fl civil procedure Flashcards

Question

affirmative defenses

Answer 1

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

Answer 2

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.

Answer 3

The defendant must respond to each of the factual allegations the complaint has made. Three possible responses to each allegation: 1. admit **or** 2. 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 3. 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). **VVVVVVVVVVVVVVVVVV** (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.

Answer 4

* 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

Answer 5

(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.

Answer 6

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

Answer 7

(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.

Answer 8

The most important pre-answer motions May file a pre-answer motion to dismiss for: 1. lack of SMJ 2. lack of PJ 3. Lack of venue 4. improper service of process 5. insuffiency of process 5. failure to state a cause of action 6. 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.

Answer 9

Operates like the pre-answer motions to dismiss but occurs after an answer has been filed.

Answer 10

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___________

Answer 11

*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

Answer 12

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.

Answer 13

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.

Answer 14

**VVVVVVVVVVVVVVVV** *capacity* Whether someone is a capable of being a party to a lawsuit Parties are presumed to have capacity (1) natural persons Anyone 18 years of age or older is presumed to have the capacity to sue or be sued. A person over 18 may lose the ability to sue or be sued if they are deemed legally incompetent. * Not all legally incompetent persons automatically lose all of their rights; a person may be incompetent for one purpose but competent for another. Minors: May only sue or be sued through a parent or guardian (2) legal entities Corporations: Have the capacity to sue and be sued in their own name * Foreign corporations: Must be registered to do business in Florida to have capacity to sue in Florida courts * Partnerships: Have the capacity to sue and be sued in their individual name * Homeowners’ Associations (HOAs): HOAs may sue in their own name as long as: The HOA is not controlled by a develope; and The suit is a matter of common interest to the members.

Answer 15

**VVVVVVVVVVVVVVVV** *real party in interest* The rules allow, but do not require, that a real party in interest may bring suit in its own name. Six types of persons who are representative parties are expressly allowed to bring a claim in their own name; the most important are: * Trustee * Guardian * Executor of an estate.

Answer 16

consolidation: Courts may also order case consolidation if the claims (even over objection of parties) involve a common question of fact or law and no party will be deprived of a substantive right. **VVVVVVVVVVVVVVVV** *permissive joinder of parties* “All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs.” Any person can be a defendant if he has an “interest adverse to the plaintiff.” * Exception: A plaintiff may not join a defendant’s liability insurance carrier in an action (regardless of the insurer's or the defendant's consent) without first obtaining a judgment against the defendant.

Answer 17

**VVVVVVVVVVVVVVVVVVV** *necessary and indispensible parties* (1) necessary party Necessary party: One who has a “material interest in the case” (i.e., whose rights can be affected by the outcome of the litigation) If a non-party is deemed “necessary,” they can be compelled to be made a party. * If the non-party cannot be joined (e.g., due to lack of personal jurisdiction), then it must be determined whether the non-party is indispensable. (2) indispensable party Indispensable party: One whose interest is so important that the litigation cannot be adequately resolved and must be dismissed without their presence. Examples include: * A party to a trust instrument, in a litigation over reforming the instrument (e.g., a trust, will, etc.) * A joint owner of property in a litigation concerning that property result: A required party must be joined in a lawsuit when feasible (when personal jurisdiction, subject-matter jurisdiction, and proper venue exist). * If joinder is not feasible, the action **must be dismissed** if it would be inequitable to proceed without the required party.

Answer 18

Allows a person claiming a legal interest who is outside the litigation (i.e., a non-party) to force his way into the case The decision about whether to allow intervention is in the discretion of the trial judge. * Usually depends on whether intervener has “an interest in” the pending litigation, such that the person’s rights could be affected by the outcome of the litigation A motion to intervene can be made “at any time” under the rule. * The longer a person waits, the less likely it is that the judge will allow intervention. Intervenors cannot bring new claims into the lawsuit.

Answer 19

Interpleader allows a party—called a stakeholder—to bring multiple parties together in a single lawsuit because they each claim a single piece of property Interpleader is permitted when a stakeholder could face multiple liability if separate lawsuits could award the disputed property to different parties

Answer 20

Impleader allows a defending party to bring a new party into the lawsuit and assert a claim against that party * The defendant is the third-party plaintiff. * The party to be brought in is the third-party defendant. (1) standard Based on derivative liability A defendant may implead a non-party if that non-party “is or may be liable to the Defendant for all or part of the plaintiff’s claim against the defendant.” it has to arise from the claim itself (not some random thing where the person owes you money for something unrelated, there has to be fault related to the claim) (2) timing Impleader is permitted with court’s permission at any time in the action. A defendant does not need the court’s permission if done within 20 days of the defendant serving its answer. After that period, the defendant needs the court’s permission by filing a motion. (3) effect of impleader The third-party defendant gets one special benefit: * It may assert any defenses against the original plaintiff that the defendant had, even if the defendant did not assert the defense The third-party defendant will have all the obligations and rights of a party to the litigation. * file responsive pleadings, assert counterclaims, implead other defendants At this point, there is no claim between the original plaintiff and the third-party defendant. * The plaintiff can assert a claim against the third-party defendant and vice versa so long as those claims arise from the same transaction or occurence as the plaintiff’s original action against the defendant.

