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Flashcards in FL Civil Procedure Deck (21)
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1

Personal jurisdiction over a nonresident defendant based on the commission of a tortious act outside of Florida that causes an injury inside Florida is permitted under Florida's long arm statute (Select all that apply):

A If the nonresident defendant engages in solicitation or service activities in Florida

B If the nonresident defendant's products are used in Florida in the ordinary course of business

C If the nonresident defendant engages in interstate commerce

D Regardless of any additional activity the nonresident defendant may conduct in Florida

A & B.

Florida's long arm statute authorizes personal jurisdiction over a nonresident defendant who commits a tortious act out of state that produces an injury within Florida. However, as a condition, the Florida long arm statute requires that the defendant engage in solicitation or service activities in Florida or that the nonresident defendant's products be used in Florida in the ordinary course of business. The fact that the defendant may engage in interstate commerce is insufficient; the activity must have a connection with Florida, as explained.

2

In Florida state court, which of the following nonfinal orders may be appealed as of right? (Select all that apply)

A An order determining personal jurisdiction

B An order determining whether venue is proper

C An order granting or denying a motion for summary judgment

D An order granting or denying an injunction

A, B, & D.

Florida state practice specifically authorizes the appeal of nonfinal orders that determine whether venue or personal jurisdiction is proper, and nonfinal orders relating to the the granting or denial of an injunction. (Note that there are other nonfinal orders that may be appealed as of right; this list is not exclusive.) An order relating to the denial or granting of a summary judgment may not be appealed as of right; such an appeal must proceed by means of certiorari.

3

During a deposition, an attorney may instruct his client not to answer a question (Select all that apply):

A When necessary to preserve a privilege.

B To enforce a limitation on evidence as directed by the court.

C When the client is being asked to admit liability.

D To aid the presentation of a motion to terminate or limit the examination.

A, B, & D.

A party may instruct a deponent not to answer a deposition question only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion to terminate or limit the examination. The fact that the client/deponent is being asked to admit liability is not grounds for refusal.

4

A party may use the deposition of his adversary:

A For any purpose and without any limitation.

B For any purpose if the adversary is unable to testify due to death, illiness, imprisonment, etc.

C For any purpose, subject to the rules of evidence and any evidentiary objections made, except for those objections that were waived during the deposition.

D For any purpose if exceptional circumstances exist.

C For any purpose, subject to the rules of evidence and any evidentiary objections made, except for those objections that were waived during the deposition.

At trial, a deposition is subject to the rules of evidence, and evidentiary objections may be made, except for those that are waived by not being raised at the deposition. Furthermore, the deposition may be used affirmatively when the deponent was an adverse party or an officer, director, or managing agent of an adverse party, or a person designated by the adverse party/organization to be deposed. There is no requirement that the adverse party be unavailable to testify. (That is a requirement for using the deposition of a nonparty.) No exceptional circumstances need exist; that is more of a catch-all basis for using a deposition.

5

When both the plaintiff and the defendant move for summary judgment on a particular issue, the court:

A Must grant one of the motions because, by necessity, there cannot be a genuine issue of material fact for trial on that particular issue.

B Must deny both motions because, by necessity, there must be a genuine issue of material fact for trial on that particular issue.

C May grant one of the motions on the issue if that party shows there is no genuine issue of material fact for trial on that particular issue.

D May grant both motions on the issue if both parties show there is no genuine issue of material fact for trial on that particular issue.

C May grant one of the motions on the issue if that party shows there is no genuine issue of material fact for trial on that particular issue.

The fact that both parties may move for summary judgment on an issue does not require the court to grant one motion or deny both motions. Rather, if the court finds that one of the parties met the burden for summary judgment--that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law--it may grant the motion. If, after considering both sides, the court finds there is an issue for trial (in other words, that neither side showed that there is no issue for trial), it can deny both motions. Granting both motions on the same issue is logically impossible.

6

In Florida, in a transitory action against a resident of Florida, venue is proper in the county in which (Select all that apply):

A Any defendant resides at the time the action is commenced.

B The defendant resides, if all named defendants reside in the same county.

C Any cause of action accrued.

D The property that is the subject of the litigation is located.

A, C, & D.

For a transitory action, if the defendant is a resident of Florida, venue exists only in the county in which any defendant resides at the time the action is commenced, any cause of action accrued, or the property in litigation is located. There is no requirement that the defendants reside in the same county. (The federal venue statute allows venue to be placed in a judicial district based on the residence of a defendant, but all the defendants must reside in the same state.)

7

Which of the following is/are requirements of substitute (or abode) service in Florida (Select all that apply):

A The court must authorize such service by order for good cause shown.

B The person served in place of the named defendant must be older than 15 years and reside with the defendant at the defendant's usual place of abode.

C The person being served in place of the named defendant must be informed of the contents of the papers being served.

D The person being served in place of the named defendant may not be a co-defendant in the same suit.

B & C.

