims
General – Because counterclaims and cross-claims are claims seeking relief (e.g., damages or an injunction):
- All of the requirements for a pleading seeking relief apply (i.e., short plain statement of ultimate facts, etc.); and
- The responding party must meet the same requirements as a party responding to a complaint.
Counterclaims –You usually need not worry about subject matter jurisdiction with respect to a counterclaim.
Compulsory Counterclaim - Arises out of the same transaction or occurance and does not require any other party for litigation. A claim that would otherwise be compulsory is not compulsory if
- 1) At the time the action is commenced, the claim was already in litigation elsewhere; or
- 2) The opposing party’s claim is in rem and the defendant is not asserting any other counterclaim.
Permissive Counterclaim - any non-compulsory claim.
- Does not arise from same transaction or occurance.
Crossclaims – claims against co-parties. Only when they arise out of the same transaction or occurrence as P’s original claim or any other counterclaim.
- NOT REQUIRED, but allowed
- In Florida, an indemnity claim may be filed either as a cross-claim in a suit that arises from the same transaction or occurrence as the subject matter of the original transaction or as a claim in a separate action
PARTIES
Substitution
- Once a lawsuit starts, it is possible to swap one party for another by motion 90 days after event (e.g., death subs in estate, incompetence).
- For public officers sued in their official capacity, there is an automatic substitution of parties if the officer dies or leaves office. (sherrif steps down, new sherrif steps in)
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Capacity – Whether someone is a capable of being a party to a lawsuit
- Need not be alleged. Anyone 18 or older is presumed to have capacity. May lose capacity if they are deemed legally incompetent.
- Not all legally incompetent persons automatically lose all of their rights; a person may be incompetent for one purpose but competent for another.
Minors – May only sue or be sued through a parent or guardian
- Initial pleading served on behalf of a minor must state the minor’s age
Corporations and Partnerships – Have the capacity to sue and be sued in their own name
- Foreign corporations: Must be registered to do business in Florida to have capacity to sue in Florida courts
Homeowners’ Associations (HOAs) – HOAs may sue in their own name as long as:
- The HOA is NOT controlled by a developer; and
- The suit is a matter of common interest to the members.
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Representative parties
- Trustee of an express trust;
- Guardian;
- Executor of an estate
Parties > Joinder
Permissive Joinder of Parties
Plaintiffs
- “All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs.”
Defendant
- Any person can be a defendant if he has an “interest adverse to the plaintiff.”
- Exception: A plaintiff MAY NOT JOIN a defendant’s liability INSURANCE CARRIER in an action WITHOUT FIRST obtaining a JUDGMENT against the defendant.
Necessary and Indispensable Parties
Necessary party – One who has a “MATERIAL interest in the case” (i.e., whose rights can be affected by the outcome of the litigation)
- If a non-party is deemed “necessary,” they can be compelled to be made a party.
Indispensable Parties – One whose interest is so important that the litigation cannot be adequately resolved and must be dismissed without their presence. Examples include:
- a party to a written instrument, In a litigation over reforming the instrument (a trust, will, etc.)
- A joint owner of property in a litigation concerning that property
Parties >
Intervention
Interpleader
Impleader
Intervention — Allows a person outside the litigation (i.e., a non-party) to force his way into the case.
- Motion to intervene can be made at ANY TIME while case is pending
- The decision about whether to allow intervention is in the DISCRETION of the trial judge.
- Depends if intervener has an interest in the pending litigation. The longer they wait, the less likely judge grants
- Intervenors CANNOT bring new claims into the lawsuit.
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Interpleader — Allows a party, called a stakeholder, to bring multiple parties together in a single lawsuit because they each claim a single piece of property
- Interpleader is permitted when a stakeholder could face multiple liability if separate lawsuits could award the disputed property to different parties
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Impleader (Third Party Practice)— Allows a defending party (3rd party P) to bring a new party into the lawsuit and assert a claim against that party (3rd party D)
- A defendant may implead a non-party if that non-party “is or may be liable to the Defendant for all or part of the plaintiff’s claim against the defendant.”
- Can also be a plaintiff stemming from a defendant’s counterclaim
Timing
- no permission needed if within 20 DAYS of D serving its ANSWER
- with court’s permission (by motion) at any time in the action.
Effect of Impleader
- 3rd-party D gets one special benefit: they may assert ANY DEFENSE that the ORIGINAL D had against the original plaintiff, EVEN IF the defendant did not assert the defense
Original P v. 3rd party D
- At this point, there is no claim between the original plaintiff and the third-party defendant. Claims between the 2 MUST arise from same transaction or occurance
Parties > CLASS ACTIONS
Requirements
- Numerosity: Class so large that joinder of the individuals would be “impracticable”
- Commonality: There is a question of law or fact that is common to the members of the class
- Typicality: The class representative’s claim is typical of the claims of the rest of the class
- Representation: Class representative must “fairly and adequately represent” the class members’ interests (e.g., not antagonistic to the interests of other class members)
Class action must be one of these types:
(b)(1) Class – two types
- Individual adjudications could establish incompatible or inconsistent standards of conduct for the party opposing the class.