Answer 21

*General Requirements* Representational litigation: Allows a person or persons to sue on behalf of a larger group of people, so the group members do not have to be parties to the litigation The plaintiff must file a complaint seeking to maintain a class, and the trial court must decide whether to “certify” the class. *Four prerequisites under Fla. R. Civ. P. 1.220(a):* 1. Numerosity: Class so large that joinder of the individuals would be “impracticable” 2. Commonality: There is a question of law or fact that is common to the members of the class 3. Typicality: The class representative’s claim is typical of the claims of the rest of the class 4. Representation: Class representative must “fairly and adequately represent” the class members’ interests (e.g., not antagonistic to the interests of other class members) *recognized type of action under Fla. R. Civ. P. 1.220(b)* Class action must be one of these types: (1). (b)(1) Class (includes two types of claims) * Individual adjudications could establish incompatible or inconsistent standards of conduct for the party opposing the class. * “Limited fund” class: When non-class adjudication would, as a practical matter, dispose of or affect the claims of other class members (2). (b)(2) class Applicable when the party opposing the class has acted or refused to act on grounds generally applicable to the class as a whole (3). (b)(3) class (the most controversial) Generally seeking only money damages Two requirements: * Questions of law or fact common to the class must “predominate” over individual questions; and * The class action is the “superior” means to adjudicate the claim. Predominate: The common questions must outweigh individual questions. Superiority: Factors include size of individual claims * If the claims are individually small but collectively large, an individual may have no financial incentive to bring an individual claim on their own; a class action is the better method.

Answer 22

1. oral depositions 2. written depositions 3. interrogations 4. requests to produce or inspect 5. request for physical and mental exams 6. request for admission

Answer 23

May only be used against party Allows a party to request a mental or physical examination of another party, so long as the condition to be examined is in controversy in the action To obtain an examination regarding a non-physical condition, the party seeking the exam must obtain a court order. In all cases, the party seeking the examination must show good cause. The person conducting the exam is required to make a report of the exam as long as the person being examined makes such a request. **VVVVVVVVVV** A minor who is required to submit to a pre-trial examination by a qualified expert has the right to be accompanied by a parent or guardian at all times during an examination. The party seeking the examination may exclude a parent or guardian only upon a showing that the presence of a parent or guardian is likely to have a material, negative effect on the examination.

Answer 24

relevancy **and** admissible in evidence **or** reasonably calculated to lead to the discovery of relevant evidence (1) relevance If the law makes a certain issue germane to a particular dispute, then information is relevant if it makes that fact more or less likely to be true. (2) indemnity agreements Indemnity agreements (usually insurance contracts) that might provide coverage for claims in a case are discoverable. This rule promotes settlement of cases may be filed either as a cross-claim in a suit that arises from the same transaction or occurrence as the subject matter of the original transaction or as a claim in a separate action (3) not privileged To be discoverable, the information sought must not be privileged. (4) work product (trial preparation materials) Work product is not a privilege; it is a special class of material generally deemed to be beyond the scope of discovery. Definition: Material that is the product of the work of a party or its lawyers (or someone working on their behalf such as a consultant, insurer) that is designed to prepare for trial or in anticipation of litigation Work product is generally not discoverable, unless: 1. The party seeking that material shows a need for the information in connection with the case; and 2. The party shows that it is unable to get the information (or the substantial equivalent) without “undue hardship.” “opinion work product” is never discoverable (i.e., a lawyer’s mental impressions, conclusions, opinions, and theories of the case). If a party intends to use his own work product at trial, it must be disclosed to the other side.

Answer 25

Deposition: A means by which a party may require another person (either a party or a non-party) to answer questions under oath a party taking a deposition of any person must give reasonable notice in writing to the opposing party. The notice must state the following: * time and place of the deposition and * name and address of each person to be deposed or a description sufficient to identify the person or the particular class or group to which the person belongs. A person may **only be required** to attend an examination (i.e., deposition) in the county where: * the person resides, * is employed, * transacts business in person, * or another convenient place fixed by the court If proper notice is not provided, then the deposition may **not** be used against the opposing party. **Deposition on written questions**: * A set of written questions are provided in advance and testimony under oath taken in response to those questions (rarely used) * A defendant CAN NOT serve an opposing party's witness with a WRITTEN DEPOSITION Deposition on oral examination: A lawyer asks the witness questions out loud and follows up with additional questions * Unlike under the Federal Rules, there is no set limit on the number of depositions a party may take in a particular case. * only two objections you can make: object to form (general) or privilege. if objection to form made, witness still answers. you do not have to answer privilege. * A lawyer at a deposition may only tell a witness not to answer a question in three circumstances: 1. To preserve a privilege 2. To enforce an existing court-ordered limitation on discovery; or 3. To present a motion to limit or terminate the deposition. * At a deposition, a lawyer is required to object to any question for which the objection could be cured * The failure to object to a question that can be cured waives the objection later. * Even after objection, the witness at deposition is generally required to answer the question. Deposition of a non-natural entity (e.g., a corporation): The corporation must provide a natural person who testifies on its behalf * The lawyer seeking the deposition must provide a list of topics on which testimony will be sought. for depos, you have to **subpeona** anyone if they are not a party to the case. if they are a party, no subpeona just **notify** them person at deposition must testify under oath

