FLORIDA CIVIL PROCEDURE PROFESSOR MICHAEL P. ALLEN STETSON UNIVERSITY COLLEGE OF LAW INTRODUCTION; FLORIDA COURT SYSTEM; JURISDICTION Exam Tip 1: Florida Civil Procedure, by rule, must be tested on the Florida bar exam. Historically, that subject has been tested by multiple choice as opposed to essay. A. The Structure of the Florida Court System 1. “Jurisdiction”: The power of a court over the subject matter of the litigation or the parties. 2. Trial Courts o In Florida, there are two sets of trial courts: The ______________________________ courts (the state is divided into 20 judicial districts); and The county courts (every county has a county court). o These are the courts of original jurisdiction (i.e., where a case is originally filed). 3. Appellate Courts o At the top of the system is the Florida Supreme Court. o The state is divided into ______________________________ District Courts of Appeal. B. Subject Matter Jurisdiction 1. Trial Courts o The circuit courts are going to have jurisdiction over matters in which the amount in controversy exceeds $______________________________. o The county courts will have subject matter jurisdiction over matters of $______________________________ or less. Example 1: Patty sues Dan concerning a breach of contract. The amount at issue in the contract is $10,000. The circuit court would not have subject matter jurisdiction over that case. The county court would have subject matter jurisdiction because the amount in controversy is $15,000 or less. Example 2: Patty sues Dan, claiming $20,000 in damages. The circuit court has subject matter jurisdiction because the amount in controversy exceeds $15,000. The county court would not have subject matter jurisdiction.
Transcript
FLORIDA CIVIL PROCEDURE PROFESSOR MICHAEL P. ALLEN
STETSON UNIVERSITY COLLEGE OF LAW
INTRODUCTION; FLORIDA COURT SYSTEM; JURISDICTION
Exam Tip 1: Florida Civil Procedure, by rule, must be tested on the Florida bar exam. Historically, that subject has been tested by multiple choice as opposed to essay.
A. The Structure of the Florida Court System
1. “Jurisdiction”: The power of a court over the subject matter of the litigation or the parties.
2. Trial Courts
o In Florida, there are two sets of trial courts:
The ______________________________ courts (the state is divided into 20 judicial districts); and
The county courts (every county has a county court).
o These are the courts of original jurisdiction (i.e., where a case is originally filed).
3. Appellate Courts
o At the top of the system is the Florida Supreme Court. o The state is divided into ______________________________ District Courts of Appeal.
B. Subject Matter Jurisdiction
1. Trial Courts
o The circuit courts are going to have jurisdiction over matters in which the amount in controversy exceeds $______________________________.
o The county courts will have subject matter jurisdiction over matters of $______________________________ or less.
Example 1: Patty sues Dan concerning a breach of contract. The amount at issue in the contract is $10,000. The circuit court would not have subject matter jurisdiction over that case. The county court would have subject matter jurisdiction because the amount in controversy is $15,000 or less.
Example 2: Patty sues Dan, claiming $20,000 in damages. The circuit court has subject matter jurisdiction because the amount in controversy exceeds $15,000. The county court would not have subject matter jurisdiction.
o What if a plaintiff has more than one claim against a defendant?
The plaintiff can add together the value of their claims against a defendant in order to get above the $15,000 threshold, but only if the claims arise out of the same ______________________________ or ______________________________.
Example 3: Patty sues Dan for two claims. The first claim is a breach of contract to paint her house. The value of that claim is $10,000. The second claim concerns a car accident between Patty and Dan. The value of that claim is also $10,000. Does the circuit court have subject matter jurisdiction? __________. The two claims do not arise from the same transaction or occurrence.
Example 4: Now assume that Patty’s first claim is for personal injuries in connection with a car accident with Dan. The value of the claim is $10,000. The second claim is for property damage that Dan allegedly caused in the car accident. That claim is also valued at $10,000. In this case, the circuit court has subject matter jurisdiction because even though the two claims are only $10,000 each, they arise from the same transaction or occurrence (the car accident) and so the claims may be added together.
o For actions “at law” (money damages): above $15,000—circuit court; $15,000 or less—county court
o For equitable actions (e.g., seeking an injunction):
The circuit court has ______________________________ jurisdiction for claims in which the value of the injunction is greater than $15,000.
For claims that are $15,000 or less, the circuit court and county court have ______________________________ jurisdiction (i.e., the plaintiff will have the option of whether to file the claim in the county court or in the circuit court).
o The county and circuit courts have concurrent jurisdiction over:
Landlord-tenant cases in which the amount in controversy is $15,000 or less; Actions seeking to possess real property, when valued in excess of $15,000; and
Editor's Note 1: To clarify, county courts and circuit courts have concurrent jurisdiction over actions seeking to possess real property, when valued in excess of $15,000 (or the updated jurisdictional limit, see Editor’s Note, below).
Editor's Note 2: Due to recent statutory changes, the limit for county court actions is increasing in phases. For any county court actions filed before the year 2020, the jurisdictional limit is $15,000. If the action is filed on or after January 1, 2020, but before the year 2023, the jurisdictional limit is $30,000. Because the circuit court has jurisdiction over all actions at law not cognizable in county courts, when the jurisdictional limit for county court changes, the jurisdiction of the circuit courts will be limited to civil actions in which the amount in controversy exceeds the new jurisdictional limit of the county courts.
Any disputes involving ______________________________ associations, regardless of the amount.
C. Personal Jurisdiction
A court must also have power, or jurisdiction, over the people before it.
1. Personal Jurisdiction of Florida Courts
o Most of the time, we are not concerned with jurisdiction over Florida residents o Additional categories of persons over whom personal jurisdiction is not going to be an issue:
Any person who ______________________________ to the jurisdiction of Florida courts;
• Can be done ahead of time in a ______________________________; • Can be done in the litigation itself:
o By affirmatively agreeing to be sued in Florida; o By failing to ______________________________ to jurisdiction in an
appropriate way.
A ______________________________ incorporated in the state of Florida; Nonresident who engage in “______________________________ and systematic”
activity in Florida; and A non-Florida corporation with a place of business in Florida In rem actions:
• The parties are fighting over a piece of property. • We do not worry about jurisdiction over the parties because the court has power
over the property itself.
2. Non-Residents of Florida
o There is a two-step process to determine whether the non-resident is subject to jurisdiction in Florida.
o Step 1: the Florida ______________________________ statute (Fla. Stat. § 48.193).
The state is reaching out its long arm to a non-resident to say “because of the kinds of things you’ve done, we can exert ______________________________ over you in our courts.”
Does the claim that we’re dealing with “______________________________ out of” one of a series of actions? If it does, then the Florida long arm has reached out and because the person has done this activity, and the claim being asserted arises out of that activity, it is appropriate to subject the nonresident to personal jurisdiction.
The activities are:
• Operating or conducting a business or business venture in the state;
• Committing a ______________________________ in the state of Florida; • Owning, possessing, or using real property in Florida; • Contracting to ______________________________ a person, property, or risk in
Florida; • In an action for alimony, support, or the distribution of property, the long-arm
statute is satisfied if the person maintains a ______________________________ in Florida at the time the action is filed or if she had resided in Florida before the action was filed;
• Causing an injury to a person in Florida by an act or ______________________________ outside the state, so long as at the time of the injury, the nonresident defendant was involved in the ______________________________ or distribution of products in Florida;
• Breaching a contract by the failure to perform acts that were required by the contact to be performed in Florida;
• In a matter involving ______________________________, engaging in sexual intercourse in the state by which the child at issue may have been conceived; and
• Entering into a contract that specifies that Florida law will govern the relationship of the parties under that contract, and in which in that contract, the parties agree to submit to jurisdiction in a Florida court.
o Step 2: Whether the ______________________________ Clause of the Fourteenth Amendment to the U.S. Constitution prohibits jurisdiction.
International Shoe standard: There must be minimum contacts such that it does not offend traditional notions of ______________________________ and substantial justice
SERVICE OF PROCESS
A. Service of Process
• “Process” refers to the papers that must be delivered to the defendant to start the ______________________________.
• The summons is exactly what it sounds like: It “summons” the defendant to the court.
B. Waiver of Service of Process
• A plaintiff may—but is not required—ask a defendant if the defendant will agree to waive formal service of process.
• Procedure:
o Plaintiff sends a writing to the defendant by ______________________________ mail, return receipt requested, requesting a waiver of service of process
o The complaint must also be included, as well as a ______________________________ means of responding.
o The request informs the defendant about waiver of process and state the date on which it was sent.
• The defendant must be allowed __________ days to decide whether he will waive service (30 days if the defendant is outside the U.S.).
• The defendant is not required to waive service. • The rules have a “carrot and stick” approach:
o The carrot: If the defendant agrees to waive formal service of process, he will get a longer period of time to respond to the complaint than he would if he demanded formal service.
The defendant will have __________ days from the date upon which the defendant received the request to waive service of process, in order to respond to the complaint.
A defendant has only 20 days to respond after formal service.
o The stick: If the defendant does not agree to waive service and the plaintiff effects formal service, the defendant will be required to pay the costs of formal service, unless there is ______________________________ for the defendant’s failure to agree to waive.
C. Formal Service of Process
1. Initial Filing and Service
o A plaintiff must file the complaint with the court.
Note 1: “Filing” means giving something to the court. “Serving” means giving something to a non-court entity (e.g., a party or a non-party).
Filing is deemed to be the ______________________________ of the lawsuit. Filing stops the clock running on the statute of limitations. Filing the complaint does not ______________________________ the defendant to
come into court.
o The plaintiff has __________ days from filing the complaint to formally serve the defendant or notify the court that the defendant has waived formal service.
This period may be extended by the court by showing good cause or excusable ______________________________.
Exam Tip 2: This rule is different from the rule that applies under the Federal Rules of Civil Procedure, in which the relevant time is 90 days.
2. Who May Serve Process?
o Any person authorized by law to do so (e.g., the ______________________________); or o Any person who is at least __________ years old, competent, and a resident of Florida, so
long as that person does not have an interest in the subject matter of the action
Editor's Note 3: A person serving process under the second bullet point must be appointed by the court.
o ______________________________ service: Physical delivery of the required process to the defendant
o Substituted service: Physical delivery of the required process is to somebody other than the defendant
Example 5: A lawyer agrees to accept service of process on behalf of a client.
o ______________________________ service: Notice of the lawsuit is given by way of publication (e.g., in a newspaper)
SERVICE OF PROCESS, CONTINUED
A. Personal Service
The gold standard: most likely to satisfy the constitutional requirement of notice
1. Physically delivering the required process to the defendant
o Delivery can essentially be anywhere (e.g., at work) o The law requires that an employer must allow somebody serving process to access private
areas to make the service.
