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133 Cards in this Set

  • Front
  • Back
What is the 2-step process for jurisdiction?
(1) must meet constitutional standards regarding the existence of minimum contacts
(2) must be authorized by state law/statute (such as the long-arm statute)
General Jurisdiction
allows a court to hear any cause of action involving the defendant
Specific Jurisdiction
allows the court to hear only causes of action related to teh defendant's contacts with the state

Note: a single contacy may suffice under the long-arm statute, but more contacts are required for the exercise of general jurisdiction
Personal Jurisdiction - 9 foundations
(1) presence of defendant in FL when served
(2) general appearance without timely objection
(3) consent
(4) domicile in FL
(5) incorporation in FL
(6) place of business in FL
(7) substantial (not isolated) activities in FL (minimum contacts)
(8) long-arm statute
(9) non-resident motorist act
Specific Jurisdiction - Non-Resident Motorist Act
may sue a nonresident who owns OR operates a motor vehicle, watercraft, or aircraft( including a nonresident who navigates or maintains an aircraft) involved in an accident OR collision in FL
Long-Arm Statute - Applications
specific jurisdiction in FL when the cause of action arises from:
(1) operation of a business in FL
(2) ownership, use or possession of land in FL
(3) tortious act committed in FL
(4) breach of contract in FL
Application of the long-arm statute to Corporations
The corporation MAY be sued in FL on a jurisdictional basis other than the long-arm statute even though the claim does not arise form activities conducted in FL

The constitutional "minimum contacts" test MUST always be satisfied

Under the LAS, claim MUST arise/grow out of the activity done in or directed towards FL
Tortious Act in FL
interpreted broadly, includes such acts as electronic communications

(as long as the cause of action arises from the communicaitons)
Tortious Act Committed OUTSIDE FL that Injures INSIDE FL
FL jurisdiction IF:
(1) engaged in solicitation or services activites in FL OR
(2) products are used in FL in the ordinary course of commerce
Personal Jurisdiction - Significance
decisions based on PJ are considered res judicata and are given full faith and credit in other states

this imposes a personal obligation/liability on the party and may be satisfied from any assets of that party
In Rem Jurisdiction
affects the interests of all persons in a thing

does NOT result in the personal liability of any person

msu be exercised, in a limited class of cases, when the court has control over the thing itself (suit to quite title to land in FL)
Quasi In Rem Jurisdiction
affects the interests of specified persons in a thing

The court MUST have physical power over the property itself (by attachment), AND the constitutional minimum contacts standard must be met
What happens if the defendant was coerced into FL for service of process?
FL courts will NOT honor the service of process and will not exercise personal jurisdiction
What if a party is in FL as a witness/party to another lawsuit?
immune from service of process during that presence in FL
Service of Process - Timeline
Plaintiff must use due diligence in attempting to serve the summons and copy of the complaint on the defendant WITHIN 120 days of commencement

--good cause
--excusable neglect
Service of Process - Amended Complaint
the 120 day timeline BEGINS with the order granting leave to amend IF the amended complaint was attached to the motion for leave to amend
Personal Service - BY whom?
can be effected by (1) sheriff, (2) special process server appointed by the sheriff, (3) a person over the age of 18 who is specially appointed AND is not interested in the outcome of the case
person specially appointed to serve process
Affidavit of Service - Required?
when service is not effected by a sheriff or deputy

Note: affidavit of service is prima facie evidence that service was made, failure to file does NOT affect the actual validity of service
Service of Process - Individuals
(1) personal delivery
(2) delivery to any person 15+ residing at defendant's usual place of abode IF informed of the contents
(3) substitute service to spouse IF they live together (in any place) UNLESS the action is between spouses
(4) delivery to an agent authorized to accept process
Service of Process - Individual dealing with real estate
if the tenant cannto be found in the county OR there is no person 15+ residing at the tenant's usual place of abode, AFTER 2 attempts of personal service at the residence, MAY conspicuously post process, AND have the clerk mail copies of the summons and complaint to the defendant at the premises
Service of Process - Substitute Service at Private Mailbox Address
if the only address discoverable through public records for a person to be served is a private mailbox, substitute service MAY be made on that person by leaving a copy of the process with the individual in charge of the private mailbox, BUT ONLY IF the process server determines that the person to be served still maintains a private mailbox at that location
Service of Process - Minors and Incompetents
may be made upon the individual's legal guardian