In Florida, an individual may be served by leaving a copy of the summons and complaint at the individual's usual place of abode with any person residing therein who is age 15 years or older. The person served in place of the individual must be informed of the contents of the papers being served. A court order authorizing such service is not required, and the person being served may be a co-defendant.

8

A claim for relief must contain (Select all that apply):

A A statement of the ground for subject matter jurisdiction, and, if suing a nonresident, the grounds for personal jurisdiction.

B A short and plain statement of the ultimate facts showing that the pleader is entitled to relief.

C A demand for judgment.

D The signature of the party or party's attorney.

A, B, C, & D.

Each claim for relief must contain (i) a short, plain statement of the grounds for jurisdiction, (ii) if the defending party is a nonresident, the grounds for personal jurisdiction; (iii) a short, plain statement of the ultimate facts showing that the pleader is entitled to relief, and (iv) a demand for judgment. As with every pleading, the claim for relief must be signed by the attorney, or, if unrepresented, by the party.

9

In Florida state courts, a claim for punitive damages must be pleaded in:

A The original complaint without limitation

B The original complaint, but no specific dollar amount may be stated

C An amended complaint, which is allowed as of right if the amendment is filed within 20 days of service of process

D An amended complaint after the judge finds, on motion, that there is a reasonable basis for recovery of punitive damages

D An amended complaint after the judge finds, on motion, that there is a reasonable basis for recovery of punitive damages

In Florida state courts, a claim for punitive damages may not be pleaded in the original complaint. Rather, to assert a claim for punitive damages, the complaint must first, on motion, make a reasonable showing by evidence in the record or proffered by the claimant that would provide a reasonable basis for recovery of punitive damages. If the trial court finds the claim for punitive damages is reasonably supported, the claimant may then amend the complaint to assert a claim for punitive damages. The motion must be served on all parties at least 20 days before the hearing.

10

In Florida, a compulsory counterclaim need not be asserted in the current action if (Select all that apply):

A The counterclaim requires the presence of third parties over whom the court cannot acquire jurisdiction.

B The counterclaim is the subject matter of another pending action when the present action was commenced.

C The counterclaim exceeds the jurisdiction of the court.

D The counterclaim requires the presence of third parties who are not already parties to the action.

A & B.

In Florida, two grounds for not filing a compulsory counterclaim in the current action is when the counterclaim requires the presence of third parties over whom the court cannot acquire jurisdiction and when the counterclaim is the subject of another pending action when the present action was commenced. The fact that the counterclaim exceeds the jurisdiction of the court is not a ground for not filing the compulsory counterclaim. Rather, the counterclaim should be filed, and then the counterclaiming party should move for transfer to a court with proper subject matter jurisdiction. Also, the mere fact that the compulsory counterclaim requires the presence of third parties who are not already parties does not prevent the filing of the counterclaim. Rather, additional parties may be added (and proper service will be required for the newly added parties).

11

In Florida, as a matter of right, a party has a right to amend his pleading once (Select all that apply):

A Before a responsive pleading is served.

B The action has been placed on the trial calendar.

C Within 20 days of service of pleading, if no responsive pleading is required and the action has not been placed on the trial calendar.

D Before a motion to dismiss has been filed.

A & C.

As a matter of course, a pleading may be amended once before a responsive pleading is served or, if no responsive pleading is required and the action has not been placed on the trial calendar, within 20 days of service of the pleading. A motion is not a pleading. Thus, the responding party's filing of a motion to dismiss or for summary judgment before answering does not preclude the pleader's right to amend.

12

Which of the following are true with regard to discovery in Florida state courts (Select all that apply):

A All nonprivileged matter that is relevant to the subject matter of the pending action may be discovered.

B The matter must be admissible in court to be discovered.

C The work product prepared in the anticipation of litigation is never discoverable.

D Electronically stored information need not be disclosed if the burden of disclosing the information outweighs the benefits.

A & D.

The true statements are "All nonprivileged matter that is relevant to the subject matter of the pending action may be discovered" and "electronically stored information need not be disclosed if the burden of disclosing the information outweighs the benefits." To be discoverable, the matter need not be admissible in court. Material that is not itself admissible, but that may lead to admissible material, may be be discovered. Finally, work product of an attorney that was prepared in anticipation of litigation or for trial may be discovered upon a showing by the party seeking discovery of: (i) substantial need for his case preparation; and (ii) inability without undue hardship to obtain the substantial equivalent by other means.

13

In Florida state court, a nonparty witness who resides in Florida may be compelled by subpoena to attend a deposition in the county in which (Select all that apply):

A He resides.
B He transacts business in person.
C He is employed.
D The court sets as a convenient place by order.

A, B, C, & D.

When the party to be deposed is a resident of Florida, he may, by subpoena, be compelled to attend a deposition in the county in which he resides, is employed, or transacts business in person, or in another convenient county in which the court orders.

14

Which of the following is/are true with regard to the use of a default or dismissal as a discovery sanction (Select all that apply):

A The failure to disclose must be willful or deliberate.

B The failure to respond may be the result of gross negligence.

C A default or dismissal may not be ordered when the refusal is to submit to a medical exam.

