Civ Pro Flashcards
(116 cards)
1
Q
Basic question behind personal jurisdiction.
A
Can P sue D in Florida?
2
Q
Bases of In Personam Jurisdiction (power over the _____)
A
D, not her property
- present in FL when served with process (if non-FL resident, gives rise to general jurisdiction - claim arising anywhere in the world vs. specific jurisdiction, where suit arises from contacts with the forum)
NO coxing into state
NO if here to attend court as a party or witness in unrelated suit - D domiciled in FL = general PJ
- D incorporated in FL
- “Substantial and not isolated activity in FL” - human or corporation AND can sue even if claim arose in Iceland
- Long Arm = suing a non-resident D = specific jurisdiction AND the claim ARISES from the D’s doing one of the following things in Florida
a. Operating a business in Florida (or having an office in Florida)
b. Owning, using or possessing land or holding a mortgage or lien on Florida land.
c. Commit tortious act in FL (can include sending an email or electronic communication as long as cause of action arises from message)
d. Nonresident commit tort outside of FL that causes injury in FL: OK if:
* D engaged in solicitation or service activities in Florida OR
* Its products are used in Florida in the ordinary course of commerce.
e. breach contract in FL by failing to perform in FL - Nonresident Motorist Act (NMA). May sue a nonresident who owns or operates a motor vehicle, watercraft or aircraft (including one who navigates or maintains an aircraft) involved in an accident or collision in Florida. Specific jurisdiction.
3
Q
Subject Matter Jurisdiction (power over the _____)
A
case
Circuit Court: EXCLUSIVE
1. Probate and estate matters, guardianship, incompetence; 2. Cases involving juveniles (except traffic offenses);
3. Cases involving title or boundaries to realty;
4. Ejectment cases. EXCEPTION: Landlords evicting tenants
5. Equity suits exceeding 15k
6. Actions at law exceeding 15k
7. NOT EXCLUSIVE = equity suits NOT exceeding 15k
County Court:
1. actions at law not exceeding 15k AND not in exclusive jurisdiction of Circuit = EXCLUSIVE
2. equity cases not exceeding 15k = NOT exclusive
3. Disputes in homeowners’ associations.
4. Landlords evicting tenants. If the eviction case involves
$15,000 or less = it MUST go to County Court. More than 15k = either
4
Q
Venue
A
2 types: local actions and transitory
local = must be brought in county where land is
- ejectment
- foreclosure of mortgage on land
- trespass to land (even if relief sought is damages)
- quiet title to land
- partition of land
- forcible entry and
- unlawful detainer of land are all local actions.
transitory (anything not local) - venue ok if:
- in county where D resides (if multiple D’s, in either of the counties)
- in county where cause of action accrued (tort: place of injury; contracts = where performance due)
- where property in litigation is located (chattel)
- serve non-resident in FL (county where D served with process; where cause of action accrued; where property in litigation located)
- served non-resident outside of FL = any county
- one D is resident and one is non-resident = must be proper for resident D
5
Q
In a contract to _____ in Florida, a provision requiring _____ is void.
A
improve realty
that a suit against a Florida contractor, subcontractor, or material man be brought out of state
6
Q
Venue for suit on a retail installment sales contract:
A
(1) county where contract signed; (2) county where buyer resided either at purchase or when suit filed; or (3) county where product affixed to land.
7
Q
For venue, a Florida corporation “resides” in _____.
A
any county in which it has, or usually keeps, an office for the transaction of its customary business
8
Q
Transfer of venue. Somebody (usually D) moves to change venue.
1. If venue originally improper, court will _____ . If she does not, case will be _____.
- If venue originally OK,may transfer to another county for either of two reasons:
A
transfer to a proper venue if plaintiff pays
transfer costs within 30 days
dismissed without prejudice.
a) party won’t receive fair trial where case originally filed. Here,the court can transfer
to any county–even if not a proper venue. Factors relevant to such a decision:
(1) Opponent has undue influence in the county.
(2) Moving party is so odious he cannot get a fair jury.
(3) It is impracticable to get a qualified jury (e.g. pretrial publicity).
For factors (1) and (2), must file a verified petition supported by affidavits (under oath) of two reputable citizens unrelated to the moving party or her lawyer.
b) convenience of parties or witnesses, or “interest of justice.” Here, the court can only
transfer to a proper venue.
9
Q
Forum Non Conveniens.
When must the motion be made?
Is it OK to dismiss under FNC even if the entire dispute cannot be litigated in a single alternative
forum?
A
A court may dismiss because another court is proper and is far more convenient. That other court is one to which transfer is not possible because it is in a different judicial system, e.g.,another state or a foreign country. Courts look to a series of public factors (e.g., what law will apply) and private factors (e.g., convenience for witnesses and parties). Is the fact that a party is a Florida resident relevant?
within 60 of service of process
yes
10
Q
What is service?
A
summons to appear + complaint
11
Q
What does person serving process have to do?
Does failure to file proof of service affect the validity of service?
A
he person making service notes the date and time of service, her identification number, and initials the process. She should file a signed proof of service form, which is prima facie evidence that service was made. The form lists pleadings served. If made by a civilian, proof of service is by affidavit. lf by officer, it does not need to be by affidavit.
No.
12
Q
Who can serve?
A
Process may be served by the sheriff or his appointee or by any person who is (1) a non-interested adult and (2) appointed by the court. (Elisor)
13
Q
Types of service and how . . .
A
A. Personal service = personal service is valid wherever the defendant is found in Florida.
B. Substituted service =
(1) D’s usual place of abode (actually living there at the time of service), (2) process is left with one who is at least age 15 and who resides there & (3) server tells that person the contents of the documents. STRICT
You can serve D’s spouse if the case is not between those spouses, the spouse requests the service, and the spouse and D reside together.
C. Delivered to D’s agent
D. Nail and Mail
In some circumstances, may have process posted conspicuously on the premises and have the clerk mail process (first class) to tenant at those premises. What circumstances?
We failed twice, at least 6 hours apart, to effect personal or substituted service. ONLY in dispossessory actions by landlord against tenant.
E. Corporations
May serve any of the following, but start with (i); can only descend the list if no one in a higher “rank” can be found.
(i) President, vice-president or other head of the corporation;
(ii) Cashier, treasurer, secretary or general manager;
(iii) Any director;
(iv) Any officer or business agent residing in Florida. OR
Resident (or “registered’’) Agent. All Florida corporations and those qualified to transact business here must designate a resident agent to receive service of process.
Such a corporation must also designate a registered office location and keep it open from 10 a.m. to noon except weekends and holidays.
–What if no resident agent was designated?
may serve any employee at the company’s principal place of business.
F. Long-arm Statute: Serve out-of-state in any method allowed by Florida law, with the. service made in the other state by any officer authorized to serve process there.
