fl civil procedure Flashcards
structure of the fl court system
(1) trial courts
In Florida, there are two sets of trial courts of original jurisdiction:
* The county courts (every county has a county court); and
* The circuit courts (the state is divided into 20 judicial districts).
(2) appellate courts
- The state is divided into six District Courts of Appeal.
- At the top of the system is the FL supreme court
structure of fl court system: subject matter jurisdiction
jurisdiction The power of a court over the subject matter of the litigation or the parties
trial courts Jurisdiction can be exclusive or concurrent
actions at law (money damages)
* $50,000 or less—county court
* Above $50,000—circuit court
NOTE:
* Aggregating claims: claims may be added together to reach the jurisdictional limit for circuit court if those claims ARISE OUT OF THE SAME TRANSACTION. but if the two or more separate claims arise out of DIFFERENT TRANSACTIONS, at least one of those claims must independently exceed the jurisdictional limit
* counterclaim or cross-claim exceeding AIC: If the demand of any counterclaim or cross-claim exceeds the jurisdiction of the court in which the action is pending, then the action must be transferred to the court that has jurisdiction over that demand. (you are not adding up claims, just see if any individual counterclaim or cross-claim exceeds 50k)
equitable actions (seeking injunction)
* If the value of the injunction is greater than $50,000, the circuit court has exclusive jurisdiction for the claim.
* For claims that are $50,000 or less, the circuit court and county court have concurrent jurisdiction (the plaintiff has the option to file the claim in county court or circuit court).
concurrent jurisdiction in county and circuit courts
* Landlord-tenant cases in which the amount in controversy is $50,000 or less;
* Actions seeking to possess real property, when valued in excess of $50,000; and
* Any disputes involving home owners associations, regardless of the amount
circuit court exclusive original jurisdiction
* For an action involving real property, venue is appropriate only in the county in which the land is located.
* circuit courts have exclusive original jurisdiction over an ejectment action regardless of the amount in controversy.
Florida Supreme Court
Mandatory appellate review applies to:
* District court decisions striking down a state statute or a state constitutional provision;
* any questions of great public importance, which are certified, sent by district court of appeal
* any questions certified by federal courts that have no controlling Florida law
* writs of prohibition, mandamus, quo warranto, habeas corpus, and all writs necessary to complete exercise of the florida supreme court jurisdiction
* certified trial orders sent to florida supreme court from the district court of appeal that requires an immediate resolution
* Final judgments for the validation of bonds or certificates of indebtedness;
* Action of statewide agencies relating to rates or service of utilities; and
* Final judgments of trial courts that impose the death penalty
Discretionary appellate review applies to most other claims.
district court of appeals
Primarily hears appeals taken as a matter of right from final judgments and orders of the trial courts
Can also hear certain non-final (i.e., interlocutory) orders
Appeals to the district courts of non-final orders (i.e., interlocutory appeals) are limited to when the order concerns venue, injunctions, or receiverships; grants a new trial, relief, or immunity in a civil rights claim under federal law, as a state representative, or in a torts claim; or determines:
* The jurisdiction of the person
* The right to immediate possession of property
* The right to immediate monetary relief or child custody in family law matters
* The entitlement of a party to arbitration, or to an appraisal under an insurance policy
* That a party is not entitled to workers’ compensation immunity
* That a class should be certified
* That a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law or
* That a governmental entity has taken action that has inordinately burdened real property.
personal jurisdiction and venue: intro
power over the people
personal jurisdiction of florida courts
if you are a fl resident, even for just 1 day, FL automatically has jurisdiction over you
tallahassee has personal jurisdiction over Miami resident, even if you have never been to tallahassee
can be established by consent:
* During litigation by affirmative agreement or by failing to object to jurisdiction
* Beforehand, in a contract (i.e., forum-selection clauses)
Forum-selection clauses are enforceable as long as the contract:
* Includes a Florida choice-of-law provision;
* Includes consent to Florida’s personal jurisdiction;
* Involves consideration of not less than $250,000;
* Does not violate the United States Constitution; and
* Bears a substantial or reasonable relation to Florida or has at least one party who is a resident of Florida or incorporated under its laws.