if a minor doesn't have a legal guardian, his parent may be served AND a court order sought as to whether appointment of a guardian ad litem is necessary

if incompetent, the person who has care and custody should be served AND a court order sought regarding appointment of a representative
Service of Process - Sole Proprietor
may be made at his place of business, during regular business hours, by serving the person in charge of the business IF 2+ attempts to serve the owner have been made at the place of business
Service of Process - Corporations
(1) may be made upon the president or vice president
(2) in their absence, on the cashier, treasurer, secretary, or general manager
(3) in their absence, a director
(4) in their absence, a resident officer or business agent
Service of Process - Domestic Corporation/Foreign Corporation qualified to do business in FL
may be made upon
(1) any agent designated by law or,
(2) if no such agent has been apointed, to any employee a tthe corporation's principal place of business
(3) or on any employee of the registered agent

if the address is a private mailbox or residence, the SoP may be made by serving the registered agent, or director at that address as if they were an individual
Service of Process - Partnerships
may be made by delivery to:
(1) a partner
(2) designated employee
(3) or under certain circumstances, to the person in chagre of the partnership

Service on an individual partner IS valid against the partnership

Execution of the resulting judgment DEPENDS on who is served
Service of Process - Non-Residents
secretary of state is the agent for service of process for claims arising out of the business/act
Service of Process - By Publication in General
may be used in connection with certain actions involving in rem and quasi in rem jurisdiction when the defendant is OUTSIDE FL or cannot be found for personal service after a diligent search in teh state

can be waived and replaced with service by mail
Service of Process - By Publication - Process
(1) file affidavit that defendant is over 18 (if known), that residence is unknown or defendant resides in FL and has been outside FL for 60 days, or has concealed himself, and disclosing particulars of diligent search
(2) copy of published notice MUST be mailed to each defendant whose address is known or can be found with reasonable effort
Minimum Contacts
(1) purposeful availment (voluntary act by the defendant)
(2) foreseeability (to suit in FL regarding the contacts)

(1) relatedness of cause of action and the forum
(2) convenience
(3) state's interest
Circuit Court - Exclusive Jurisdiction
(1) probate and estate matters, guardianship, incompetence
(2) juveniles (except traffic offenses)
(3) title or boundaries to realty
(4) ejectment cases (EXCEPT landlord evicting the tenant)
(5) equity cases that are NOT in the county court's jurisdiction
(6) actions at LAW that are NOT in teh county court's jurisdiction
County Court - Exclusive Jurisdiction
(1) dissolution of marriage under simplified dissolution proceedings
(2) violations of municipal or county ordinances
(3) actions at LAW with < $15,000 UNLESS otherwise vested in circuit court
(4) EQUITY cases < $15,000 (not exclusive though, so MAY go to circuit court instead)
(5) disputes in homeowners' associations
(6) LANDLORD EVICTING tenant (if < 15k MUST be county, if >15k can be EITHER)
What claims can be added together to determine amount in controversy?
can aggregate claims ONLY IF they arise from the SAME transaction OR occurrence (T/O)
Who pays transfer costs when case is filed in the wrong court?
plaintiff (since they filed it in the wrong place) pays the costs of transfer WITHIN 30 days or it is dismissed without prejudice
Difference between Venue and Jurisdiction
Venue - geographic location of a court that may hear the case
Jurisdiction - power of court to hear the case
Venue - Generally
exists in the county
(1) where ANY defendant reside at the time the action is commenced,
(2) where the cause of action arose, OR
(3) where property in litigation is located
Venue - Local Actions
must be brought in the county the property lies in:
(1) ejectment
(2) foreclosure of a mortgage
(3) trespass to land (even if relief sought is damages)
(4) quiet title to land
(5) partition of land
(6) forcible entry and unlawful detainer of land
Venue - Transitory Actions
venue is proper in county:
(1) where defendant resides when complaint filed
(2) where cause of action accrued
(3) where property in litigation is located (ownership of chattel)
Venue - Waiver of Objection to Improper Venue
(1) by contract
(2) by failure to make a timely objection
Venue - Nonresident
(1) county where served with process
(2) county where cause of action accrued
(3) county where property in litigation is located
Venue - Resident and Non-Resident Defendant
venue must be proper for the resident (nonresident will defend there too)
Venue - Corporations
domestic: any county in which it has or usually keeps an office for transaction of its customary business

