FL - Civ Pro Flashcards Preview

Bar Exam - FL > FL - Civ Pro > Flashcards

Flashcards in FL - Civ Pro Deck (146)
Loading flashcards...
1

JURISDICTION AND RELATED MATTERS

Circuit Court (20)

Exclusive Trial Jurisdiction

All Actions at law not cognizable by county courts (Civil OVER 15K)

probate and estate matters, guardianship, incompetency

all cases related to juveniles except traffic offenses

all felonies and misdemeanors arising out of the same circumstances as a felony that is also charges

all cases involving the legality of a tax assessment

all actions of ejectment

AND

all actions involving title or bounders to real property

2

JURISDICTION AND RELATED MATTERS

Circuit Court (20)

Shared Jurisdiction

EQUITY CASES involving 15K OR LESS may be heard in EITHER circuit or county court

3

JURISDICTION AND RELATED MATTERS

County Court (67)

All misdemeanors not confizable in circuit court

all violations of municiopal and county ordinances

all actions at LAW in which the matter does not exceed 15K exclusive of interests, costs, attorneys fees

proceedings relating to the right of possession of real property and to the forcible or unlawful detention of lands and tenements EXCEPT the circuit court also has jurisdiction if the amount in controverys exceeds 15K, UNLESS the matter otherwise falls within the exclusive subject matter jurisdiction of the circuit court

All matters in EQUITY within the jursidictional amount of 15K or less except as restricted by the florida constitution

4

JURISDICTION AND RELATED MATTERS

JURISDICTIONAL AMOUNT

In LAW cases where exclusive jurisdiction is not given the the circuit courts, the dividing line between circuit and county is 15K; jurisdiction is NOT however retroactively defeated by the fact that the amount actually recovered is LESS than the jurisdictional amount. All that is required to bring an action in the proper court is a good faith allegation that the amount in controversy exceeds or does not exceed the jurisdictional amount. In a CLASS ACTION suit, the claims of the class members MAY be aggregated to meet the jurisdictional amount

5

JURISDICTION AND RELATED MATTERS

Jurisdictional Amount

Amounts Includable

Punitive damages CAN be included in calculating the jurisdictional amount.

Interest MAY be included IF it is a part of the cause of action itself, but not if it is interest added to the cause of action.

Court costs are EXCLUDED in determining whether a claim exceeds 15K.

Attorneys fees are ADDED to the principal sum claimed IF recoverable by contract or statute.

6

JURISDICTION AND RELATED MATTERS

Jurisdictional Amount

Causes Cannot be Agrgregated

Aggregation of separate causes of action to reach the 15K is NOT PERMITTED; each separate cause of action is considered separately though joined in 1 suit

EXCEPTION: claims may be combined to confer jurisdiction in the circuit court when all arise from the same transaction or occurrence

There is ALSO authority for the proposition that a PLAINTIFF can bring, against a given defendant, a claim for less than 15K along with a claim for more than 15K even though the two claims are unrelated

7

JURISDICTION AND RELATED MATTERS

Jurisdiction over the Person or Res

Personal Jurisdiction

Florida Bases of Personal Jurisdiction

Long Arm Statute

As to a claim for relief arising from doing any of the acts enumerated below, a natural person, corporation, partnership or unincorporated association who, either directly or through an agent:

***(ii) Commits a tortuous acting within FL (Note: a defendant who sends tortuous telephonic, electronic, or written communications into FL commits a tortuous act within FL for purposes of long arm jurisdiction

8

JURISDICTION AND RELATED MATTERS

Jurisdiction over the Person or Res

Service of Process

Generally to acquire jurisdiction there must be service of process that (i) is authorized by statute or rule and (ii) meeting constitutional due process requirements of notice

Summons by the clerk of the court or judge -- done automatically by the clerk when the initial pleadings is filed and a copy of the complaint are delivered to the sheriff or process server.

