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Flashcards in Florida Civil Procedure -- Key Concepts (Me) Deck (80)
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1

What is required to assert jurisdiction over a person or res in Florida?

  1. Meet federal constitutional standards with regard to the existence of minimum contacts; AND
    1. Contacts between FL and the D such that D can anticipate being haled into a Florida Court. 
    2. Federal Constitutional Analysis:  My Parents Frequently Forgot to Read Children's Stories.  ((a) Minimum Contacts =  Purposeful Availment + Foreseeability.  (b) Fairness = Relatedness + Convenience + State's Interest.)
  2. Be authorized by state law (e.g., the long arm statute).

2

What is the difference between General and Specific Jurisdiction?

  1. General Jurisdiction = allows a court to hear any cause of action involving D.
    1. more contacts required for exercise of general jurisdiction.  Is D "at home" in the state?  Domiciled?
  2. Specific Jurisdiction = allows the court to hear only causes of action related to the D's contacts with the state. 
    1. a single contact may suffic as under the long arm statute.

These two types of jurisdictions seem to go to the Relatedness factor for evaluating the constitutionality of personal jurisdiction.

Remember to discuss the relation of the contact to the claim. 

3

What type of jurisdiction can be asserted over a thing or res?

In Rem Jurisdiction.

The thing itself (e.g., land) is located within the court's jurisdiction.

 

4

What are the 7 ways personal jurisdiction over D in Florida may be asserted?  (I.e., in practice, what actually establishes the minimum contacts?)

  1. Presence of the D witin state when served.
  2. General appearnce without timely objection
  3. Consent
  4. Domicile of D
  5. Incorporation of corporation in FL
  6. Principal Place of Business in FL
  7. Long Arm Statute (Florida)

5

What type of jurisdiction can be asserted over a person's interest in a thing or res?

Quasi In Rem Jurisdiction

Affects the interest of specified persons in a thing.  Court must have physical power over property itself, i.e., attachment, and the constitutional minimum contacts standard must be met. 

The thing itself is located within the court's jurisdiction and minimum contacts with Florida exist.

 

6

Service of Process in Florida

After the complaint is filed with the clerk of the court, clerk issues summons notifying D.  P must then use DD to serve the summons and a copy of the complain on D. 

A D must be served within 120 days of commencement unless good cause ro excusable neglect is shown.  (90 days under federal rules of civ pro.)

Service must be effected according to law and meet constitutional due process requirements of notice. 

7

Who can serve process in Florida?

  1. sheriff
  2. special process server ("elisor") appointed by sheriff
  3. a person 18 or over who is specifically appointed and is not interested in the outcome of the case.

#3 is method for federal civ pro service of process.

8

What is the process for acknowledging service?

Return of service must be signed by process server and filed with court (employees of sheriff's office may sign electronically).

An affidavit of service is required when not effected by a sheriff or deputy. 

Failure to do return of service doesn't affect validity of service.

Service on Sunday a nullity, unless D using Sunday as protection against being served.

9

May a D waiver formal service of process and received service by mail in Florida?

Yes.  May be waived upon request. 

 

If service is waived, D will have 60 days from date of request for waiver to respond to complaint. 

10

Who can receive service for a D (per Florida rules)?

  1. D
  2. any person 15 years of age or older residing at D's usual placed of abode (informing the person of its contents).
  3. spouse at any place in county (if action not between spouses and they reside together)
  4. delivery to agent authorized to receive process.
  5. individual in charge of D's active private mailbox or office (if that's the only address discoverable through public records for D)
  6. if D is a minor or incompetent, may be made upon legal guardian, if no legal guardian, then parent (and court order for possible guardian ad litem).
  7. sole proprietor -- own at place of business during regular business hours or person in charge of business if cant get owner after 2 tries.
  8. corporations -- pres, vp, next level executive officers, director, resident officer of business agent (in that order).  Also, agent designated by law (registered agent), any employee at corp's PPB or on any employee of registered agent. 
  9. partnership -- parenter, designated employee, or under cert. circum. to person in charge of partnership. 
  10. nonresident person or entity -- secretary of state of FL with notice by registered or certified mail to D outside florida, or personal service on D outside Florida by a public officer auth to make service by FL or by the state in which service is to be made. (Very similar for nonresident owners or operators in actions arising out of vehicle, watercraft, or aircraft  except copies?).
  11. Service by Publication in certain cases.