foreign: any county in which it has an agent or other representative
Venue - Partnerships and Unions
any county designated by the secretary of state as the location of its principal office, or failing that, in the county of residence of any partner or member
Venue - Transfer of Venue
originally improper: court will transfer to proper venue if plaintiff pays costs within 30 days, otherwise, dismissed without prejudice (if multiple counties available for transfer, plaintiff can choose)

originally ok, seeking transfer:
(1) party wont receive fair trial where case originally filed
(2) convenience of parties or witnesses, or "interest of justice"
Venue - Factors Considered in Transfer for Fair Trial
(1) opponent has undue influence in teh county
(2) moving party is so odious he cannot get a fair jury
(3) it is impracticable to get a qualified jury (pretrial publicity)

Note: make the motion for the REASON of getting a fair trial, which is then established through consideration of the FACTORS
Pleadings - 7 Types
(1) complaint
(2) answer
(3) reply
(4) third-party complaint
(5) answer to third-party complaint
(6) answer to counterclaim
(7) answer to cross-claim
Pleadings - what must be included
ultimate facts, NOT evidence or conclusions
Pleadings - Inconsistencies
alternative, inconsistent, or hypothetical causes of action or defenses may be pleaded in the alternative as long as the pleader does not know which is true
Pleadings - Special Pleadings
circumstances that establish fraud, mistake, or denial of performance or occurrence MUST be stated with particularity
Pleadings - Attachments
if founded on a written instrument, the document must be attached as an exhibit or so much of it as is relevant must be adequately quoted
Pleadings - Claim for Punitive Damages
must disclose the basis for asserting such relief
Pleadings - Defenses
lack of subject matter jurisdiction: may be raised at any time

matters of abatement: waived if not objected to by motion or responsive pleading EXCEPT (1) failure to state a cause of action or legal defense or (2) failure to join an indispensable party
Service of Process - Long-Arm Statute
serve out of state in any method allowed in FL with service made by an officer authorized to serve process in the state where defendant is served
Pleadings - Incorporation by Reference
Facts stated in one part of the pleading may thereafter be incorporated by reference
Pleadings - Computation of Time
do NOT include the day the act occurs for which the period is running

DO count the final day

IF the final day falls on a weekend or a legal holiday, the final day is the NEXT DAY NOT a weekend or legal holiday

IF less then 7 days, do NOT count intervening weekends or legal holidays
Answer - options of defendant
(1) challenge the complaint's legal sufficiency
(2) deny essential allegations
(3) assert affirmative or other defenses

MUST be served within 20 days of service of complaint
Answer - Denials
the failure to deny an allegation constitutes an admission of that allegation

general denials may be made in good faith, but they are not favored
Answer - Defenses that are waived if not brought in answer
(1) lack of jurisdiction over the person
(2) improper venue
(3) insufficient process or service of process

Note: lack of SMJ is NOT waived and may be raised even on appeal
Counterclaims - Generally
if defendant has a claim that arises from the same transaction or occurrence as the plaintiff's, it MUST be pleaded in the CC or it will be barred

other claims against the plaintiff MAY be asserted even if not related to the cause of action (permissive)

