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FL Essays Final > Civil Procedure > Flashcards

Civil Procedure Flashcards

1
Q

Are cases that are a mixture of law and equity triable by a jury?

A

Legal issues tried first by jury, then equitable.

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2
Q

How do you enforce a property judgment

A

Writ of possession for real property
writ of replevin for personal property
distress writ
writ of garnishment

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3
Q

Substitute Service on Private mailbox or shared office

A

If the only address discoverable is that of a private mailbox or shared office, service may be made on the person by leaving a copy with the individual in charge, but ONLY if process server determines that person still maintains a mailbox at that location

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4
Q

What is a writ of certiorari

A

This common law writ is an extraordinary method of review of a lower court action that constitutes a departure from essential requirements of law and causes irreparable harm

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5
Q

If adverse party relies upon evidence in case file, must he serve that evidence on opposing party?

A

YES, at least 5 days before hearing, or hand delivered no later than 2 days before hearing.

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6
Q

When can you conduct post-verdict interview of jurors

A

by motion served no later than 10 days after verdict, except for good cause shown.

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7
Q

Can you make a motion for continuance?

A

Yes but only granted for good cause.

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8
Q

What defenses does a third party defendant have in the action?

A

He may assert he is not liable to D, and may assert all defenses against P that D would have against P, even if D doesn’t raise them.

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9
Q

When does arbitrator have to issue decision in non-binding arbitration?

A

10 days after arbitration concluded

-decision is referred to judge who enters judgment if no request for trial is made w/in 20 days

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10
Q

Are remittitur and additur permitted

A

Yes. If adversely affected party does not agree, court must order a new trial

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11
Q

When can court make sua sponte motion for new trial?

A

Not later than 15 days after entry of judgment or judgment (if no jury)

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12
Q

What is a certificate of authority in mediation?

A

The representative with the authority to settle (can be the attorney) must file this with court and serve on all parties 10 days prior to mediation

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13
Q

Belated directed verdict motion

A
  • can only be made on grounds from directed verdict motion

- must be made within 15 days of verdict

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14
Q

Can you obtain a stay pending appeal?

A

Yes by filing bond for the amount of the judgment plus twice the statutory rate of interest

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15
Q

How much time does the state get to answer a complaint

A

40 days (except when sued in a tort action, then its 30 days)

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16
Q

SOL med mal action

A

2 years

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17
Q

Receiver’s duty to file report

A

Inventory under oath due within 20 days of appointment and then every three months thereafter.

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18
Q

When is electronically store information NOT discoverable?

A

When the info or format requested is not reasonably accessible because of undue burden, court may still order discover upon a showing of good cause or it may limit discovery depending on whether it is cumulative, or it is available from a less expensive source, or if burden of discovery outweighs benefits.

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19
Q

When can a request for physical examination be served?

A

At any time after commencement, if to P, or after service of process, if to D

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20
Q

Who can enter default?

A

Clerk - if D hasn’t appeared at all (no notice req’d)

Court - if D has appeared. Must be upon notice to D

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21
Q

How long do you have to take an appeal?

A

30 days from rendition of appealable order, or 30 days from decision on a timely filed written post-trial motion

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22
Q

When can the court transfer an action that was filed in the wrong venue?

A

If case was brought in the wrong venue, court may transfer to a county in which it could have originally been brought. If 2 or more counties are proper, P gets to choose.

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23
Q

Pleading requirements for a class action

A
  • Designation “class representative” next to caption

- must allege all requirements of a class action

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24
Q

Can you get deposition testimony pending appeal?

A

Yes, you can get a court order to perpetuate your own or someone else’s testimony upon motion - court will grant if it is satisfied that the deposition may prevent a failure or delay of justice.

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25
Q

When is MPAL discoverable?

A

Only upon a showing of:

  1. substantial need
  2. inability without undue hardship to obtain substantial equivalent by other means

OR
-if party intends to use it at trial, he must produce it

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26
Q

How can a party set aside a default?

A

Upon proof of

  • good cause for default
  • meritorious defense AND
  • due diligence in seeking relief after learning of default.
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27
Q

What if the condition is not physical - can you serve a notice to examine?

A

Need to make a motion

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28
Q

What are an intervenor’s rights in the litigation?

A

He takes the full status of a party, but also takes the litigation as he finds it, so no rights to reargue early orders, and he cannot raise additional claims without permission.

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29
Q

When can a pleading be amended to conform to the evidence?

A

During or after trial, or even after judgment to reflect issues not pleaded but actually tried by express or implied consent, s/l/a there’s no defense that the opposing party did not have the opportunity to prepare, which would result in prejudice

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30
Q

Powers of arbitrator

A

to administer oaths and issue subpoenas

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31
Q

True or false:

A court has the inherent power to award attorneys fees for bad faith conduct against party or attorney?

A

TRUE, only after notice and an opportunity to be heard.

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32
Q

When can a pleading be amended

A

-As of right before a responsive pleading is served, or if no responsive pleading is required, w/in 20 days of service of the pleading, otherwise by leave of court (freely granted when justice so requires) or written consent of adversary

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33
Q

Is there a duty to supplement discovery responses?

A

NO!!

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34
Q

When are signatures on an instrument deemed admitted?

A

When their genuineness is not specifically denied in the pleading

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35
Q

Impleader

A

D may bring in person not a party to the action who may be liable to D for all or part of P’s claim (e.g. indemnity, contribution, subrogation).
-NOT available where impleaded D may be directly liable to P or if D has a completely unrelated claims against the non-party

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36
Q

How long do you have to object to a physical examination

A

30 days, 45 days after service of complaint if D.

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37
Q

What must you do before filing a motion to compel

A

Confer in good faith! And you must certify that you have attempted to confer in good faith.

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38
Q

Is an employee considered a party for purposes of deposition notice or subpoena?

A

No. - must serve subpoena instead of notice

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39
Q

When can plaintiff’s claims against a third party D (in an amended complaint) relate back to the filing of a third-party complaint?