Answer 26

If deponent is a party, the party wishing to take the deposition simply issues a “notice of deposition” to that party and all other parties in the lawsuit If deponent is a non-party, absent a court order, must issue a subpoena. * The non-party may only be compelled to attend a deposition in a county in which it resides, is employed, or transacts business. * person who receives a subpoena for testimony or production of evidence must appear before the court and remain until excused by the court or all parties * A witness who refuses to obey a subpoena or departs without being properly excused may be held in contempt of court Must give “reasonable notice” of the time for the deposition A plaintiff generally may not take a deposition within 30 days of the service of process without a court order (except under limited circumstances).

Answer 27

Can be made to a party **and** a non-party * Party: Issue a request for documents. * Non-party: Must proceed by using a subpoena The party generally must give the other parties 10 days’ notice before serving a subpoena by hand, and 15 days’ notice before service by mail. The person against whom the request is made must respond within 30 days unless the request is served with the complaint, in which case the defendant has 45 days to respond. The person responding may also assert objections within these time frames. The requesting party may file a motion to compel production or entry. * so long as it is pursuing to obtain relevant and smissible evidence or information reasonably calculated to lead to admissible evidence, its ok

Answer 28

Usually recorded by a stenographer A party may, without the court’s permission, video-tape a deposition so long as certain conditions are satisfied, including: * Stating the intention to videotape the deposition in the notice or subpoena; and * Providing for a stenographer unless all parties agree otherwise. A telephone deposition is only allowed by order of the court.

Answer 29

The witness has the right to review the transcript and make changes. Thereafter, the witness signs the deposition. The witness can waive the right to read and sign either expressly or by implication.

Answer 30

depo can be used for both impeachment (undercut out-of-court statement) /substantive evidence (to prove element of case/defense) The deposition of any person may be used substantively if the witness is not available through reasons such as death, age or infirmity, or being beyond the subpoena power of the court. Timing: Generally, a deposition may only be taken before a lawsuit has been commenced. Other than collection matters, a deposition may not be taken after judgment has entered. A court may allow a deposition in either of these situations upon the filing of a petition or appropriate motion if cause is shown (e.g., to preserve the testimony of a person who is terminally ill).

Answer 31

Expert witness: Allowed to provide opinion testimony based on special professional training and expertise For discovery purposes, there are two groups: * testifying experts—experts who are expected to testify at trial; and * non-testifying experts—experts who are not expected to testify at trial. Testifying expert: The opposing party is allowed to: Take the expert’s deposition Obtain information concerning: * The expert’s experience and qualifications; * The scope of the expert’s employment in the case; * The expert’s conclusions and opinions; * The expert’s litigation experience (including the percentage of work for plaintiffs versus defendants); * The identity of other cases within a “reasonable period of time” in which the expert has testified at deposition or trial; and * Approximate time and/or income the expert has had from the case. Non-Testifying Expert: Discovery only permitted if party is able to show exceptionla circumstances that makes it impracticable that the party can obtain facts or opinions on the matter at hand in any other way

Answer 32

Protective order: A court order that protects a person from specific types, means, or subjects of discovery Generally limits discovery that could subject the person to “annoyance, embarrassment, oppression, or undue burden or expense.” Trial court has broad discretion in granting such orders.

Answer 33

Interrogatory: A written question from one party to another that the other party must answer under oath discovery between parties in lawsuit * written questions * other party responds 1. in writing and 2. under oath limited to 30 questions without leave of court (can get more but need to ask court) A party must answer interrogatories within 30 days of service of the interrogatory unless the plaintiff serves interrogatories with the initial complaint, in which case the defendant has 45 days to answer. * Objections must be raised in the same time period. motion to compel: If a party objects, the party propounding the interrogatories may file a motion to compel a response. A responding party has the option to direct the requesting party to particular documents. * Only an option when the burden of getting the information from the documents is substantially the same for both parties Interrogatory answers are generally admissible in the court proceeding (but only against the answering party). **VVVVVVVVV** Interrogatory answers by one party are not binding on a coparty, regardless of whether the parties are jointly represented

Answer 34

* directed to another party requesting that they allow you to inspect docs and other things * 30 days to allow you to inspect and copy what you requested

Answer 35

Request for admission: More than evidence; it conclusively establishes a fact. an admisison made by a party in response to a request for admission can only be used in the PRESENT litigation- it cannot be used in a separate proceeding directed at another party requesting that they admit the trust of the matter, the application of law to facts, or authenticity of documents A request for admission may be used to have the other party admit a legal principle. Absent leave of court, limited to 30 requests for admission and 30 days to respond If a party does not respond within 30 days (45 days if the request was served with the complaint), the request will be deemed admitted by that party. * when you respond: admit/deny * if you fail to deny, its admitted, unless its damages * if you deny something court determined you should have admitted, in good faith, you can request attorneys fees

Answer 36

(1) motion to compel A motion to compel can only be filed after the parties have conferred in good faith to try to resolve the dispute. * There must be a certification with the motion stating that the parties have conferred in good faith and have been unable to resolve their dispute. If the court grants the motion, it will enter an order compelling the discovery at issue. * The presumption is that the court will order the party who refused discovery to pay the reasonable attorney's fees and other costs that were expended in connection with the motion to compel. The presumption can be rebutted if: * The motion did not contain a certification that the parties conferred in good faith; * There are other reasons that would make the award of such fees unjust. If the motion is denied, there is a presumption that the person making the motion would have to pay the reasonable attorney’s fees of the person opposing the motion.