G. Service on nonresident (including foreign corporation or individual) that either has an office in Florida or has done business here. If D has a resident agent, serve the resident agent. – If D does not, then serve Florida Secretary of State and have D served personally out of state by a proper officer or by registered or certified mail, return receipt requested.
H. NonresidentMotoristAct. Serve Florida Secretary of State and have D served personally out of state by a proper officer or by registered or certified mail, return receipt requested.
I. PublicationService. Allowed only by statute, in cases involving realty,construction of a will or other written instrument, for dissolution of marriage or adoption. P must. give a sworn statementthatDcannotbefoundinFloridaafterdiligentsearchandinquiry. Must also state whether D’s residence is known or unknown. If known, must state the residence (in or out of Florida). Copy of the published notice mailed by clerk to D at last known address.
- Service on minors or incompetents.
- -If he has a legal guardian, serve the guardian as you would any other adult.
- -If a minor has no legal guardian, serve parent and ask the court to appoint a guardian ad litem (for purposes of litigation).
- -If incompetent has no legal guardian, serve 2 copies on the person having custody and ask court to appoint guardian ad litem.
14
Q
T/F. Person who receives service must be a relative of D.
A
F
15
Q
Server knocks on the door of D’s house. An unidentified voice from inside yells “Get lost!” Server leaves the process at the door. Substituted service is no good for what TWO reasons?
A
Not left with a proper person and did not state the contents.
16
Q
Nail and mail applies ______.
A
ONLY in dispossessory actions by landlord against tenant AND we failed twice, at least 6 hours apart, to effect personal or substituted service.
17
Q
Waiver of formal service. P can mail process and a waiver form to D by certified mail. Within _____ days of receipt, D can return the waiver form by _____; if D does so, she _____ but NOT _____. lf D does not return the waiver form, P can effectuate formal service of process and the court can _____. D has _____ days from _____ in which to respond to complaint.
A
20
first-class mail
waives formal service
objections to PJ or venue
require D to pay the costs of such service
60
receipt of the waiver form
18
Q
P files suit against D one day before the statute of limitations expires. Service is effected by the sheriff a week later. Is P time barred?
A
No. Filing the complaint tolls (stops) the statute of limitations. BUT P must have D served within 120 days of filing. If not, court can order a different time or can dismiss without prejudice unless P shows good cause for delay in serving. lf he does show good cause for not serving within 120 days, court will extend time for service an appropriate period.
19
Q
Cannot serve process on _____ unless plaintiff gives an affidavit that she has reason to believe D will _____.”
A
Sunday
leave the state under “protection of Sunday
20
Q
Serving subsequent documents . . .
A
Subsequent documents (e.g., motions, discovery requests) can simply be served by email. If no email, then may use mail or personal delivery. Execute proof of service, showing date and manner of service. The time in which to respond to any document is increased by 5 days if service is made by mail or email.
Also, can serve subsequent documents by transmitting a facsimile,so long as a copy is also served by another permitted method. Fax service is complete when the transmission is complete. If after 5 p.m., deemed to have been made on the following day.
21
Q
A pleading must include . . .
A
A pleadings must contain:
1. name of the court
2. court case file number
3. name of parties
4. name, address and telephone number of attorney
5. attorney’s Florida bar number;
6. designation of pleading
7. each claim or defense separately stated
8. numbered paragraphs.
9. Documents which are the basis of a claim or defense must be annexed as an exhibit or stated verbatim in the pleading. Clerk can accept electronic filing.
B. Attorney Certificate. At least one attorney of record must sign all pleadings. If there is no lawyer (a pro se litigant), the party signs the pleading, including her address and telephone number. Lawyer or pro se litigant, by signing, is certifying
(1) that she has read the document,
(2) that to the best of her information there is good ground to support it, and (3) that it is not interposed for delay.
–What if the lawyer or pro se party fails to sign a document? court can strike the doc
22
Q
Tort Reform. Prevailing party in the case can recover _____ if losing party _____.
- Under this statute, the award is to be paid _____.
- In addition, at _____ in a case, a party can move to recover _____ for _____. To win, she must show by _____ (standard) that:
That the opposing party took an act PRIMARILY for unreasonable delay.
A
attorney’s fees
raised a claim or defense not supported by facts or law (or good faith argument for modification of law)
50/50 by the losing party and his lawyer. But the lawyer will not be liable if she acted in good faith, based on what the client told her
any time
damages (including attorney’s fees)
delay in litigation
a preponderance of the evidence
23
Q
Requirements of Complaint
A
Requirements for any claim for relief:
a) Statement of ground for subject matter jurisdiction (if suing nonresident, also must allege grounds for PJ);
b) Short and plain statement of the ultimate facts showing that pleader is entitled to relief; AND
c) Demand for judgment (“prayer”). Sometimes a demand for damages is called an “ad damnum” clause.
d) – What must P file with the clerk at the time the initial complaint is filed? a civil cover sheet - if not, court proceedings stayed until filed
24
Q
Special matters and how plead in complaint . . .
A
Special matters must be pleaded with particularity or specificity: a)circumstances establishing fraud; b) facts supporting punitive damages (intentional misconduct or gross negligence); and c) special damages (do not normally flow from an event).
- -Does P need to allege capacity to sue? No. That is affirmative defense for D
- -How does P allege conditions precedent? May allege satisfaction generally
25
In the demand for judgment (complaint), is a dollar figure for damages required?
No
26
How plead punitive damages?
P cannot originally plead for punitive damages. Instead, she must present evidence from which the court concludes that there is a reasonable basis for a claim (intentional misconduct or gross negligence). Then what does P do? moves to amend to add the punitive damages
27
How and when does a D respond to complaint (filing of case)
within 20 days of service to avoid default
can respond by motion or by answer
28
Defense response to complaint/can respond by motion or answer
Defense Motions - these are not _____; they are _____.
a) Issues of form:
b) Major defenses:
Among the major defenses, which are waivable and what does that mean?
For this rule, is asking that P file an increased bond a "defensive response?"
pleadings
requests for court order (they can be included in answer)
(1) motion for more definite statement, when a pleading is so vague D can't frame a response; (2) motion to strike--pares out immaterial allegations, cheap shots, etc. (any party may make anytime).
(1) lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficiency of process (problem with the documents - summons and copy of complaint); (5) insufficient service of process; (6) failure to state a cause of action on which relief can be granted or (7) failure to join indispensable party.
number 2, 3, 4, and 5
waivable = must be put in the first defensive response or they are waived.
Yes. So you must include the waivables with that.
29
Defense response to complaint/can respond by motion or answer
The answer (is a pleading). Defendant may decide not to file a pre-answer motion or her pre-answer motion may be denied; in either event, she will have to answer or risk default.
a) Timing.
b) What in it?
Serve answer no later than 20 days after service of process if no motions filed.