2. Without actual physical delivery
o Leaving the required process at the defendant’s usual place of ______________________________ with any person residing therein who is __________ years of age or older, and you inform that person of the contents of what you are giving them.
Example 6: Patty has filed a complaint against Dan in a Florida state court. Dan lives at 123 Main Street. Patty hired a process server to serve process on Dan. The process server comes to 123 Main Street and rings the doorbell. No one answers, so the process server pushes the process under the door. Is the service appropriate? _____________________________________________________________
Example 7: Now assume the process server rings the bell at 123 Main Street and the door is answered by Dan’s 65-year-old mother, who had stopped by to feed the dogs. The mother, who is competent, lives in the next town over. The process server gives the process to Dan’s mother and explains what it was. She took it. Is service good? _____________________________________________________________
Example 8: Now assume the process server gives the process to Dan’s 16-year-old son who lives at the house. The process server gives Dan’s son the papers and tells the son what was in the process package. Dan’s son
accepts the process. Is service good? _____________________________________________________________
Example 9: What if the process server had sent the process to Dan at 123 Main Street by U.S. mail. Is that okay? __________ Mailing does not come within the rules for personal service. However, the rules provide that a defendant may agree to accept service by mail and doing so does not waive any objections to venue or jurisdiction.
B. Service on Specific Parties
1. Service on Minors (persons under 18)
If the person to be served is a minor who has never been married, service must be made on the minor’s ______________________________ or ______________________________.
2. Service on Incompetent Persons
If the person is incompetent, the service must be made on the ______________________________ of the person, if there is one, or on the person who has care and custody of the person.
3. Service on Legal Entities
a. Sole Proprietor
A natural person, so one could serve her as discussed above. You may also go to the business and serve the person there. If you have tried to serve the person at the business
______________________________ and were not successful, you may serve the sole proprietor by ______________________________ service, by serving the person “in charge of the business at the time of service.”
Example 10: You try to serve the sole proprietor of a restaurant. If you have tried to serve the sole proprietor twice at the restaurant, you may serve the restaurant manager on the third occasion.
b. Partnerships and Limited Partnerships
May be served by serving process against any ______________________________ or any person designated to accept service
If you make ______________________________ attempt to serve a partner at the place of business and it is not successful, you may then serve the “person in charge of the partnership” at the time of service, so long as service is made during regular business hours.
You may serve a corporation by personally serving a president, vice-president, or other “______________________________” of the corporation.
If you cannot serve these people, then you may effect service on the corporation’s cashier, treasurer, secretary, or general manager.
If that does not work, the next level allows you to serve a ______________________________.
If even that does not work, you may serve an ______________________________ or business agent of the corporation residing in Florida.
A corporation can have a registered agent in Florida, on whom substituted service may be made. If the corporation does not have a registered agent, and none of the above methods of service have succeeded, then you may serve any ______________________________ at the corporation’s principal place of business.
If a corporation engages in “substantial and not isolated activities,” in Florida, or if it has an office in Florida in which they conduct business, then service on the corporation may be made on any officer or business agent while that person is on corporate business in the state (even if the corporate business does not relate to the cause of action).
d. Public Agencies/Officers (e.g., a town council)
You may serve the ______________________________ of the agency (e.g., president, chair, mayor, etc.).
In their absence, you may serve the vice-president, vice-chair, vice-mayor, etc. If none of that can be done, then any member of the body may be served (e.g., a
member of the town council).
e. The State of Florida
You must serve either the state attorney or an assistant state attorney in the circuit in which the action is ______________________________; and
Send two copies of the process by registered or certified mail to the ______________________________.
C. Substituted Service on Nonresidents
• In a narrow range of cases, Florida law will deem that a person has appointed somebody (usually the Secretary of State) to be her agent to accept process.
• By statute, these persons are:
o Owners or operators of ______________________________ in the state; o Persons who operate and maintain a watercraft in the state; o Persons who operate and maintain an ______________________________ in the state; and o Persons operating, conducting, or engaging in a business or business venture in the state.
• The system is leery to service by publication because it is not likely to provide notice. • You cannot use service by publication if you could use personal or substituted service. • You are required to submit a sworn statement laying out why service by publication is allowed
and ______________________________ in the situation. • May only be made in a defined set of cases; several of the categories concern claims about
ownership or division of ______________________________, as well as certain family law related matters, such as custody of children, adoption, and paternity.
E. Service of Motions or Other Subsequent Papers
• Once initial service of process of the complaint and summons is accomplished (or waived), other papers in the case—such as motions—also need to be served.
• Service of those papers under Florida law is presumptively by ______________________________.
o A party may also serve these later papers by a means in addition to e-mail (e.g., hand delivery).
o The response time is determined by taking all means of service into account and using the time that is shortest.
VENUE
A. Local vs. Transitory Actions
1. Local Actions
o One against property having a ______________________________ location, (e.g., an action to quiet title to real property)
o Rule: Venue lies in the county in which the property is ______________________________.
2. Transitory Actions
o An action that is not a local action; most actions are transitory. o Rule: Venue in such actions lies in either:
The county in which the defendant ______________________________; or The county in which the cause of action ______________________________.
o Exception: Actions concerning a ______________________________ may only be brought in the county in which the note was signed by the maker (i.e., executed)
Example 11: Patty and Dan are in a car accident. The accident occurs in Orange County. Patty resides in Lee County. Dan resides in Pinellas County. In which county or counties is venue appropriate in the case of Patty v.
1. Venue in a Case Against More Than One Defendant
Venue is appropriate in a county in which either defendant resides, as well as the county in which the cause of action ______________________________.
2. Venue in a Case with More Than One Cause of Action
Venue lies in a county in which any of the causes of actions accrued, as well as where any defendant resides.
3. Agreement as to Venue
o Generally, parties can agree in a ______________________________ to have venue in a particular place, including outside of Florida.
o Any such agreement calling for venue outside of Florida in a contract for the improvement of real property in Florida is void as against public policy, if the action concerns a resident contractor or sub-contractor.
4. Corporation as a Defendant
o Venue is appropriate in the county in which the cause of action accrued; and o In the county in which a Florida corporation has an ______________________________ for
the transaction for its business; o Non-Florida corporation:
Venue is appropriate where the cause of action accrues; and In the county in which the corporation has an ______________________________ or
other representative.
5. Venue in Actions against the State or State Agency
o Venue is appropriate in the county in which it maintains its principal ______________________________.
o Exceptions:
A ______________________________ can change the general rule; Suit concerning a claimed violation of a plaintiff’s constitutional rights: Venue is
appropriate in the county in which the ______________________________ of those rights occurred or is about to occur;
State agency is a joint tortfeasor: The normal rules apply, not the special rule for state agencies; or
Cases in which a party files a petition for access to a ______________________________.
• The plaintiff makes the initial choice about venue because the plaintiff files the suit; • The defendant may object to venue as being inappropriate, if he follows the right steps; • If a defendant does not object or does not object appropriately, the defendant will have
______________________________ any objection to venue.
D. Change of Venue
• Even if venue is appropriate, the defendant may challenge the plaintiff’s initial choice by making a motion to change venue (transfer the case).
o The motion must be ______________________________ (i.e., signed under oath). o The motion must be made within __________ days of service of process (or waiver of
service of process), unless good cause is shown. o The presumption is against a change of venue.
• Grounds are really based on fairness:
o The party opposing transfer has undue ______________________________ over the minds of the county’s residents;
o The party that wants the change is so disliked that a fair trial cannot be had; or o When it otherwise appears impracticable to get a fair jury in the county.
• It is also possible to transfer venue to another county when it is for the convenience of the parties and witnesses and in the interests of justice.
o Private factors: Where the evidence is; where the ______________________________ are o Public factors: The interests of justice; the interests of the respective counties
E. Forum Non Conveniens
• Venue is appropriate under the rules, but the “better place” where the lawsuit should take place is outside the state of Florida
• The action in Florida is dismissed because another place is the more convenient forum to bring the action
• Presumption against dismissal • Trial courts have wide ______________________________ about motions for forum non
conveniens:
o The other forum must be an ______________________________ forum—the cause of action must exist there;
o Private interest factors (e.g., the location of witnesses or evidence); o Public interest factors (e.g., the interest of the different forums being considered); and o Dismissing the case does not cause an undue inconvenience to the
• A document that sets out what it is that the parties are fighting about in a particular lawsuit • Pleadings work in tandem: there is an opening pleading and a corresponding
______________________________ pleading. • A pleading is a very specific type of litigation ______________________________: not
everything you file with the court is a pleading.
Example 12: A motion, for example, is not a pleading.
• Many rules that relate to the lifecycle of a lawsuit key off of something happening with respect to a pleading.
B. Types of Pleadings
• Complaint • ______________________________—closes the loop the complaint begins
o An answer can include a counterclaim or a ______________________________. o Then there is an answer to the counterclaim or cross-claim.
• Third-party complaint (defendant brings in a new party) and a corresponding third-party answer
• ______________________________—quite limited; responds to an affirmative defense asserted in an answer
C. Pleadings that Assert a Claim for Relief
• Includes a complaint, counterclaim, cross-claim, and third-party complaint • Fla. R. Civ. P. 1.110(b) sets forth what must be included in a pleading seeking relief:
o Why can I be here: Short, plain statement showing that the court has jurisdiction, unless the court already has jurisdiction and doesn’t need new ______________________________;
Example 13: Assume a defendant has been sued in circuit court and the plaintiff’s claim exceeds $15,000. If the defendant can assert a counterclaim, the defendant need not assert that the counterclaim exceeds $15,000 because the circuit court already has subject matter jurisdiction over the case.
o Why do I win: “A short and plain statement of the ______________________________ facts showing the pleader is entitled to relief;”
The standard in Florida is different from the standard under the Federal Rules Under federal procedure—notice pleading In Florida—ultimate fact pleading
• Cannot simply plead the legal elements of a claim (e.g., you cannot plead, “the defendant owed me a duty”).
• Must plead the “ultimate facts” that make out those elements (e.g., “I was a guest at a hotel operated by the defendant.”).
o What do I want: A ______________________________ for the relief being sought (e.g., damages or an injunction).
No specific dollar amount is necessary (except to make a jurisdictional allegation).
• All of the allegations in a complaint must be in separately numbered ______________________________ and each claim for relief must be marked separately in its own count.