 

11

When can service by publication be used?

  • Service by publication always requires that diligent inquiry has been made into the name and whereabouts of any person who should be served.
  • when person service of process cannot be had in FL or outside, then use.
  • on any person, known or unknown, in the following in rem or quasi in rem type actions:
    • enforce lien, claim, quiet title or remove lien claim or cloud on real or personal prop in FL or any fund held or debt owing person on whom process can be served in FL
    • to partition real or personal prop in FL
    • for dissolution or annulment of marriage, adoption, temporary custody, or termination of parental rights
    • for construction of will, deed, contract, or written instrument
    • action in which writ of replevin, garnishment or attachment has been issued and executed in FL
    • probate or guardianship proceedings if personal service not required by fed or state statute or Constitution
    • reestablish lost instrument or record which should have situs within juris of court
    • determine parternity when in question and another man alleged to be biological father.
  • P must file affidavit re can't find with info
  • mail copy of published notice to D to address if can be found

12

Venue in Florida

  • Refers to geographic location of a court that may hear a case.  Can be conferred by agreement, but SMJ cannot and limits with retail installment contracts.  And a court can have SMJ without having appropriate venue.  Real estate -- must be brought in the county where the real estate is located.
  • Venue exists in a county where:
    • D (or in a multiple D action, any D) resides at the time the action is commenced;
    • where the cause of action arose; or
    • where property in litigation is located.
    • If there are multiple Ds residing in different counties, venue exists in the county of residence of any one of them.
  • [Compare:  Venue in civil action in federal courts is proper in:
    • a judicial district where any D resides, if all Ds reside in the same state;
    • a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
    • if no district anywhere in U.S. that satisfies the first 2 points, a district in which any D is subject to personal jurisdiction with respect to such action.  ]

13

How is residence determined for purposes of Venue in Florida for Nonresidents, Corporations, and Partners/Unions?

  • Corporations:  any county in which it has or usually keeps an office for transaction of customary business.  A foreign corp resides in any county in which it has an agent or other rep.
  • Partnerships/Unions:  resides in any county designated by secretary of state as the location of its principal office, or if not, in county of residence of any partner or member.
  • Nonresidents:  Nonresident D in a transitory action may be sued in any county.  

(transitory action: an action that may be brought in any venue where there is personal jurisdiction over the defendant.)

14

What is proper venue in a suit against the State, or Agency/Subdivision of State?

  • Venue generally proper only in county in which the state, agency, or subdivision maintains its principal headquarters.  "Home Venue Privilege"
  • Exceptions:
    • legislature has waived privilege by statute
    • unlawful invasion of constitutional right of P and it is directly threatned in county in which suit instituted (sword wielder exception)
    • governmental D is sued as joint tortfeasor
    • party petitions for order to gain access to public records and such records are confidential

15

When is a change in venue available?

  • fair trial impossible -- opposing party has undue influence over inhabitants, movant is odious to inhabitants or impossible to obtain qualified jury.
  • convenience of parties or witnesses
  • interests of justice

16

Can Improper Venue be waived?

Yes, if D doesn't raise it in his first response to the complaint.

17

Motion of Forum Non Conveniens

  • must be filed by D within 60 days of service of process
  • court may dismiss if finds another jurisdiction would be more convenient.
  • Court must determine
    • adequate alternative forum exists;
    • with a presumption against disturbing P's initial forum choice, all relevants factors of private interest still favor the alternative forum;
    • if private interests equivalent, public interest favors alternative forum; and
    • P can reinstate suit in alternative forum without undue inconvenience or prejudice. 
  • D waives a statute of limitations defense in a subsequently filed case.

18

Pleadings in Florida

  • There are 7 recognized pleadings
    • complaint
    • answer
    • reply
    • 3rd party complaint
    • answer to 3rd party complain
    • answer to counterclaim
    • answer to cross claim
  • Florida is a fact pleading jurisdiction -- ultimate facts, not evidence or conclusions, must be pleaded.