If motion is made and denied D must answer within 10 days after court's order on the motion. There's one exception: The motion to strike does not extend the time to answer.
Respond to allegations: Admit, deny, or have no knowledge of allegations
State affirmative defenses e.g., statute of limitations, assumption of risk, lack of capacity to sue or be sued, res judicata. - D WAIVES THEM IF NOT IN ANSWER
P sues D for breach of contract; D answers, denying material allegations. At trial, D seeks to introduce evidence that the contract was procured by P's fraud and is therefore unenforceable. P objects. This evidence is INADMISSIBLE
upon P'sobjection. Why? b/c D failed to plead the affirmative D
Counterclaim
30
What if D fails to deny an allegation in the answer?
he has admitted it; EXCEPT, never deemed to have admitted damages
P alleges that D ran a red light. In his answer, D alleges: "P cannot prove that I ran a red light." Result? He has admitted that he ran the red light. Why? Didn't deny it. (If you don't deny you fry)
31
P alleges that D ran a red light. In his answer, D alleges: "P cannot prove that I ran a red light." Result?
He has admitted that he ran the red light. Why? Didn't deny it.
32
What is the reply and when due?
If the answer contains an affirmative defense which plaintiff wishes to avoid, he does so in a "reply." (ex. SOF does not apply b/c . . . ) Must serve within 20 days after service of the answer. If P just wishes to deny allegations of D's answer, he need do nothing.
33
Counterclaim.
Timing and Service
Compulsory?
Filed with responsive pleading (answer). Serve both answer and counterclaim on plaintiffs lawyer if she has one; otherwise, if she has no lawyer ("pro se") on her. Court can order service on plaintiff even if she has a lawyer.
IF arises from same transaction or occurrence. ONLY COMPULSORY COUNTERCLAIM!
BUT, B realizes after serving his answer in the first case that he should have set forth the counterclaim against A. The court might let him do it if he shows:
excusable neglect or the justice so requires
34
A sues B. B files a compulsory counterclaim. A voluntarily dismisses his original
claim. The case proceeds on B's claim. Is A making a mistake?
Yes. A's claim is now a compulsory counterclaim.
35
A sues B. Before B answers, A voluntarily dismisses. Can B sue A in a separate case for his transactionally related?
Yes. If you never had to answer, you did not have to counterclaim.
36
What must P do after counterclaim made?
respond within 20.
37
What is a cross-claim?
A claim against a co-party. It must arise from the same transaction or occurrence as the original claim or counterclaim (underlying suit). THERE IS NO COMPULSORY CROSSCLAIM. ONLY THE ONE COMPULSORY COUNTERCLAIM (same t/o)
38
P sues Draper and Sterling for personal injuries arising from a car collision (Draper was driving Sterling's car). Sterling doesn't know who's at fault between the two drivers,but knows that his car is destroyed. He wants to recover for the property damage. Who does he sue?
(1) Sterling SHOULD file a compulsory counterclaim against P. It is against an opposing party and arises from the same TIO as P's claim.
(2) Sterling MAY file a cross-claim against Draper. It is a cross-claim because it is against a co-party and arises from the same T/0 as the underlying case.
39
When is there a right to amend pleadings?
Plaintiff has a right to amend ONCE before defendant serves his answer. (not motion - ANSWER)
Defendant has a right to amend ONCE within 20 days o f serving his answer.
40
How and when make motion to amend?
What must opposing party do?
If there's no right to amend, seek leave of court; it will be granted if justice so requires. Must attach the proposed amended pleading to the motion. Anytime an amended
pleading seeking relief is filed, what must the opposing party do?
Respond w/ 10 days of service of that amendment.
41
Variance scenario and example (form of amendment)
P sues D for breach o f contract; D answers. A t trial, P introduces evidence that D assaulted him. D does not object to the evidence. The evidence of assault comes in (because D did not object). Then, at or after trial, P can move to amend the complaint to
conform to the evidence. Why?
To show the assault claim. Why? To reflect the pleadings reflect what was
actually tried.
Same case, but D does object. Here, the evidence of assault would be inadmissible because it is at VARIANCE with the pleadings.
42
Amendments and SOL
P files his complaint and has it served on July 1. The statute of limitations runs on July 10. In August, P seeks leave to file an amended complaint adding a new claim. Problem: the statute ran on July 10th. The amended pleading relates back if it concerns the same
conduct, transaction or occurrence as the original pleading. If the August amended complaint relates back, what happens? You treat it as though it was filed on July 1, so it is timely.
43
Depositions may be used to get information from _____.
parties and non-parties
non-party should be subpoenaed or he is not compelled to attend
44
Subpoena can be duces tecum, which requires the deponent to _____.
produce documents or things at the deposition
45
Depositions/Subpoena
A party deponent _____; _____, is sufficient to compel attendance.
need not be subpoenaed
notice of the deposition, properly served
46
Depositions/Subpoena
Videotape OK if _____. Must also be _____ unless parties agree otherwise. Parties have right _____.
notice and subpoena state that deposition to be video recorded and gives the name and address of operator
recorded stenographically
to attend
47
Court orders and depositions
Generally, no court order needed to take a deposition. Two exceptions:
(1) take deposition before case filed (e.g., to preserve evidence because witness won't be available at trial) or
(2) plaintiff wants to take the deposition less than 30 days after serving the complaint, unless (a) plaintiffs notice states that the person to be deposed is about to leave the state and won't be available after the 30 days or (b) defendant has already noticed a deposition.
48
Where are depos usually taken?
Where is it taken?
Claimants usually deposed where case pending. Defendant usually deposed in county of residence or business. Nonparty deposed at county of residence or business unless agreed otherwise. Parties can agree otherwise.
Court can order deposition anywhere.
49
Any party can use depositions at trial (subject to rules of evidence): (1) _____ the deponent; (2) any purpose if _____; (3) any purpose if the deponent (regardless of whether a party) is dead, ill, over _____ miles from site of trial or beyond _____.
impeach
the deponent is an adverse party
100
subpoena power (unless that absence was procured by the party seeking to introduce the evidence)
50
Requirements for Interrogatories, permissible response, and timing of response . . .
1. in writing
2. one party to another
3. answered in writting
4. answered under oath
5. answer due within 30 days of service (45 if accompanied complaint)
6. max 30 interrogs including subparts
7. ONLY binding on party that answered
8. Can say you don't know the answer, but only after reasonable investigation; if the answer could be found in business records and it would be burdensome to find it, can allow propounder access to those records. Maybe used at trial in accordance with law of evidence.
51
Request to Produce. What is it, who can get it, requirements, permissible response, and timing of response?
When can requests to produce be made of nonparties?
What if objected to?
1. requesting that she make available for review and copying various documents or things, OR
2. to permit entry upon designated property for inspection, measuring, etc.
