Civil Procedure Flashcards
(37 cards)
Samuel and Marie, Florida residents, have a business dispute. Unable to resolve their dispute, Samuel decides to file suit against Marie in Circuit Court. However, the process server that he hires can never find Marie at her office or home because of her frequent business trips. After a few attempts, the process server goes to Marie’s house, finds a man working in the garden, and says, “Who are you?” When the man identifies himself as Marie’s husband, the process server hands him the summons and complaint and says, “This is for Marie.” The process server has:
(A) made correct service, because it is permissible under Florida law to serve process by leaving it with the defendant’s spouse.
(B) made correct service, because Marie’s husband lives at the same address that Marie does.
(C) not made correct service, because one must have court permission to serve someone other than the defendant.
(D) not made correct service, because he did not explain what the papers were.
(D) not made correct service, because he did not explain what the papers were.
Eric, a seventeen-year-old high school student, was involved in a motor vehicle accident with Courtney. Courtney’s car was damaged in the accident, and she sustained minor injuries. Courtney filed suit against Eric in a Florida court and effected service of process on Eric at his high school.
Was the service of process properly effected?
A) Yes because Eric is of a reasonable age to understand the meaning of the summons and complaint.
B) Yes, because Eric was served personally.
C) No because Eric is a minor.
D) No, because the service was not made to Eric’s guardian ad litem.
C) No because Eric is a minor.
Ignatius, an adult, has been adjudicated to be legally
incompetent. While running after a ball, he enters
the road, causing an accident as drivers swerve to
avoid hitting him. An injured driver files suit against
Ignatius. It is correct that:
(A) Ignatius is not subject to suit and the action must be dismissed.
(B) if Ignatius has a legal guardian, service must be on the legal guardian.
(C) although Ignatius has been adjudicated incompetent, service may still be effected upon him directly.
(D) because Ignatius has been adjudicated incompetent, the judge must appoint a special representative on his behalf.
(B) if Ignatius has a legal guardian, service must be on the legal guardian.
Aaron, Bernard, and Cletus are partners in a law firm. Service may be validly effected upon the partnership by
I. delivery of process to any of Aaron, Bernard, or Cletus.
II. delivery of process to each of Aaron, Bernard, and Cletus.
III. delivery of process to a majority of the partners.
IV. delivery of process to the person in charge of the firm during regular business hours if a prior attempt to serve Aaron, Bernard, or Cletus was unsuccessful.
V. delivery of process to the person in charge of the firm during regular business hours.
A) I, II, III and IV only.
B) II, III, IV and V only.
C) II, and IV only.
D) All of the above.
I. delivery of process to any of Aaron, Bernard, or Cletus.
II. delivery of process to each of Aaron, Bernard, and Cletus.
III. delivery of process to a majority of the partners.
IV. delivery of process to the person in charge of the firm during regular business hours if a prior attempt to serve Aaron, Bernard, or Cletus was unsuccessful.
Tom wishes to sue Parker. Tom may take advantage
of Florida’s rules for constructive service of process to serve Parker with process only if:
(A) Tom cannot locate the whereabouts of Parker.
(B) Tom has posted a notice in a publication of general circulation regarding the lawsuit.
(C) Tom makes a sworn statement that he searched diligently for Parker.
(D) A and C, but not B.
(D) A and C, but not B.
Billy runs a stop sign and hits Jennifer’s car as she is properly proceeding through an intersection. Jennifer files suit against Billy alleging that he caused damage to her car in the accident. Twenty-nine days later, Jennifer begins to show symptoms consistent with injuries sustained in the accident. Jennifer wants to amend her complaint to allege damages for her injuries as well. Billy has not yet filed an answer to the complaint. It is true that:
(A) Jennifer may amend her complaint once as a matter of course because Billy has not yet filed a response.
(B) Jennifer may amend her complaint once as a matter of course because it has been less than 30 days since she filed the complaint.
(C) Jennifer is not permitted to amend her complaint, because the time for amending the complaint has expired.