Answer 37

If the court grants the motion to compel and the discovery is still not produced, the party refusing to produce discovery can be held in contempt of court. if you fail to comply with discovery, nothing happends until you file motion to compel In addition to awarding attorney's fees, possible sanctions include: * Ordering that an issue be deemed decided in one party’s favor; * Precluding a party from entering evidence on a point; * striking a pleading and enter judgment against a party; or * Holding a party in contempt for violating an order to produce discovery.

Answer 38

Electronic evidence is discoverable to the same scope as other evidence, with some distinctions. May object to discovery due to the cost or burden of accessing electronically stored information * if this is the case, then the court MAY STILL order discovery but LIMIT it if it can be obtained from another more convenient, less expensive source or burden outweighs benefit Failure to take reasonable steps to preserve electronically stored information may have legal consequences. If it cannot be restored or replaced and there is prejudice to another party from loss of the information, the court may order measures “no greater than necessary to cure the prejudice" If the party acted with actual intent to deprive another party of the information, lost information can be presumed to be adverse to that party

Answer 39

Rule: A party seeking affirmative relief (generally the plaintiff) has an absolute right to dismiss the action or any claim without court order by serving and filing a notice of dismissal: * At any time before a hearing on a motion for summary judgment; or * If there is no hearing or if the motion was denied, at any time before submission of the case to a jury or to a judge. Exception: Cannot dismiss a case in which property has been seized by the court or is in court custody (in rem jurisdiction) Voluntary dismissal is without prejudice to bringing the claim again unless the plaintiff has voluntarily dismissed the same claim before in ANY COURT (would be with prejudice, its an adjudication on the merits) If there are counterclaims or cross-claims: * A plaintiff’s voluntary dismissal does not get rid of any counterclaims or cross-claims. * To dismiss the entire action, the plaintiff must file a motion with the court and if the court grants the dismissal, it would be without prejudice with respect to those counterclaims or cross-claims. Joint stipulation of dismissal: The parties may jointly file a stipulation that dismisses the entire action. * Most commonly occurs when the parties have reached a settlement of the action. * Such dismissal would be without prejudice unless the stipulation states differently.

Answer 40

One party that is asserting a claim does not want to dismiss, but the other party does (i.e., allows an opposing party (generally a defendant) to force dismissal of a claim or action) * Technically available for any reason, including the failure to establish a claim * Other rules are more likely to be used for that purpose (e.g., motion to dismiss) Most often used when the other party has failed to comply with a rule or court order If granted, the judgment is with prejudice and on the merits.

Answer 41

When it appears that there has been no activity in an action for 10 months (and there is no stay order in the action), the court, the clerk, or any interested party may serve a notice on all other parties. * any record activity count, notice of vacation A 60-day clock begins to tick: * If no activity takes place during the 60-day period, or if no stay order is issued, the court, on its own initiative or on the motion of any interested party, must dismiss the case for failure to prosecute unless the other party shows good cause why the action should not be dismissed. * Good cause must be shown within 5 days of a hearing on the motion to involuntarily dismiss based on a failure to prosecute. A dismissal based on a failure to prosecute is deemed to be **without prejudice.

Answer 42

*default* When a party from whom affirmative relief is sought fails to respond to a pleading, the party is said to be in “default.” * A defective response is not grounds for default. If the defendant has done nothing, the clerk of the court will enter the default upon the opposing party’s request (or default is issued sua sponte by the court). If the defendant has appeared but has not substantively responded to relevant pleadings (e.g., filed notice of appearance but has not answered or moved to dismiss), then the judge will enter the default. * If the defendant has appeared, notice must be given to the defendant before default is entered. *default judgment* A default itself is not a judgment; the judgment is separate. *removing default before judgment or gettin relief from a default judgment* Both default and a default judgment may be set aside by the court. It is easier to set aside a default than to set aside a default judgment

Answer 43

federal summary judgment standard Asks whether we need to have a trial at all Summary judgment is appropriate when “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” *material fact* A fact is material if the relevant legal standard makes it important for resolving a claim. *genuine dispute* A genuine dispute exists when there is admissible evidence supporting both sides of the argument. Do not weigh the evidence; determine whether there is some evidence on the non- moving party’s side of the dispute (1) summary judgment evidence Consists of discovery materials, affidavits, documents, etc. Cannot simply rely on an allegation in the pleadings (2) timing Either party can move for summary judgment. Either party may move for summary judgment 20 days after the commencement of the action or at any point after the opposing party moves for summary judgment. The movant must serve the motion, with copies of the summary judgment evidence, “at least 40 days prior to the hearing on the motion.” The opposing party must serve copies of any summary judgment evidence opposing the motion on the movant at least 20 days prior to the hearing on the motion. (3) bad faith affidavits If an affidavit is submitted in bad faith, the party submitting the affidavit: * Can be held in contempt of court; and * Can be required to pay the attorney’s fees associated with the delay caused by the bad-faith submission, in addition to other sanctions. (4) partial summary judgment The judge may grant partial summary judgment as to certain issues or partial claims.