Additional categories of persons over whom personal jurisdiction is not an issue:
* A corporation incorporated in the state of Florida;
* Nonresident who engages in “continuous and systematic” activity in Florida;
* A non-Florida corporation with a place of business in Florida; and
* In rem actions (i.e., action to adjudicate an interest in property or a specific thing that is within the jurisdiction of the court)
VVVVVVVV
The exercise of quasi-in-rem jurisdiction by a Florida court requires the plaintiff to establish that the defendant or the cause of action has minimum contacts with Florida.
VVVVVVVV
Venue provisions in a contract for improvement to real property that require legal action involving a resident contractor, subcontractor, sub-subcontractor, or materialman, to be brought outside of Florida are void as a matter of public policy
Any legal action arising out of that contract may only be brought in the Florida county where the defendant resides, the cause of action accrued, or the property in litigation is located
personal jurisdiction and venue: long arm statute
There is a two-step process to determine whether a non-resident is subject to jurisdiction in Florida.
(1) Step 1: Does the Florida long-arm statute (Fla. Stat. § 48.193) apply?
* Long-arm statute activities:
* Operating or conducting a business or business venture in the state;
* Committing a tortious act in the state of Florida;
* Owning, possessing, or using real property in Florida;
* Contracting to insure a person, property, or risk in Florida;
* In an action for alimony, support, or the distribution of property, the person maintains a residence in Florida at the time the action is filed or resided in Florida before the action was filed;
* Causing an injury to a person in Florida by an act or omission outside the state, so long as at the time of the injury, the nonresident defendant was involved in the
solicitation or distribution of products in Florida;
* Breaching a contract by the failure to perform acts that were required by the contact to be performed in Florida;
* In a matter involving paternity, engaging in sexual intercourse in the state by which the child at issue may have been conceived; and
* Entering into a contract that specifies that Florida law will govern the relationship of the parties under that contract, and in which in that contract, the parties agree to submit to jurisdiction in a Florida court (i.e., forum-selection clause).
(2) Step 2: Is the exercise of jurisdiction consistent with the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution?
International Shoe standard: There must be minimum contacts such that it does not offend traditional notions of fair play and substantial justice
* the plaintiff’s claim must arises from or be closely related to the defendants minimum contacts with the state
personal jurisdiction and venue: general and specific jurisdiction
- when applying long arm statute, you are engaging in specific jurisdiction
- court can only adjudicate claims related to claim on the cause of action that gave them specific jurisdiction
- in general jurisdiction, can bring other claims
- you can claim general jurisdiction because there is more than minimum contact (like sufficient business activity)
- otherwise, specific jurisdiction is used
venue in particular cases
(1) case against more than one defendant
Venue is appropriate in a county in which either defendant resident, as well as the county in which the cause of action accrues.
VVVVVVVVVVV
(2) case with more than one cause of action
Venue lies in a county in which any of the causes of actions accrued, as well as where any defendant resides.
VVVVVVVVVVV
(3) agreement as to venue
Generally, parties can agree in a contract to have venue in a particular place.
Exception: A contract for the improvement of real property in Florida that calls for venue outside of Florida is void as against public policy if the action concerns a resident contractor or sub-contractor.
(4) corporation as a defendant
Venue is appropriate in:
* The county in which the cause of action accrued; and
* The county in which a Florida corporation has an office for the
transaction for its business
Non-Florida corporation: Venue is appropriate:
* In the county where the cause of action accures; and
* In the county in which the corporation has an agent or other representative.
VVVVVVVVVVVVV
(5) venue in actions against the state or state agency
Venue is appropriate in the county in which it maintains its principal headquarters
exceptions:
* A statute can change the general rule;
* Suit concerning a claimed violation of a plaintiff’s constitutional rights:
* Venue is appropriate in the county in which the claimed violation of those rights occurred or is about to occur;
* State agency is a joint tortfeasor: The normal rules apply, not the special rule for state
agencies; or
* Cases in which a party files a petition for access to a public record
personal jurisdiction and venue: venue for actions
- where will case be heard?