A

When the plaintiff’s claims in the amended complaint arise from the same conduct, transaction or occurrence AND the third-party complaint was filed within the statute of limitations

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40
Q

What cases does the FRCP apply to?

A

All civil actions in circuit and county courts, except those to which other rules (probate, family law, small claims apply)

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41
Q

When must initial CMC be held in complex action

A

W/in 60 days of order declaring matter complex. Lead counsel and client must attend.

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42
Q

What does an attorney certify when he signs a document?

A

That:

  1. he has read the document;
  2. to the best of his knowledge there are grounds to support it.
  3. It is not interposed for delay.
  4. Confidential information is protected.
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43
Q

What is an Indispensable party

A

One whose interest will inevitably, directly and substantially be affected, or
Court will not be able to resolve controversy completely and effectively without party

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44
Q

What grounds may be raised in any pleading or motion?

A
  • lack of subject matter jurisdiction
  • failure to state a cause of action
  • failure to join an indispensable party
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45
Q

Special verdict

A

Jury returns answers to specific factual questions., The judge then applies the law to the facts as found by the jury.

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46
Q

If substance of verdict is imperfect, what can court do?

A

-send the jury back to deliberate or order a new trial

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47
Q

Permissive joinder- who may sue together

A

-any plaintiffs who have a common interest in the subject matter of the action and in obtaining relief demanded. Family members may sue together in tort actions

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48
Q

What is Florida’s pleading requirement

A

Florida requires a statement of “the ultimate facts showing the pleader is entitled to relief”

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49
Q

What is a Fact Information Sheet

A

After judgment, judgment creditor can ask court to order judgment debtor to fill out sheet and all attachments to aid in enforcement of judgment. You get 45 days to complete or you can be held in contempt.
Judgment creditor can also obtain discovery

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50
Q

Grounds for involuntary dismissal

A
  • failure to prosecute (10 months) or
  • failure to comply with rules or order of court
  • at close of P’s evidence in a JUDGE trial, on grounds that P has shown no right to relief
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51
Q

Review of voluntary binding arbitration is limited to:

A

-failure of arbitrator to comply with rules of procedure or evidence; partiality or misconduct of arbitrator, violation of US or Florida constitution

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52
Q

Does claimant in medical malpractice action need a verified written opinion from a medical expert?

A

Yes!

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53
Q

What happens if a person transfers their interest in the subject matter of litigation (e.g., note)

A

Suit can be continued by or against original party, unless court on motion directs the transferee be substituted or joined.

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54
Q

Can a person subject to an injunction move to modify or dissolve it?

A

Yes, at any tome. If party makes a motion, it shall be heard within 5 days.

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55
Q

What must be plead with specificity?

A

Fraud, mistake, special damages

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56
Q

Where are P and D’s depositions taken

A

P - county where action is pending
D - county of residence or business
corporate - county where principal place of business is

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57
Q

Purpose of pre trial conference

A
  • narrow issues
  • discuss settlement
  • necessity of amendments to pleadings
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58
Q

Alias Summons

A

2nd summons

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59
Q

In general in discovery, when can a minor have a parent or guardian present?

A

Any time, unless it is shown that the presence of parent/guardian is likely to have a material/negative effect

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60
Q

How long do you have to respond to an amended pleading?

A

10 days

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61
Q

Who can sign depo if W can’t

A

The officer who took the deposition signs it, and it has the same effect as if W signs it, unless court orders otherwise.

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62
Q

What happens if you do not comply with judgment within the time it specifies that it needs to be performed?

A
  • court may issue a writ of attachment

- court may hold disobedient party in contempt

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63
Q

Do bonds, notes, contracts need to be attached to the pleading?

A

yes, unless incorporated in the pleading

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64
Q

What unincorporated associations may be sued as entities?

A
  • labor unions
  • fraternal benefit societies that issue insurance benefits
  • condominium and mobile home owners associations
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65
Q

If court grants motion to strike a sham pleading, what may it do?

A

-Court may enter default or summary judgment, or permit additional pleading for good cause shown.

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66
Q

How must affirmative defenses be plead?

A

They must be specifically pleaded in answer, unless grounds for it appear on the fact of a prior pleading and the defense is asserted as a basis for dismissing the pleading for failure to state a COA

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67
Q

Can you withdraw jury demand?

A

Only with consent of all parties.

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68
Q

Can parties stipulate to a FNC dismissal?

A

Yes, subject to approval by the trial court.

Must be in writing and signed by parties

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69
Q

When may you instruct a party not to answer

A
  1. Preserve a privilege
  2. Enforce a limitation on discovery
  3. to Present a motion to terminate or limit the examination on the grounds of annoyance, embarrassment or oppression (can get a protective order)
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70
Q

When can dismissal or default be used as discovery sanction

A

Only where the court makes an express written finding of a willful or deliberate refusal to obey a discovery order.

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71
Q

Motion for judgment on costs, attorneys fees or both must be served no later than __________

A

30 days after filing judgment

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72
Q

What grounds are waived if not raised in first pleading ( MTD or answer)

A
  • insufficient service of process
  • venue
  • lack of jurisdiction
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73
Q

Who picks mediators and arbitrators?

A

Mediators - parties agree

Arbitrators - appointed by court from list of available arbitrators

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74
Q

Non-binding arbitration

A
  • informal; testimony is minimal
  • can proceed in a party’s absence
  • must be completed within 30 days of first arbitration unless extended by court order, but only up to 60 days
  • if a panel of arbitrators, decision is a majority vote
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75
Q

What is a writ of attachment

A

It is a command to the sheriff to take into custody so much of D’s property to satisfy the debt demanded plus costs

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76
Q

Can you serve pleadings on a Sunday?

A

No, unless P by affidavit states that he has reason to believe that D will escape from the state under protection of Sunday.