CC is answered in the same manner as a complaint
Pleadings - Contents
MUST contain:
(1) name of the court
(2) case file number
(3) name of parties
(4) name, address, and telephone number of attorney
(5) attorney's FL bar number
(6) designation of pleadings
(7) each claim or defense separately stated
(8) numbered paragraphs
Pleadings - Certification of Attorney (or pro se defendant)
signature is attesting to:
(1) they read the document
(2) to the best of their knowledge there is good ground to support it
(3) it is not interposed for delay

If NOT signed - court can strike the pleading
Reply - Generally
ONLY required if the answer contains an affirmative defense that the opposing party wishes to avoid

MUST be filed within 20 days after service of the answer
Cross-Claims - Generally
claims by one defending party against a co-party

MAY be filed if it arises from the same transaction or occurrence as the complaint or a counterclaim, OR if it relates to any property that is the subject matter of the original claim

(permissive in nature)
Defense Motions - Two Types
(1) issues of form
(2) matters of abatement
Defense Motions - Issues of Form
(1) motion for more definite statement (when a pleading is so vague that defendant cannot respond)
(2) motion to strike (pares out immaterial allegations, cheap shots, etc.)
Defense Motions - Matters of Abatement (Dismissal)
(1) lack of SMJ
(2) lack of PJ
(3) improper venue
(4) indussifiency of process
(5) insufficient service of process
(6) failure to state a claim on which relief can be granted
(7) failute to join indispensable party
Defense Motions - Matters of Abatement --- Which ones are waivable?
(2) lack of PJ
(3) improper venue
(4) insufficiency of process
(5) insufficient service of process

**if not put in the FIRST DEFENSIVE RESPONSE (seeking something affirmative), they are waived**
Amendments - Generally
plaintiff has the right to amend once BEFORE the defendant serves his answer

OR, if no responsive pleading is required, within 20 days of service of the pleading sought to be amended

ALL OTHERS: can be made ONLY with written consent of all adverse parties OR by leave of court (freely given in the interest of justice)
Amendments - Conforming Pleadings to Proof
can be made at any time before or after judgment
Amendments - Relation Back
amendments date back to teh date of the original pleading, and are permitted, even though the statute of limitations has run, IF the conduct, occurrence, or transaction was set forth in the original pleading

relation back does NOT apply to new, distinct causes of action
Motion for Judgment on the Pleadings - Generally
may be made between close of the pleadings and trial, it tests the legal sufficiency of the cause of action or answer
Motion for Summary Judgment - Generally
made on the theory that there is no genuine issue of material fact to be tried, and that the moving party is therefore entitled to judgment as a matter of law
Motion for Summary Judgment - Support
can be supported or opposed by affidavits, depositions, pleadings, admissions, and answers to the interrogatories

must be made on personal knowledge AND must set forth facts that would be admissible in evidence as if the affiant were testifying in person at trial
Joinder of Parties
Plaintiffs: only if they have a joint interest in the subject of the action or the relief requested

Defendants: if they have an interest adverse to the plaintiff
Joinder - Necessary Party
should be joined if feasible since a necessary party's interest in the subject matter MAY be affected by the action or the court MAY not be able to adjudicate the matter fully in his absence
Joinder - Indispensable Party
MUST be joined because his interest in the subject matter WILL be irreparably affected adversely or the court WILL NOT be able to resolve the controversy in his absence without prejudicing some party to the action
Joinder - Insurance Carrier
accident victim may NOT join the liability carrier as a party defendant UNTIL he has obtained a judgment against the insured
defendant may bring in a person (third-party defendant) not a party to the action who MAY be liable to him for some or all of the plaintiff's claim against him
available to a stakeholder by complaint or counterclaim to join parties where claims are such that the stakeholder is or might be subject to multiple liability for one debt or obligation

person holding the property is the stakeholder
people who may be entitled to it are claimants
Class Actions - Initial Requirements
(1) too numerous for practicable joinder
(2) some questions of law or fact in common to class
(3) representative's claims or defenses typical of those of the class, AND
(4) representative adequately and fairly represents the class
Class Actions - 3 Types
(1) prejudice (class treatment is necessary to avoid harm either to class members or to the nonclass party)
(2) seeking an injunction or delcaratory judgment because the class was treated alike by the other party (employment discrimination)
(3) damages (common questions predominate over individual questions AND class suit is superior to other devices)
Class Actions - Pleading and Notice Requirements
Pleading: must designate a "class representation" next to the case caption and specifically allege class action allegations, define the class and approximate the membership