CHAPTER 6: PLEADINGS, CONTINUED
A. Closing Pleadings—A Defendant’s Response
1. The Answer
o The defendant must respond to each of the factual allegations the complaint has made. o Three responses to each allegation: admit, ______________________________, or indicate
lack of knowledge sufficient to form an answer.
If a defendant says that he lacks knowledge, it is treated as a ______________________________.
If a defendant fails to use one of these three responses, everything other than the amount of damages is deemed to have been ______________________________.
2. Affirmative Defenses
o The defendant has a special burden to plead certain “affirmative defenses” in the answer. o Rule 1.110(d) lists the affirmative defenses (see your outline). o 20 specific affirmative defenses plus a “catchall” o If a defendant does not plead an affirmative defense, it is deemed
______________________________.
3. Time for Filing an Answer
o Action started by formal service of process: Defendant has __________ days from the date of service
o Waiver of service: Defendant has __________ days from the date he received the request for waiver
Note 2: The same rules apply to third-party complaints and answers.
o Answers to counterclaims and cross-claims: The defending party has __________ days from the date of service
Note 3: Longer periods apply when the defendant is a state or agency.
4. Calculating time
o The day of the act at issue does not count in terms of calculating the time.
Example 14: If the complaint is served on March 1, the 20-day period starts on March 2.
o The last day of the period is counted.
Editor's Note 4: The professor misspoke. The last day of the period is counted.
o Between the start and the end of the period, weekends and legal holidays are counted.
Editor's Note 5: The professor misspoke. Weekends and legal holidays are counted.
o If the last day of the period is a weekend or legal holiday, the period is extended to the next business day (i.e., non-weekend, non-legal holiday).
Example 15: If the last day of the period is a Saturday, the period will be extended to Monday (provided the Monday is not a legal holiday).
o The time periods may be extended due to the means by which you serve something. o Unless another rule sets a different time, service is timely if it takes place before midnight
on the day it is due (i.e., by 11:59:59 p.m. on the final day of the period).
B. The Reply
• Required only when a responsive pleading (some form of answer) contains an ______________________________ that the replying party seeks to avoid.
• Must be filed within 20 days of the service of the document containing the affirmative defense
C. Supplementing or Amending a Pleading
1. Supplementing
o A supplemental pleading does not change what has been done. o Adds additional occurrences or events that took place after the filing of the initial pleading.
2. Amending
o An amendment will change a pleading o A party may amend a pleading to which a ______________________________ pleading is
required, once as of right at any time before the responsive pleading has been filed.
Example 16: Patty files and serves a complaint on Dan on March 1. On March 19, Dan files an answer. May Patty amend as of right on March 20? _____________________________________________________________
Example 17: Patty files and serves a complaint on Dan on March 1. On March 19, Dan files a Motion to Dismiss for Failure to State a Claim, stating that the complaint is legally insufficient. May Patty amend as of right on March 20? __________. A motion is not a pleading. Therefore, there has not yet been a responsive pleading filed and Patty may, at any time before a responsive pleading is filed, submit an amended complaint.
o What if the pleading you want to amend is one for which there is no responsive pleading required (e.g., an answer with no counterclaims or affirmative defenses)?
A party may amend once as of right within __________ days of its service, so long as the case has not been placed on the trial docket.
o Amendment by consent or leave of court (after the time period has passed)
A party may amend a pleading with the ______________________________ of the other parties or by leave of court
Leave to amend should be given “when justice so requires.”
o Relation back: An amendment will relate back to the time of the original filing when the new claim (or defense) arises out of the same conduct, ______________________________, or occurrence that was set forth in the original pleading.
o 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 ______________________________ to amend the complaint to add a claim for punitive damages; and
Submit ______________________________ evidence that they would be entitled to punitive damages.
This rule is different from the rule that applies at the federal level for pleading a request for punitive damages.
D. 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 ______________________________.
• Special Damages: Special damages must be pled with specificity.
Example 18: Lost profits are an example of special damages.
• Allows a party responding to a pleading to respond with something that is not a pleading
Example 19: Instead of saying, “I admit that the light was red,” the defendant can respond with, “You’ve sued me in the wrong place.”
• 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—
__________ days if the complaint was served and __________ days if service was waived
B. Motions Regarding the Content of the Complaint
1. Motion for a More Definite Statement
Asserts that the amount of information in the complaint is insufficient for the defendant to respond to it.
2. Motion to Strike
Seeks to remove from a pleading any matters that are redundant, immaterial, ______________________________, etc.
C. Motions to Dismiss
• The most important pre-answer motions are motions to dismiss the pleading. • Motions to dismiss for:
o Lack of ______________________________ jurisdiction; o Lack of personal jurisdiction; o Improper ______________________________; o Insufficient ______________________________; o Insufficient service of process; o Failure to state a ______________________________ (i.e., the plaintiff’s claim is
insufficient); and o Failure to join an indispensable party.
• The filing of a pre-answer motion to dismiss tolls the defendant’s obligation to answer the complaint.
• Consolidated motion rule: If the defendant makes a pre-answer motion, it must include any of these grounds in a single motion.
• Consequences of failing to properly raise pre-trial motion to dismiss:
a. First, some of the defenses (“mayonnaise” defenses) spoil if they are not done correctly.
Lack of ______________________________ jurisdiction, improper venue, insufficient process, and insufficient service of process.
If the answer is the first response to the complaint, these defenses must be included in the answer or else they are waived.
If the defendant chooses to make a pre-answer motion, these defenses must be included in the pre-answer motion or else they are waived.
b. Second, some defenses are saved up to a point even if they are not treated appropriately.
These defenses are failure to state cause of action and failure to join an ______________________________ party.
These defenses may be raised by other motions all the way up through and including at trial. The defenses are not lost until the case is up on appeal.
c. There is a super-defense which can be raised at any time, even on appeal; it cannot be waived.
Lack of ______________________________
Example 20: Assume Patty sues Dan in a Florida state court in Leon County. Dan timely answers the complaint but makes no mention in the answer of the fact that venue in Leon County is inappropriate. May Dan now raise the venue objection after filing an answer? __________, unless Dan gets permission to amend the answer.
Example 21: Assume Patty sues Dan in a Florida state court in Leon County. Dan timely answers the complaint but makes no mention of the fact that he believes that the complaint fails to state a cause of action. May Dan now raise this defense? __________, so long as Dan raises the defenses at some point before or during the trial.
Example 22: Assume Patty sues Dan in a Florida state court in Leon County. Dan timely responds to the complaint by filing a motion to dismiss the action for failure to state a cause of action. The motion is denied. Which of the other defenses may Dan appropriately raise later in the litigation? Only ______________________________ and ______________________________.
D. Motion to Strike a Sham Pleading
• Judgment can be entered against the party who filed the sham pleading.
E. Motion for Judgment on the Pleadings
• Operates like the pre-answer motions above, but occurs after an answer has been filed.
• Counterclaims and cross-claims are claims seeking ______________________________ (e.g., damages or an injunction).
• All of the requirements for a claim seeking relief apply. • All of the requirements of a party responding to a claim seeking relief apply as well.
B. Counterclaims
• A claim that is asserted against an opposing party (i.e., it crosses over a preexisting “v.”).
Note 4: You usually need not worry about subject matter jurisdiction with respect to a counterclaim.
• Two types of counterclaims: (1) ______________________________ and (2) ______________________________.
1. Compulsory Counterclaim
o One that arises out of the same ______________________________ or occurrence of the opposing party’s claim and does not require any other party for litigation
o A claim that would otherwise be a compulsory counterclaim, 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
o One that does not arise from the same transaction or occurrence as the opposing party’s claim
3. Consequence
o A party must assert a compulsory counterclaim or it is waived. o A party may assert a permissive counterclaim, but it is not required to do so.
Example 23: Assume that Patty and Dan are in a car accident. Patty sues Dan claiming that Dan’s negligence caused the accident and, as a result, Patty’s car was damaged. Dan thinks that Patty was negligent and that the damage to his car was caused by that negligence. He also thinks that Patty breached a contract with him by which she had agreed to mow Dan’s lawn. May Dan assert either of these claims? Must he assert them?
Dan may assert both claims—they are counterclaims. Dan must assert the claim about the car accident because it arose from the same transaction or occurrence as Patty’s claim—the car accident. That claim is compulsory. The
contract claim is permissive because it does not arise from the same transaction or occurrence as Patty’s claim.
C. Cross-Claims
• A claim that seeks relief between ______________________________;
Example 24: In the case of Patty v. Dan there can be no cross-claim because Patty and Dan are not co-parties. Patty is a plaintiff and Dan is a defendant.
Example 25: What if the lawsuit was Patty v. Dan and David? In this situation, there is a possibility of a cross-claim between Dan and David because they are co-parties (i.e., they are both defendants).
• Co-parties may (but are not required to) assert cross-claims when they arise out of the same transaction or occurrence as either:
o The plaintiff’s ______________________________ against the defendants; or o Any counterclaim that has been asserted in the action.
Example 26: Patty sues Dan and David claiming damages to her car as a result of a car accident. She claims Dan and David each hit her car at the same time. Neither David nor Dan has asserted a counterclaim. Dan believes that David was negligent and damaged Dan’s car in the accident. May Dan assert this claim? __________. It is between co-parties and it arises from the same transaction or occurrence (the car accident) that is the subject of Patty’s original claims.
Example 27: Same factual scenario but now the claim Dan has is that David breached a contract with Dan to mow Dan’s lawn. May this claim be asserted as a cross-claim? __________. It does not arise from the same transaction or occurrence as Patty’s claim.
Example 28: Assume we have the Patty v. Dan and David case about the car accident. Assume that neither Dan nor David asserted a counterclaim against Patty. David decides to sue Dan, asserting a cross-claim that Dan was negligent in causing the accident. (This claim arises out of the same transaction or occurrence as Patty’s claim.) David has created a “v.” between David and Dan. Dan is now a defendant with respect to David. Dan must respond to David’s cross-claim. Because there is now a “v.” between Dan and David, Dan can bring the claim against David about mowing the lawn. Why? It is no longer a cross-claim; it is a counterclaim.
Once a lawsuit starts, it is possible to swap one party for another (e.g., if a party dies, the lawsuit may continue against the party’s estate).
B. Capacity
• Whether someone is a proper party to be in the lawsuit • Different from the concept of “______________________________” • Parties are presumed to have capacity; lack of capacity is a defense raised by a responding party.