Answer 44

The plaintiff or the defendant can offer to settle the case and have judgment entered for a certain amount of money. (1) requirement The offer must be in writing and identify that it is being made pursuant to the Florida law authorizing offers and demands for judgment. The offer has to contain specific information, including: 1. The name of the party making the proposal; 2. That the proposal resolves all damages that would otherwise be awarded in a final judgment in the action; 3. Any conditions that are part of the offer; 4. The monetary amount of the proposal and specifically any non-monetary terms; 5. Any punitive damages that are part of the offer; and 6. Whether the amount proposed includes payment of attorney’s fees. There must also be a certificate of service. (2) timing of service The timing varies depending on whether the offer comes from a plaintiff or a defendant. * The plaintiff may serve an offer on a defendant at any time after 90 days after the defendant has been served with process. * The defendant may serve an offer on the plaintiff at any time after 90 days after the action has been commenced (i.e., when the complaint is filed). * Neither party can serve an offer later than 45 days (cant be less than 45 days left) before the trial date. The party to whom an offer is sent has 30 days to reply; the offer is deemed rejected unless accepted in writing. (3) importance of offer Rejected offers impact attorney’s fees and costs in the litigation If the defendant makes an offer for judgment that the plaintiff rejects: * The defendant is entitled to recover its reasonable costs and attorney’s fees incurred **from the date of the service of the offer**, so long as: * The defendant is judged not liable; or * The plaintiff’s judgment is at least 25% less than the offer. If the plaintiff makes an offer that the defendant rejects and the plaintiff recovers at least 25% greater than the offer, then the plaintiff is entitled to receive its costs and attorney’s fees incurred after the date the offer was served. The offer must be made in good faith, or the court has the discretion to disallow the attorney’s fee award. Add on attorneys's fees to the damages (if you get a question you have to add it, the total will be higher) ## Footnote Oral communications cannot constitute an acceptance, rejection, or counteroffer to an offer and demand for judgment.

Answer 45

Mediation: A third party meets with the disputants to attempt to facilitate a settlement or resolution does not affect the timing of interrogatories, parties can file interrogatory requests to each other before mediation **VVVVVVVVVVVVV** Arbitration: Disputants agree to allow an arbitrator to hear and decide the issue; can be binding or non-binding In a Florida civil case, the trial judge has broad discretion to order nonbinding arbitration upon a finding that the arbitration could benefit the litigants or the court. Judges do not have the authority to make this order if the case involves: * Bond estreatures * Habeas corpus and other extraordinary writs * Bond validation * Contempt proceedings or * Other matters excluded from arbitration by local administrative order. in voluntary arbitration, the parties agree to be bound by the arbitrator's decision and the court is required to accept it. * However, the decision may be appealed within 30 days in the circuit court. * The appeal is limited to a review of the record and de novo reviews are not permitted The record may be reviewed for: * failure of the arbitrator to comply with appropriate procedural and evidentiary rules * partiality or misconduct by the arbitrator that prejudiced any party's rights and * results contrary to the U.S. and State of Florida constitutions. **VVVVVVVVVVVVV** Voluntary Trial Resolution: Like arbitration, except the decision maker must be a member of the Florida bar

Answer 46

The Rules provide judges with discretion, on their own or at a party’s request, to hold either a case-management conference or a pre-trial conference. not required, Used to make litigation more efficient can be court ordered or requested by parties Any orders concerning the pre-trial conference must be served on the parties at least 20 days before the hearing If service is by mail, five days are added to this period. usually you hear pending motions and typically where you will do civil motions in-limine, and to schedule trial (30 day period after case management to set trial) * A motion in limine is a pretrial motion that is used to exclude improper or irrelevant evidence from trial * After a motion in limine is filed, the court reviews the evidence and makes a ruling on the motion outside of the jury's presence * While the order on a motion in limine generally controls at trial, it is not a final order and may be reconsidered during trial *complex litigation* At any point after ALL THE DEFENDANTS have entered an appearance in the action or been defaulted, any party can move the court to classify the action as complex. Complex: Likely to involve complicated legal or case management issues that will require extensive judicial management Some of the factors considered: * The likely number of pre-trial motions; * The number of parties; * Whether the case is part of similar litigation pending elsewhere; * Amount of evidence; and * The length and complexity of the trial. *initial case management conference* Within 60 days of the date the court designates the matter as “complex,” the court must hold the initial case management conference. At least 20 days before the initial case management conference, the attorneys for the parties must meet and confer. No later than 14 days before the initial case management conference, the parties must submit a written report to the judge.