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77
Q

How long do you have to answer ROGS

A

30 days, except D has at least 45 days to respond after service of the complaint.

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78
Q

When can a party move for summary judgment

A

Any time after 20 days from commencement, and must give at least 20 days notice of hearing. However, if hearing date is set after motion is served, you do not have to give 20 days notice of hearing date.

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79
Q

When can you amend a pleading

A

Any time, even after verdict.

Exception - unfair surprise to a party

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80
Q

Time limit for challenging an assertion of privilege

A

20 days of service from assertion, specifying grounds for challenge (e/g/. waiver, lack of standing, not privileged)

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81
Q

Even if work product is discoverable, what is ALWAYS protected

A

Attorney’s mental impressions, conclusions or legal theories.

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82
Q

Sanctions available for willful refusal to comply with discovery orders (after notice and opportunity to be heard)

A
  • Judgment by default
  • Dismissal of action
  • Striking pleadings
  • staying proceedings until order is complied with
  • prohibiting party from asserting claims or defense
  • prohibiting introduction of certain evidence
  • contempt
  • payment of costs or attorneys fees
  • any other order that is just.
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83
Q

Can you take the deposition of an examining expert

A

YES!!! In accordance with all other discovery rules.

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84
Q

How does SOL apply to counterclaims?

A

Compulsory counterclaims: calculated as of the filing of plaintiff’s complaint
Permissive counterclaim: calculated as of the filing of the counterclaim

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85
Q

Motion to Dismiss for Failure to prosecute - can party that has failed to prosecute save the case?

A

Yes, by showing good cause in writing why the action should remain pending.

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86
Q

How are ROGs served?

A

Must serve ALL parties, and file certificate of service with court. Answers do not need to be filed unless court orders it.

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87
Q

Conduct required for liability for punitive damages

A
  • intentional misconduct

- gross negligence

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88
Q

If a complaint is amended adding a new party, when must you serve new party?

A

120 days from order granting leave to amend.

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89
Q

May a court permit telephonic deposition?

A

Yes

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90
Q

What do attachment and garnishment do?

A

Provide P with security for payment of any final judgment

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91
Q

What are supplemental pleadings and when are they allowed?

A
  • For new matters arising AFTER complaint is filed
  • Permission of court, upon motion, is required
  • This is different from a supplemental complaint, filed after final judgment where court has retained jurisdiction
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92
Q

BOP for punitive damages

A

clear and convincing evidence

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93
Q

Who gets written report of examination

A

Examined party only gets it if they request it (which waives privilege)

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94
Q

Medical Malpractice Pre Suit Screening Rule

A
  • send Notice of Intent to litigate to D prior to expiration of SOL by certified mail RRR
  • parties may obtain pre suit screening discovery - unsworn statements upon oral examination, document demands, physical exam.
  • unsworn statement not discoverable or admissible in civil action
  • have to wait 90 days before filing suit.
  • to avoid SOL issue, commence action within 60 days of the expiration of 90 day period, or within remaining SOL, whichever is longer.
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95
Q

What is a motion for judgment on the pleadings

A
  • can only be filed once pleadings are closed
  • trial court is limited to pleadings, so appropriate for when complaint fails to state a COA, or answer fails to state affirmative defense
  • same standard as MTD
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96
Q

Motion to Alter or Amend judgment

A

Must be made w/in 15 days of entry of judgment

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97
Q

When can a temporary injunction WITHOUT NOTICE be granted?

A

Only if
-immediate and irreparable injury will result before the adverse party can be heard in opposition
-attorney certifies in writing any efforts that have been made to give notice
-the reasons why notice should not be required are stated
MUST BE ENDORSED WITH DATE AND HOUR OF ENTRY and state findings

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98
Q

What is discoverable?

A

All relevant, unprivileged matters

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99
Q

Motion for Mistrial

A

is made on the ground that some statement or act is so prejudicial that in all probability it would be impossible to have a fair trial.

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100
Q

Does case instituted in new forum after FNC dismissal relate back to the Florida complaint for SOL purposes?

A

Yes

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101
Q

Can an injunction be granted if there is an adequate remedy at law?

A

No

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102
Q

What are the two stages of an interpleader action?

A

First stage, determine whether requirements of interpleader are satisfied - court can have stakeholder deposit property with court and dismiss them
Second stage - claimants litigate their rights to the property

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103
Q

If party does not fulfill conditions precedent, what can court do?

A

Order a new trial

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104
Q

What happens if D makes good-faith offer and p rejects

A

D entitled to reasonable costs and attorney’s fees if judgment is no liability or damages at least 25% less than the offer

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105
Q

When is a reply due?

A

w/in 20 days, or 10 days after court order

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106
Q

What happens if court fails to rule on a directed verdict motion at the time it is presented?

A

The failure to decide reserves it for later determination. Moving party may then move w/in 15 days of verdict to have judgment set aside and entered in accordance with her motion for a directed verdict.

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107
Q

Two step process for discovery from expert witnesses who are expected to be called at trial

A

For an expert expected to be called at trial -

  1. First, ROGs to opposing party to discovery identity and substance of facts and opinions of expert.
  2. Second, discovery directed to expert, only upon notice, subject to an Order re: scope, and Ct shall require payment of fee to expert for responding, and may require both parties to share the fee
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108
Q

Voluntary binding arbitration

A
  • procedure established by written agreement
  • 10 days to file written decision
  • may be appealed to circuit court w/in 30 days
  • if no appeal, judge enters judgment.
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109
Q

Method of transferring a case between courts

A

P pays service charge of clerk w/in 30 days. If not paid, the court that entered the order to transfer must dismiss w/o prejudice.

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110
Q

Who is entitled to notice of class action

A

Each class member who can be identified and located through reasonable effort. Rep pays cost of giving notice

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111
Q

If expert fails to make a written report, can she still testify at trial?

A

It’s up to court - court may exclude her testimony

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112
Q

Can the court grant a MTD without a hearing?