1. Natural Persons
o Anyone 18 years of age or older is presumed to have the capacity to sue or be sued. o A person over 18 may lose the ability to sue or be sued if they are 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.
o Minors: May only sue or be sued through a ______________________________ or guardian
2. Legal Entities
a. Corporations: have the capacity to sue and be sued in their own name.
b. Partnerships: have the capacity to sue and be sued in their own name.
c. Homeowners’ Associations
So long as it is not controlled by the developer, a homeowners’ association may sue in its own name on behalf of all its members in connection with matters of common interest to the members
C. Real Party in Interest
• The rules allow, but do not ______________________________, 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, but the most important are:
o Executor of an estate; o Guardian; o Trustee of an ______________________________ trust.
D. Permissive Joinder
• Florida Rule 1.210 provides very liberal grounds for joining parties as plaintiffs or defendants.
o “All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs.”
o Any person can be a defendant if he has an “interest ______________________________ to the plaintiff.”
Note 5: Under Florida case law, a plaintiff may not join a defendant’s liability insurance carrier in an action. The plaintiff must first obtain a judgment against the defendant and then proceed against the insurance company.
• Florida Rule 1.270 gives the trial court the power to ______________________________ claims for purposes of resolution.
E. Necessary and Indispensable Parties
1. Necessary Party
o One who has a “______________________________ interest in the case” o A party whose rights can be affected by the outcome of the litigation o 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
o One who not only has a material interest in the case and whose rights could be affected, but is so positioned that the litigation cannot be completely resolved without their presence
o If an indispensable party cannot be joined (e.g., due to lack of personal jurisdiction), the action is ______________________________ “without prejudice.”
Example 29: A classic indispensable party is a party to a written instrument, in a litigation over reforming the instrument (e.g., a trust, will, etc.).
Example 30: A joint owner of property in a litigation concerning that property.
Note 6: Recall that one of the defenses that may be raised in a pre-answer motion to dismiss is the failure to join an indispensable party.
CHAPTER 10: PARTIES, CONTINUED
A. Intervention
• Allows a person 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 ______________________________
of the trial judge.
o Whether the person seeking to intervene has “an ______________________________ in” the pending litigation, such that the person’s rights could be affected by the outcome of the litigation
• Can make the motion to intervene “at ______________________________ time” under the rule.
o The longer a person waits, the less likely it is that the judge will allow intervention.
• Intervention could inject inefficiency in the litigation process.
o The rules do not allow the intervenor to add ______________________________.
B. Interpleader
Example 31: X is a life insurance company. Ben takes out a life insurance policy in 2000 in which the beneficiary is listed as “my wife.” At the time, Ben is married to Jane. Ben dies in 2015. At the time, however, Ben is married to Ellen, having divorced Jane in 2004. Both Jane and Ellen have written to the insurance company stating that they believe they are entitled to the payout under the life insurance policy. In this scenario, the Life Insurance Company X knows that it will have to pay the death benefit to somebody, but it wants to pay only one time.
Editor's Note 6: The professor says “intervention” in this example instead of “interpleader.”
• Interpleader allows the insurance company—called a ______________________________—to sue both Jane and Ellen because they each claim a single piece of property (the money as proceeds)
o The insurance company could face multiple liability—two lawsuits in which different courts tell the company to pay different beneficiaries
o The insurance company does not care who it pays—it is disinterested in the action.
• Narrow rule that allows a stakeholder to sue competing claimants for the property to bring them together in a single lawsuit
C. Impleader (“Third-Party Practice”)
• Allows a defendant to bring a new party into the lawsuit and assert a claim against that party
o The defendant is the third-party plaintiff. o The party to be brought in is the third-party defendant.
Example 32: In a litigation between A v. B, A is the plaintiff; B is the defendant. If B impleads C, then B is a third-party plaintiff and C is a third-party defendant.
• Impleader is a rule of ______________________________ liability • A defendant may implead a non-party if that party “is or may be liable to the defendant for all or
part of the plaintiff’s claim against the defendant.”
Example 33: Case A: Patty sues Dan. Patty claims that Dan injured her in a car accident. Dan tendered the claim to his insurance company. The insurance company has stated that it will not cover Dan because it claims Dan did not pay his premiums and the policy lapsed.
Case B: Patty sues Dan. Patty claims that Dan was hunting in the woods near Patty’s farm and Dan shot Patty’s cow. Dan knows that, in fact, Tom was the one who shot the cow. He saw it with his own eyes. In which scenario is impleader appropriate? Why?
Impleader is appropriate in Case __________. Dan is saying to the insurance company that if Dan is liable to Patty on her claim of negligence, the insurance company is liable to Dan under the insurance policy. In Case B, Dan is saying “it’s not me, it’s him—Tom.”
• Impleader is possible at ______________________________ in the action
o A defendant will not need the court’s permission if done within __________ days of the defendant serving its answer.
o After that period, the defendant will need to seek the court’s permission by filing a motion.
• The person who is impleaded is referred to as the ______________________________ defendant.
• Defendant also may (but need not) include any other claim against the third-party defendant that arises from the same ______________________________ as the plaintiff’s claim.
• The third-party defendant will have all the obligations/rights of a party to litigation.
Example 34: There is the possibility of counterclaims or the third-party defendant may elect to make a pre-answer motion.
o The third-party defendant may implead another party. o 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
• At this point, there is no claim between the original plaintiff and the third-party defendant.
o The plaintiff can assert a claim against the third-party defendant and vice versa so long as those claims arise from the ______________________________ as the plaintiff’s original action against the defendant.
• If the defendant asserts a counterclaim against the original plaintiff:
o Plaintiff can claim there is a non-party who is or may be liable should the plaintiff be liable to the defendant on the counterclaim
D. Computation of Time
• The first day is not counted. • The last day is counted.
Editor's Note 7: The professor misspoke. The last day is counted.
Editor's Note 8: The professor misspoke. Intermediate weekends and holidays are counted.
• If the last day is a weekend or holiday, the period is extended to the next non-weekend, non-holiday.
• The period may be extended depending on the method of service.
o Presumptively, service is to be by electronic means. o Five additional days are added to the response period if service is done by mail. o Unless exempted, filing is to be done electronically as well. o Filing by fax is prohibited.
• Deadlines for filing
o Electronic filing: Midnight on the last day of the period (11:59:59 p.m.). o Non-electronic filing: The close of business of the clerk’s office
CLASS ACTIONS
A. In General
• Representational litigation: Allows a person or persons to sue on behalf of a much larger group of people, so the group members do not have to be parties to the litigation
• A Florida state court may hear a class action, assuming all the requirements are satisfied, even with respect to a ______________________________ class of people.
o Exception: A Florida court will not entertain a nationwide class when the action is based on a state ______________________________ that is designed to provide a remedy for only ______________________________ injuries.
B. Requirements
• The plaintiff must file a complaint seeking to maintain a class. • The court must decide that the prerequisites exist and then
“______________________________” the class.
o Fla. R. Civ. P. 1.220 provides that the court must make this determination “as soon as practicable” after the action is commenced.
1. Four prerequisites to be certified:
a. Numerosity: The class is composed of so many members that joinder of the individuals would be “impracticable.”
b. Commonality: Whether there is a question of law or fact that is ______________________________ to the members of the class
c. Typicality: Whether the class representative’s claim is ______________________________ of the claims of the rest of the class
d. Class representative must “fairly and adequately ______________________________” the class members’ interests.
Fairness: Whether the class representatives have interests that are antagonistic to the interests of other class members, etc.
2. The class action must be deemed appropriate (one of three groups)
a. (b)(1) class (two subparts): A class is said to be appropriate if:
1) Individual adjudications could establish incompatible standards of conduct for the party opposing the class.
Example 35: The plaintiffs are a class of municipal bondholders. The city has gone into default. What interest rate is required by the municipal bonds? A series of different individual litigations on the same municipal bond could expose the city to orders to pay different interest rates (incompatible standards).
2) “Limited fund” class: When non-class adjudication would, as a practical matter, dispose of or affect the claims of other class members
Example 36: Ten people all claim entitlement to a piece of a pie.
Example 37: Ten beneficiaries of a trust. Litigation by one beneficiary can affect the interests of every other beneficiary even though they’re not there. If one beneficiary gets an award of 50% of the trust, the other beneficiaries are now only dealing with the remaining 50%.
b. (b)(2) class
When the party opposing the class (usually the defendant) has acted or refused to act on grounds generally applicable to the class as a whole and the relief sought is ______________________________ or declaratory
Example 38: School desegregation litigation. An African-American student files a lawsuit to end segregation in a state, arguing that the state has acted in the same way with respect to all African-Americans in the class. The relief sought is an injunction ordering the state to end segregation.
c. (b)(3) class (the most controversial)
Generally seeks purely money damages By definition, the class does not come within (b)(1) or (b)(2); but:
• Questions of law or fact common to the class “______________________________” over individual questions; and
• The class action is “______________________________ to other available methods for fair and efficient adjudication of the claim.”
“Predominance” (the first prong above) is different from commonality.
• The commonality question is “is there something that ties the class together?” • Here, we know there is something that ties them together, but we have to do a
balancing:
o Are the common questions outweighed by the individual questions? o If they are, certifying the class action does not make sense.
Example 39: Assume a fraud case based on a statement the defendant said in an advertisement. The class satisfies the commonality requirement because there is a common question of fact (i.e., was the statement true?). The law requires in most cases of fraud that the plaintiff actually relied on the defendant’s false statement. Reliance is an individual question. This is a case where the individual questions could predominate the common questions such that certifying the class action does not make sense.
• “Superiority” (the second prong above): Factors considered include the size of the claims:
o If the claims are individually very large, you may not need the class (an individual will be motivated to bring the claim herself).
o If the claims are individually small but collectively large, an individual may have no financial incentive to bring an individual claim on their own (and so a class action is superior).
3. Notice; Opting Out
a. (b)(3) class
The court is ______________________________ to have the parties provide notice and a way to opt out of the class.
A party who opts out of the class receives nothing if the class wins but will not be bound if the class loses.
The ______________________________ must pay the costs of providing notice.
b. (b)(1) or (b)(2) classes
The court may order notice and may allow a party to opt out, but is not required to do so.
C. Settlement or Dismissal
• A plaintiff in a class action cannot settle or dismiss a claim once it has been certified as a class, without the ______________________________ of the court.
• When a court is considering whether to approve a settlement of a class action, the court must provide notice to class members and give them an opportunity to object to the settlement.
The process by which the parties gather information necessary for the resolution of the dispute at hand by trial or otherwise
B. Scope
Note 7: It is critically important to pay attention to whether the person from whom you are seeking discovery is a party to the litigation or a non-party. Discovery may be used to obtain information from non-parties, but parties and non-parties are treated differently.