- “Limited fund” class: When non-class adjudication would, as a practical matter, dispose of or affect the claims of other class members (e.g., beneficiaries of a trust)
(b)(2) Class
- Applicable when the party opposing the class has acted or refused to act on grounds generally applicable to the class as a whole
- Certification of this type of class action also requires that final injunctive or declaratory relief will be appropriate for the entire class. Relief sought cannot be money
(b)(3) Class (the most controversial) Generally seeking only money damages
- Two requirements:
- Questions of law or fact common to the class must “predominate” over individual questions; and
- The class action is the “superior” means to adjudicate the claim.
Dismissal or compromise: Once determined to be maintainable on behalf of a class, a claim or defense may not be voluntarily dismissed or settled without judicial approaval after notice to all members of the class.
Discovery > Scope
Discovery Scope
Relevance PLUS – FL Distinction (Higher Standard) – In order to be discoverable, information must be RELEVANT to the subject matter of the pending action; AND:
- ADMISSIBLE in evidence OR
- reasonably calculated to lead to the discovery of ADMISSIBLE evidence
Privileged Information – NOT discoverable
- Attorney client
- Spousal
- etc,
Work Product (“Trial Preparation Materials”) – Material that is the product of the work of a party or its lawyers (or someone working on their behalf such as a consultant, insurer) that is designed to prepare for trial or in preperation of litigation
- Generally NOT DISCOVERABLE UNLESS
- (i) the party seeking the material shows a need for the information in connection with the case; and
- (i) the party shows that it is unable to get the information without “undue hardship”
- However keep in mind, If a party intends to use his own work product at TRIAL, it MUST be disclosed to the other side
OPINION Work Product – NEVER discoverable
Indemnity Agreements
- Indemnity agreements (usually insurance contracts) that might provide coverage for claims in a case ARE discoverable.
- not admissible in evidence at trial by reason of disclosure.
- This rule promotes settlement of cases
Expert Testimony
- Testifying Expert witnesses may be deposed by opposing party
- Non-testifying expert witnesses may NOT be deposed, UNLESS the requesting party demonstrates exceptional circumstances that make obtaining the same facts or opinions impracticable by other means.
Protective Orders – A court order that protects a person from specific types, means, or subjects of discovery (e.g., limitations on depo questions)
- Generally limits discovery that could subject the person to “annoyance, embarrassment, oppression, or undue burden or expense.”
- Trial court has broad DISCRETION in granting such orders
Electronically Stored Information – May object to discovery due to the cost or burden of accessing electronically stored information.
- The court must limit the frequency or extent of discovery if it determines:
- (i) discovery sought is unreasonably cumulative or duplicative, can be obtained from another source or in another manner that is more convenient, less burdensome, or less expensive or
- (ii) burden or expense of the discovery outweighs its likely benefits.
- Failure to take reasonable steps to preserve electronically stored information may have legal consequences.
a defendant’s wealth is something that is material to a claim of punitive damages
not relevant for negligence
Discovery > Devices
Typically for disco requests, response due within 30 days, or if attached to complaint for D, 45 days
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Despositions – parties/non-parties (ANYONE)
- Unlike under the Federal Rules, there is no set limit on the number of depositions a party may take in a particular case.
- A party desiring to take the oral deposition of any person must give reasonable notice in writing to every other party to the action or else deposition may not be used against that party. (time/place; persons to be examined)
a) Deposing PARTIES – Notice of Deposition
- Plaintiff’s deposition usually taken where the action is pending.
- Defendant’s deposition is usually her county of residence or business (if it differs from the venue of the action).
b) Deposing NON-PARTIES – Subpoena
- The subpoena, must state the methods for recording the deposition.
- non-party may only be compelled to attend a deposition in a county in which it resides, is employed, or transacts business
- Employees of a party (other than officers or managing agents) are nonparties
c) Motion to Perpetuate Testimony (before filing complaint)
- Before complaint has been filed by court order: A person wishing to perpetuate testimony regarding any matter cognizable but not yet filed in FL may obtain a court order for oral or written deposition.
- Service must be made upon all expected adverse parties and the person to be deposed, following rules for service of process.
- The motion will be granted if the court is satisfied that perpetuation of testimony may prevent a failure or delay of justice.
d) Videotaping/Recording – A party may, without the court order (permission), videotape a deposition so long as:
- Notice or Subpoena states that the deposition will be recorded by videotape
- must give the name and address of the operator.