3. Receiving party must respond in writing within 30 days (45 days if request accompanies complaint) either agreeing to furnish material or objecting.
When accompanied by a· subpoena. Must give notice to all parties of request for subpoena at least 10 days before subpoena is to be issued by court. If a party objects; no production is ordered. In that case,what can the party seeking discovery do?
Can move for a ruling on the objection OR take the nonparties deposition and serve with a subpoena duces t
Also, subpoena must be served on nonparty by personal service or by mail with written confirmation of delivery, signed by person accepting the subpoena, and filed in court.
52
Discovery/Physical or mental examination
```
Court involvement?
How initiate?
Response timing?
Who can be present?
Also, the person examined may get a copy of the report by asking for it, but doing so ______.
```
Available without court order if PHYSICAL condition of the party (or one in party's control) is in controversy. Party seeking examination by qualified expert serves notice stating reasonable time, place, manner and scope of examination, and person by whom exam is to be made. The party of whom the examination is sought must respond in writing within 30 days (45 days if request accompanies complaint), either agreeing to the exam or stating objections.
If, however, the condition in controversy is NOT PHYSICAL (e.g., mental health or blood group in paternity case), examination is available only upon MOTION. Party seeking examination must show good cause for the examination.
Either way, the person being examined may have a representative (e.g., doctor, lawyer) present unless there is a valid reason not to allow this.
waives his privilege on reports by examining physicians he has seen or will see
53
Discovery/Requests for admissions
What are they?
Failure to deny . . .
Binding in other litigation?
What are they used for?
Timing of response?
Permissible responses?
Number of requests?
Requests for admission. A request by one party to another party to admit the truth of any discoverable matters. Failure to deny is tantamount to an admission. Are admissions binding in other litigation? No, only in this case.
Often used to authenticate documents; the propounding party will send copies of the documents to be authenticated with the request. Must respond within 30 days (45 if requests accompany complaint), either admitting, denying or objecting; can indicate lack of information only if you've made a reasonable inquiry. May not exceed 30 requests, including subparts, unless parties stipulate to more or court grants motion for more (based on good cause). Failure to deny tantamount to admission.
There is no duty to supplement one's answers in discovery if the answers were complete when made.
54
There is no duty to _____ in discovery if _____.
supplement one's answers
the answers were complete when made (different than FRE)
55
Scope of discovery . .
discover anything "relevant" to the subject matter of the case. This means anything "reasonably calculated to lead to admissible evidence." Notice that this is broader than admissible.
56
Plaintiff serves interrogatories on Defendant. Defendant objects, claiming that his answers would be hearsay and not admissible at trial. Is that a good objection?
No. Admissibility is NOT the test.
57
P wants to discover information about Defendant's net worth. Relevant?
Yes, if she is suing for punitive damages b/c these damages are to punish.
58
T/F. Privileged matter is not discoverable
T
59
Inadvertent disclosure of privileged material does not waive the privilege if _____. The other party must _____; but can then _____.
the party producing the material serves a written notice within 10 days after discovering the disclosure. She must specify the materials, the privilege, and the date on which the inadvertent disclosure was made.
return, sequester, or destroy the material
challenge the assertion of privilege
60
Key to work product privilege . . .
In anticipation of litigation
61
Work product priv.
Howell sues Skipper for losses sustained when a boat sank. Fearing suit, Skipper hired Shore, an attorney, who interviewed Gilligan, a witness to the sinking. Shore (1) has Gilligan Write a statement regarding the event; (2) makes a note that based on what Gilligan says, a particular defense is not possible; and (3) makes a note that Gilligan is stupid and would make a lousy witness at trial.
Are they work product?
Can they be compelled?
Does work product have to be generated by a lawyer?
ALL THREE ARE WORK PRODUCT, BECAUSE THEY WERE PREPARED IN ANTICIPATION OF LITIGATION. So, for starters, these are not discoverable BUT
Item(1)(witness statement) is discoverable if Howell shows: substantial need AND not otherwise available.
Items (2) and (3) are absolutely protected. Why? They are mental impressions, legal theories, opinions,and conclusions.
No, by the party or any rep of the party. A PI for ex.
62
Discovery of opposing sides expert . . .
What can ask about?
How get the info?
Court involvement?
Expert witnesses. We want to discover facts known and opinions held by experts retained in anticipation of litigation.
* ** If the expert is expected to testify at trial: Can send interrogatories to the other party, seeking this about experts:
1. names
2. substance of facts and opinions
3. grounds for opinions
- - Can also ask the party about its relationship with that expert, e.g., compensation, times retained.
- - Then, after the interrogatories are answered, what do you do? You may take the experts depo W/OUT a court order. First, has to be interrogs.
Must pay fee for expert's time.
*****Not expected to testify = No discovery absent exceptional need (info not available anywhere else). So it is difficult to get discovery from such a consulting expert.
63
How discovery disputes are presented to court:
To get sanctions the moving party must _____.
What are the accompanying sanctions for each?
Define the sanctions.
a) Receiving party seeks protective order (e.g., overburdensome, involves trade secrets and party wants to limit use of info to the case, ESI can't be found)
b) Receiving party answers some and objects to others.
c) Receiving party willfully refuses to attend deposition, to be sworn for deposition or to respond to valid request. This is a total failure so we expect a heavy sanction.
d) Failure to attend medical exam
e) False denial in request to admit
certify that she tried to confer with the other party to work it out.
a. unclear
b. At worst, if objection not good, this is a partial failure, so we expect a light sanction.
c. RAMBO
d. light . . . BUT if make to RAMBO, never contempt for refusal to have medical exam
Light sanction 2 step:
1. First, seek an order compelling answers to the unanswered questions plus costs (including attorney's fees incurred in bringing the motion);
2. If she violates the order compelling, we get RAMBO + attorney's fees in bringing the motion
RAMBO 1 step:
RAMBO plus costs (including attorney's fees incurred in bringing the motion)
RAMBOs include:
- -Establishment order: establishes facts as true.
- -Strike pleadings of disobedient party as to the issues re discovery.
- -Stay proceedings until discovery given.
- -Disallow evidence by disobedient party.
- -Contempt, but never for refusal to have medical exam
- -ULTIMATE RAMBO: Dismiss plaintiffs case or enter default judgment against defendant, but only if express written finding o f willful or deliberate refusal to obey discovery order.
64
Permissive joinder of Ps . . .
--Ozzie and Sharon are injured when the taxi in which they are riding crashes. May they sue together as co-plaintiffs? General rule would say no, because generally you can only join if _____. (They do not because here each has a separate interest - in his/her body!) BUT . . .
you have a common interest in the subject of the action
there is a special rule in tort cases:
spouses or parents and their kids may join in tort cases.
65
Permissive joinder of Ds . . .
Yes, because
| they each have an interest adverse to the plaintiff.
66
When is joinder mandatory?