In order to be discoverable, information must be:
• ______________________________ to the subject matter of the pending action; and either: • Admissible in evidence; or • Reasonably calculated to lead to the discovery of admissible evidence.
Editor's Note 9: The professor omitted the “admissible in evidence” option above.
1. Relevance
If the law makes a certain issue ______________________________ to a particular dispute, then something is relevant if it makes that fact more or less likely to be true.
Example 40: Patty sues Dan for injuries she sustained in a car accident. Patty’s claim is that Dan was negligent. She has only asserted a demand for compensatory damages. Patty seeks discovery concerning the amount of money Dan has. Is this information discoverable? __________, Dan's wealth or lack thereof does not matter as a legal matter. It is not relevant.
Example 41: Now assume Patty has sued Dan for injuries Patty sustained in a car accident. But now also assume that Patty has alleged that Dan intentionally hit her. She successfully moved to amend her complaint to add a claim for punitive damages in addition to the compensatory damages she seeks. Patty again seeks discovery concerning the amount of money Dan has. Is this information discoverable? __________, a defendant's wealth is something that is material to a claim of punitive damages. As such, it is relevant to the subject matter.
2. Indemnity Agreements
o Indemnity agreements (usually insurance contracts) that might provide coverage for claims in a case, are ______________________________.
To be discoverable, the information sought must not be privileged.
4. Work Product (“Trial Preparation Materials”)
o Work product is not a privilege; it is a special class of material generally deemed to be outside the scope of discovery.
o 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 ______________________________ of litigation
o 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 “______________________________”.
o “______________________________ work product” is never discoverable (i.e., a lawyer’s mental impressions, conclusions, opinions, and theories of the case).
o If a party intends to use his own work product at trial, it must be disclosed to the other side.
Example 42: Assume you have a case involving a large number of documents. A lawyer reviews a large portion of the relevant documents on a critical issue in the case before they are produced and creates a chart. The documents are ones that are only in the possession of the party whose attorney conducted the review. The chart has a number of fields such as “document type”; “date”; “to”; “from”; “copies”; etc. that are meant to summarize the documents. The chart also has a column for “attorney comments.” The opposing party seeks discovery of the chart. Allowed? ____________________________________________________________.
Example 43: Now assume that after the lawyer reviews the documents, a fire destroys the office in which they are kept. There are no copies. Again, the party seeks discovery of the chart. Is it discoverable? ______________________________. While it remains work product, the party who is seeking production is saying “I have a need for this and under the facts of this case, I can’t get the information.” Therefore, even though the chart is protected work product, it is likely to be discoverable, with one important qualification. The column marked “attorney comments” is “opinion work product,” which is never discoverable.
C. Expert Testimony
• Expert witness: A witness allowed to provide opinion testimony based on special professional training and expertise.
o ______________________________ experts—experts who are expected to testify at trial; and
o Non-testifying experts—experts who are not expected to testify at trial.
• Testifying expert: The opposing party is allowed to:
o Take the expert’s ______________________________; o 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 ______________________________ experience (including discussion of
the percentage of work for plaintiffs versus defendants); The identity of other cases within a “reasonable period of time” in which the expert has
______________________________ at deposition or trial; and An approximation of the time and/or income the expert has had from the case.
• Non-Testifying Expert: A party is generally not entitled to seek discovery from a non-testifying expert.
o Only if the party seeking discovery of a non-testifying expert is able to show exceptional circumstances that makes it ______________________________ that the party can obtain facts or opinions on the matter at hand in any other way, would discovery be allowed of a non-testifying expert.
D. Protective Orders
• Protective order: An order of a court that protects a person from discovery that could subject the person to “annoyance, embarrassment, ______________________________, or undue burden or expense.”
• Purpose: To prevent or limit discovery, among other things
DISCOVERY DEVICES: DEPOSITIONS
Exam Tip 3: Again, pay attention to whether the person or entity from whom discovery is sought is a party or a non-party. Some devices may be used only for parties while others can be deployed with respect to non-parties.
A. Depositions: In General
• Deposition: A means by which a ______________________________ may require another person—either a party or a non-party—to answer questions under oath
• Deposition on written questions: A set of written questions are provided in advance and testimony taken in response to those questions (rarely used)
• Deposition on oral examination: A lawyer asks the witness questions out loud and follows up with additional questions
• Unlike under the Federal Rules, under the Florida Rules, there is no set limit on the ______________________________ of depositions a party may take in a particular case.
• Deposition of a non-natural entity (e.g., a corporation): The corporation must provide a witness who testifies on its behalf; the person seeking the deposition must provide a list of ______________________________ on which the person is seeking testimony (applies to corporate parties and corporate non-parties).
B. Notice to Deponent
• If deponent is a party, the party wishing to take the deposition simply issues a “______________________________” to that party and all other parties.
o Must give “reasonable notice” of the time for the deposition o A plaintiff generally may not take a deposition within __________ days of the service of
process without a court order (except under limited circumstances).
• If deponent is a non-party, must use a ______________________________.
o Absent a court order to some other effect, the non-party may only be compelled to attend a deposition in a county in which it ______________________________, is employed, or transacts business.
C. Request for Production of Documents and Things
• A party can be required to produce documents and things in the notice of deposition. • A non-party requires a subpoena for that type of production.
D. Oath
A person at a deposition testifies under ______________________________.
E. Recording
• Usually recorded by a stenographer • A party may, without the court’s permission, ______________________________ a deposition
so long as certain conditions are satisfied, such as:
o Stating the intention to videotape the deposition in the notice or subpoena, and o Providing for a stenographer unless all parties agree otherwise.
• A ______________________________ deposition is only allowed by order of the court.
F. Objections
• At a deposition, a lawyer is required to object to any question for which the objection to the question could be ______________________________.
• The failure to do so waives the objection later.
Example 44: Lawyer A asks a question at a deposition that lawyer B believes is a compound question (e.g., “Did you eat breakfast and go to work yesterday?”). Is lawyer B required to object or waive the objection later? __________.
Example 45: Lawyer A asks a question at a deposition that lawyer B believes seeks irrelevant information. Is lawyer B required to object or waive the objection later? ______________________________.
• Even after objection, the witness at deposition is generally required to answer the question.
o The objection is preserved for later determination, but we get the information out on the table.
• A lawyer at a deposition may only tell a witness not to answer a question in three circumstances:
1) To preserve a ______________________________;
2) To enforce an existing court ordered limitation on discovery; or
3) To present a motion to limit or terminate the deposition.
G. Post-Deposition Procedure
• The witness has the right to review the ______________________________ and make changes. • Thereafter, the witness signs the deposition. • The witness can waive the right to read and sign either expressly or by implication.
H. Use of Depositions in Court Proceedings
• Generally, the deposition of a party-opponent can be used against the party substantively as well as by ______________________________.
• 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:
o Generally, a deposition may only be taken after a lawsuit has been commenced. o Other than as to collection matters, a deposition may not be taken after judgment has
entered. o A court may allow a deposition in either of these situations upon the filing of a petition or
appropriate motion if cause is shown.
Example 46: One might need to perpetuate the testimony of a person who is terminally ill.
• Interrogatory: A written question from one party to another that the other party must answer under oath
• May only be used against a ______________________________ to the action • Unless a judge grants an exemption for good cause, a party is limited to __________
interrogatories. • A party must answer interrogatories within 30 days of service unless the plaintiff serves
interrogatories with the initial complaint, in which case the defendant has __________ days to answer.
o In the same time frame, objections must be lodged or they will be deemed ______________________________.
• Motion to compel: If a party objects, the party propounding the interrogatories may file a motion to compel a response.
• A party has the option, in lieu of answering an interrogatory in narrative form, to direct the requesting party to particular documents.
o Only available 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.
B. Production of Documents/Tangible Things/Entry to Land
• Can be made to a party and a non-party
o Party: Issue a request for documents. o Non-party: Must proceed by using a subpoena. The party must give the other parties
__________ days’ notice before serving a subpoena by hand and 15 days’ notice if service of the subpoena is to be by mail.
• The person against whom the request is made must respond within __________ days unless the request is served by the plaintiff with the complaint, in which case the defendant has 45 days to respond.
• The person responding may also assert objections in these time frames. • The requesting party may file a motion to compel production or entry.
C. Examination of Persons
• May only be used against ______________________________. • 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 • Must respond within 30 days (45 days if the plaintiff served the request with the complaint)
• If the examination deals with a non-physical condition, the party seeking the exam must obtain a ______________________________.
• 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.
D. Requests for Admission
• Request for admission: More than evidence; it conclusively establishes a fact. • May only be used against another ______________________________. • Unlike the other discovery devices, a request for admission may be used to have the other party
admit a legal principle. • Absent leave of court, a party is limited to 30 requests for admission. • If a party does not respond within 30 days (45 if the request was served with the complaint), the
request will be deemed ______________________________ by that party.
E. Discovery Disputes
Two-step process when the parties dispute whether something is discoverable.
Example 47: Assume that Party A has made some discovery request of Party B. Party B responded by objecting and refusing to produce a document.
1. File a motion to ______________________________ the discovery that it has sought.
o A motion to compel can only be filed after the parties have conferred in ______________________________ to try to resolve the dispute.
There must be a certification along with the motion stating that the parties have conferred in good faith and have been unable to resolve their dispute.
o 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 other party’s reasonable attorney’s fees and costs that were expended in connection with the motion to compel.
An award of attorney’s fees will not be made if:
• The motion did not contain a ______________________________ that the parties had conferred;
• The opposition to the motion was justified; or • There are other reasons that would make the award of such fees
______________________________.
o 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.
2. If the motion to compel is granted, but discovery was not produced or was incomplete in some manner, step two provides a range of sanctions.
o The party refusing to produce discovery can be held in ______________________________. o In addition to awarding attorney's fees, the court may:
Order that an issue be deemed decided in one party’s favor; Preclude a party from entering evidence on a point; ______________________________ a pleading and enter judgment against a party; or Hold a party in contempt.
When a party simply ignores a request for discovery:
Example 48: Party A makes a document request and instead of objecting Party B simply fails to respond.
• Party A makes the motion to compel, but the wider range of sanctions in step two (above) are immediately available.
• The only sanction not available is ______________________________.
PRE-TRIAL PROCEDURE AND RESOLUTION WITHOUT TRIAL
A. Conferences and Hearings
1. In General
o The Rules provide judges with discretion (on their own) and parties an opportunity to request the judge, to hold either case-management conferences or ______________________________ conferences.
o Used to make litigation more efficient
2. Timing
Any orders concerning the pre-trial conference must be served on the parties at least __________ days before the hearing (with more time granted if served by ______________________________).