Answer 47

* required for all cases pending trial * 20 days notice * you 1. try to settle case 2. simplify the issued by amending pleadings 3. get parties to agree to admit evidence 4. anything left over from case management conferences

Answer 48

* you file lawsuit, you will not get trial date until you file notice for trial * means pleadings are closed * but can only serve this at least 20 days after pleadings have been closed * instant you file it goes from discovery phase to trial (on docket) * goes on fast track * usually you wait until after discovery is completed

Answer 49

Bench trial: The judge decides questions of law and also decides questions of fact. Jury trial: The judge will decide questions of law and the jury will decide questions of fact.

Answer 50

**not** automatic in civil cases The right to a jury trial must come from either the Florida Constitution or a statute. waived **unless** you request it in writing via pleading **or** can request in separate doc within 10 days after the service of the last pleading directed to the issue on which one seeks a jury. (1) Selection *venire* Clerk of the court issues summonses to potential jurors Group of potential jurors pulled from the community is called a venire Constitutionally required to call a random cross-sampling of the community *voir dire* The next step is to pick members of the trial jury (or petit jury) in civil case juror size must BEGIN with at least 6 **except** in condemndation cases= 12 * if case continues and for some reason at the end theres less than 6 jurors (illness, no more alternates left) the parties could stipilate to a verdict from LESS THAN 6 JURORS * Most courts also empanel a few alternate jurors. * each party is entitled to one peremptory challenge when selecting alternate jurors * if the number of parties on opposite sides is unequal, opposing parties are entitled to same aggregate number of peremptory challenges * one p v two d = each d gets one, meaning total for defendants is 2, so p deserves 2 peremptory for an alternate juror Voir dire: The attorneys ask questions of the potential jurors to determine which of the potential jurors should serve on the jury. There are two ways to remove people from the pool of jurors: *1) challenge for cause* unlimited for-cause challenges Permitted if there is something about the person in the context of this case that makes them inappropriate to be a juror (e.g., related within the 3rd degree to a party, or an attorney in the case) Anything that would call into question a person’s ability to be a fair and unbiased juror is a potential basis for a challenge for cause. *2) peremptory challende* 3 per side pre-emptory challenges for any reason **except** race/gender/sex/national origin *3) during trial* Basic structure of trial: * After selecting a jury, the parties each give an opening statement. * Then, the plaintiff puts on her case-in-chief and then rests her case. * The defendant then puts on its case-in-chief and then rests. * Finally, the plaintiff typically gets a rebuttal. * The parties have closing arguments. * The judge will instruct the jury about what the law is, and then the jurors will deliberate. In Florida, jurors are allowed to ask questions of witnesses: * The jurors submit written questions to the judge; * The judge confers with the lawyers, giving them an opportunity to object; * If appropriate, the judge will ask the witness the question posed by the juror. *4) verdict* The jury’s determination after deliberation, UNANIMOUS A verdict is not the same thing as a judgment Two forms: 1. general verdict: The jury finds in general terms for one party or the other. 2. Special verdict: Requires the jury to answer specific questions and the judge will base the judgment on the answers. In any case in which there is a claim for punitive damages, the verdict must state the amount of punitive damages separately from any other form of damages. **VVVVVVVVVVVVVV** *ex-parte communication from jury* A court is required to notify all parties of any communication from the jury. All communications between the jury and the court, including court room personnel (e.g., court officers), must be on the record in open court or in writing. Although routine ex parte communications between courtroom personnel and jurors may occur off the record, this applies only to communications related to juror comfort or safety. No ex parte communications may be about: * any fact or opinion about a party or attorney * any fact or opinion about a procedural matter or * any fact or opinion relating to any legal issue or the lawsuit.

Answer 51

The first for the motion is when the other party has rested its case in chief The second opportunity is when all the evidence has been submitted. plaintiff has not made prima facia case against defendant Granted if a reasonable jury could not reach a verdict in favor of the non-moving party *outcome* Judge grants the motion: The jury is let go because there is nothing for the jury to do, dismissed Judge denies the motion: The trial proceeds, the jury deliberates and produces a verdict; court reserves legal questions raised by the motion for later determination *setting aside a verdict* The court can correct a verdict so long as the party asking for a correction has made a directed verdict motion appropriately before the jury issued a verdict. AND Timing: A party must make a motion to set aside a verdict within 15 days of the verdict. **NOTE**: a party who has timely moved for a directed verdict may serve a motion for judgment even when the jury does not return a verdict (like if there was a mistrial)

Answer 52

Follows the same basic format as a jury trial The equivalent of the directed verdict motion in a bench trial is motion for involuntary dismissal.

Answer 53

A party seeking attorney’s fees and costs must file its motion requesting the fees/costs no later than 30 days after entry of judgment (or the filing of a notice of voluntary dismissal).

Answer 54

Permitted when the judge might not be able to be fair and impartial A judge can be disqualified from hearing a case if the judge is related to one of the attorneys in the case. However, this disqualification can be waived by stipulation of the parties. The motion must be filed within 20 days of the party learning about the reason for the purported need to disqualify.