19

What is a motion?

An application to the court for an order.  Not a type of pleading.

20

Content requirements for pleadings, motions, orders, judgments and other papers

  1. name of court and file number of case
  2. names of parties
  3. name, current Florida Bar address, Bar identification number, telephone number and one primary email address of the attorney
  4. a designation of the pleading (is it a complain, answer, reply, etc?)
  5. numbered paragraphs, each limited to a single set of circumstances; AND
  6. each claim or defense in a separate count or defense.
  7. signature of attorney, if party has an attorney.  Attorney certifies that grounds to support pleading. 

21

What are possible Defense Motions?

  1. Motion for More Definite Statement -- D can't respond because pleading is vague or ambiguous (must be made before response)
  2. Motion to Strike -- pleading contains redundant or irrelevant matter or if pleading is a sham
  3. Motion for Judgment on the Pleadings -- motion tests for legal sufficiency of the claim or defense stated not the factual support (after pleadings but before trial)
  4. Defenses in Preanswer Motion --
    1. every defense must be asserted in a responsive pleading.  The following may be made in a preanswer motion to dismiss:
      1. lack of SMJ
      2. lack of personal jurisdiction
      3. improper venue
      4. insufficiency of process
      5. insufficiency of service of process
      6. failure to state a cause of action upon which relief may be granted
      7. failure to join an indispensible party

2 through 5 waived if not included in D's first response.

Same as 12(b) motions under federal rules.

22

What defenses are waived if not raised in the D's first response to the complaint?

  1. lack of personal jurisdiction
  2. improper venue
  3. insufficient process
  4. insufficient service of process

Lack of SMJ is not waived, and may even be raised on appeal.

23

When must D's answer be served?

Within 20 days after service of claim for relief.

But if D filed a pre-answer motion to dismiss or for a more definite statement,

  • then if motion denied, then D has 10 days from denial of motion to answer (or such time as may be fixed by the court)
  • if motion granted, D has 10 days from amended complaint or more definited statement

A motion to strike does not toll the time to answer.

 

24

When is a reply required?

Reply is required only if the answer contains an affirmative defense that P wishes to avoid with new matter.

If not, no reply required and any factual allegations contained in affirmative defense are deemed denied.

Reply must be filed within 20 days after service of the answer.

25

When may a pleading be amended?

  • once before a reponsive pleading is served or if none is required, within 20 days of service of the pleading sought to be amended. 
  • all other amendments can be made only with written consent of all adverse parties or by leave of court.

A motion is not a pleading and will not preclude a plaintiff's right to amend.

Punitive damages cannot be asserted in original complaint.  must make motion, make a reasonable showing,  if successful, amend complaint to assert claim for punitive damages. 

26

When do amendments relate back?

They relate back to date of original pleading and are permitted, even though the SOL has run, if the conduct, occurrence, or t/a was set forth in the original pleading.  Does not apply to new and distinct causes of action. 

27

Does the opposing party have to plead in response to an amended pleading?

Yes.  If a pleading is one to which a responsive pleading is required.  Opposing party must respond to amended pleading within 10 days after service of amneded pleading by response or appropriate motion.  Defenses and objections must be made again even if ruled on previously.

 

28

What is a counterclaim?

D has a claim that arises from same t/a or occurrence as P's claim.  D generally must plead this as counterclaim or it will thereafter be barred.  Any other claim that D has against the P may be asserted as a permissive counterclaim. 

A counterclaim must be answered in the same manner as a complaint.

29

What is a cross- claim?

  • Cross-claims are claims by one D against a co-party.  A cross claim may be filed if it arises from the same t/a or occurrence as the complaint or a counterclaim, or if it relates to any property that is the subject matter of the original claim.  Cross-claims are permissive. 

30

What kind of parties may be sued or sue?

  • Minors and incompetents -- may sue and be sued only through a guardian or other fiduciary.
  • Partnership may use or be sued as an entity, but recovery may be had only out of general partnership assets or person assets of the partners who were served.
  • Corporations may sue and be sued.
  • Unincorporated ASsociations -- may not sue or be sued as entities, unless they are labor unions, benefit societies issuing insurance benefits, or condominium associations.