Notice: class representative pays to give individual notice to ALL class members reasonably identifiable, to inform them:
(1) they can opt-out of the class action,
(2) they will be bound by the judgment if they do not opt-out, AND
(3) they can enter a separate appearance in the case through counsel
Class Actions - Dismissal
no dismissal or settlement of class action without court approval, with notice to all members

court can consider their feedback in deciding whether to allow dismissal or settlement
Condominium Association Rights
can sue on behalf of all unit owners on matters of common interest, IF control of the association rests with the owners, NOT with the developers
Discovery - Duty to Supplement
there is no duty to supplement answers to discovery if the answers were complete when made
Discovery - Tools
(1) depositions (oral and written)
(2) inerrogatories
(3) requests to produce
(4) physical/mental examination
(5) requests for admissions
Discovery - Applicable to NON-party
depositions is subpoenaed...can be duces tecum (required to produce documents)
Sanctions - Against a Party
if a party refuses to comply with proper discovery requests:
(1) sanctions
(2) default judgment
(3) dismissal
(4) strie pleadings
(5) stay the proceedings
(6) prohibit party from supporting or opposing certain claims or defenses
(7) prohibit party from introducing evidence on the matter
(8) enter an order of contempt
Sanctions - Attorney Misconduct
may dismiss case with prejudice

court will consider:
(1) if conduct was willful
(2) attorney was previously sanctioned
(3) client was personally involved
(4) opposing party was prejudiced
(5) attorney offered a reasonable justification for noncompliance
(6) delay created significant problems of judicial administration
Pretrial Judicial Management
(1) case management conference
(2) pretrial conference

failure to attend - court can take appropriate actions
Effect of Pretrial Conference Order
controls future events UNLESS amended to prevent manifest injustice

essentially this supersedes ALL pleadings
Voluntary Dismissal - 3 Methods
(1) notice of dismissal
(2) stipulation of parties
(3) court order
Notice of Dismissal - When does it NOT apply?
(1) if case ahs been submitted to trier of fact OR motion for summary judgment pending
(2) property seized or in court custody
(3) counterclaim pending which cannot stand for independent adjudication
Stipulation of Parties (written) - when does it NOT apply?
property in court custody
Court Ordered Dismissal - when does it NOT apply?
if counterclaim is pending which cannot stand for independent adjudication
How many voluntary dismissals do you get?
1 without prejudice, the 2nd one is with prejudice
How can you terminate a case without a trial?
(1) voluntary dismissal
(2) default and default judgment
(3) involuntary dismissal
(4) rule nisi
(5) scire facias
(6) failure to state cause of action
(7) summary judgment
Involuntary Dimisssal - Grounds and Results
(1) failure to obey a court order, failure to comply with the rules of the court (with predjudice, usually)
(2) lack of jurisdiction (without prejudice)
(3) improper venue (without prejudice)
(4) failure to join an indispensible party (without prejudice)
(5) failure to prosecute for a period of 1 year, notice after 10 months, 60-day waiting period before dismissal (without prejudice)
Summary Judgment - Grounds and Results
no genuine issue of material fact AND the moving party is entitled to judgment as a matter of law (with prejudice)
Rule Nisi
an order to show cause - tells a party the court will enter a particular oder UNLESS they convince the judge not to
Scire Facias
order requiring oen to show cause why some matter of record should NOT be vacated OR why a dorment judgment shoudl not be revived
Summary Judgment - Standard
moving party must show:
(1) there is no genuine dispute as to a material issue of fact AND
(2) he is entitled to judgement as a matter of law

granted if there is no reason to hold a trial
Summary Judgment - What can the court consider?
(1) affidavits
(2) interrogatory answers
(3) depositions
(4) admissions
(5) pleadings

