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149 Cards in this Set
- Front
- Back
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Personal jurisdiction is a two step process:
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1. Statutory
AND 2. Constitutional |
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Statutory based j/d - 6 types
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1. D is present when served
2. D is domiciled in FL 3. D is incorporated in FL 4. "Substantial and not isolated activity in FL" 5. Long-arm statute 6. Nonresident Motorist Act |
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If defendant is coaxed or forced into the state and for purposes of serving process
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Courts will not exercise personal j/d
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If a party is in FL to attend court as a party and witness in an unrelated matter - services of process
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Will not stand
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Under the long-arm statute the COA can arise from (4)
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1. Operation of a business in FL (or a FL office)
2. Ownership, use, possesion of land in FL OR 3. A toritous act committed in FL 4. Breach of (K) in FL |
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Tortious acted committed in FL interpreted
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Broadly; includes such act via electronic communications
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A tortious act committed out of state causing an injury in state - j/d okay where (2)
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1. D engaged in solicitation/service activities in Florida
OR 2. D's products are used in FL in the ordinary course of commerce |
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Breach of (K) established where the party
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Failed to do what the (K) required him to do in FL
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Nonresident motorist act
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May sue a nonresident who owns/operateds a motor vehicle involved in an accident in FL
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Constitutional Standard defined by "minimum contacts" - factors are
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- Contacts
- Fairness |
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Minimum contacts (2)
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- Purposeful availment (voluntary act by D)
- Foreseeability (to suit in the state) |
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Fairness: Fair play and substantial justice (3)
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- Relatedness btwn the contact and the claim filed
- Convience - State's Interest |
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Subject Matter J/D: Circuit Courts - exclusive (6)
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1. Probate and estate matters; guardianship; incompetence
2. Juveniles (except traffic offenses) 3. Cases involving title or boundaries to realty 4. Ejectment cases (EXCEPT - landlord evicting tenant) 5. Equity suits not in County Ct. j/d 6. Actions at law not in County Ct. j/d |
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Subject Matter J/D: County Courts (5)
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1. Violations of municipal or county ordinances
2. Actions at law amount in controversy > $15k 3. Equity cases not > $15k (not exclusive) 4. Disputes re: homeowner's associations 5. Landlords evicting tenants (amount up to $15k) |
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Foreclosure of lien on real estate is what type of proceeding? (for subject matter j/d)
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Equity; value determined by the amount of the lien
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For determining SMJ/D you can aggregate claims only if
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They arise out of the same T/O
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Actions filed in the wrong court (i.e. filed in Circuit belongs in County)
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Transfer if P pays transfers costs w/i 30 days; if not paid, case is dismissed (no prejudice)
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Joinder of smaller, unrelated claims that do not individually satisfy SMJ/D - permissible?
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Yes, once one claim independently satisifes Circuit court j/d
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Action filed in County Ct. and counterclaim amount exceeds j/d - 2 options
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1. Transfer entire matter to Circuit Ct. (if P pays costs)
OR 2. Reduce damages claim to $15k |
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Venue for local actions (i.e. land matters) lies
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In the county where the property lies
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Venue for transitory actions is proper where (3)
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1. County where D resides when complaint filed
2. County where cause of action accrued (tort/breach of contract) OR 3. County where property in litigation is located (i.e. ownership of chattel) |
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Venue for multiple Ds hailing from multiple counties, may sue where?
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Where ANY D resides
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Venue against a nonresident, choices are (3)
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1. County where D served with process
2. County where COA occurred 3. County where property in litigation is located |
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May D waive a venue objection?