- first, always based on defendant. plaintiff can pick any one defendant in particular.
venue: objections to improper venue
The Plaintiff makes the initial choice about venue because the plaintiff files the suit.
The defendant may object to improper venue.
If a defendant does not properly object, the defendant will have waived an objection to venue.
change of venue
Even if venue is proper, the defendant may move to change venue (i.e., transfer the case).
* The motion must be verified (signed under oath)
* The motion must be made within 10 days after the action is “at issue,”
unless good cause is shown.
* There is a presumption against a change of venue.
Grounds for transfer are based on fairness:
* The party opposing transfer has undue influence over the minds of the county’s residents;
* The party moving for transfer is so disliked that a fair trial cannot be had; or
* It appears to be impracticable to get an impartial jury in the county.
May seek transfer for the convenience of the parties and witnesses, in the interests of justice
* Private factors: Where the evidence is and where the witnesses are
* Public factors: The interests of justice and the interests of the respective counties
forum non conveniens
Applies when venue is appropriate under the rules, but the “better place” for the lawsuit is outside Florida
the action can be refiled in the more convenient forum.
There is a presumption against dismissal.
the court’s decision to grant or deny a motion to dismiss is subject to review using the abuse of discretion standard.
Trial courts have wide discretion about motions for forum non convienens:
* The other forum must be an adequate forum (i.e., the cause of action must exist there);
* Private interest factors (e.g., the location of witnesses or evidence);
* private interest factors (e.g., the interest of the different forums being
considered); and
* Dismissing the case does not cause an undue inconvenience to the Plaintiff
EVEN IF private interests do not favor an alternative forum, a court may still grant a motion to dismiss in certain circumstances—e.g., when the balance of private interests is near equipoise and public interest factors tip the balance in favor of an alternative forum
personal jurisdiction and venue: defendant is a fl resident
- any one defendant is a fl resident, venue is the county where defendant resides when you file a lawsuit. if there are multiple FL resident Defendants, can sue wherever any Defendants reside; or
- can also sue them where the cause of action accrued (where last element of COA is satisfied); or
- where property in litigation is located (must be immobile property, like a house NOT an airplane)
to move the case to a different venue, the venue must be proper in the new location, meaning one of the above elements must be met there
personal jurisdiction and venue: defendant is non-resident
- where they are served in FL, there is jurisdiction
- where cause of action accrued
- where property is located
personal jurisdiction and venue: defendant is a corporation
always an option: where the property in litigation is located and where COA accrued
PLUS
if it is a domestic FL corp: any county where corp has office to transact business
if it is foreign non-FL corp:
* any county where corp has agent/reps (like sales associate)
* where the cause of action accrued
service of process
“Process” refers to the papers that must be delivered to the defendant to start the lawsuit.
“Service of process” refers to how those papers must be delivered.
Both the papers themselves and the method of delivery must be proper.
The summons is exactly what it sounds like: It “summons” the defendant to the court.
waiver of service of process
A plaintiff may—but is not required to—ask a defendant if the defendant will agree to waive formal service of process.
(1) procedure
Plaintiff sends a written request to the defendant by certified mail, return receipt requested.
* Must include a copy of the complaint, as well as a pre-paid means of responding
* Must inform the defendant about waiver of process and the date on which it was sent
The defendant must be allowed 20 days to decide whether he will waive service (30 days if the defendant is outside the U.S.).
The defendant is not required to waive service.
(2) carrot and stick approach
The carrot: If the defendant agrees to waive formal service of process, she will get a longer period of time to respond to the complaint than she would if she demanded formal service.
* The defendant will have 60 days from the date upon which the defendant received the request to waive service of process, in order to respond to the complaint.
* A defendant has only 20 days to respond after formal service.