A

No

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113
Q

What is a motion to strike a sham pleading and when can it be made?

A
  • It is made wen a party asserts that all or part of a pleading is a sham.
  • Can be made at any time before trial
  • It must be VERIFIED
  • court may take testimony to decide whether to grant motion
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114
Q

Whose obligation is it to bring up capacity issue

A

Defendant must contest status of plaintiff; plaintiff does not otherwise have to plead it or prove it.

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115
Q

Motion to set Aside Judgment - w/in one year after judgment

A
  1. Mistake, inadvertence, surprise or excusable neglect
  2. Newly discovered evidence
  3. Fraud, misrepresentation or other misconduct
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116
Q

When is joint statement for discovery due in complex action?

A

14 days before conference.

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117
Q

When is a determination made as to class action status

A

as soon as practicable after hearing. Once class action status is determined, class must be given notice and claim may not be voluntarily dismissed without court approval upon notice to all class members.

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118
Q

If answers are inconsistent among themselves, what can court do?

A

Send the jury back or

Order a new trial

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119
Q

Punitive damages cannot exceed

A

Three times compensatory damages or $500,000 whichever is greater
-must be separately stated

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120
Q

What happens if a party objects to the production of documents under a subpoena?

A

Records ARE NOT produced.
Party seeking discovery must get order order, or can notice a deposition with a subpoena duces tecum instead and take their deposition

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121
Q

What happens if you do not answer admissions?

A

They are deemed admitted

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122
Q

When is trial for complex action?

A

No sooner than six months and no later than 24 months from date of CMC

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123
Q

If jury is taken to view premises, who pays expenses?

A

Party making motion advances cost, but then expense can be counted as a cost recoverable if the party prevails.

124
Q

How is service of subpoena made?

A

Personal service or by mail with written confirmation of delivery, signature of person receiving subpoena (this must be filed with the court)

125
Q

What claims may a plaintiff join in his suit

A

Any claims he has “in the same right”, i.e., in the same capacity (can’t join individual claims with claims filed in representative capacity)

126
Q

General verdict

A

A verdict for one of the parties, and if applicable, the damages.

127
Q

Notice required if you subpoena documents from non-party

A

You must give notice of intent to serve subpoena at least 10 days BEFORE subpoena is issued (15 days of service is by email or mail). You do not have to send a copy of the subpoena

128
Q

Can a party object to producing documents in responses to a subpoena duces tecum

A

Yes. and if he does, you need a court order to compel him to produce

129
Q

When must a motion for substitution be made?

A

90 days after service of suggestion of death upon the record, otherwise the action is dismissed as to the deceased party.

130
Q

Are depositions limited in number?

A

No

131
Q

Can you assert claim for punitive damages in complaint?

A

No, must make motion showing a reasonable basis for recovery of p.d., and motion must be served at least 20 days before the hearing.

132
Q

Where can a NON-resident of Florida be compelled to deposition?

A

Only in county where deponent was served or other convenience place fixed by court.
-Or in any other state using the subpoena power of the court in that state

133
Q

How do you effect substitute or abode service?

A

-leave at D’s home with someone 15 and older who lives there, and state what it is.

Strict compliance with statute is required, even if D has actual notice of the action.

134
Q

If court denies order compelling answers to discovery what MUST it do with respect to cost sanction

A

Court MUST require refusing party to pay cost of motion, including attorneys fees, unless it finds that motion had substantial justification

135
Q

Motion to set Aside Judgment - at any reasonable time

A
  1. Judgment is void
  2. Judgment has been satisfied, released or discharged
  3. A final divorce judgment was based on a fraudulent financial affidavit
136
Q

Time limit for advising of inadvertent disclosure

A

10 days from discovery of inadvertent disclosure

137
Q

How must general damages be alleged?

A

-those that necessarily result from a wrong, such as pain and suffering do not have to be claimed by name

138
Q

Time limit for offer of or demand for judgment

A

90 days after service (D) or commencement (P) and no later than 45 days before trial

139
Q

How can you effect personal service on an individual?

A
  1. Personal delivery
  2. Substitute or abode service
  3. Service on spouse
  4. Substitute Service on Private mailbox or shared office
  5. Service on agent authorized or appointed to receive service of process
140
Q

Cases that may be mediated or arbitrated

A

Judge can order, or parties can stipulate to, referral of most contested civil cases
-First mediation conference or arbitration hearing shall be held within 60 days of order of referral

141
Q

Can the court issue sanctions for bad faith affidavits?

A

YES!! Court can order party to pay expenses or adjudge party or attorney in contempt.

142
Q

Grounds for default judgment

A

Failure to appear or otherwise defend.

Note: recovery cannot exceed or be different in kind than prayed for.

143
Q

If form of verdict is no good, what can court do?

A

Correct it, or send jury back.

144
Q

General verdict with ROGS

A

General verdict is rendered, but jury ALSO answers factual questions.

145
Q

Exclusions from mediation and arbitration

A
  • bond estreatures (court order to forfeit bond)
  • habeas corpus and extraordinary writs
  • bond validations
  • civil or criminal contempt
146
Q

What is a cross-claim

A
  • filed by one party against a co-party
  • they are permissive
  • MUST arise out of same transaction and occurrence, or involve the property that is the subject matter of the litigation
  • normal answer rules apply to answers of cross-claim
147
Q

What is quo warranto?

A

Remedy to determine title or right to public office and to remove a person who is unlawfully holding office

148
Q

Effect of involuntary dismissal

A

It is with prejudice (unless an exception or court orders otherwise) and operates as an adjudication on the merits.

149
Q

When can depositions be used at trial?

A
  1. Impeachment (but not for substantive purposes)
  2. Opposing party statement
  3. Deponent, whether or not a party, is unavailable or dead

Subject to rules of evidence, only against a party who was present or represented at the deposition or who had reasonable notice thereof.