"Necessary" and "indispensable" parties. Some absentees (A) ought to be joined because they have some relationship with the action. Take it in three steps:
1. Is A necessary? Yes if (1) Without absentee, court may not be able to accord complete relief (worried about multiple suits if we don't bring in A), OR (2) absentee's interest may be harmed if she isn't joined (practical harm). If either of these is met, the court should order joinder of A. It is rare in tort cases to have a necessary absentee.
2. PJ of the party
3. If A cannot be joined, then the court has to decide either to (a) proceed without A or (b) dismiss the whole case. The court has great discretion on this point. If the court decides to dismiss rather than proceed without A, what do we call A?
indispensable. indispensable is a basis for dismissal.
pg. 26 for Meg and Lois example
67
What is intervention?
Required?
Absentee wants to join a pending suit. Allowed in the discretion of the court.
TEST: absentee's interest may be harmed if she isn't joined (practical harm).
Never required to intervene.
68
What is impleader?
How do you implead?
Timing?
Required?
TPD defenses?
TPD claims?
A defending party adds a new party. The new party is called the third-party defendant (TPD). TPD is or may be liable to the defending party for all or part of the underlying claim. So D usually brings in TPD to get indemnity or contribution.
(a) File third-party complaint naming T as TPD; and
(b) Serve process on T (so must get PJ over TPD).
Timing: there is a right to implead within 20 days of serving your answer. After that, you need court permission.
NO
TPD can raise defenses that the defendant could raise against the plaintiff
Not only that, but TPD can assert a claim against P (and P can assert a claim against TPD), as long as the claim arises from the same T/O as the underlying case.
69
Interpleader . . .
This is a device by which one holding money or other property can force all potential claimants into a single lawsuit. The idea is to avoid multiple litigation and the possibility of inconsistent results.
The stakeholder wants to force all the claimants into a single case.
There are 2 stages:
(1) Stake holder deposits the property in court; stakeholder recovers his costs and attorneys' fees and disappears;
(2) The claimants litigate and the court decides who gets the property.
--What if Insco claimed that it could retain the funds because the contract had been breached by the insured?
That is ok. That is an interested stakeholder (if he claims he owns the property). Procedurally, the stakeholder would deposit the property, but would not disappear. He participates in the litigation to determine who owns the property.
70
What must demonstrate initially for class action?
Next step?
Initial requirements. Must demonstrate all of these:
a) Too numerous for practicable joinder;
b) Some questions of law or fact in common to class;
c) Representative's claims or defenses typical of those of the class; and
d) Representative adequately and fairly represents the class.
STEP 2
2. Nextstep. Must fit the case within one of three types:
a) "Prejudice": (NEVER SEEN ON BAR) class treatment necessary to avoid harm either to class members or to the nonclass party. Example: hundreds of claimants to a fund. Individual suits may deplete the fund, leaving some individuals without remedy. To avoid that, let them sue as a class and all can recover at least a portion of the fund.
b) Seek injunction or declaratory judgment because the class was treated alike by the other party. NOTE, we are not seeking damages!! Example: employment discrimination.
c) "Damages." (1) common questions predominate over individual questions and
(2) class suit is superior to other devices. Example: a mass tort
71
Special pleading requirement of class action:
Special pleading requirements: designation ''class representation" next to caption of case and (under heading "class action allegations") specifically allege that prerequisites in 1 and 2 above are met, define the class and approximate membership.
72
When does a class become a class?
ITS NOT A CLASS UNTIL THE COURT CERTIFIES IT.
73
Class action
Notice to the class.
Who get it?
Notice must inform them:
Who pays to give this notice?
```
Who's bound by the judgment?
Can the parties dismiss or settle a class action? What considered?
```
A _____ can sue as an entity.
Condominium association can sue in its own name on behalf of _____ on matters of _____, if _____.
The court gives individual notice to all class members reasonably identifiable.
a) they can opt-out of the class action; b) they will be bound by the judgment if they do not opt-out; and c) they can enter a separate appearance in the case through counsel. This is required for all class actions.
can get expensive; the representative.
All class members who do not opt out.
only w/ court approval. --The court gives notice to all members. Court can consider their feed back in deciding whether to allow dismissal or settlement.
mobile home owners association
all association members
common interest
control of the association rests with the owners, not the developers
74
Types of voluntary dismissal and when not available.
Voluntary dismissal is without prejudice unless _____.
When a claim is dismissed voluntarily, the defending party may be awarded _____.
1. File notice of dismissal
-- N/A if case has been submitted to trier of fact or if motion for summary judgment is
presently pending;
-- N/A if property seized or in court custody;
-- N/A if counterclaim pending which cannot stand for independent adjudication
2. Stipulation of parties (written)
- - N/A if property seized or in court custody
3. By court order
- - N/A if counterclaim pending which cannot stand for independent adjudication
it is the second one.
costs on that claim.
75
Joey Gladstone sues Kimmy to foreclose a mortgage, and has a lis pendens filed. After Joey voluntarily dismisses (by any of the three methods) what happens to the lis pendens?
automatically cancelled when the dismissal is filed.
76
Default and Default Judgment
When occurs?
What's the difference?
Entry of default:
What does P have to do?
Notice to D of entry of default?
When default is entered, D cannot _____.
Entry of judgment:
Notice to D of judgment . . .
Default and Default Judgment. Party against whom claim filed fails to plead or otherwise defend the action in the time allowed by law (generally 20 days).
1. What's the difference? Entry of default is shown as an entry on the docket;cannot collect any money, though, on a default; need a judgment to enforce and recover money or other relief. Entry of default is prerequisite to default judgment.
2. Entry of default.
a. by clerk = if the D filed no papers.
b. by judge = if the D filed something.
- either way, P has to ask for entry of default - it's not automatic
d. D get notice of application for default = only if he filed some paper
Once default is entered, D cannot answer or file a motion. Up until then, however, she can. (Even if that's more than 20 days.)
3. Entry of judgment.
a) Entered only by the judge (never the clerk).
b) Defendant gets notice of hearing on damages. (Default admits liability of the well pleaded allegations, but it does not admit damages.)
77
P sues D for $20,000. D defaults. What is the most that P can recover by default judgment?
20k; in default you cannot get more than you pleaded
78
Limits on P if default judgment entered:
1. in default you cannot get more than you pleaded for (P sues D for $20,000. D defaults. What is the most that P can recover by default judgment? 20k)
2. P can't recover different kind of relief than pleaded for
79
P sues D-1 and D-2. D-1 tiles a timely answer, but D-2 fails to respond at all. Can P take D-2's default?
Yes. But D-1 gets to litigate
80
Relief from default.
When can be sought?
Must show:
After default judgment must . . .
After default but before judgment. Make a motion to set aside default. Must show 3 things:
1. good cause for the default
2. a meritorious defense
3. due diligence after learning of the default.