The stick: If the defendant does not agree to waive service and the plaintiff effects formal service, the defendant will be required to pay the costs of formal service, unless there is good cause for the defendant’s failure to agree to waive.
formal service of process
(1) initial filing and service
A plaintiff must file the complaint with the court.
* Filing is deemed to be the commencement of the lawsuit.
* Filing stops the statute of limitations clock from running.
* Filing the complaint does not compel the defendant to come into court.
The plaintiff has 120 days from filing the complaint to formally serve the defendant or notify the court that the defendant has waived formal service.
If the initial service of process is not made upon a defendant within 120 days after filing, the court must:
* direct that service be effected within a specified time (good cause or excusable neglect)
* dismiss the action without prejudice or
* drop the defendant as a party.
(2) who may serve process
Any person authorized by law to do so (e.g., the sheriff); or
Any person appointed by the court who is at least 18 years old, competent, and a resident of Florida, so long as that person does not have an interest in the subject matter of the action
(3) how can formal service be made?
personal service: Physical delivery to the defendant
substituted service: Physical delivery to someone other than the defendant
constructive service: Notice of the lawsuit given by way of
publication (e.g., in a newspaper)
service of process: personal service
The gold standard: most likely to satisfy the constitutional requirement of notice
(1) Physically delivering the required process to the defendant
* Delivery can essentially be anywhere (e.g., at work)
* Florida law requires an employer to allow authorized service.
(2) Without actual physical delivery
* Service can be made by:
1. Leaving the required process at the defendant’s usual place of abode with any person residing therein who is 15 years of age or older; and
2. Informing that person of the contents of what you are giving them.
personal jurisdiction: service on specific parties
(1) service on minors (persons under 18)
If the person to be served is a minor who has never been married, service must be made on the minor’s parent or guardian.
(2) Service on Incompetent Persons
If the person is incompetent, service must be made on the guardian of the person, if there is one, or on the person who has care and custody of the person.
(3) Service on Legal Entities
sole proprietor
A sole proprietor may be sued by the same methods permitted for service on an individual (e.g., personal service, service at abode, etc.).
You may also go to the place of business and serve the proprietor there.
If you have tried to serve the proprietor at the business twice and were not successful, you may serve the sole proprietor by substitute service, by serving the person “in charge of the business at the time of service.”
partnerships and limited partnerships
May serve any individual or any person designated to accept service
if you make one attempt to serve a partner at the place of business and it is not successful, you may then serve the “person in charge of the partnership” at the time of service, so long as service is made during regular business hours.
Corporations
A corporation can have a registered agent in Florida to receive substitute service.
* If the corporation does not have a registered agent, and none of the above methods of service have succeeded, then you may serve any employee at the corporation’s principal place of business.
* the agent cannot be served after one good faith attempt, process may be served on the chair of the board of directors, president, vice president, secretary, or treasure
If a corporation engages in “substantial and not isolated activities,” in Florida, or if it has an office in Florida in which it conducts business, then service on the corporation may be made on any officer or business agent while that person is on corporate business in the state (even if the corporate business does not relate to the cause of action).
Service must be attempted in the following order:
* May serve a president, vice-president, or other “head” of the corporation
* If you cannot serve these people, then you may serve the corporation’s cashier, treasurer, secretary, or general manager.
* If that does not work, the next level allows you to serve a director.
* If that does not work, you may serve an officer or business agent of the corporation residing in Florida.
limited liability company
May serve a registered agent; otherwise, may serve any member of a member-managed LLC.
After one unsuccessful attempt to serve one of these individuals, process may be served on the person in charge of the LLC during normal business hours.
If these methods fail, process may be served on the secretary of state
public agencies/officers (Town council)
You may serve the head of the agency (e.g., president, chair, mayor, etc.).
In their absence, you may serve the vice-president, vice-chair, vice-mayor, etc.