(D) Jennifer may be permitted to amend her complaint, but only if she makes a motion to amend the pleading.
(D) Jennifer may be permitted to amend her complaint, but only if she makes a motion to amend the pleading.
Pam sued Laurie for negligence arising out of an auto accident in Florida prior to the expiration of the applicable statute of limitations. After the statute of limitations expired, Pam amended her complaint to include additional damages after her lawyer learned of a novel argument from a colleague. Several weeks later, Pam met with her lawyer to discuss the case and mentioned that she believed she may have a false imprisonment claim against Laurie that occurred on the day after the auto accident. The lawyer determined that Pam also had a claim for false imprisonment against Laurie. Pam once again amended her complaint to include a claim for false imprisonment. When Pam amended her complaint the second time, the statute of limitations for the false imprisonment claim had run. However, the statute of limitations for the false imprisonment claim had not run when Pam filed the original complaint against Laurie.
Will Pam’s amendments be barred by the applicable statutes of limitations?
A) Both amendments were untimely and thus will be barred.
B) Neither amendment will be barred because both will relate back to the filing of the original complaint.
C) The amendment regarding the claim for additional damages will not be barred because it will relate back to the date that Pam filed the original complaint, but the false imprisonment claim will be barred.
D) The amendment regarding the claim for false imprisonment will not be barred because it will relate back to the date that Pam filed the original complaint, but the claim for additional damages will be barred.
C) The amendment regarding the claim for additional damages will not be barred because it will relate back to the date that Pam filed the original complaint, but the false imprisonment claim will be barred.
Jill and Ollie wanted to purchase a home on one acre in Deland. They were approved for a mortgage to finance 95% of the purchase. After making payments for two years, Jill and Ollie decided that the house wasn’t worth keeping, so they stopped making mortgage payments. The bank filed a foreclosure action and a lis pendens. While the action was still pending, Jill negotiated a settlement with the bank. The parties filed a stipulation of dismissal, and the action was dismissed voluntarily. The dismissal was recorded. Jill and Ollie immediately defaulted on the loan again. The bank filed a second foreclosure action and another lis pendens.
Which of the following is correct?
A) The bank may properly file a second foreclosure action because the first dismissal was without prejudice.
B) The bank may properly file a second foreclosure action because the first dismissal was before a trial on the merits.
C) The bank may not properly file a second foreclosure action without leave of the court.
D) The bank may not properly file a second foreclosure action on the same matter because the dismissal was with prejudice.
A) The bank may properly file a second foreclosure action because the first dismissal was without prejudice.
Eddie and Billy own adjoining lots of commercial property in County A. Eddie wants to expand his parking lot and begins construction. However, Billy claims that the proposed parking lot will encroach on his property. Eddie and Billy both live in County B, and Eddie’s business’s corporate office is located in County C. Assume all counties are in Florida.
If Billy files a dispute over the property line boundaries, his suit can be brought in:
(A) County A, B, or C.
(B) County A or B.
(C) County A.
(D) County A or C.
(C) County A.
Marksman, Inc. manufactures guns and has stores in four counties (A, B, C, and D) throughout Florida. Ricky purchased a gun manufactured and sold by Marksman, Inc. and was badly injured when the gun misfired. Ricky is a resident of County A, but purchased the gun in County B. The accident took place in County B. Marksman’s corporate offices are located in County C. If Ricky brings suit against Marksman, Inc. for products liability, the venue would be proper in:
(A) County A or B.
(B) County B only.
(C) County B or C.
(D) County A, B, C, or D.
(D) County A, B, C, or D.
In a Florida civil case, which of the following defenses may be raised at any time during the initial action?
A) Contributory negligence.
B) Illegality.
C) Failure to state a cause of action.
D) Fraud.
C) Failure to state a cause of action.