- The deposition also must be stenographically recorded, unless otherwise agreed by the parties.
e) Objections – At a deposition, a lawyer is required to object to any question for which the objection could be cured, or else objection waived for later. Even after objection, the witness at deposition is generally required to answer the question. Lawyer may tell witness not to answer:
- to preserve a privilege
- To enforce an existing protective court order limitation on discovery; or
- To present a motion to limit or terminate the deposition.
f) Post-Deposition Procedure
- 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
g) Use of Deposition at Trial – Depositions can sometimes be introduced at trial as substantive evidence as well as impeachment evidence. A deposition may be used affirmatively if the deponent:
- is dead
- Is farther than 100 miles from the place of trial or outside of the State of FL and thus beyond the subpoena power of the court unless the party offering the deposition procured the absence
- Is unable to attend or testify because of age, sickness, infirmity, or imprisonment
- Is unable to be found for the purpose of being subpoenaed, or having been subpoenaed, refuses to come
- Is an expert or skilled witness, even if available (any purpose)
Use of Part of Deposition
- If only part of a deposition is offered by a party, any adverse party may require him to introduce any other part that ought to be considered in fairness.
Depositions taken in a former action
- may be used in a subsequent action between the same parties involving the same subject matter as the prior action.
Costs
- The nonparty may condition the preparation of copies on payment in advance of the reasonable cost of preparing the copies. In turn, the requesting party must provide copies to all other parties, also upon the payment of reasonable costs.
- Costs are recoverable if used as evidence or for impeachment
Production of Documents/Tangible Things/Entry to Land - Parties (request for documents) or non-parties (subpoena)
- Duty to preserve evidence when they should reasonably foresee litigation
- If they fail to do so, sanctions may be imposed.
- Must respond to request within 30 DAYS unless the request upon D is served with the complaint, in which case the defendant has 45 days to respond.
Notice of Intent to subpoena Non Parties – A party desiring production from a nonparty must serve NOTICE on every other party of the intent to subpoena the non party:
- by hand/email – at least 10 DAYS notice before subpoena is issued (15 by mail)
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Interrogatories - PARTIES only.
- A party MUST answer interrogatories within 30 DAYS of service of the interrogatory
- UNLESS the plaintiff serves interrogatories with the initial complaint, in which case the defendant has 45 DAYS to answer.
Examination of Persons –Mental or Physical Exam – ONLY against PARTIES
- Party must respond within 30 DAYS of service of the request (45 if served w complaint)
- Permissible so long as it is in controversy in the action. Must demonstrate good cause
- MENTAL Exam - party seeking the exam MUST obtain a Court Order
- The person conducting the exam is required to make a report of the exam as long as the person being examined makes such a request.
Requests for Admissions – Parties ONLY
- Limited to 30 requests for admissions
- Must respond within 30 DAYS of service of the request (45 if served w complaint)
- if party does not respond, request will be deemed ADMITTED as FACT
- More than evidence; it conclusively establishes as FACT (whereas evidence which is weighed) May also be used to have party admit a legal principle
- A demonstration of excusable neglect can overcome the deemed admission.
Subpoenas
Subpoena Requirements – In Florida, a subpoena for the production of evidence or testimony must
- (1) state the court’s name,
- (2) state the title of the action, and
- (3) command each person to whom it is directed to attend and produce evidence or testimony.
Subpoenas Duces Tecum: Subpoenas may direct the bringing of papers, records, films, etc. Service of notice to an adverse party to produce evidence at trial has the same effect as a subpoena served on that party.
- A RESIDENT of FL can be forced to respond only in the county where the deponent resides, is employed, or transacts business in person, or in such other convenient place as is fixed by order of court.
- A NON-resident of FL can be forced to respond only in the county where the deponent was served or other convenient place as is fixed by order of court.
Motion to Quash or Modify: Court may, on motion,
- Quash or Modify the subpoena if unreasonable and oppressive, or
- Condition denial of the motion upon the advancement by the party issuing the subpoena of the reasonable costs of producing the papers, etc. (party issuing subpoena to pay for any costs of the production)
Discovery Disputes >
Motions to Compel
Sanctions
Discovery Disputes – Pay attention to whether the party from whom discovery is sought objects to the request OR ignores the request entirely.
- The difference impacts how the requesting party should seek relief and the available sanctions.
Motion to Compel – Motion must contain certification stating parties have conferred in GOOD FAITH and are still unable to resolve dispute.
- If granted – Court Order to produce discovery
- Sanctions – If party fails to comply with that order and the discovery is STILL not produced, the party refusing to produce discovery can be held in contempt of court
- In addition to ATTYs’ fees, possible sanctions include:
- Ordering that an issue be deemed decided in one party’s favor;
- Precluding a party from entering evidence on a point;
- Strike a pleading and enter judgment against a party; or
- Holding a party in contempt for violating an order to produce discovery.
Attorneys fees and costs that were expended in connection with the motion to compel
If Granted – presumption that the court will order the party who refused discovery to pay. Can be rebutted if:
- The motion did not contain a certification that the parties conferred in good faith;
- The opposition to the motion was justified; or
- There are other reasons that would make the award of such fees unjust.
If Denied – presumption that the person making the motion would have to pay the reasonable attorney’s fees of the person opposing the motion.
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IGNORING DISCOVERY
- when a party ignores a request for discovery, a wider range of sanctions are immediately available without an order to procude discovery.
- The discretion includes dismissal of all or part of the claim