If that cannot be done, you may serve any member of the body (e.g., a member of the town council).
state of florida
You must serve either the state attorney or an assistant state attorney in the circuit in which the action is filed; and
Send two copies of the process by registered or certified mail to the Florida attorney general
personal jurisdiction and venue: business entities
- ** for a sole proprietor**
* (person running their own business), can be served personally, anything under note “on individuals not otherwise a minor or incompetent”
* and can serve them at business, during business hours, to person running business, if at least 2 attempts have been made to serve the owner -
for partnership
* service on any one partner is service on partnership.
* if you can’t, serve someone in charge at office during regular business hours as long as you made one attempt to serve partner - for corporation
* serve registered agent in FL during specified hours (based on statute).
* if you could not, serve any employee at place of business.
* alternatively, can also serve chain of command from top and work your way down. pres- vp- sec
* can serve director after all of that
personal jurisdiction: substituted service on nonresidents
Applies in a narrow range of cases
Florida law deems that a nonresident has appointed somebody (usually the Secretary of State) to be her agent to accept process for claims related to specific conduct in the state.
May serve the Florida Secretary of State for a nonresident who:
* Owns or operates a motor vehicles in the state;
* Operates or maintains a watercraft in the state;
* Operates or maintains an aircraft in the state; and
* Operates, conducts, or engages in a business or business venture in the state.
personal jurisdiction and venue: state of fl
- serve the state att’y office for the circuit you are serving
personal jurisdiction and venue: municipality, county, board, commission, agency
- start at head of commission/board/county/municipality/agency and work your way down
personal jurisdiction: service by publication (constructive service)
Cannot use service by publication if you could use personal or substituted service
when after diligent search, can not find def, you may serve by publishing notice
You are required to submit a sworn statement laying out why service by publication is allowed and necessary in the situation.
May only be made in a defined set of cases, typically concerning: ownership or division of property and certain family law related matters, such as custody of children, adoption, and paternity
personal jurisdiction: service of motions or other subsequent papers
All pleadings after the initial pleading and every other paper filed in the action must be served on each party unless the court orders otherwise.
If service must or may be made upon a party represented by an attorney, then service must generally be made upon the attorney.
Service must be made by email unless the parties stipulate or the rules provide otherwise.
The service of process rules apply to the initial formal service of the complaint and summons
Other papers (e.g., motions) also need to be “served,” but different requirements apply.
pleadings
Pleadings: Documents that set out the dispute in a particular lawsuit
Includes the complaint, the answer, and (occasionally) a reply
Pleadings work in tandem to define the scope of the conflict.
types of pleadings
For each opening pleading, there is a corresponding closing pleading.
* Complaint—asserts a claim for relief
* Answer—closing pleading for the complaint; responds to claim for relief
* If the answer contains an affirmative defense, the plaintiff MUST respond with a reply
* An answer can include a counterclaim or a cross-claim, inviting an answer to the new claim.
VVVVVVVVVVV
note:
Service of documents filed through approved electronic service system is complete on the date the served document is electronically filed.
But regardless of the method of service, the last day by which service must be made ends at midnight.
affirmative defenses
mut be affirmatively plead
1. accord and satisfaction
2. arbitration and award
3. assumption of the risk
4. contributory negligence
5. bankruptcy discharge
6. duress
7. estoppel
8. failure of consideration
9. fraud
10. illegality
11. injury by fellow servant
12. laches
13. license
14. payment
15. release
16. res judicata
17. SOF
18. statute of limitations
19. waiver
pleadings: asserting a claim for relief
Any pleading seeking relief (e.g., complaint, counterclaim, cross-claim) must answer three questions:
(1) why can I be here? (2) Why do I win?, and (3) What do I want?
all complaints in FL have to have short and plain statement describing
1. ground for courts jurisdiction
2. ultimate facts showing pleader entitled to relief and
3. relief requested (No specific dollar amount is necessary (except to make a jurisdictional allegation))
requires pleader to use facts to show they are entitled to relief– COA exists
All of the allegations in a complaint must be in separately numbered paragraphs and each claim
for relief must be marked separately in its own count.
pleadings: answers
The defendant must respond to each of the factual allegations the complaint has made.