3. Complex Litigation
a. General Characteristics and Factors
At any point after the defendant has entered an appearance in the action or been defaulted, any party can move the court for an order (or the court can do so on its own motion) move for the action to be classified as complex.
• The court must hold a hearing to determine if the case is “complex” and must rule within __________ days of the hearing.
Complex: Likely to involve complicated legal or case management issues that will require extensive judicial management
Some of the factors considered:
• The level of pre-trial motion practice likely; • The number of ______________________________; • Whether the case is part of similar litigation pending elsewhere; • Amount of evidence; and • The ______________________________ and complexity of the trial.
b. Initial Case Management Conference
Within __________ days of the date the court designates the matter as “complex,” the court must hold the initial case management conference.
At least __________ days before the initial case management conference, the ______________________________ for the parties must meet and confer.
No later than 14 days before the initial case management conference, the parties must submit a written ______________________________ to the judge.
B. Default Judgments
1. Default
o When a party from whom affirmative relief is sought (the defendant) fails to respond to a pleading, it is said to be in “default.”
o If the defendant has done nothing, then the ______________________________ of the court will enter the default upon an appropriate motion.
o 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 ______________________________ will enter the default.
Notice must be given to the defendant of the pendency of the motion for default.
2. Default Judgment
o A default itself is not a judgment; the judgment is separate.
Example 49: Patty sues Dan on a car accident claim. Dan does nothing. Dan is defaulted, which means that Dan loses with respect to the question of whether he caused the accident, but that does not determine how much money Patty gets. The judge may have to take evidence of Patty’s medical bills, lost wages, etc. After that, the judge will enter a judgment, which Patty can use to go out and collect.
3. Removing a Default before Judgment has been Entered or Getting Relief from a Default Judgment
o Both default and a default judgment may be set aside by the court.
o It is easier to set aside a default before judgment has been entered, but it is possible after. o The Rules prefer disputes be resolved on the ______________________________ as
opposed a procedural technicality.
C. Dismissal
1. Voluntary dismissal
o Rule: A party seeking affirmative relief (generally the plaintiff) has an absolute right to dismiss the action or any claim without court ______________________________ 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
______________________________ of the case to a jury or to a judge.
o Exception: One cannot dismiss a case in which property has been ______________________________ by the court or is in court custody.
o Voluntary dismissal is ______________________________ prejudice to bringing the claim again, unless the plaintiff has voluntarily dismissed the claim before in another action.
o If the defendant has asserted a counterclaim or there are cross-claims:
A plaintiff can still voluntarily dismiss its ______________________________ affirmative claims.
The plaintiff cannot get rid of the counterclaims or cross-claims (or pending 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.
o Joint stipulation of dismissal: The parties may jointly file a ______________________________ that dismisses the entire action.
Done most commonly in connection with the parties having reached a ______________________________ of the action.
Unless the stipulation states differently, such dismissal would be ______________________________ prejudice.
2. Involuntary Dismissal
o Definition: A dismissal that one party that is asserting a claim doesn’t want but that the other party does (i.e., a way for 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)
o Most often used when the other party has failed to comply with a rule or court order
o If granted, the judgment is ______________________________ prejudice and on the merits.
3. Failure to Prosecute
o Whenever it appears that there has been no activity in an action for __________ 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.
o A 60-day clock begins to tick: If no activity takes place during the 60-day period, or if no ______________________________ order is issued, the court, on its own initiative or on the motion of any interested party, should 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 __________ days of a hearing on the motion to involuntarily dismiss based on a failure to prosecute.
o A dismissal based on a failure to prosecute, unless stated differently in the order, is deemed to be ______________________________ prejudice.
RESOLUTION WITHOUT TRIAL, CONTINUED
A. Summary Judgment
1. In General
o Asks the question of whether we need to have a trial at all o In Florida state court, the party seeking summary judgment bears a heavy
______________________________.
2. Standard
Summary judgment is appropriate when “there is no genuine issue of ______________________________ fact and the moving party is entitled to judgment as a matter of ______________________________.”
a. “Material” Fact
A fact is material if the relevant legal standard makes it important for purposes of resolving a claim.
Example 50: Patty sues Dan, claiming that Dan entered into a contract to mow her lawn and then Dan did not perform. Patty seeks damages from Dan for the breach of that contract. We have a dispute about why Dan did not mow the lawn: Patty says that Dan took another job that got him more money; Dan says that he was at the hospital dealing with his sick child. It looks like we have a dispute of fact but the law says that the dispute would not be material. In most breach-of-contract actions, the reason for the
breach is not something that the law says is relevant. Therefore, the reason for the breach is not material.
b. Genuine Dispute
Reasoning: If the law says a particular fact is important but the facts show that there is no dispute about that fact, then we don’t need a jury to decide what the facts are because there is no dispute as to what the facts are.
Flip side: If the law says a particular fact is important and both parties dispute whether that fact is one way or another (i.e., there is evidence on both sides), that is why we have a jury—to determine what the facts likely are based on the evidence that we have.
Summary judgment is not about ______________________________ the evidence; it is about looking at the facts to decide whether there is any evidence on one side.
3. Summary Judgment Evidence
o Consists of discovery materials, affidavits, documents, etc. o One cannot simply rely on an ______________________________ in the pleadings.
4. Timing
o Either party can move for summary judgment.
Plaintiff: May move for summary judgment __________ days after the commencement of the action or at any point after the defendant moves for summary judgment
Defendant: May move for summary judgment at any time
o The movant must serve the motion, with copies of the summary judgment evidence, “at least __________ days prior to the hearing on the motion.”
o The opposing party must serve copies of any summary judgment ______________________________ it will submit in opposing the motion on the movant either:
Five days before the hearing, if mailed; or By 5:00 p.m. __________ days before the hearing, if hand delivered.
5. Bad-Faith Affidavits
If an affidavit is submitted in bad faith, the party submitting the affidavit:
o Can be held in ______________________________ of court; and o Can be required to pay the attorney’s fees associated with the delay caused by the bad-faith
submission.
6. Partial Summary Judgment
o The judge may grant partial summary judgment as to certain issues or partial claims.
o The judge can grant summary judgment as to ______________________________ even if there is a genuine issue of material fact as to the amount of ______________________________.
7. Early Summary Judgment Motion
o Remember: The defendant can move for summary judgment at any time. In theory, under the rules, the plaintiff could serve the complaint and the defendant could immediately file a motion for summary judgment. The plaintiff would be in a difficult position because the plaintiff would not have had an opportunity to use discovery devices to get information from which it might be able to establish that there is a genuine issue of material fact.
o The court may continue a hearing or even deny a motion for summary judgment so the party opposing the motion will have an opportunity to obtain relevant evidence through discovery.
B. Offer and Demand for Judgment
The plaintiff or the defendant can communicate to the opposing party an offer to settle the case and have judgment entered for a certain amount of money.
1. Requirements
o The offer must be ______________________________ and identify that it is being made pursuant to the Florida law authorizing offers and demands for judgment.
o The offer has to contain specific information, including:
1) The name of the party making the proposal;
2) That the proposal resolves all ______________________________ that would otherwise be awarded in a final judgment in the action;
3) Any relevant conditions that are part of the offer;
4) The ______________________________ 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.
o There must also be a certificate of ______________________________.
2. Timing of Offer
o 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 __________ days after the defendant has been ______________________________ with process.
The defendant may serve an offer on the plaintiff at any time after 90 days after the action has been ______________________________ (i.e., when the complaint is filed).
Neither party can serve an offer later than 45 days before the trial date.
o The party to whom an offer is sent has 30 days to reply. o Unless accepted, the default is that the offer has been declined.
3. Importance of Offer
o The offer has importance, even if it is rejected or ignored. o It impacts attorney’s fees in the litigation, depending on the offer and what actually
happens at trial. o 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 ______________________________, so long as:
• The defendant is judged not liable; or • The plaintiff’s judgment is at least 25% less than the offer.
o If the plaintiff makes an offer that is not accepted by the defendant and the plaintiff recovers at least 25% ______________________________ than the offer, then the plaintiff is entitled to receive its costs and attorney’s fees incurred after the date the offer was served.
4. Good Faith
The offer must be made in good faith. If it is not, then the court has the discretion to disallow the attorney’s fee award.
C. Alternative Dispute Resolution
Parties may use these more informal means of dispute resolution in the context of the more formal dispute resolution discussed so far.
1. Mediation
o No ultimate decision maker o The mediator acts as a facilitator between and among the parties. o The mediator cannot impose her judgment on the parties. o Many Florida courts have mandatory mediation. o A party may request mediation even in a case that is not
______________________________ sent to mediation. o A court is required to grant such a request in any case for money damages, other than a
defined set of circumstances.
2. Arbitration
o There is an actual decision maker; not just a facilitator. o Two types of arbitration: Binding and ______________________________.
o Like arbitration, except there is only one decision maker (a member of the Florida bar).
TRIAL
A. Types of Trials
• Bench trial: The judge decides questions of ______________________________ and also decides questions of fact.
• Jury trial: The judge will decide questions of law and the ______________________________ will decide questions of fact.
B. Jury Trial
1. Claiming the Right
o If one has a right to jury in a civil case, it must come from either:
The Florida Constitution; or A ______________________________.
o The fact that the federal constitution includes a provision about civil jury trials doesn’t matter in a Florida state court because that provision doesn’t apply.
o The Fla. R. Civ. P. provide that the jury trial right shall be preserved “inviolate.” o A party may waive the right to a jury trial if it does not claim it in an appropriate manner. o Any party to civil action that has a right to a jury trial may claim that right by filing a
______________________________ in writing at any time after the commencement of the action.
The demand be made no later than __________ days after the service of the last pleading directed to the issue on which one seeks a jury.
2. Selection
a. Venire
The clerk of the court will summon jurors so that we have the constitutionally required random cross-sampling of the community.
The group of potential jurors pulled from the community is called a ______________________________.
b. Voir Dire
The next step is to pick a jury from that group for service in a particular case, called the petit jury (or trial jury).
The jury must have at least __________ people in a civil case (although most courts will empanel a few more in case some drop out).
Attorneys conduct ______________________________: The attorneys ask questions of the potential jurors to determine which of the potential jurors from the venire end up on the petit jury.
There are two ways that people get off juries based on a challenge by the parties:
1) “Challenge for ______________________________”
• There are no limits to how many challenges for cause a party can make. • There is something about the person in the context of this case that make them
inappropriate to be a juror.
o The person is closely related (within the __________ degree) to a party, or an attorney in the case; or
o The person has some sort of interest in the action.