150
Q

How do you accept an offer or demand for judgment

A

Deliver written notice of acceptance w/in 30 days

151
Q

Motion for Directed verdict

A

Made on the theory that there is nothing for the jury to decide. Either party may make motion at close of evidence.

152
Q

What does each claim for relief need to contain in a pleading?

A
  1. short, plain statement of grounds for jurisdiction
  2. Short, plain statement of ultimate facts
  3. Demand for judgment of relief, which may be plead in the alternative. Specific $$ not required
153
Q

When can you execute on a judgment?

A

Not until after time for serving motion for new trial has passed (automatic 15 day stay) , or if motion was filed, not until after it is determined.

Court can stay execution upon good cause shown.

154
Q

Who can serve pleadings?

A

Sheriff
“Elisor” - process server appointed by court
Any person not a party or not otherwise interested in outcome of case.

155
Q

Qualifications of mediator

A

must be certified by Florida Supreme Court or may be allowed to act if parties agree. MUST be Florida bar member and must attend 4 hours of approved training

156
Q

When must a jury demand bemade?

A

No later than 10 days after service of the last pleading directed to the issue. Can be on pleading itself, or on separate piece of paper.

157
Q

How do you make a motion for failure to prosecute?

A

If no activity on record of case for 10 months, serve notice to all parties. If nothing happens for 60 days after notice, action will be dismissed for lack of prosecution

158
Q

Rights of a substituted party in an ongoing litigation

A

Takes the case as she finds it, e.g., all discovery that could be used against predecessor party can be used against her.

159
Q

How do you effect delivery on spouse?

A

If the spouse requests such service, and they live together, AND it isn’t an action between spouses, personal service may be made by delivery on the spouse anywhere in the county.

160
Q

Discovery from non-testifying expert

A

Discovery available ONLY upon a showing exceptional circumstances. If those exist, same two step process, except Court SHALL require parties to pay an expert fee, and to share the cost of it.
COST caveat - ct need not require sharing if manifest injustice could result

161
Q

Motion for a Belated Directed Verdict - condition precedent

A

must have made motion for directed verdict during trial

-limited to grounds raised in first motion

162
Q

What is an offer of or demand for judgment?

A

Prior to trial, D may file an offer of, or P may file a demand for, judgment.

163
Q

How are admissions answered

A
  1. Admit
  2. . Deny
  3. Give reasons why you cannot admit or deny
164
Q

When are attorneys fees available to a prevailing party?

A

Court may award prevailing party reasonable attorneys fees if the court finds that the losing party or their attorney knew or should have known that a claim or defense: 1. was not supported by material facts necessary to support the claim or defense; OR 2. would not be supported by the application of the law to those facts.
-paid by lawyer and client 50/50 unless lawyer acted in good faith and relied on client representations.

165
Q

Is the absence of a indispensable party grounds for dismissal of action?

A

Yes, but its w/o prejudice and last resort. Court will do what it can to join party, or find that they are not indispensable.
-Court will not label party as indispensable if her interests are separable from the others

166
Q

How do clerical mistakes in judgments get fixed?

A

May be corrected by court at any time sua sponte or on motion of a party.

167
Q

Does capacity to sue need to be alleged?

A

No

168
Q

Can you videotape a depo

A

Yes, if you give notice that it is going to be videotaped. No court order needed.

169
Q

How must fraud or mistake be plead?

A

With particularity

170
Q

When must an answer be filed?

A

20 days after service, or 10 days after court order on preanswer motion

171
Q

When is final CMC held?

A

At least 90 days prior to trial date

172
Q

What is a motion to strike

A

-Motion made when complaint complains immaterial, redundant or scandalous matter, or when law requires pleading to be verified and it is not.

173
Q

What effect does a voluntary dismissal have on a lis pendens

A

It cancels the lis pendens without a court order. Can be by stipulation or notice of dismissal

174
Q

Objections to jury instructions - how is it preserved for appeal?

A

If judge modifies or replaces a standard jury instruction, or if he deviates from recommendations for an instruction’s use, he must state the legal basis for varying from the standard instruction on the record.

Otherwise, just object at conference.

175
Q

Can a homeowner, condo or mobile homeowner’s association sue as part of a class action?

A

Yes, they may sue in its name on behalf of all association members concerning matters of common interest

176
Q

May new parties be added by amendment?

A

Yes, but normal rules concerning jurisdiction and service of process apply

177
Q

Describe summary procedure for small claims

A

o Claim - not more than $5,000
o Pleadings
§ File concise statement of claim
§ Notice to appear is served w/ statement of claim
§ No answer by D required
o Discovery - no discovery unless represented by attorney (unless unrepresented party engages in discovery)
o Pre-Trial Conference - no later than 50 days after commencement of action
o Trial - no more than 60 days after pre-trial conference, so long as parties get at least 10 days’ notice of trial

178
Q

Verdict - how may jury votes needed?

A

Must be unanimous

179
Q

When is a reply required?

A

If a plaintiff wants to raise new matter in response to an affirmative defense, he may file a reply. Otherwise, a reply is deemed denied.

180
Q

Where can a resident of Florida be compelled to deposition?

A

In county where party

  • resides
  • is employed or
  • transacts business.
181
Q

How many days does Plaintiff have to refile case after FNC dismissal

A

120 days after Florida dismissal becomes final

182
Q

When can the court transfer an action that was filed in a proper court

A
  1. when party cannot receive a fair trial, or you cannot obtain a qualified jury
  2. For the convenience of the parties, or in the interests of justice, case can be transferred to a county in which it could have originally been brought.
183
Q

Rules regarding service in a Gated Residential Community

A

A gated community must grant unannounced entry into the community to a person who is attempting service of process.

184
Q

What must order granting a new trial contain?

A

It shall specify grounds for ordering new trial.

185
Q

Can you use affidavits to support a motion to dismiss?

A

Yes.