Robert and his neighbor Gregory constantly argued over their property line, but both parties were too stubborn to have a survey done. Robert planted a rare and expensive tree in his front yard, but Gregory insisted the tree was on his property. When Robert refused to remove the tree, Gregory chopped it down. Robert filed a civil action against Gregory in the Florida courts alleging various counts such as trespass. One week after the trial began, Gregory wanted to file a motion to have the action against him dismissed.
Which of the following defenses may Gregory still raise?
(A) Lack of jurisdiction over Gregory.
(B) Improper venue.
(C) Insufficient service of process.
(D) Failure to state a cause of action.
(D) Failure to state a cause of action.
George applied for a job as a water skier at Water Fun, a large water park, and resort in central Florida. George told his prospective employer that he was an expert water skier. After George was informed about the obstacles in the water ski course, George signed a liability waiver. In fact, George was an inexperienced skier. Before the first jump, George lost control, crashed into the ramp, and broke his leg. George filed suit against Water Fun alleging negligence and demanding $100,000 in damages. George’s complaint alleged dozens of facts related to George’s claim. Water Fun filed an answer.
With regard to the answer, which of the following is correct?
A) A general denial of the allegations is permitted, but not favored.
B) If Water Fun includes a general denial of the allegations, it will be deemed as an admission of each allegation.
C) If Water Park responds that it is without knowledge of the specific facts or allegations, Water Park is permitted an extension of 20 days within which to specifically admit or deny the allegations.
D) Failure to deny or allege insufficient knowledge constitutes an admission of all of George’s allegations, including damages.
A) A general denial of the allegations is permitted, but not favored.
Seller had a valid contract with Buyer to sell her boat for $1,000,000. Buyer paid $900,000 and took possession of the boat. Seller filed suit against Buyer for the $100,000 balance. Buyer’s answer included an affirmative defense and a counterclaim for recovery of a $150,000 personal loan he made to Seller. Seller filed a motion to dismiss the counterclaim. The court should find that:
(A) Buyer may not file a counterclaim in excess of the amount of the claim.
(B) Buyer may not file a counterclaim that does not arise out of the transaction or occurrence that is the subject matter of the Seller’s claim.
(C) Buyer may file a compulsory counterclaim for recovery on the personal loan.
(D) Buyer may file a permissive counterclaim for recovery on the personal loan.
(D) Buyer may file a permissive counterclaim for recovery on the personal loan.
Heidi is a pedestrian who is injured in a motor vehicle collision that she alleges was caused by two parties, Aaron and Bruce. Aaron alleges that Bruce and Carl, who was not named as a defendant in Heidi’s complaint, caused the accident. Under Florida law, in order to address his allegations Aaron:
(A) must file a cross-claim against Bruce.
(B) may file a cross-claim against Bruce.
(C) must file cross-claims against Bruce and Carl.
(D) may file cross-claims against Bruce and Carl.
(B) may file a cross-claim against Bruce.
Marcus hit Megan’s son Sammy with his car while she was watching. Megan sued Marcus on behalf of herself for negligent infliction of emotional distress. Marcus’s attorney filed an answer and began discovery. As part of discovery, Marcus’s attorney takes the deposition of Megan’s neighbor, who stated that she saw Megan in her backyard at the time of the accident, and thus she couldn’t possibly have seen the accident. All pleadings have been filed in the case and discovery has since closed. If there are no further triable issues of fact, Marcus should file a motion:
(A) for a more definite statement.
(B) to dismiss the action for failure to state a claim.
(C) for judgment on the pleadings.
(D) for summary judgment.
(D) for summary judgment.
Peter, a politician, files suit for defamation against The Times, a local newspaper. At the conclusion of Peter’s case, counsel for The Times makes a motion for a directed verdict. The court will grant the motion if:
(A) the Times presents sufficient evidence that it is not liable for defamation.
(B) there are findings of fact and conclusions of law to support The Times’s motion.
(C) Peter has presented insufficient evidence to prove The Times is liable for defamation.
(D) Peter has not established that The Times is liable for defamation beyond a reasonable doubt.