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yes, by failing to make a timely objection or by (K)
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Florida corporation resides where
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In any county in which it has, or usually keeps, an office for the transaction of its customary business
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Foreign (out-of-state) corporations resides
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In any county in which it has an agent or other representative
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If venue was originally improper, the court will transfer to a proper venue is
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P pays transfer costs w/i 30 days; else case dismissed (w/o prejudice)
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If venue originally proper, may transfer for two reasons
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1. Party won't receive fair trial where case originally filed
OR 2. Convenience of parties or witnesses, or "interest of justice" |
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If transferring from a proper venue b/c party won't receive fair trail where case originally filed may transfer to
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Any county, even if not a proper venue
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If transferring from a proper venue for matters of convenience/"interest if justice" limited to
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Transfer to some other proper venue
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Forum Non Conveniens
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A court may dismiss b/c another court is proper and is FAR more convenient
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Service of process requires delivery to each D of (2)
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1. A Summons
2. A Copy of the Complaint |
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Process may be served by
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1. The sheriff (or his appointee)
OR 2. By a non-interested adult, appointed by the court |
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Define: Elisor
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Somebody appointed by the court to serve process
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Filing proof of service requires
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- note of date and time of service
- i.d. number - initials - (by civilian: affidavit) |
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Proof of service is prima facie evidence that
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Service was made
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Failure to file proof service - effect on validity of service
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Does not affect vailidity of service
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Service of process on Adults (3)
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1. Personal Service
2. Substituted Service 3. Nail and Mail |
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Substituted service requires (3)
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1. Left at D's usual place of abode
2. Left with a person at least 15 yrs. old AND 3. Server tells that person the contents of the document |
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Nail and Mail
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Failed twice, at least 6 hours apart, to serve personally or by substituted service
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Nail and Mail is limited strictly to what type of actions
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Landlord-tenant dispossessory actions
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Service on Minors/Incompetents - 3 scenarios
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- Legal Guardian: serve guardian
- No legal guardian: serve parent and ask the court to appoint a guardian - Incompeten w/o legal guardian: 2 copies on custodian and ask court to appoint guardian ad litem |
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Service on Corporations: two basic choices
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1. Officer or director
2. Resident agent |
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Descending order rule for service of process on officer or director of corporation
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- President, VP
- Treasuer, Sec. GM - Any director - Any office/business agent residing in FL |
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Service on non-resident that either has an office in Fl or has done business here (2)
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- Resident agent
OR - FL Sec. of State and served personally out of state |
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Service of process under non-resident motorist act
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- Resident agent
OR - FL Sec. of State and served personally out of state |
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Pleadings must contain:
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- Name of Court
- Case file number - Name of parties - Name, address, phone number of attorney - Attorney's bar number - Designation of pleading - Each claim or defense separately stated - Numbered paragraphs |
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Attorney certificates for pleadings certify
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1. Read the document
2. Good grounds to exist to support 3. It is not interposed for delay |
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Winner can recover attorney's fees if
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Losing party raised a claim or defense not supported by facts or law
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In addition to fees, you can recover damages for delay if you show by a preponderance of the evidence:
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Opposing party acted primarily for unreasonable delay
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Complaint (principle pleading by P), must contain (3)
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1. Grounds for SMJ/D (if suing nonresident also for personal j/d)
2. Short and plain statement of the ULTIMATE facts AND 3. Demand for judgment |
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In a complaint, special matters must be pleaded with particularity/specificity (3)
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- Circumstances establishing FRAUD
- Facts supporting PUNITIVE DAMAGES - SPECIAL DAMAGES |
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D must respond within 20 days in one of two ways:
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1. An Answer
OR 2. Make a Motions |
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Defense Motions - issues of form (2)
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- Motion for a More Definite Statement
- Motion to Strike |
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Defense Motions - Matters of Abatement (7)
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- lack of SMJ/D
- lack of personal j/d - improper venue - insufficiency of process - insufficient service of process - failure to state a claim on which relief can be granted - failure to join indeispnesable party |
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Waivable defenses are
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- Lack of personal j/d
- Improper venue - Insufficieny of process - Insufficient service of process |
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Waivable defenses not put in the first defensive response are
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Waived
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Timing of motion more more definite statement
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Must be brought before filing responsive pleading
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Timing of motion to strike
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Anytime
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If no motions are filed, D must file an Answer (a pleading) or risk default - timing requirements are
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- W/i 20 days of service of process
- If motion is made, w/i 10 days of court's order |
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Three ways to Answer
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1. Admit
2. Deny 3. State "without knowledge" (has the effect of denying) |
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Failure to deny in an Answer results in
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An admission on the undenied allegations; EXCEPT for damages
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If these are not pled in the Answet they are waived
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Affirmative defenses (i.e. statute of limitations, assumption of risk, res judicata)
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Affirmative defenses which P wishes to avoid - he does so in a
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Reply (filed w/i 20 days after service of answer)
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Counterclaims are
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Claims against an opposing party
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Two types of counter-claims
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1. Compulsory
2. Permissive |
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Compulsory counter-claims arise from
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The same T/O as the opposing party's claim and MUST be asserted in the pending case or lost forever
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How Permissive counter-claims differ from compulsory
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They do NOT arise from the same T/O as claimant's claim and don't have to be filed here
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If counter-claim exceeds j/d of County Ct. was needs to happen
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Transfer to Circuit Ct.