186
Q

How do you reject an offer or demand for judgment

A

Written rejection or failure to respond

187
Q

If party files Notice for Trial (similar to our note of issue) when must trial be held

A

Not less than 30 days from notice.

Once Notice for Trial is filed, cannot dismiss for lack of prosecution

188
Q

Circumstances where there is no cap on punitive damages

A
  1. Where there is specific intent to harm

2. Intoxication

189
Q

When can a party be added to a pleading?

A

Can be added by amendment whenever the presence of the party is necessary or proper to a complete determination of the cause

190
Q

Motion for a Belated Directed Verdict - timing

A

must be made with 15 days after rendition of verdict or judgment

191
Q

Requirements for a class action

A
  • Numerosity
  • Common question of law or fact
  • Typicality
  • Adequate representation - class rep will fairly and adequately represent the class
  • Type - class action must be of a recognized type
192
Q

When must motions against an answer be made?

A

Within 20 days

193
Q

Does mediation suspend discovery?

A

No, unless stipulated by parties or court order

194
Q

Can you garnish WAGES before giving notice and an opportunity to be heard?

A

No. Due process requires that D be given prior notice and an opportunity to be heard BEFORE his wages are garnished - although NOT TRUE of post-judgment wage garnishment

195
Q

Do pleadings need to be verified

A

NO, unless a court rule specifically requires it.

196
Q

How must special damages be alleged?

A

Must be specifically stated, but $$ amount is not required.

197
Q

How can a party be dropped?

A

By voluntary dismissal, by court sua sponte or on motion of any party at any stage of the proceeding.

198
Q

Is a bond req’d for a temporary injunction

A

Yes, unless injunction being sought by the state or to prevent personal injury

199
Q

Are ROG answers of one party binding on a co-party?

A

No.

200
Q

Number of jurors

A

civil-6

condemnation - 12

201
Q

Where is a involuntary dismissal made WITHOUT prejudice?

A
  1. lack of juris
  2. improper venue
  3. failure to join an indispensable party
  4. failure to prosecute for 1 year
  5. whenever court orders it
202
Q

How can a P voluntarily dismiss her own case?

A
  1. By filing notice, unless SJ motion is pending or there is a CC.
  2. By stipulation of parties (unless property is in custody of court)
  3. By court order (if cc, party may waive CC so court can dismiss)
203
Q

Jury challenge for cause

A
  • unlimited

- removed if related to party, judge or attorney (3x) or person has an interest in action

204
Q

Do you have to answer questions if you don’t have personal knowledge?

A

No, you respond with whatever information you have, and the source of that information.

205
Q

Who enters final judgment on default?

A

Court Can hold hearing on damages

206
Q

Does filing a Notice of Appearance waive the jurisdiction objections that must be raised in the first pleading?

A

No

207
Q

Can jurors submit written questions to witnesses?

A

Yes! After lawyers are done questioning. Must be written, signed and given to bailiff. Counsel has an opportunity to object outside the presence of the jury

208
Q

Any party that files a court document that questions the constitutionality of a state statute, or county or municipal rule, must do the following:

A
  1. file a notice of constitutional questions

2. serve the attorney general or state attorney by certified or registered mail (don’t need to add them as a party)

209
Q

Is a motion necessary for impleader?

A

No motion necessary if D files the third-party complaint w/in 20 days of filing her answer
-otherwise motion is necessary and depends upon discretion of court.

210
Q

What is a compulsory counterclaim?

A

Any claim that a pleader has against an opposing party that arises out of the same transaction and occurrence must be asserted at the time of the responsive pleading or it is lost, unless it requires the addition of parties outside the court’s jurisdiction
other exceptions:
- claim is subject matter of another lawsuit
-claim to which a responsive pleading was filed is not based on in personam jurisdiction

211
Q

Contents of offer or demand for judgment

A

Must be in writing and identify applicable FL Law

  • Name of parties
  • Claims being resolved (must resolve all claims except attorney’s fees)
  • Any relevant conditions
  • Total amount and non-monetary items
  • Amount of punitive damages
  • Whether amount proposed includes attorney’s fees
  • Certificate of service
212
Q

Can a counterclaim or cross claim be brought against additional parties who were not original parties to the suit?

A

Yes, but all jurisdiction and service requirements apply

213
Q

What is the burden pf proceeding and how can it shift?

A

It is the burden of satisfying the judge that enough evidence has been presented so that a jury could reasonably find in his favor. Burden generally on P, but shifts to D if P presents evidence to prove a fact, burden shifts to D to disprove, or there will be no issue for jury.

214
Q

If MSJ is supported by affidavits, can adverse party rest upon pleadings to set up a genuine issue of material fact?

A

No!

215
Q

Before complaint is filed, can you get a deposition

A

Yes, you can get a court order to perpetuate your own or someone else’s testimony by oral or written deposition - court will grant if it is satisfied that the deposition may prevent a failure or delay of justice.

216
Q

Does court have discretion whether to permit intervention?

A

yes

217
Q

How do you enforce a money judgment?

A

Execution, writ of garnishment

218
Q

Do you need an actual controversy for a declaratory judgment?

A

No, but there must be an element of dispute between the parties

219
Q

Can a complaint includes pleading in the alternative?

A

Yes

220
Q

Can admission be used in other actions?

A

No, conclusive only for purposes of the pending action.

221
Q

Who signs Rogs

A

Party signs answers

Attorney signs objections

222
Q

What findings must court make as to TYPE of class action, in order for it to go forward

A
  1. Risk that separate claims would lead to inconsistent adjudications or that separate adjudications would impair the interests of other members.
  2. Injunctive or declaratory relief is appropriate based on the fact that D treated all class members alike.
  3. Common questions predominate over individual questions.
223
Q

What if D refuses to accept personal service?

A

You can leave it in his presence.

224
Q

Timing of motion for a new trial?

A

Within 15 days after return of verdict.

In absence of motion court’s jurisdiction terminates after 15 days

225
Q

May a court sua sponte add parties?