(C) Peter has presented insufficient evidence to prove The Times is liable for defamation.
Billy runs a stop sign and hits Jennifer ’s car as she is properly proceeding through an intersection. Jennifer files suit against Billy alleging that he caused damage to her car in the accident. Twenty-nine days later, Jennifer begins to show symptoms consistent with injuries sustained in the accident. Jennifer wants to amend her complaint to allege damages for her injuries as well. Billy has not yet filed an answer to the complaint.
It is true that:
(A) Jennifer may amend her complaint once as a matter of course, because Billy has not yet filed a response.
(B) Jennifer may amend her complaint once as a matter of course, because it has been less than 30 days since she filed the complaint.
(C) Jennifer is not permitted to amend her complaint, because the time for amending the complaint has expired.
(D) Jennifer may be permitted to amend her complaint, but only if she makes a motion to amend the pleading.
(A) Jennifer may amend her complaint once as a matter of course because Billy has not yet filed a response.
A plaintiff commenced an action against the defendant and served him with a complaint on September 1. The next day, the defendant, believing that plaintiff’s lawsuit is completely frivolous, decides not to file an answer but instead immediately files a motion to dismiss for failure to state a claim. On September 8, the plaintiff served an amended complaint alleging a new cause of action. The defendant promptly moved to strike the plaintiff’s amended complaint. The court should:
Deny the motion to strike the amended complaint because the defendant’s motion to dismiss is not a pleading.
Penelope was employed as a bartender for Big Owl’s nightclub. In the early morning hours of January 1, Penelope got into a verbal dispute with a customer. Doug, manager of Big Owl’s, told Penelope that she was fired and should leave the establishment immediately. Several days later, Penelope came to Big Owl’s to discuss her termination with Doug. During their meeting, Penelope and Doug argued, and Penelope slapped Doug in the face. On January 15, Penelope filed a lawsuit, alleging wrongful discharge, and naming both Doug and Big Owl as defendants. Big Owl retained Lawson to represent both Big Owl and Doug in the lawsuit. Lawson prepared an answer on behalf of Big Owl and Doug, denying that Penelope was wrongfully discharged and asserting all applicable defenses.
Doug alleges he was tortuously injured by Penelope when she slapped him. Big Owl alleges that after the filing of its answer, Penelope made defamatory statements about the business which resulted in a loss of business. Lawson considers filing counterclaims on behalf of both Doug and Big Owl. Which, if any, of the potential counterclaims would be compulsory counterclaims?
Only Big Owl’s counterclaim for loss of business.
Pam and Dave were involved in an automobile accident. Pam filed suit against Dave, alleging that Dave caused the accident by running a red light. Pam alleged she incurred physical injuries as a result of the accident, and that she continues to suffer from back and neck pain. Dave maintains that the accident was caused by faulty brakes, and that the faulty brakes were the result of improper repair of his car by Bob.
Which of the following is the best option available to Dave?
Dave should file a third-party complaint against Bob.
Service of process in a civil action is deemed timely if made within ____________ of the commencement of the action or suit against the defendant.
120 days.
Nia and Rusty have a furniture store in Florida, which they operate as a partnership. After making a major deal with a consignor of sofa beds, they use the $700,000 in revenue from selling the sofa beds to finance a renovation of their store, rather than paying the consignor on the terms agreed. The consignor, concerned that the partnership may not have enough assets to pay the amount due, files suit against each of them and the partnership itself in circuit court. The consignor’s process server finds Rusty at the store and hands him the summons and complaint.
What has the consignor done?
Properly served process to obtain a judgment against the partnership and Rusty.
Jerry, a 14-year old boy, was throwing rocks off of an overpass when he hit Monica’s car’s windshield, causing Monica to swerve her car and hit a tree. Monica sustained injuries in the collision, and she seeks to bring suit against Jerry in Florida, where he lives with his parents.
How may service of process be made on Jerry?
By serving Jerry’s parent or other legal guardian.