Answer 55

A judge's recusal (i.e., self-removal from a proceeding) is required when a party to the proceeding is related to the judge within the third degree by either 1. consanguinity (i.e., blood ties) **or** 2. affinity (i.e., marriage) relationships within the third degree of affinity are the judge's spouse, parent-in-law, daughter/son-in-law, brother/sister-in-law, grandparent-in-law, or grandchild-in-law. **BUT** the parties may waive this disqualificaiton by stipulation and loow the judge to hear the case despite the stipulation

Answer 56

Can occur only with the consent of all the parties Each side gets no more than 3 hours to present their entire case.

Answer 57

*motion for a new trial* (1) timing Must be made not more than 15 days after the jury verdict Same period as the time for filing a motion to set aside the verdict (2) form May be made at the same time as a motion to set aside the verdict (i.e., as an alternative) (3) sua sponte The court may order a new trial or rehearing on its own initiative, without a motion from the parties. The court may do so within 15 days of entry of judgment or before it has ruled on a motion to set aside the verdict. (4) outcome Begins an entirely new trial

Answer 58

Both these issues go to the amount of damages. Remittitur: The amount of damages awarded should be reduced Additur: The amount of damages awarded should be increased Both are allowed in Florida state courts. * In federal court, additur has been deemed unconstitutional. Standard: Judge determines that the verdict is contrary to the manifest weight of the evidence A party adversely affected by the order granting remittitur or additur may reject the award and elect a new trial on the issue of damages instead. It is **improper** to seek remittitur: * to advance an argument for which the jury improperly apportioned damages between parties having comparative degrees of fault or * because a trial judge simply does not agree with the amount of damages awarded by the jury.

Answer 59

(1) relief from clerical error At any time, a party can correct a clerical error in the judgment (not a substantive error). (2) grounds for relief from judgment Some grounds by which a party can seek to obtain relief from the judgment: * When there has been some mistake (other than a clerical mistake); * When there is newly discovered evidence that with the exercise of due diligence could not have been discovered in time to move for a new trial; * When there has been fraud, misrepresentation, or other misconduct by an opposing party; * When the judgment is void for some reason; and * When the judgment has been satisfied or discharged (3) timing A motion for relief for judgment must be filed within a “reasonable time.” Exception: For mistake, newly discovered evidence, or fraud/misconduct, there is a 1 yr window from the date of the judgment. * but fraud ON THE COURT (egregious conduct by judicial officiers, like fabrication of evidence by atty, bribery of judge or juror) can be challenged AT ANY TIME

Answer 60

Appeals from circuit court generally go to one of the six district courts of appeal. In Florida, district courts of appeal are required to review nonfinal orders that concern venue Exception: Some issues are appealed directly to the Florida Supreme Court. Final judgment rule: Can generally only appeal judgments that resolve all issues as to all parties (i.e., final judgments) “Appeal” means a party has a right to have a higher court review the court’s final decision. Writ of certiorari: A party’s request for discretionary review, including of a non-final order * Appellate court has discretion to review non-final orders, even when there is no right to appeal * The party seeking review by certiorari must show “a clear departure from the essential requirements of law that has or will result in irreperable harm.” Exceptions to the final-judgment rule (i.e., cases in which a party has the right of appeal even though the order or decision at issue is non-final) include: * Orders that deal with injunction (granting, denying, modifying, etc.); * Decisions concerning venue; * Matters dealing with personal jurisdiction; * Class certifications; * Motions granting a new trial; and * Motions granting relief from judgment Notice of Appeal Must be filed within 30 days of the date of the judgment or the order to be reviewed on appeal. The notice is filed in the trial court. This 30-day period is tolled during the time that any post-trial motions are pending * If there are post-trial motions, the party has 30 days from a decision on any such motion.

Answer 61

Having a judgment is not enough to get the money; a judgment simply gives the plaintiff a right to get the money if the defendant does not pay voluntarily. An appeal does not prevent a plaintiff from collecting on the judgment. To stay collection of the judgment, the defendant must file a bond to cover the entire amount of the judgment, plus twice the rate of interest payable should the appeal be dismissed or denied. * Once bond is filed, the plaintiff cannot execute on the judgment during the appeal. Exception: Awards of punitive damages In a class action suit in which punitive damages are awarded, the trial court must stay execution of the punitive damages award pending appeal. For other punitive damages awards, the bond required is the lesser of either: * The amount of punitive damages awarded, plus twice the statutory rate of interest; or * 10% of the defendant’s net worth (1) methods of execution Payment of money: * Writ of garnishment: Can take some of the defendant’s wages * Writ of attachment: Debt attaches as security interest in defendant’s property Recovery of property: * Writ of possession: To recover real property * Writ of replevin: To recover personal property Special Rules Regarding Real Property: * Person enforcing the judgment (the judgment-creditor) must record a certified copy of the judgment in the county in which the property is located. * But note that one may not place a judgment lien on homestead property. (2) discovery in aid of execution A party can use the various discovery techniques in aid of execution, even after judgment, to identify and locate the defendant’s assets.