After entry of default judgment. Make a motion to set aside the judgment (or for"relief from judgment''). Basically, must make the same showing as motion to set aside default.
81
InvoluntaryDismissal.
Grounds:
-- Does a motion to disqualify the trial judge constitute record activity for this purpose?
-- Does an order setting a case management conference?
--In failure to prosecute, the court will dismiss unless plaintiff does what?
Any involuntary dismissal is presumed to be _____ UNLESS _____ or unless _____.
1) Plaintiff fails to prosecute. If there is no record action for 10 months, the court or a party may certify that fact to all parties. If P takes no record activity (or if no stay entered) within 60 days after service of the notice, this motion can be made.
Yes. Shows initiative by P.
No.
shows good cause in writing at least 5 days before the hearing on the motion.
(2) Failure to comply with procedural rules or court order;
(3) Any of the defense motions for dismissal (page 16);
(4) P fails to show in nonjury trial that entitled to relief. Functionally same as directed verdict for D.
with prejudice
the court said otherwise
it was based upon jurisdiction, venue, or indispensable parties
82
Rule Nisi.
This is what most of the world calls an order to show cause. The court tells a party it will enter a particular order unless she convinces the judge (shows cause) not to.
83
Scire Facias
This is an order requiring one to show cause why some matter of record should not be vacated or why a dormant judgment should not be revived.
84
Failure to State a Cause of Action. (FSCA)
Who can move for it?
What does it test?
What is the question asked by the court?
If answer is no, what might court do?
What does court look at when ruling on the motion?
What is the alternative name and when does it apply?
D
tests only the sufficiency of P's allegations
if the facts P alleged are true, would she win a judgment?
may dismiss or let P amend
doesn't look at evidence - ONLY the complaint
motion for judgment on the pleadings (MJOP) - if brought after D answered
85
Summary Judgment
Who can move for it?
What does it test?
What does court look at when ruling on the motion?
How does it look at the evidence?
Summary judgment weeds out cases in which _____.
either party
The moving party must show
(1) there is no genuine dispute on a material fact and
(2) that she is entitled to judgment as a matter of law.
Evidence. PLEADINGS, like P's complaint, ARE NOT EVIDENCE. The parties proffer the evidence, usually affidavits, deposition testimony or interrogatory answers - these are under oath, so they can be considered as evidence here. The court views the evidence in the light most favorable to the nonmoving party. (only if pleadings are "verified" are they under oath and can be considered) (rare)
we do not need trial. Why do we ever have a trial? to resolve disputes of fact
86
P was hit by a car driven by D. P sues D, alleging D ran a red light while P was in the crosswalk and crossing the street on a green light. D answers and denies these allegations. D moves for summary judgment, attaching sworn statements from three witnesses saying that they saw the accident, D had the green light, and that P jumped in front of D's car.
(1) In response, P relies on his complaint, which said D ran the red light. Grant Summary judgment? Why/Why not?
(2) But pleadings might be relevant for summary judgment in this way:
(3) Instead, P responds with an affidavit from somebody who swears that he heard about the accident and was told that D ran a red light. Grant summary judgment? Why/Why not?
(4) Instead, D responds with deposition testimony from an alcoholic, drug addicted, convicted swindler who swears he saw the accident and that D ran a red light. Grant summary judgment? Why/Why not?
1. Summary judgment probably granted. Why? Pleadings (like P's complaint) are not evidence. So based on the evidence presented, there is no dispute of fact AND D is entitled to judgment.
2. if D failed to deny an allegation by P, it can be treated as fact on summary judgment.
3. Summary judgment is probably granted here too. Why? This affidavit is based on hearsay, so we ignore it. Evidence on SJ must be first hand knowledge.
4. Summary judgment must be denied. WHY? The evidence for P is first- hand knowledge and creates a dispute on a material fact.
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Timing. D may move for summary judgment _____. P must wait _____ days after _____. Motion must be served at least _____ days before _____. Party opposing the motion may serve affidavits (1) by mailing them at least _____ days before the hearing or (2) by delivering them to movant's lawyer no later than 5:00 p.m. _____ days before the hearing.
anytime
20
commencing action
20
the hearing on the motion
5
two
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2. Pretrial Judicial Management
A. Case Management Conference. Anytime after _____, court may convene this on _____ notice. At conference, may consider scheduling, setting a trial date, narrowing issues for trial, etc. It is a _____ for the overall case. There are special management procedures for complex cases.
B. Pretrial Conference. When case is at issue, court may (and must if _____) hold this; must give at least _____ days' notice. Here, may consider issues to _____, amending pleadings, limiting number of expert witnesses, stipulations, whether jurors will get notebooks with documents and exhibits, etc. It is a blueprint for _____.
C. Failure to Attend. Court can take appropriate action, including award of _____. For severest sanctions (striking pleadings, dismissal or judgment), the court must find _____.
D. Effect of Pretrial Conference Order (entered after _____). It controls _____ events unless amended to prevent manifest injustice. The order supersedes the _____.
responsive pleadings or motions are due
"reasonable"
blueprint
a party requests
20
prepare and simplify the trial
the trial itself
RAMBO sanctions
that failure to attend was willful
conference
future
pleadings
89
Expedited trial.
If parties stipulate, discovery done in 60 days and trial in one day.
90
Jury trial demand
Requirement of demand. Must demand in writing no later than 10 days after service of last pleading directed to jury-triable issue.
91
Can a party withdraw its demand for a jury trial?
Only if the other parties agree.
92
FL constitution and civil jury trials.
Under Florida constitution, civil litigants have a right to jury trial in actions at law (not suits at equity).
93
Under Florida constitution, civil litigants have a right to jury trial in actions at law (not suits at equity). What if a case presents both issues of law and of equity? The jury decides the facts underlying the law claim, but not the equity claim.
What if a case presents both issues of law and of equity? The jury decides the facts underlying the law claim, but not the equity claim.
ex. In one case, there is a claim for damages (legal relief) and a claim for an injunction (equitable relief). What fact questions will the jury decide?
Those underlying the damages claim. Not the equity claim.
94
How many jurors?
Civil case
Eminent domain
6
| 12
95
Reasons for striking jurors in voir dire and number of strikes . . .
Two plaintiffs sue three defendants. Each side will get how many peremptory strikes?
Historically, you never had to have a reason for using a peremptory challenge to strike a potential juror. Now, peremptory challenges must be used for a _____ reason. Why?
1. for cause (potential juror is biased or related to party) = unlimited
2. peremptory challenges = 3 + 1 for each alternative juror
If the number of peremptory challenges is not equal for each side (P and D), each side
gets the higher number.
therefore 9
race-neutral and
gender-neutral
state action
96
Can the civil jury be permitted to view premises or objects involved in the case?
Yes if relevant to a just decision.