SIGNATURE AND DUE DILIGENCE REQUIRED -- signed by clerk or judge w Court seal and the plaintiff must use due diligence in seeing that service on the defendant is made promptly

9

JURISDICTION AND RELATED MATTERS

Jurisdiction over the Person or Res

Service of Process

By Whom Made

Sherriff, special process server appointed by the sheriff OR any person over the age of 18 WHO IS NOT A PARTY or otherwise itnerested in the outcome of the case and who is specially apppointed by the court to serve process

"ELISOR" - court's appointee to serve process when the sheriff is unable to do so

formal service of process by a sheriff or person appointed to serve papers or by publication can be waived upon request and replaced with service by mail

10

JURISDICTION AND RELATED MATTERS

Jurisdiction over the Person or Res

Service of Process

Time

NO SERVICE ON SUNDAY unless the plaintiff by affidavit states that he has reason to believe the defendant will "ESCAPE FROM THE STATE UNDER PROTECTION OF SUNDAY"

11

JURISDICTION AND RELATED MATTERS

Jurisdiction over the Person or Res

Service of Process

Alias Summons and Pluries Summons

Alias: when a summons is not served for whatever reason and a second summons is issues, the second summons is the alias summons

pluries: a third or subsequent summons is termed a pluries summons

No motion to issue process is required when the return from the first process issued shows service was not perfected, but a motion is required when the earlier process has NOT been returned to the clerk's office

12

JURISDICTION AND RELATED MATTERS

Jurisdiction over the Person or Res

Service of Process

Time Limit

Unless good cause or neglect is shown, a summons must be served on a defendant within 120 days of filing the initial pleading directed to that defendant

if deadline is not met, the court may direct that service be made within a specified time, dismiss the cause against the defendant without prejudice, or drop the defendant as a party --- this is true regardless of whether the defendant files a motion to dismiss for noncompliance of this rule

13

JURISDICTION AND RELATED MATTERS

Jurisdiction over the Person or Res

Personal service

Substitute or Abode Service

An individual may also be served leaving a copy o the summons and complaint at his usual place of abode with any person residing therein age 15 or older and informing that person of the contents

usual place of above means the place where the defendant is actually living at time of service

14

JURISDICTION AND RELATED MATTERS

Jurisdiction over the Person or Res

Personal service

Service on Spouse

Service may be on spouse of the person to be serviced if the action is NOT an adversary proceeding between spouse and person to be served, the spouse requests such service and the spouse and person served are residing together in the same dwelling

15

JURISDICTION AND RELATED MATTERS

Jurisdiction over the Person or Res

Personal service

Service on Tenant in Action for Possession of Residential Premises

ESSAY

In an action for possession of residential premises if the tenant cannot be found in the county or there is no person 15 years of age older residing at the tenants usual place of abode in the county after at least attempts 6 hrs apart then service may be made by attaching process to a conspicuous place on property and by clerk thereafter mailing a copy of the summons and complaint by first class mail to the defendant at the premises involved

16

JURISDICTION AND RELATED MATTERS

Jurisdiction over the Person or Res

Personal service

On a Partnership

Service can be made by delivery of process to any partner and is as valid if served on each individual partner

if a partner is not available during reg biz hours, she may designate an employee to accept

after one attempt to serve a partner or designated emloyee has been made process may be served on the person in charge of the partnership during regular business hours

17

JURISDICTION AND RELATED MATTERS

Jurisdiction over the Person or Res

Personal service

On a Corporation

Service on Registered Agent

On Corporate head or other agent in Descending order
- president VP or head
- cashier treasurer secretary or gm
- any director
any officer or biz RESIDENT of fl
if a foreign corp has none in FL process may be served on any agent transacting bis for it while within state

18

JURISDICTION AND RELATED MATTERS

Jurisdiction over the Person or Res

Personal service

On a Corporation

Foreign Corporation Doing Biz in FL

When a corporation engages in SUBSTANTIAL and not isolated activities within FL, OR has a business office within the state and is actually engaged in the transaction of business therefrom, service on any officer or business agent, WHILE ON CORPORATE BUSIENSS WITHIN THIS STATE, may be personally made.

It is NOT necessary in such a case that the proceeding against the corporation shall have a risien our of any transaction or operation connected with or incidental to the business being transacted within the state

19

JURISDICTION AND RELATED MATTERS

Jurisdiction over the Person or Res

Personal service

On a nonresident, natural person, partnership, foreign cor or former Resident who operates a business or has an office in FL

If a nonresident person, a partnership composed of nonresidents, a foreign corporation, or a FL resident who subsequently becomes a nonresident or conceals his whereabouts has accepted the privilege of engaging in buisness in FL or having an office or agency in FL, that person or entity thereby appoints the secretary of state as his agent on whom all process may be served in an proceeding against him arising out of any trasnaction cnnected with or incidental to the business.