D The court must make a written finding as to the non-disclosing party's conduct.

A & D.

Dismissal or default may not be used as a discovery sanction unless the court makes an express written finding of willful or deliberate refusal to obey a discovery order.

15

The basic requirement for impleader is that:

A The impleaded party may be directly liable to the plaintiff.

B The impleaded party may be liable to the defendant for all or part of the plaintiff's claim.

C The impleaded party may be directly liable to the plaintiff or liable to the defendant for all or part of the plaintiff's claim.

D The impleaded party has an interest in the subject matter of the lawsuit that could be adversely affected by the lawsuit.

B The impleaded party may be liable to the defendant for all or part of the plaintiff's claim.

Impleader is a device a defendant may use to bring in a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiff's claim against the defendant. For impleader to be proper, the third-party defendant must be potentially liable to the defendant, not directly liable to the plaintiff. Having an interest in the subject matter of the lawsuit that could be adversely affected by the lawsuit is part of the test for compulsory joinder (necessary and indispensable parties).

16

Affidavits made in support of or in response to a motion for summary judgment must (Select all that apply):

A Be based on personal knowledge

B Set forth facts as would be admissible in evidence.

C Be made in good faith.

D Show that the affiant is competent to testify.

A, B, C, & D.

Affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show that the affiant is competent to testify. Affidavits also must be made in good faith. If an affidavit is not made in good faith, the court may sanction the party who submitted the affidavit.

17

If there has been no activity in a case in 10 months, and no order or stipulation staying the action has been entered, the case may be dismissed for failure to prosecute:

A Immediately and without further notice to the parties.

B Immediately, but notice of the dismissal must be sent to the parties.

C 60 days after notice to all parties is served and no record activity has occurred.

D 60 days after notice to all parties; to avoid dismissal, a party must show good cause for the 10-month delay.

C 60 days after notice to all parties is served and no record activity has occurred.

If it appears on the fact of the record that no activity (by way of filing pleadings, order of the court, or otherwise) has occurred in a case for 10 months, and no order or stipulation staying the action has been issued or approved by the court, any interested person or the court may serve notice to all parties that no record activity has occurred. Then, if no record activity occurs within 60 days after the notice is served, and no stay was issued or approved prior to the expiration of the 60-day period, the action will be dismissed for lack of prosecution unless a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. Such a dismissal is without prejudice.

18

In Florida state courts, a default judgment may be entered by:

A The judge.

B The clerk of the court.

C The clerk of the court, but only if the judgment is for a sum certain.

D The judge, but only if the judgment is not for a sum certain.

A The judge.

In Florida state court, a judgment upon default is entered by the judge in all cases.

19

In Florida state courts, if the defendant makes an offer of judgment, or the plaintiff makes a demand for verdict, and the ultimate verdict is 25% less or more than the offer or demand, the offering or demanding party is entitled to:

A Reasonable costs and attorneys' fees incurred for the entire case.

B Reasonable costs and attorneys' fees incurred from the date of the offer or demand.

C Reasonable costs and attorneys' fees incurred after the filing of the complaint.

D Reasonable costs and attorneys' fees incurred from the date of service of process.

B Reasonable costs and attorneys' fees incurred from the date of the offer or demand.

If the plaintiff does not accept the defendant's offer of judgment within 30 days of it being made, and the final judgment is one of no liability or is at least 25% less than the offer of judgment, the defendant is entitled to reasonable costs and attorneys' fees incurred from the date of filing the offer. Likewise, if the defendant does not accept the plaintiff's demand for judgment within 30 days, and the final judgment is at least 25% greater than the demand for judgment, the plaintiff is entitled to reasonable costs and attorneys' fees incurred from the date of the filing of the demand.

20

Which of the following grounds for relief from a judgment must be made within a reasonable time not to exceed one year (Select all that apply):

A Relief based on mistake, inadvertence, surprise, or excusable neglect.

B Relief based on the judgment being satisfied, released, or discharged.

C Relief based on the fact that a prior judgment on which the second judgment was based has been reversed or otherwise vacated, or it is no longer equitable to give the judgment prospective effect.

D Relief based on newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial.

A & D.

A motion for relief from a judgment or order on the following grounds must be filed within a reasonable time not to exceed one year: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence that, by due diligence, could not have been discovered in time to move for a new trial; or (iii) fraud. A motion for relief from a judgment or order on the following grounds must be made within a reasonable time, with no outer cap: (i) the judgment is void; (ii) the judgment has been satisfied, released, or discharged, or a prior judgment on which it was based has been reversed or otherwise vacated, or it is no longer equitable to give the judgment prospective effect; or (iii) a final divorce judgment was based on a fraudulent financial affidavit.

21

In a Florida state court, a civil case has ______ jurors, plus any alternates, except in condemnation actions, in which _______ are required.

A 6; 12
B 12: 15
C 6; 8
D 8; 12

A 6; 12

In a civil case in Florida state courts, the jury is composed of six jurors, plus alternates, except in condemnation actions, in which 12 jurors are required.