Three possible responses to each allegation:
- admit or
- deny allegations of complaint, if you fail to respond, it is deemed admitted but damages allegations which you failed to respond to are still denied
- Declare lack of knowledge sufficient to form an answer (treated as a denial)
VVVVVVVVVVVVVVVVVVV
(1) affirmative defenses
* The defendant has a special burden to plead certain “affirmative defenses” in the answer.
* Rule 1.110(d) lists the 21 affirmative defenses (20 specific affirmative defenses plus a “catchall”).
* If a defendant does not plead an affirmative defense, the defendant is deemed to have waived the defense (unless allowed to amend the answer).
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(2) time for filing an answer
action started by formal service of process
answers need to be plead within 20 days of being served with summons and complaint
* exception: the state has 40 days to file an answer
however, can still file motion to dismiss instead of answer within 20 days
but if its denied, you have 10 days after the denial to plead answer
waiver of service
Defendant has 60 days from the date he received the request for waiver
answers to counterclaims and cross-claims
Defending party has 20 days
from the date of service
VVVVVVVVVVVVVVVVVV
(3) calculating time
The day of the act (receiving order) at issue does not count in terms of calculating the time.
Begins on the next day that is not Saturday, Sunday, holiday
The last day of the period is counted.
Between the start and the end of the period, weekends and legal holidays
are counted, unless the period is less than 7 days.
If the last day of the period is a weekend or legal holiday, the period is extended to the next day that is non-weekend/non-legal holiday
The time periods may be extended due to the means by which you serve something.
* Service by mail: time periods are extended by 5 days
Unless another rule sets a different time, service is timely if it takes place before midnight on the day it is due.
pleadings: replies
- response to affirmative defense and used to intorduce new facts
- not to deny affirmative defenses
- Must be filed within 20 days of the service of the document containing the affirmative defense
pleadings: supplementing or amending a pleading
(1) supplementing
A supplemental pleading does not change what is in the pleading, it adds to it.
(2) amending
An amendment will change the filed pleading.
amendment as of right
A party may amend a pleading to which a responsive pleading is required, once as of right at any time before the responsive pleading has been filed.
What if you want to amend a pleading for which no responsive pleading is required (e.g., an answer with no counterclaims or affirmative defenses)?
* A party may amend once as of right within 20 days of its service, so long as the case has not been placed on the trial docket.
amendment by consent or leave of court
Typically occurs after the time period has passed
A party may amend a pleading:
1. With the consent of the other parties; or
2. With the court’s permission
* The court should grant leave to amend “when justice so requires.”
relation back
Only an issue if something occurred between the filing and the amendment
Primarily concerned with the expiration of the statute of limitations
An amendment will relate back to the time of the original filing when the new claim (or defense) arises out of the same conduct, transaction, or occurrence that was set forth in the original pleading.
amendment and punitive damages
Under Florida rules, a person may not claim punitive damages in the original complaint (or counterclaim, etc.); instead, the party must:
* Seek permission to add a claim for punitive damages by amending the complaint; and
* Submit prima facie evidence that the party would be entitled to punitive damages.
special pleading rules
Fraud or mistake: Allegations of fraud or mistake (in a main claim or as part of a defense) must be pled with particularity.
Special Damages: Special damages must be pled with specificity.
pre-answer pleadings: motions to dismiss
Allows a party responding to a pleading to respond with something that is not a pleading
Optional: A defendant is never required to make a pre-answer motion.
Timing: A pre-answer motion needs to be filed on the same timeline as the answer—20 days after formal service of the complaint or 60 days if service was waived
pre-answer motion: motions regarding the content of the complaint
(1) motion for a more definite statement
Asserts that the amount of information in the complaint is insufficient for the defendant to respond to it
* Defenedan’t answer must be served within 10 days of service of more definite statement
* plaintigg’s more definite statement must be served within 10 days of court’s order granting motion
Not a common motion
(2) Motion to Strike
Seeks to remove something from a pleading
Can strike matters that are redundant, immaterial, or scandalous, etc.
motion to dismiss
The most important pre-answer motions
May file a pre-answer motion to dismiss for:
- lack of SMJ
- lack of PJ
- Lack of venue
- improper service of process
- insuffiency of process
- failure to state a cause of action
- failure to join indispensible party
note: A defendant that properly raises a defense of lack of personal jurisdiction may actively defend the lawsuit (compulsory counterclaim, filing motion to dismiss) without waiving the objection for lack of PJ, but a claim for affirmative relief (permissive counterclaims and cross-claims) does constitute a waiver.