• 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 challenge
• A challenge that a party can make for any reason, other than very narrowly circumscribed reasons under constitutional law (e.g., race, gender).
• There are __________ peremptory challenges allowed per party.
o Exception: Multiple opposing parties (a party will get the aggregate number of challenges)
Example 51: Patty sues Dan and David. How many peremptory challenges will Patty get? __________.
3. Trial Structure
o After selecting a jury, the parties each give an opening statement. o Then, the plaintiff puts on her case-in-chief and then rests her case. o The defendant then puts on its case-in-chief and then rests. o Finally, the plaintiff typically gets a rebuttal.
Note 8: 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.
o The parties have closing arguments. o The judge will instruct the jury about what the law is, and then the jurors will deliberate.
o When a jury comes out and have reached a decision, we call that decision a “verdict.” A verdict is not the same thing as a ______________________________.
o Two forms:
General verdict: The jury finds in general terms for one party or the other. Special verdict: Requires the jury to answer specific questions and the judge will base
the judgment on the answers to the questions.
o In any case in which there is a claim for ______________________________ damages, the verdict must state the amount of ______________________________ damages separately from any other form of damages.
5. Motion for a Directed Verdict
a. In General
Asks, considering the evidence that went in and the law, could a reasonable jury reach a verdict in favor of the non-moving party.
• If the jury could conclude, based on the information we’re putting into the box, that the non-moving party wins, then the motion for a directed verdict should be ______________________________.
• If, however, given what went in, the non-moving party couldn’t win, then the court should direct a verdict for the moving party.
Very similar to summary judgment, the timing is different.
b. Timing
Either party may move for a directed verdict:
• The first opportunity is when the other party has ______________________________ its case-in-chief.
• The second opportunity is when all the evidence has been submitted.
Example 52: Patty and Dan have proceeded to trial in their car accident litigation. The only claim to be tried is the one asserted by Patty. Patty has just completed her case. Which of the parties may move for a directed verdict? ______________________________, because Patty has rested her case.
Example 53: Both the parties have now rested. Who may move for a directed verdict? ______________________________.
c. Outcome
Judge grants the motion: The jury is let go because there is nothing for the jury to do.
Judge denies the motion: The trial proceeds to deliberations. Judge reserves ruling on the motion: The trial proceeds to deliberations and the judge
decides the motion later.
d. Correcting a Verdict
The court can correct a verdict so long as the party asking for a correction has made a directed verdict motion appropriately.
Example 54: Patty and Dan’s car accident case proceeds to trial. At the conclusion of Patty’s case, Dan moves for a directed verdict. The motion is denied. The case is submitted to the jury. The jury returns a verdict in favor of Patty on January 10. May Dan move to set aside the verdict and, if so, when?
__________, Dan may move to set aside the verdict because he made a motion for a directed verdict during the trial. The rules allow Dan to move after the verdict to set it aside, so long as he moved for a directed verdict during the trial.
Note 9: Timing: The rules require that a party must make a motion to set aside a verdict within __________ days of the verdict.
Example 55: Patty and Dan’s car accident case proceeds to trial. At the conclusion of Patty’s case, Dan moves for a directed verdict. The motion is denied. The case is submitted to the jury. The jury returns a verdict in favor of Dan on January 10. May Patty move to set aside the verdict and, if so, when? __________, Patty may not make this motion because she never made a motion for a directed verdict prior to jury deliberations.
C. Bench Trials
• In a bench trial, the parties either do not have a jury trial right, or had one and either waived it or ______________________________ it.
• Follows the same basic format as a jury trial • The equivalent of the directed verdict motion in a bench trial: motion for involuntary dismissal.
D. Attorney’s Fees
Example 56: Perhaps there has been an offer and demand for judgment that was rejected and the winning party gets attorney's fees based on recovering in excess of 25% more than the offer.
A party seeking attorney’s fees and costs must file its motion requesting the fees/costs no later than 30 days after entry of ______________________________ (or the filing of a notice of voluntary dismissal).
Example 57: Assume that the case of Patty v. Dan goes to trial. The jury returns a verdict in favor of Patty on January 5. Judgment is entered on the verdict on January 15. Patty believes she is entitled to an award of fees and
costs based on a rejected offer of judgment. When must the motion be filed?
It is within 30 days of the judgment, which was entered on January 15. Notice here that the date the jury rendered its verdict, January 5, does not trigger the clock.
E. Motion to Disqualify a Judge
• There is something that suggests that the judge might not be able to be fair and ______________________________.
• The motion must be filed within __________ days of the party learning about the reason for the purported need to disqualify.
F. Expedited Trial
• Can occur only with the ______________________________ of all the parties • A normal civil litigation is shortened. • 60-day discovery period • The trial will be held within 30 days after that discovery period. • The trial may be no more than one day. • Jury selection is limited to one hour. • Each side gets no more than __________ hours to present their entire case.
POST-TRIAL PROCEDURE
A. Motion for a New Trial
1. Timing
o Must be made not more than __________ days after the jury verdict o Same period as the time for filing a motion to set aside the verdict
2. Form
o May be made at the same time as a motion to set aside the verdict (may be cast in the alternative)
3. Sua Sponte
o The court may order a new trial or rehearing on its own initiative, without a motion from the parties.
o The court may do so within __________ days of entry of judgment (note judgment, not verdict) or before it has ruled on a motion to set aside the verdict.
o A motion for a new trial, if granted, doesn’t say that a particular party wins or loses; it sends the case all the way back to the beginning of the trial process to do it all over again.
5. Motions in Non-Jury Cases
o It is possible to use a motion for a new trial motion in a non-jury trial. o The 15-day time period runs from the entry of ______________________________.
6. Grounds
In general, the reasons fall into two categories:
o When there is something wrong with the ______________________________ to the jury:
Example 58: A circuit court gave an incorrect jury instruction, failed to give an instruction it should have given, or let in evidence that should have been kept out.
No longer have confidence in the output (verdict) because there is something wrong with the input (instructions or facts)
Not particularly controversial grounds
o The input is fine but given the evidence, the verdict does not seem correct:
A judge may grant a motion for a new trial if the verdict is “against the ______________________________ of the evidence.”
The judge is not substituting her view for that of the jury.
B. Motions for Remittitur and Additur
• Both these issues go to the amount of damages. • Remittitur: The amount of damages awarded should be ______________________________. • Additur: The amount of damages awarded should be ______________________________. • Both are allowed in Florida state courts (in federal court, only remittitur would be appropriate;
additur has been deemed unconstitutional). • The issue is not whether the judge would have given more or less in damages. • The issue is that the amount of damages is contrary to the ______________________________
of the evidence.
C. Relief from Judgment
1. Relief from Clerical Error
At any time, a party can correct a clerical error in the judgment (not a substantive error).
Example 59: A clerk forgot to insert a zero in the award of damages, so the judgment says the plaintiff is entitled to $10,000 when, in fact, it should have been $100,000.
Some grounds by which a party can seek to obtain relief from the judgment:
o When there has been some ______________________________ (other than a clerical mistake);
o When there is newly discovered ______________________________ that with the exercise of due diligence could not have been discovered in time to move for a new trial;
o When there has been ______________________________, misrepresentation, or other misconduct by an opposing party;
o When the judgment is ______________________________ for some reason; and o When the judgment has been satisfied or discharged.
3. Timing
o A motion for relief for judgment must be filed within a “______________________________ time.”
o Exception: For mistake, newly discovered evidence, or fraud/misconduct, there is a ______________________________ window from the date of the judgment.
D. Appeals
• Appropriate court: For most situations, when starting in the circuit court, the appropriate forum for an appeal would be in one of the five ______________________________ courts of appeal.
• There are rare circumstances when somebody can appeal from a circuit court directly to the Florida Supreme Court.
• As a general matter, an appellate court is only going to have jurisdiction to consider an appeal from a ______________________________ (i.e., a judgment in the trial court that resolves all issues as to all parties).
• “Appeal” means a party has a ______________________________ to review in a higher court, an inferior court’s decision.
• Writ of certiorari: A party’s request for discretionary review of a non-final order
o No right to review of the decision (it’s non-final) o We give the party the option to try to get the appellate court to hear an appeal of a non-
final judgment. o The party seeking review by certiorari bears a “______________________________
burden.” o The party must show that without review of this non-final order, there will have been “a
clear departure from the essential requirements of law that has or will result in irreparable 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):
o Orders that deal with ______________________________ (granting, denying, modifying, etc.);
o Decisions concerning venue; o Matters dealing with ______________________________ jurisdiction; o Matters dealing with the immediate possession of property; o Matters concerning child custody or the immediate payment of money in family law
matters; o Matters concerning referring a matter to arbitration or an appraisal if we are dealing with
insurance; o A decision that a party is not entitled to workers compensation immunity; o A decision that a class will be ______________________________ in a class action case; o A decision that a party is not entitled to immunity in a civil rights case under federal law; o A decision that a government entity has taken an action that will inordinately burden
______________________________; o Matters granting, denying, terminating, or refusing to terminate a receivership; o Motions granting a new trial; and o Motions granting relief from ______________________________.
Example 60: Assume that a defendant files a motion to dismiss a complaint for failure to state a cause of action. The defendant is certain that the plaintiff’s complaint does not state a cause of action and it really believes it would be unfair to have to spend the time and money necessary to try the case. The circuit judge denies the motion. May the defendant appeal?
__________. The denial of a motion to dismiss for failure to state a cause of action is not a final judgment (i.e., it does not resolve the action). Moreover, that motion is not within the list of exceptions to the final-judgment rule. Therefore, the defendant may not appeal.
Example 61: Assume a defendant files a motion to dismiss for lack of personal jurisdiction. The circuit court denies the motion. May the defendant appeal?
__________. While the decision of the circuit court is not a final judgment, a decision concerning personal jurisdiction is an exception to the final-judgment rule and, therefore, the defendant is allowed to appeal.
• Notice of Appeal
o A party with a right to appeal must file “Notice of Appeal” within 30 days of the date of the judgment or the order to be reviewed on appeal.
o The notice is filed in the ______________________________, not the appellate court.
o This 30-day period is tolled during the time that any post-trial motions are ______________________________.
If there are post-trial motions, the party has 30 days from a decision on any such motion.
E. Execution of Judgments
• Simply having a judgment is not enough to get you your money; a judgment just gives you the right to get the money.