Minimum contacts are satisfies because the cause of action must arise out of the business being done within the state

20

JURISDICTION AND RELATED MATTERS

Jurisdiction over the Person or Res

Personal service

On a nonresident, natural person, partnership, foreign cor or former Resident who operates a business or has an office in FL

Substituted Service

Sub service may be made on the secretary of state as an agent of such persons or entities with:

(1) notice by registered or certified mail to the defendant outside FL OR
(2) service personally to the def outside FL by a public officer authorized to make service by FL or by the state where service is made

21

JURISDICTION AND RELATED MATTERS

Jurisdiction over the Person or Res

Personal service

Under General Long Arm Statute

Service under the long arm statute may be made out of state in the same manner as service is authorized in FL, by any officer authorized to serve process in the state where the person is served. No order of court is required.

The statute required that service on person outside the country may have to conform to certain international standards.

22

JURISDICTION AND RELATED MATTERS

Jurisdiction over the Person or Res

Service by Mail

WAIVER

A plaintiff can request a defendant to waive formal service of process by a sheriff or person appointed to serve papers or by publication and to accept service by mail

acceptance of service by mail does not waive any objection to venue or personal jurisdiction

if a def is served by mail after waiving her right to personal service she has 60 DAYS from the date of the requested waiver to respond to the complain

23

JURISDICTION AND RELATED MATTERS

Venue

DEFENDANT

Venue refers to the location within FL of a lawsuit. that is, assuming jurisdiction over the subject matter, a valid juridictional basis for an in personam or in rem action, and valid service, venue determines the county in which the action may be brought

24

JURISDICTION AND RELATED MATTERS

Venue

Where transitory Actions may be Brought

Any action not subject to the local action rule is designated transitory

local action - where property located

25

JURISDICTION AND RELATED MATTERS

Venue

Where transitory Actions may be Brought

General Rule - Residents of FL

If the def is a resident, venue exists only in the county in which any defendant resides at the time the action is commenced where any cause of action accrued or in which the property in littigation is located

26

JURISDICTION AND RELATED MATTERS

Venue

Where transitory Actions may be Brought

Multiple Defendants who Reside in Different COunties

If multiple in different counties, venue exists in the county of residence of any one of them

27

JURISDICTION AND RELATED MATTERS

Transfer of Actions = Motion to Change Venue

Method of transfer

$$$$

When plaintiff files suit in wrong court or county ----- Service charge must be paid by the party who commenced the action within 30 days from the date order of transfer is entered. If NOT paid wthin 30 DAYS,, the court must dismiss WITHOUT PREJUDICE.

Where DEF coutnerclaim / cross claim exceeds the subject matter of court -- clerk fee is transferred , and the failure to pay that clerk fee will result in reduction or elimination of the counterclaim to the amount within the jurdiiction of the first court

28

JURISDICTION AND RELATED MATTERS

Choice of Forum

Time For Filing

A motion to dismiss based on forum non convenes must be served no later than 60 DAYS after service of process of moving party

29

JURISDICTION AND RELATED MATTERS

Waiver (don't use it u lose it)

Some matters are waived if not raised on first opportunity -- subject matter jurisdiction cannot be waived

SMJ -NEVER -- can be raised any time up to and through appeals

Jurisdiction over the Defendant (or Property) PJ- YES
An object to the basis of jursidiction is waived if NOT raised in the defendants first response to the complain ,whether that be an answer or a pre-answer motion. However, a motion to transfer venue filed simultaneously with a timely assserted object to PJ does NOT waive the jurisdiction objection

Service of Process - YES
A challenge to the sufficiency is waived if NOT raised in def 1st response to complaint, whether that be in his answer or pre-answer motion

Venue - YES
The question of proper venue is waived if NOT waived in defendant's first response to complaint, whether that be the answer or motion to dismiss made prior to the answer

30

PLEADINGS

In General (7)

Complaint
Answer
Reply
Third Party Complaint
Third Party Answer
Answer to a Counterclaim
Answer to a Cross Claim

A counterclaim or cross claim is raised ,if at all, in an answer