97
Jury can submit written, _____ questions directed to witnesses or the court. Questions to a witness can only be submitted after _____. The jury gives these questions to the bailiff, who gives them to the judge. Counsel _____ object. What happens if the question is improper - if it asks for something that is not admissible?
If the question asks for admissible, proper information, how is the question answered?
If the question is asked of a witness, who asks it?
Does the jury get access to the jury instructions during its deliberations?
When must a party object to jury instructions?
unsigned
that witness has completed her testimony
can
It is not read, and the jury is told to ignore it.
By stipulation or additional testimony.
the court or counsel in the court's discretion.
Yes, in fact each juror MUST get them.
BEFORE the jury is charged. Otherwise, you waive.
98
Directed verdict. (MDV)
```
Effect:
Timing:
Waiver:
Standard for directed verdict:
In a non-jury trial:
```
This is an exceptional order, the effect of which is to take the case away from the jury.
Move after other side has been heard at trial. Defendant can move at the close of plaintiff's case and again at close of all evidence. Plaintiff can move only at the close of all evidence.
Making the motion does not waive one's right to put on evidence. Defendant need not reserve the right to put on evidence. Denial of defendant's motion does not discharge the jury.
reasonable people could not disagree about the result.
The court will view the evidence in the light most favorable to the nonmoving party. It will also take inferences in favor of the nonmoving party.
In a nonjury trial, the motion that does the same thing as a motion for directed verdict for the defendant is called a motion for involuntary dismissal. (pg. 32)
99
Verdict must be _____, unless _____.
Judge involvement?
Must be unanimous unless the parties agree otherwise. Verdict is approved by the judge and then read by the clerk.
100
Where party is held liable for damages, the jury must _____. That means that _____.
itemize amounts to be awarded in these categories. That means they must be stated separately in the verdict.
a) Economic loss (lost wages, medical expenses, etc.) both before verdict and to be incurred in the future;
b) Noneconomic loss (pain and suffering, anguish, etc.) both before verdict and to be incurred in the future; Together, (a) and (b) are called what?
COMPENSATORY DAMAGES
101
```
Punitive damages (for _____) must be
shown by _____. What is the general cap on punitive damages?
```
intentional misconduct or gross negligence
clear and convincing evidence
They cannot exceed the greater of 3x compensatory or 500k.
But there is no limit on punitive damages IF: D had specific intent to harm the P or under the influence of alcohol or drugs
102
The court cannot let verdict stand if _____.
internally inconsistent (e.g., finding D's acts justified but verdict for P).
103
P sues D for trespass, seeking only damages of $20,000. The jury reaches a verdict for P for $30,000 and the court enters a judgment for $30,000 and imposing an injunction against further trespass by D. Is that OK?
Yes, you can recover whatever the evidence supports. The complaint is not a cap.
104
The only time the demand in the complaint limits recovery is in _____ cases.
default judgment
105
A party seeking judgment taxing costs or attorney's fees (or both) must serve a motion within _____ days after _____.
30
filing of judgment
106
Prevailing party must file with the clerk a _____ at the time _____.
final disposition form
the court files the judgment disposing of the case
107
Belated Directed Verdict. This is the same as _____, but _____.
1. Situation:
Must be in writing and filed and served within _____ days after return of verdict.
2. Standard: Same as directed verdict, which we saw on page 42. So if granted, the court is saying that the jury _____.
3. What is the absolute prerequisite to bringing a motion for belated directed verdict?
directed verdict
later in the case
jury returns a verdict for one party, and the other party files a motion for belated directed verdict, which, if granted, would result in entry of a judgment for him.
10
reached a conclusion that reasonable people could not have reached
The party wanting to move for belated directed verdict must have done what? Must move for directed verdict at a proper time at trial.
108
I. Motion for a new trial.
1. Situation: verdict returned or judgment entered, but _____ require a new trial;
in writing, filed and served within _____ days after return of verdict or judgment.
2. Grounds:
3. Comparison to belated directed verdict:
errors at trial
10
(1) prejudicial (not harmless) error at trial makes judgment unjust (party not get notice of trial date; wrong jury instruction; evidentiary ruling); (2) new evidence that could not have been discovered with due diligence for the original trial; (3) prejudicial misconduct of party or juror (e.g., juror conducted independent investigation of accident scene); (4) judgment is against weight of evidence (serious error of judgment by jury). The party should object to any event that will serve as a basis for a new trial at the time of the event.
Granting a motion for new trial is less drastic. Why? this is less drastic b/c it results in starting over, so the same party might still win vs. belated which takes away
a victory and gives to the other.
109
Can a party seek new trial based upon improper closing argument if he failed to object at the time of the argument?
Yes if argument was so harmful, incurable, and unfair that public interest demands new trial.
110
Inherent Power to Sanction. _____ courts have the inherent authority to award attorney's fees against a party for _____, even if _____. A trial court also has the inherent authority to impose attorney's fees against an attorney for _____.
The amount of the award must be directly related to the _____. If a specific statute or rule allows recovery of attorney's fees, the trial court should _____.
Trial
bad faith conduct
no statute authorizes such an award
bad faith conduct
The bad faith must be in the litigation (not the real world)
attorney's fees and costs incurred by the other side as a result of the bad faith conduct
rely on it, rather than on its inherent authority
111
Execution of judgment. After judgment entered, clerk may issue document to sheriff that he is to levy on the defendant's property to satisfy the judgment. (Proceeding in aid of execution,) Execution stayed for _____ days after entry of judgment (to allow post-verdict motions). Stay pending disposition of such motions is _____. Stay pending appeal is _____; must file supersedeas _____ in amount of judgment plus _____ percent.
10
automatic
not automatic
bond
15
112
How get appeal?
FL Supreme Court has discretion to hear . . .
FL Supreme must hear . . .
1. File notice of appeal in TRIAL court within 30 days after final judgment.
2. Raise issues on which made timely objection at trial court.
3. Florida Supreme Court has discretion to hear an appeal from the District Court of
Appeals construing a state statute if there is a conflict of authority or the court expressly upheld validity of the statute.
-- Florida Supreme Court must hear an appeal taken from a decision of a district court of appeals in which a state statute or a provision of the state constitution is declared invalid.
113
Final judgement rule
Are these final?
Denial of a motion for summary judgment?
Grant or denial of belated directed verdict?
Generally, can appeal only final judgments (ultimate decision by the trial court of the merits of the entire action).
Ask: after making this order, does the trial court have anything left to do on the merits? If so, it's not a final judgment.
NO - because the case is still pending.
Yes
114
Interlocutory Review. (appealable, though _____)
They are . . .
non final
a) Orders granting new trial;
b) Orders re injunctions;
c) Orders determining PJ or venue;
d) Orders re right to immediate possession of property;
e) Orders on a distinct and separable claim.