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Cross-claims are
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Offensive pleading against a co-party; NOT COMPULSORY
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Basis for cross-claims
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Must arise from the same T/O as the original claim/counterclaim
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Parties rights to Amend
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- P: ONCE before D files an answer
- D: ONCE w/i 20 days of serving his answer |
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If your right to amend as expired what options exist
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- Seek leave of court; it will be granted it justice so requires
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Variance requires
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That the pleading match what was tried; even after trial a party can move to amend the complaint to conform to the evidence presented
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For purposes of the statute of limitations, amended pleadings relate back if
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They concern the same conduct and T/O as the original
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Relation back means
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The amended pleading treated as though it was filed whn the original was filed, so can avoid the statute of limitations bar
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General rule for Permissive Joinder
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Can only join if the parties have a common interest in the subject of the action; this is a broad standard that allow joinder of any party with an interest adverse to P
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Special rule for Joinder
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Spouses or parents and their children may join in tort cases
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Restriction regarding joinder of insurer
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Cannot sue insurer until you get a judgment against the insured
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Two tests to determine who is a Necessary Party
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1. Without absentee, the court may not be able to accord complete relief
OR 2. Absentee's interest may be harmed is he is not joined |
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Define an "Indispensable Party"
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Where a party is necessary but cannot be joined and the Court dismisses the case b/c of that (Ct. has broad discretion here)
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Joinder rules starting with "C" are btwn; Joinder rules starting with "I" are btwn
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- "C": Existing parties
- "I": New parties |
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Define Intervention
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Absentee wants to join a pending suit; allowed at Court's discretion
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Define Impleader
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Claims involving Third-Party defendants (TPD); D usually brings them in to get indemnity or contribution
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Timing on right to implead
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W/i 20 days of serving your answer; after that you need court permission
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Define Interpleader
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A device by which one holding money or other property can force all potential claimants into a single lawsuit
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For purpose of an interpleader the person with the property is; and the people who want it are
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- Person with the property: stakeholder
- People who want it: claimants |
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Two stages to Interplead
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1. Stakeholder deposits the property in court; recover's his costs and attorney's fees and disappears
2. Claimants litigate nad the court decides how to divide the property |
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Initial requirements that need to be demonstrated for a Class Action (4)
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1. Too numerous for practicable joinder
2. Some question of law/fact in common to class 3. Representative's claims/defenses typical of those of the class AND 4. Representative adequately and fairly represents the class |
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Class action must fit within one of three types
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1. Prejudice
2. Seeking an injunction or declaratory judgment (not seeking damages) 3. For Damages |
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Two considerations when seeking damages in a class action
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1. Common questions predominate over individual questions
AND 2. Class action is superior to other devices |
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Notice to class
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- Paid by class rep; must inform them (a) they can opt out of the class action (b) they will be bound by the judgment if they do not opt out AND (c) they can enter a separate appearance in the case through counsel
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Dismissal or settlement of a class action requires
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Court approval
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Discovery tools
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1. Depositions
2. Interrogatories 3. Requests to produce 4. Physical/mental examination 5. Requests for admission |
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Depositions may used to get information from
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Both parties and non-parties
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A non-party deponent must be
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Subpoenaed; can be duces tecum (required to produce)
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Requirements for Interrogatories
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- In writing (both ways)
- By a party to another party - Limited to 30 |
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Requests to produce are generally limited from
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One party to another
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Receiving party to a request to produce must
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Respond in writing within 30 days
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Limited circumstance in which request to produce can be made of non-party
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When accompanied by a subpoena; but receiver can object and no production will be ordered
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Physical/mental examinations are available
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Without court order if physcial condition of the party is in controversy; person may have a representative and obtain report (waives any privilege)
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If the condition in controversy is not physical (i.e. mental health, blood type, etc), examination is available only
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Upon motion
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Requests for admission
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A request by one party to another to admit the truth of any discoverable matter
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Requests for admission are binding only for
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The pending case
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Scope of Discovery generally
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Anything relevant to the subject matter of the case (i.e. reasonably calculated to lead to admissible evidence)
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Scope of discovery relating to Work Product
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Generally protects anything prepared in anticipation of litigation ("fearing suit")
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Limited expection that makes work product discoverable
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Witness statement
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Witness statement taken in preparation for litigation is discoverbale if (2)
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1. Substantial need
2. Not otherwise discoverable |
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Work product absolutely protected