A

Yes, at any time

226
Q

When can a party make a motion to intervene?

A

In a jury trial - any time up to verdict
In a non jury trial - any time up to final judgment
in exceptional cases, intervention is allowed after judgment for purposes of appeal

227
Q

When is voluntary dismissal unavailable to P

A
  • When SJ motion is pending
  • When jury has retired or issue has been submitted to judge
  • when property has been deposited with the court
  • when a counterclaim is pending, unless ct finds it can stand alone
228
Q

What if a party denies an admission and then later the party requesting the admission proves it?

A

Court MUST order payment of costs including attorneys fees unless there were GOOD REASONS for denial or the admissions were of no substantial importance.

229
Q

Can you refer a case to a magistrate without the consent of the parties?

A

No

230
Q

Are contention Rogs permitted?

A

Yes

231
Q

What are your choices if a deponent refuses to answer questions?

A

Complete the examination or adjourn. You can then move for an order directing the deponent to answer.

232
Q

What is intervention?

A

-a device whereby party enters a case on his own motion.

233
Q

Is a counterclaim arising AFTER party has answered pleading compulsory?

A

No.

234
Q

When is a physical examination allowed?

A

When condition is in controversy

-notice must state who will attend, who will perform, and whether it will be recorded.

235
Q

Is the third party D bound by the finding of D’s liability to to the P?

A

Yes. Res judicata applies.

236
Q

Can a party be sanctioned for ESI that is lost?

A

Not if the loss was a result of the routine, good faith operation of an electronic information system.

237
Q

How is due process satisfied when property is seized through attachment or garnishment?

A

Either

  • D is given notice and opportunity to be heard before seizure OR
  • procedural safeguards such as affidavit of P and bond, to minimize the financial impact on D. But D has the right to a prompt hearing after seizure.
238
Q

Grounds for motion for new trial

A
  • verdict contrary to evidence
  • prejudicial error
  • newly discovered evidence
  • excessive or inadequate damages
239
Q

When must a forum non conveniens motion be served?

A

No later than 60 days after service of process on the moving party

240
Q

Do you need jury’s consent to grant directed verdict motion?

A

Not anymore.

241
Q

What is a writ of mandamus?

A

Used to compel a public officer to perform a purely ministerial function

242
Q

Is there a special sequence to discovery?

A

No, it may proceed in any sequence

243
Q

What is the test for a directed verdict?

A

Drawing all reasonable inferences in favor of non moving party, the judge concludes that no reasonable jury could return a verdict in favor of the non moving party.

244
Q

Where is an appeal filed

A

For final orders - in court where appeal is taken from

For nonfinal orders- filed with the clerk of the appellate court that has jurisdiction

245
Q

When can a deposition be noticed?

A

By D, any time after service of complaint.
By P, only after 30 days have passed since service of complaint, unless P has a court order, or without court order if D will be outside reach of court within 30 day period

246
Q

Time to serve opposing party affidavits on motion for new trial

A

10 days, but can be extended for up to an additional 20 days.

247
Q

Can default judgment be entered against a minor?

A

No

248
Q

Motion in arrest of judgment

A

Is a post-verdict motion to dismiss for failure to state a cause of action. It can ONLY be filed by defending party, and must be served after verdict is received but prior to entry of judgment.

249
Q

What deposition objections are not waived unless curable at the time?

A

-Objections to competency, relevancy or materiality

250
Q

How long do you have to answer?

A

30 days (45 days for D)

251
Q

How is a case designated complex

A

By motion or stipulation of parties. Court must rule on motion w/in 10 days of hearing.

252
Q

When do amendments relate back to original pleading?

A

when the conduct, transaction or occurrence set forth in the amended pleading, was in the original pleading.

253
Q

If answers disagree with general verdict, what can court do?

A
  1. Enter judgment in accordance with answers;
    2 Send the jury back or
  2. Order a new trial
254
Q

What is a necessary party?

A
  • a party whose rights are affected by the outcome, so they have a material interest in the case
255
Q

Does failure to deny damages amount to admission?

A

No

256
Q

When parties are MISJOINED, is case dismissed?

A

No, either the claims or severed, or the wrongly joined party is dropped.

257
Q

Who can seek a dismissal for failure to prosecute -

A

Court, on its own motion, or any of the parties

258
Q

Is electronically store information discoverable?

A

Yes, in the the same form as it is maintained, or some other reasonably usable form

259
Q

When is discovery admissible on a party’s financial worth?

A

When a pleading on punitive damages has been permitted.

260
Q

How must condition of mind (malice, intent, knowledge) be plead?

A

They may be averred generally

261
Q

Rogs - business record option

A

If burden is the same on both parties, you can permit reasonable access to records instead of answering them s/l/a you specify the records from which the answers can be obtained.

262
Q

Can you move to disqualify mediator or arbitrator?

A

Yes, on a showing of good cause

263
Q

Can voluntary binding arbitration transcript be used in future legal proceedings?

A

Yes, subject to the Rules of Evidence

264
Q

Peremptory challenges

A

3 to each party, plus one for alternate.

When number of parties is not in balance, largest number of peremptories given to each side.

265
Q

Is the absence of a necessary party grounds for dismissal of action?

A

No

266
Q

When is a written statement - taken by an attorney - discoverable?

A
  1. When W is unavailable for depo
  2. When W is uncooperative
  3. When W no longer remembers
  4. A party’s own statement is discoverable w/o a showing of need or hardship
267
Q

What if affidavits are unavailable to party opposing motion?

A

He may by affidavit state reasons for unavailability. Court may deny motion, or order a continuance to permit affidavits to be obtained or depositions to be taken.

268
Q

Admissions - limits on number

A

May not exceed 30, including subparts, absent court order on motion and for good cause, or by stipulation of parties.

269
Q

When can the court transfer an action for lack of SMJ?