115
Numbers
If venue originally improper, court will transfer to a proper venue if plaintiff pays
transfer costs within ___a___ days.
Waiver of formal service. P can mail process and a waiver form to D by certified mail. Within __b__ days of receipt, D can return the waiver form by first-class mail; if D does so, she waives formal service but NOT objections to PJ or venue. lf D does not return the waiver form, P can effectuate formal service of process and the court can require D to pay the costs of such service. D has __c__ days from receipt of the waiver form in which to respond to complaint.
Defendant's response. To avoid default, defendant must respond within __d__ days of being served.
Defendant may decide not to file a pre-answer motion or her pre-answer motion may be denied; in either event, she will have to answer or risk default.
a) Timing. Serve answer no later than __e__ days after service of process if no motions filed. If motion is made and denied then must answer within __f__ days after court's order on the motion. There's one exception: The motion to strike does not extend the time to answer.
If the answer contains an affirmative defense which plaintiff wishes to avoid, he does so in a "reply." Must serve within __g__ days after service of the answer. If P just wishes to deny allegations of D's answer, he need do nothing.
Plaintiff has a right to amend ONCE before __h__.
Defendant has a right to amend ONCE within __i__ days of serving his answer.
If there's no right to amend, seek leave of court; it will be granted if justice so requires. Must attach the proposed amended pleading to the motion. Anytime an amended
pleading seeking relief is filed, what must the opposing party do? Respond w/ __j__ days of service of that amendment.
Generally, no court order needed to take a deposition. Two exceptions:
(1) take deposition before case filed (e.g., to preserve evidence because witness won't be available at trial) or
(2) plaintiff wants to take the deposition less than 30 days after serving the complaint, unless (a) plaintiffs notice states that the person to be deposed is about to leave the state and won't be available after the __k__ days or (b) defendant has already noticed a deposition.
Interrogatories. Questions propounded in writing by a party to another party, to be answered in writing under oath within __l__ days after service ( __m__ days if interrogatories accompany complaint).
What is the limit on the number of interrogatories (including subparts) a party may serve on another? __n__
Requests to produce. From one party to another party, requesting that she make available for review and copying various documents or things, or to permit entry upon designated property for inspection, measuring, etc. Receiving party must respond in writing within __o__ days (__p__ days if request accompanies complait) either agreeing to furnish material or objecting.
--When can requests to produce be made on nonparties? When accompanied by a· subpoena. Must give notice to all parties of request for subpoena at least __q__ days before subpoena is to be issued by court.
a. 30
b. 20
c. 60
d. 20
e. 20
f. 10
g. 20
h. defendant serves his answer
i. 20
j. 10
k. 30
l. 30
m. 45
n. 30
o. 45
p. 45
q.
116
Available without court order if physical condition of the party (or one in party's control) is in controversy. Party seeking examination by qualified expert serves notice stating reasonable time, place, manner and scope o f examination, and person by whom examistobemade. Thepartyofwhomtheexaminationissoughtmust respond in writing within 30 days (45 days if request accompanies complaint), either agreeing to the exam or stating objections.
Requests for admission. A request by one party to another party to admit the truthofanydiscoverablematters. Faiiuretodenyistantamounttoanadmission. Are admissionsbindinginotherlitigation? ---------------------
Often used to authenticate documents; the propounding party will send copies of the documents to be authenticated With the tequest. Must respond within 30 days (45 ifrequests accompany complaint), either admitting, denying or objecting; can indicate lack of information onlyifyou'vemadeareasonableinquiry. Maynotexceed30requests,includingsubparts, unless parties stipulate to more or court grants motion for more (based on good cause). Failure to deny tantamount to admission.
nadvertent disclosure ofprivileged material does not waive the privilege if the party producing the material serves a Written notice within 10 days after discovering thedisclosu.re. Shemustspecifythematerials,theprivilege,andthedateonwhich theinadvertentdisc1osurewasmade. Theotherpartymustreturn,sequester,or destroy the material; but can then challenge the assertion ofprivilege.
Timing: thereisarighttoimpleadwithin20daysofservingyouranswer. Afterthat, you need court permission.
Default and Default Judgment. Party against whom claim filed fails to plead or otherwise defend the action in the time allowed by law (generally 20 days).
InvoluntaryDismissal. Grounds:
(1) Plaintiff fails to prosecute. I f there is no record action for IO months, the court or apartymaycertifythatfacttoallparties. IfPtakesnorecordactivity(orifno stay entered) within 60 days after service o f the notice, this motion can be made.
Timing. Dmaymoveforsummaryjudgmentanytime. Pmustwait20daysaftercommencing action. Motion must be served at least 20 days before the hearing on the motion. Party opposing the motion may serve affidavits (1) by mailing them at least 5 days before the hearing or (2) by delivering them to movant's lawyer no later than 5:00 p.m. two days before the hearing.
B. Pretrial Conference. When case is at issue, court may (and must if a party requests) hold this; must give at least 20 days' notice. Here, may consider issues to prepare and simplify the trial, amending pleadings, limiting number of expert witnesses, stipulations, whether jurors will get notebooks with documents and exhibits, etc. It is a blueprint for the trial itself.
With all parties' permission, a Circuit Court can refer matters to a magistrate, who can hear and receive evidence as the court could. The magistrate files a written report with the court, usuallysettingforthfindingsoffactandsuggestedconclusionsoflaw. Thepartieshave10days after filing in which to serve objections to the magistrate's report. Ultimate decision of the case is up to the judge. General magistrates are selected from a list kept in each court. Special magistrates are appointed on a case-by-case basis, and do not have to be members ofthe bar.
Expedited Trial. Ifparties stipulate, discovery done in 60 days and trial in one day.
1. Requirementofdemand.Mustdemandinwritingnolaterthan10daysafterserviceof last pleading directed to jury-triable issue.
party seeking judgment taxing costs or attorney's fees (or both) must serve a motion within 30 days after filing ofjudgment.
Belated Directed Verdict. This is the same as directed verdict, but later in the case.
1. Situation: jury returns a verdict for one party, and the other party files a motion for belated directed verdict, which, if granted, would result in entry of a judgment for him. Must be in writing and filed and served within 10 days after return of verdict.
I. Motion for a new trial.
1. Situation: verdict returned or judgment entered, but errors at trial require a new trial;
in writing, filed and served within 10 days after return of verdict or judgment.
Execution of judgment. After judgment entered, clerk may issue document to sheriff that he is to levy on the defendant's property to satisfy the judgment. (Proceeding in aid of execution,) Execution stayed for 10 days after entry ofjudgment (to allow post-verdict motions). Staypendingdispositionofsuchmotionsisautomatic. Staypendingappealis not automatic; must file supersedeas bond in amount ofjudgment plus 15 percent.
File notice of appeal in trial court within 30 days after final judgment.
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