Consolidated motion rule: If the defendant makes a pre-answer motion, it MUST include any of these grounds in a single motion.
(1) Consequences for failing to assert these defenses in the answer or pre-answer motion
mayonaise defenses
These defenses expire easily if not raised correctly:
1. lack of PJ
2. Improper venue
3. insufficient process
4. insufficient service of process
These are waived if not asserted in either a pre-answer motion (if one is filed) or in the answer.
defenses that can be raised before or during trial
Two defenses can be saved, even if they are not raised in the first response to the complaint:
1. Failure to state a cause of action; and
2. Failure to join an indispensible party.
These defenses may be raised by other motions up to and including at trial
These defenses are not lost until the end of the trial (i.e., the action is submitted to the factfinder).
defenses that cannot be waived
The defense of lack of subject matter jurisdiction cannot be waived.
This defense can even be raised for the first time on appeal.
pre answer motion: motion for judgment on the pleadings
Operates like the pre-answer motions to dismiss but occurs after an answer has been filed.
counterclaims and cross-claims
Because counterclaims and cross-claims are claims seeking relief (e.g., damages or an injunction):
* All of the requirements for a pleading seeking relief apply (i.e., short plain statement of ultimate facts, etc.); and
* The responding party must meet the same requirements as a party responding to a complaint.
VVVVVVVV
counterclaims
A claim that is asserted against an opposing party (i.e., it crosses over a preexisting “v.”)
Two types: (1) compulsory counterclaims and (2) permissive counterclaims.
(1) compulsory counterclaims
Arises out of the same transaction or occurrence of the opposing party’s claim and does not require any other party for litigation
A claim that would otherwise be compulsory is not compulsory if:
1. At the time the action is commenced, the claim was already in litigation elsewhere; or
2. The opposing party’s claim is in-rem and the defendant is not asserting any other counterclaim.
(2) permissive counterclaim
Includes any non-compulsory claims the defendant has against the plaintiff
do not arise from the same transaction or occurrence as the opposing party’s claim
(3) consequence
A party must assert a compulsory counterclaim or it is waived.
A party may assert a permissive counterclaim, but is not required to do so.
VVVVVVVVVVVVVVV
cross-claims
Cross-claims seek relief between co-parties
Co-parties may (but are not required to) assert cross-claims only when they arise out of the same transaction or occurrence as either:
* The plaintiff’s _____ claim against the defendants; or
* any___________
parties: substitution
substitutes
Once a lawsuit starts, it is possible to swap one party for another
one party may be substituted for another when the original party:
* dies
* becomes incompetent
* transfers its interest in the case (substitution is not mandatory here) or *
* no longer represents a public party (the person who succeeds to the office is automatically substituted).
When the original party dies or becomes incompetent, the motion for substitution must be made within 90 days of the event being added to the record.
* If the motion is not made, the court may dismiss the action
dropping and adding parties
In Florida, parties may be added once as a matter of course by the plaintiff and may also be added by an adverse party. Parties may also be added or dropped:
* by court order, on the court’s own initiative or
* on motion by any party at any stage on such terms as are just.
A party should not be dropped against a plaintiff’s wishes unless there is no other way to protect the dropped party’s rights.
dropping and adding parties
In Florida, parties may be added once as a matter of course by the plaintiff and may also be added by an adverse party. Parties may also be added or dropped:
* by court order, on the court’s own initiative or
* on motion by any party at any stage on such terms as are just.
A party should not be dropped against a plaintiff’s wishes unless there is no other way to protect the dropped party’s rights.