A

If court determines that case was brought in the wrong court (e.g. $$ threshold), it may transfer to the proper court in the same county.

270
Q

What is a writ of possession?

A

When judgment is for delivery of real property, the judgment shall direct the clerk to issue a writ of possession. Clerk shall deliver it to the sheriff for execution.

If third party is in possession, that person may retain possession by filing an affidavit with the sheriff that he is in possession. Court then works it out.

271
Q

Service on Tenant in An Action for Possession of Residential Premises

A

You can nail and mail only AFTER two attempts at personal service at least 6 hours apart.

272
Q

Who can schedule a case management conference or pre trial conference

A

Court or motion of party to convene a conference

273
Q

Can costs of depositions be collected by prevailing party?

A

No, unless the depositions served a useful purpose at trial.

274
Q

How long do you have to respond to a demand fro documents?

A

30 days (or 45 days after service of complaint)

275
Q

What is a motion for a more definite statement and when must it be made?

A
  • It is the motion made when pleading is vague or ambiguous

- it must be filed before responsive pleading, and it must point out defects in the complaint

276
Q

What is an involuntary plaintiff?

A

-party whose interest is aligned with the plaintiff but who will not join voluntarily. She will be joined as a D and treated as an involuntary P

277
Q

Is prejudgment garnishment available to P

A

Yes, when P reasonably believes that D will not have sufficient property after judgment to satisfy P’s claim

278
Q

When do you have the right to a jury trial in Florida?

A

If suit was triable by jury in 1845 !!

279
Q

How is a deposition on written questions conducted

A

Serve questions
W appears before officer designated to take depo
Officer puts W under oath, asks questions and records answers

280
Q

Before whom are depositions taken?

A

Before notary or judicial officer or other person authorized in Florida to administer oaths.

281
Q

Who pays clerk’s fee if transfer results from D’s counterclaim or cross-claim exceeds the jurisdictional amount of the court

A

The party asserting the CC pays the fee, and if he doesn’t the court just reduces the claim to an amount within the juris limit of the court and doesn’t transfer it.

282
Q

When can the issue of an indispensable party be raised?

A

-raised by a party opposing a claim, by motion to dismiss or in answer, or by motion for judgment on the pleadings before trial or at trial

283
Q

When is an action “commenced”

A

When complaint or petition is filed

284
Q

What NON FINAL orders may be appealed?

A
  • venue
  • injunctions
  • jurisdiction over person
  • immediate possession of property
  • child custody
  • right to immediate monetary relief
  • whether party is entitled to arbitration
  • workers compensation immunity
  • certification of class action
  • qualified immunity under federal civil rights law
  • gov’t has taken action that inordinately burdened real property
285
Q

What deposition objections ARE waived if not made at depo

A

Objections to form, conduct of parties, or something else that can be cured at the time

286
Q

How must defenses be plead in an answer?

A

They must be state specifically and with particularity

287
Q

How many Rogs are permitted

A

30, including all subparts. Must use standard forms where available.

288
Q

What happens if court grants motion for more definite statement?

A

Plaintiff has 10 days to obey the order or the court may strike the pleading

289
Q

Pluries Summons

A

3rd summons

290
Q

How many days do you have to serve the summons after it is issued?

A

120 days, or there is a dismissal w/o prejudice

291
Q

If you get served with deposition upon written questions, when do you have to serve cross-questions and reply questions by?

A

30 days/10 days

292
Q

If court issues order compelling answers to discovery what MUST it do with respect to cost sanction

A

Court MUST require refusing party to pay cost of motion, including attorneys fees, unless it finds that refusal had substantial justification or that moving party failed to certify good faith effort to resolve.

293
Q

What are the grounds upon which a court can dismiss a case because a satisfactory remedy may be more conveniently found in a juris other than Florida?

“Forum Non Conveniens”

A

Court MUST determine:

  1. that an adequate alternate forum exists;
  2. That factors of private interest favor the alternative forum
  3. If balance of private factors is equivalent, the factors of public interest tip the balance in favor of other forum
  4. That trial judge will ensure P can restate their suit in the alternative forum.

E..g. Plaintiff sues in a state that has a favorable doctrine for recovery

294
Q

If P voluntarily dismisses, can D get costs?

A

Yes

295
Q

Motion to Strike Evidence at Trial

A

If evidence is admitted that party believes is inadmissible, he can make motion immediately during testimony or after testimony has been given. It is NOT a substitute for an objection.

296
Q

Consequences for failure to attend a conference?

A

Court may dismiss action, strike pleadings, limit proof or witnesses (but need a finding that non attendance was willful)

297
Q

What is a writ of prohibition?

A

Used to prohibit a public officer from performing an act which she has no discretion to perform. It cannot be used to control her discretion.

298
Q

Is voluntary dismissal with our without prejudice?

A

Without prejudice ONLY ONCE.

-unless otherwise agreed or court specifies otherwise

299
Q

Can claims be aggregated to satisfy jurisdictional amount?

A

YES, If they arise from the same transaction or occurrence.

300
Q

What happens if p makes good-faith offer and D rejects

A

p entitled to reasonable costs and attorney’s fees if judgment is at least 25% greater than offer

301
Q

If a MTD is denied, how long does a party have to file a responsive pleading?

A

10 days

302
Q

Can the plaintiff file any motions against the ANSWER?

A

Yes, plaintiff may file a

  • motion to strike for failure to state a legal defense
  • motion for judgment on the pleadings or at trial
  • if a reply is required, a motion for a more definite statement may be filed
303
Q

Who issues summons

A

Clerk

Must be signed and sealed !
Court’s seal must be affixed

304
Q

What is a permissive counterclaim?

A

any claim against a party NOT arising out of the same transaction and occurrence

305
Q

Do you need a motion to compel if party fails to respond at all to a discovery request?

A

NO!! A court can proceed with sanctions without a motion. Motions to compel are only necessary if the answer is incomplete or objected to.

FL Essays Final (17 decks)

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