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149 Cards in this Set

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