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Mental impressions, legal theories, opinions, and conclusions (need not be generated by lawyer)
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When an expert witness will testify party can request information for
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- Name
- Substance of facts/opinons - Grounds for opinions - Party's relationship with that expert |
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Order of performance when discovering facts known and opinions held by experts
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1. Interrogatories
2. Deposition |
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Enforcement of discovery rules where receiving party answers some and objects to others
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Order compelling answers plus costs
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Enforcement of discovery rules where receiving party willfully refuses to attend deposition - violation of order compelling
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RAMBO Sanctions plus costs
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Serious sanctions include
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- Establishment order; establishes facts as true
- Strike pleasdings of disobedient party - Stay proceedings until discovery given - Disallow evidence by disobedient party - Contempt (except for refusal to have a medical exam) - Dismissal or entry of default judgment (requires written finding of willfull/deliberate refusal to obey order) |
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Pretrial Judicial Management matters
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- Case management conferences
- Pretrial Conference - Failure to attend - Effect of pretrial conference order |
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Termination of Case without trial
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1. Voluntary dismissal
2. Default and default judgment 3. Involuntary dismissal 4. Rule Nisi 5. Scire Facias 6. Failure to state a COA 7. Summary judgment |
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Voluntary dismissal options
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1. File notice of dismissal
2. Stipulation of parties (written) 3. By court order |
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Voluntary dismissal is without prejudice if
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It's the first one
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Default and default judgment
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Party against whom claim is filed fails to plead or otherwise defend the action in the time allowed by law (generally 20 days)
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Disntguish between "entry of default" and "entry of judgment"
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Entry of default is a prerequisite to default judgment; need a judgment to enforce and recover
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Application for entry of default
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Is not automatic - must be requested by [P]
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Effect of entry of default on D's options
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Once entered, D cannot answer or file a motion
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Entry of judgment entered only by
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Judge
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D gets notice of hearing on entry of judgment for
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Damages
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Effect of one D's default on other Ds
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No effect
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How do you get relief from default - file
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Motion to set aside
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Motion to set aside requires showing of (2)
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1. Good cause for the default (excusable neglect)
AND 2. A meritorious defense |
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Grounds for Involuntary dismissal (3)
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1. [P] fails to prosecute
2. Failure to comply with procedural rules or court order 3. Any of the defense motions for dismissal |
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Presumption of an involuntary dismissal
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Prejudice UNLESS
- court states otherwise OR - based upon j/d, venue, indispensable parties, or failure to prosecute |
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Rule Nisi
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Order to show cause
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Scire Facias
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Order requiring one to show cause why some matter of record should not be vacated or why a dormant judgment should not be revived
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Failure to state a COA tests only
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The sufficieny of P's allegations; does NOT address the evidence
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Moving party for summary judgment must show (2)
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1. There's no genuine dispute as to a material issue of fact
AND 2. He is entitled to judgment as a matter of law (i.e. no reason to hold trial) |
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In ruling on summary judgment what can the court consider
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1. Affidavits
2. Interrogatory answers 3. Depositions 4. Admissions 5. Pleadings (though not as evidence; if D failed to deny an allegation that is an treated as an admission) |
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Jury trial requirement for demand
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Must demand in writing w/i 10 days of service of last pleading
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How can a party withdraw its demand for a jury trial
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Only with consent of all other parties
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Civil litigants in FL have a right to jury trial for
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Actions at law; NOT equity
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How many jurors in civil cases; Eminent domain cases
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6; 12
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Number of peremptory challenges and for casue challenges
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- 3 Peremptory
- Unlimited for cause |
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Objections to jury instructions must be made when
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Before the jury is charged
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Standard for a Directed Verdict
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Reasonable persons could not disagree on the result
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Verdicts must be unanimous UNLESS
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Parties agree otherwise
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Where party is held liable for damages, the jury must itemize amounts to be awarded between
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- Compensatory damages (economic and non-economic loss)
AND - Punitive damages |
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Cap on punitive damages
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Cannot exceed 3x compensatory damages or $500,000
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Exception to cap on punitive damages
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- If D had specific intent to harm [P]
OR - Was intoxicated |
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Motion for directed verdict must be made when
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At close of all evidence
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Grounds for motion for new trial (4)
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1. Error at trial
2. New evidence not previously discoverable 3. Prejudicial misconduct of party or juror 4. Judgment is against the weight of the evidence |
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County court final judgment certified as matter "of great public importance" appealable
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Direectly to the DCA
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Florida Supreme Court must hear
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An appeal taken from a decision of a DCA in which a state staute or a provision of the state constitution is declared invalid
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