• The mere filing of a notice of appeal does not stay the plaintiff’s right to try to collect on the judgment.
o To obtain a stay, the defendant must file a ______________________________ to cover the entire amount of the judgment, plus twice the rate of interest payable should the appeal be dismissed or denied.
If the bond is filed in the appropriate amount, the plaintiff cannot execute on the judgment during the appeal.
If no bond is filed, the plaintiff is free to execute on its judgment during the pendency of the appeal.
o 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 ______________________________.
• Methods of Execution
o Payment of money:
Writ of garnishment: A plaintiff can take some of the defendant’s ______________________________.
Writ of attachment: A plaintiff can take some of the defendant’s property.
o Recovery of property:
Writ of replevin: To recover personal property Writ of possession: To recover ______________________________ property
Special Rules Regarding Real Property: If one is seeking to execute a judgement against real property, the 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 “______________________________” property.
Order of contempt: If the act ordered has not been performed
• Discovery in aid of execution: A party can use the various discovery techniques in aid of execution even after judgment in the case.
o The trial court has the authority to order the defendant (judgment-debtor) to complete a fact information sheet concerning its assets.
o If the judgment-debtor fails to do so within __________ days of the order, it may be held in contempt.
OTHER PROVISIONS IN CIVIL PRACTICE
A. Actions Concerning Access to Judicial Branch Records
• The presumption is that judicial proceedings are public and the public is entitled to access to how its court systems work.
• Exception: Certain types of judicial documents:
o Documents concerning the ______________________________ workings of the courts (e.g., draft opinions);
o Matters concerning claims against lawyers and judges, before a finding of probable cause; and
o Documents that are ______________________________ under some source of law (e.g., a statute, the constitution, or a protective order dealing with something like a trade secret).
• A court may deem something non-public and some member of the public may disagree. • Procedure:
o A person may file an action seeking the release of judicial records.
The request must be in ______________________________, describe the documents at issue, state the grounds for the argument that the document is not exempt from the normal rule of openness, including citation to relevant legal authority.
o The court must rule on the motion as soon as practicable, but no later than __________ days after the filing of the motion must the court hold a hearing.
o The court must issue a written order on the motion setting forth its decision in detail. o The statute provides the express power to ______________________________ a person if
the court determines that any such motion was made in bad faith or was not supported by sound factual or legal bases.
B. Summary Proceedings (small claims proceedings)
• Apply to actions at law seeking not more than $8,000; filed in the ______________________________ courts.
Editor's Note 10: Effective January 1st, 2020, the jurisdictional limit in small claims court is $8,000.
• Start with the filing of a concise ______________________________ that must merely inform the defendant of the basis for the claim and the amount of damages sought.
o A notice to appear is served with the statement of claim.
• A defendant in a small claims action is not required (absent a court order) to submit any motions or defensive pleadings such as an answer.
• If a party is not represented by an attorney, there is no ______________________________ 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 __________ 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 __________ days’ notice of the trial.
• The trial is to be conducted ______________________________: The rules of evidence apply, but are to be construed liberally.
C. Medical Malpractice Claims
1. In General
o Must be filed under the Florida Medical Malpractice Act for claims of medical negligence against healthcare providers.
o Arises out of the rendering or failure to render medical care or services o Covered providers are broad, including doctors, hospitals, nurses, HMOs, midwives, birthing
centers, dentists, and dental hygienists. o Goal: To ensure to the extent possible that claims of medical malpractice based negligence
are based on facts that are well-founded.
2. Notice
o Complex system of ______________________________ notification and investigation requirements
o The claimant must, after conducting its own investigation, notify each potential defendant of its intention to file suit.
Must be made at least __________ days before a suit is filed Must give grounds for the potential claim including a verified written opinion from a
medical expert corroborating reasonable grounds to support the claim Must include the medical records on which the expert opinion is based Must include list of the medical professionals the plaintiff has seen in connection with
the claimed injury and in the two-year period prior to the claimed negligence Must submit a signed authorization for release of claimant’s protected health
60 days after the defendant rejects a claim (or fails to respond within 90 days) to file suit; or
Until the actual statute of limitations expires, whichever is ______________________________.
3. Investigation
o After notice, the potential defendant and/or its insurer is required to conduct its own investigation.
o The defendant has __________ days after the notice is sent to conduct this investigation. o The insurer must have a system in place to conduct this type of investigation.
The system must include one or more of various options to ensure that the investigation is a substantive one:
• The creation of ______________________________ of experienced malpractice attorneys to evaluate the claim;
• Using a professional adjustor; or • Using a medical review ______________________________ of a local or state
medical association.
4. Defendant’s Response
o After conducting this investigation, the potential defendant has to respond to the claimant. o It can reject the claim, make an offer of settlement, or offer an admission of liability and
have damages resolved by arbitration. o If the defendant rejects the claim, its rejection must be accompanied by a verified written
opinion of an expert stating the grounds (and also whether that expert has been disqualified in a prior proceeding).
5. Discovery
Parties may engage in ______________________________ discovery in connection with the pre-suit investigation.
6. Arbitration of Damages
o Either party may propose binding arbitration (before a __________-person panel) as to damages.
o Such a request can be made at any point in the 90-day pre-suit investigation period.
The other party has __________ days to respond.
o In binding arbitration as to damages, there are certain requirements (see § VIII.D.4.). o A party is not required to accept the proposal for binding arbitration as to damages, but
there are some consequences when this proposal is not accepted (see § VIII.D.5.).
o When a medical malpractice claim reaches court, the rules provide that either party can file a motion requesting ______________________________ arbitration.
D. Claims Against Nursing Homes
• The claimant must provide written notice to the nursing home (potential defendants), laying out the allegations of a violation of a patient’s rights.
• The defendant then has __________ days within which to respond to the claim.
o The claimant cannot file suit in this period and the statute of limitations is ______________________________.
• Within 30 days after receiving the defendant’s response, the parties must meet for ______________________________.
o The claimant may not file suit until the mediation is completed. o The statute of limitations remains tolled in this mediation period.
• The claimant has __________ days after the mediation is unsuccessful to file suit, or the remainder of the actual statute of limitations, whichever is greater.
E. Involuntary Commitment of Sexual Predators
• 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 are in place to make sure that such holding is appropriate.
• Procedures:
o Must be detailed notice to the person of the grounds for the commitment; o An assessment by an appropriate medical/interdisciplinary team; o The state bears the burden at a hearing of showing probable cause that the person remains
dangerous; o The person is entitled to ______________________________; and o 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.
REMEDIES
Note 10: See § VIII.G. for the list of statutes of limitations.
A. Damages
• A very common remedy—monetary relief • Can be either ______________________________ or punitive
o Compensatory damages: Money paid to put the plaintiff back in the position she would have been in but for the defendant’s wrong.
o Punitive damages: Meant to punish the defendant and ______________________________ him from engaging in this type of behavior.
A plaintiff is not allowed to plead a request for punitive damages without amending the complaint and submitting evidence that would establish a prima facie case.
• “Special” damages: (e.g., lost profits) must be pled with ______________________________ in the complaint.
B. Injunctions
1. In General
o An equitable remedy not decided by a jury o An order of a court to a party to do something or not do something o An in personam remedy: So long as the court has personal jurisdiction over the party, and it
complies with the procedural rules, the court can enjoin the party from acting (or compel it to act) ______________________________.
o Enforced through ______________________________ proceedings
2. Temporary Injunction
o An extraordinary remedy because it is awarded ______________________________ a trial on the merits.
o Can be obtained in one of two ways:
Ex parte: In very special circumstances, you can get an injunction through an ex parte proceeding (only one party is present); or
• An affidavit or verified complaint that shows ______________________________ that the movant will suffer ______________________________ 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.
Adversary proceeding: After an adversary proceeding in which both parties are present
o Requirements: A movant must establish four things to obtain the temporary injunction:
1) It is likely to prevail on the ______________________________ 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—the movant will suffer more harm if the injunction is not granted than the defendant would suffer if the injunction were granted; and
4) Granting the injunction would serve the ______________________________.
o Any party granted a temporary injunction is required to file a ______________________________ in an amount determined by the court.
Protects the enjoined party from harm that could flow from the issuance of the temporary injunction
No bond is required under Florida law for an injunction that deals with ______________________________ 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 ______________________________ entity.
3. Declaratory Judgment
o The court will decide a question on which there is disagreement but a declaratory judgment is not a ______________________________ remedy because it is not directly enforced.
o Must be an actual adversarial ______________________________ between antagonistic parties such that the resolution of the particular issue on which the declaration is sought is required
The court does not want to answer an abstract question.
Example 62: Assume that X has liability insurance issued by Insurance Company. X files a claim with the insurance company claiming that the claim is within the policy and, as a result, the insurance company must provide X with a defense. The insurance company thinks this is not within the policy but it is in a tough spot. The duty to defend is broader than the duty to pay. The declaratory judgment statute offers the insurance company an option. It can file its own action under the declaratory judgment statute by which it asks “does claim X come within the insurance policy?”
C. Garnishment and Attachment
• Garnishment: A process by which a person with a judgment can make another person who owes money to the ______________________________, pay the plaintiff instead
Example 63: A has a judgment against B. B hasn’t paid A any money. However, C owes B money. Garnishment is a way in which A can get an order telling C to pay A instead of B.
• Attachment and distress are means by which one is able to seize ______________________________.
o Attachment may be used for any debt. o Distress is limited to claims involving non-payment of rent in
o An order to an official to perform some sort of ______________________________ act. o The plaintiff must show a clear violation of a legal right and a corresponding indisputable
duty on the part of the official to act o Procedure:
The person seeking the writ files a complaint setting forth a statement of facts and specify the relief that person seeks.
The court looks to see whether the complaint sets forth a prima facie case for issuance of the writ.
If it does, then the court issues an “______________________________ writ of mandamus”
The plaintiff serves the alternative writ on the defendant. The defendant will then either ______________________________ or disagree and file
a response. The defendant bears the burden of showing that the writ should not be granted. The court may or may not hold an evidentiary hearing.
2. Writ of Prohibition
o A party in county court or an administrative agency believes that the court or agency is acting outside its jurisdiction
o Not a substitute for an appeal o Procedure:
The person seeking the writ files a complaint. If the court determines that the complaint does not set out a prima facie case of
entitlement to the writ, the matter is at an end. If the complaint does state a prima facie case, the court will issue an “order nisi in
prohibition.” When served with the order nisi, the other body may decide not to exercise jurisdiction. If the other party disagrees, a response is required and the
______________________________ court must adjudicate the issue. A hearing may be necessary if there are factual matters in dispute.