Answer 62

The presumption is that the public is entitled to access to how its court systems work, but exceptions include: * Internal documents (e.g., draft opinions) * Documents made confidential by a statute, the constitution, or a protective order

Answer 63

Also called small claims proceedings Apply to actions at law seeking not more than $8000 Filed in the county courts Instead of a complaint, plaintiff files a statement of the claim to initiate the action * Informs the defendant of the basis for the claim and the amount of damages sought * A notice to appear is served with the statement of claim A defendant is generally not required to submit any motions or defensive pleadings, such as an answer. If a party is not represented by an attorney, there is no discovery allowed (unless the unrepresented party engages in discovery, in which case it is allowed). The court is required to hold a pre-trial conference with the parties no later than 50 days after the commencement of the action. The trial must be held no more than 60 days after the pre-trial conference, so long as the parties get at least 10 days’ notice of the trial. The trial is to be conducted informally * Rules of evidence apply, but are construed liberally.

Answer 64

Similar to malpractice claims, but the claimant must provide written notice 75 days before filing a claim Within 30 days after receiving the defendant’s response, the parties must meet for mediation If the mediation is unsuccessful, the claimant has 60 days to file suit, or the remainder of the actual statute of limitations, whichever is greater.

Answer 65

The U.S. Supreme Court has held that civil commitment is consistent with constitutional due process principles so long as there are sufficient procedural requirements to make sure that such holding is appropriate. Procedures: * Must be detailed notice to the person of the grounds for the commitment; * An assessment by an appropriate medical/interdisciplinary team; * The state bears the burden at a hearing of showing probable cause that the person remains dangerous; * The person is entitled to counsel; and * Either the person or the state attorney may request a jury. If the person is involuntarily committed, he must be examined at least one time per year to reassess his condition. The person may petition for release.

Answer 66

**damages** A very common remedy—monetary relief Can be either compensatory or punitive (1) Compensatory damages: Money paid to put the plaintiff back in the position she would have been in but for the defendant’s wrong. (2) Punitive damages: Meant to punish the defendant and deter him from engaging in this type of behavior. * A plaintiff is not allowed to plead for punitive damages without amending the complaint and submitting evidence that would establish a prima facie case. * A plaintiff need not plead a specific value of compensatory damages unless necessary to assert jurisdiction or seeking “special damages” (3) Special” damages (e.g., lost profits) must be pled with specificity in the complaint. **VVVVVVVVVVVVVVVVVVVV** **injunctions** (1) *in general* * An equitable remedy; not decided by a jury * An order of a court to a party to do something or not do something * An in personam remedy: So long as the court has jurisdiction and complies with the procedural rules, the court can enjoin the party from acting (or compel it to act) anywhere in the world (2) *temporary injunction* * An extraordinary remedy because it is awarded before determining that a party will succeed at a trial on the merits. * Can be obtained two ways: 1) ex parte: In special circumstances, you can get an injunction through an ex parte proceeding (only one party is present, NO NOTICE); requires: * An affidavit or verified complaint that shows specific facts that the movant will suffer irreperable injury before the adverse party can be heard; and * The movant’s lawyer certifies in writing that efforts have been made to give notice and why further efforts should not be required. 2) Adversary proceeding: After notice and an adversary proceeding in which both parties are present Requirements: A movant must establish four things to obtain the temporary injunction: 1. It is likely to prevail on the merits at trial; 2. Without the injunction, the party will be likely to suffer irreparable harm (harm that money cannot compensate); 3. The balance of harms weighs in favor of granting an injunction; and 4. Granting the injunction would serve the public interest Any party granted a temporary injunction is required to file a bond in an amount determined by the court. * No bond is required under Florida law for an injunction that deals with physical injury or abuse of a natural person. * The court may dispense with the requirement for a bond in cases in which the party obtaining the injunction is a government entity. *(3) Permanent injunction* Permanent injunctions are issued after a hearing or trial has been concluded. The party seeking the injunction must show: * irreparable harm * a clear legal right * an inadequate remedy at law and * consideration of the public interest. *(4) declaratory judgment* * A declaratory judgment is not a coercive remedy because it is not directly enforced; it only answers a question. * Must be an actual controversy between antagonistic parties such that the resolution of the particular issue on which the declaration is sought is required (5) Preliminary injunction (MUST GIVE NOTICE) * state reasons issued * reasonably describe acts restrained or required * specify temrs * this applies where party attempts to convert TRO (NOT IMMEDIATELY APPELABLE) into preliminary injunction (IMMEDIATELY APPEALABLE), MUST GIVE NOTICE!!! **VVVVVVVVVVVVVVVVVV** **Garnishment and attachment** Garnishment: A process by which a person with a judgment can make another person who owes money to the Defendant, pay the plaintiff instead Attachment and distress are means by which one is able to seize property. * Attachment may be used for any debt. * Distress is limited to claims involving non-payment of rent in non-residential properties.

Answer 67

the Florida Constitution provides that the supreme court is required, when requested by the attorney general, to render an advisory opinion of the justices, addressing issues as provided by general law

Answer 68

The settlement of an estate falls within the exclusive jurisdiction of the circuit courts—regardless of the amount in controversy.

Answer 69

A writ of mandamus compels a public officer to perform a ministerial duty. The complaint for the writ must show a violation of a clear legal right and a corresponding breach of an indisputable legal duty.

fl civil procedure Flashcards

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