Note: court will NOT take oral testimony
Summary Judgment - Timing
defendant may move at any time, plaintiff must wait 20 days from commencing the action

motion MUST be served 20 days before the hearing

party opposing MAY serve affidavits by:
(1) mailing them at least 5 days before the hearing, OR
(2) delivering them to the movant's lawyer no later than 5pm 2 days before the hearing
Jury Trial - Requirements
MUST demand in writing within 10 days after service of last pleadings directed to jury-triable issue
Jury Trial - Withdrawal of Plea
party can withdraw its demand for a jury trial ONLY IF all other parties agree
Jury Trial - constitutional right for what issues?
issues of LAW, not the jury will determine the legal issues, and the equity issues will be left for the judge
Jury Trial - Number of Jurors
Civil: 6
Eminent Domain: 12
Jury Trial - Challenges of Jurors
Peremptory: 3 (plus 1 for each alternate)
Cause: unlimited
Jury Trial - Multiple Parties and the number of challenges
if the number of peremptory challegnes is not equal for each side (P and D), then EACH SIDE will get the higher number

2 P, 3 D = 3 per party, 3 D = 9 for 9 peremptory for EACH SIDE
Jury Instructions - Objections
MUST be made BEFORE the jury is charged, otherwise they are waived
Directed Verdict - Generally
this is an exceptional order, the effect of which is to take the case away from the jury (judge decides instead)
Directed Verdict - Timing
move after the other side has been heard

defendant: can move at the close of plaintiff's case AND again at the close of all evidence

plaintiff: can move ONLY at the close of all evidence
Directed Verdict - Standard
reasonable people could not disagree on the result

court will view the evidence in the light most favorable to the nonmoving party

will also take inferences in favor of the nonmoving party
Verdict - Generally
MUST be unanimous UNLESS the parties agree otherwise

approved by the judge and then read by the clerk
Verdict - Requirements
when a party is held liable for damages, the jury must itemize amounts to be awarded in these categories...which means they must be separately stated in the verdict:

(1) economic loss (wages, medical expenses) both before verdict and to be incurred in the future
(2) noneconomic loss (pain and suffering, anguish) both before verdict and to be incurred in the future
(3) punitive damages (intentional misconduct or gross negligence) must be shown by clear and convincing evidence
Punitive Damages - Cap
generally 2x compensatory or $500,000 UNLESS specific intent to harm OR under the influence of drugs/alcohol
Belated Directed Verdict (JNOV) - Timing
must be in writing and filed and served within 10 days after return of the verdict (day of verdict itself does not count)
Belated Directed Verdict (JNOV) - Standard & Prerequisite
Standard: same as a directed verdict, if it is granted, the court is saying that the jury reached a conclusion that reasonable people could not have reached

Prerequisite: motion for directed verdict at the close of all evidence is required to make the belated directed verdict
Motion to Set Aside - Grounds and Timing
(1) clerical error (anytime)
(2) mistake, excusable neglect, suprise (must show viable defense)(reasonable time, not exceeding 1 year)
(3) fraud by opposing party (reasonable time, not exceeding 1 year)
(4) newly discovered evidence not previously available despite due diligence (reasonable time, not exceeding 1 year)
(5) judgment void (reasonable time, no maximum)
generally can only appeal final judgments within 30 days of entry (by notice of appeal)
Deposition of Defendant - Location
defendant's deposition is usually taken in his county of residence or business if it differs from the venue of the action

parties may designate any place that is mutually satisfactory
Deposition of Nonparty - Location
nonparties are entitled to be deposed where they live

a nonparty who is a FL resident may only be compelled to appear for a deposition where the deponent resides, is employed, or transacts business in person or in such convenient place as fixed by the court
What should you do if you fear the defendant will die before you can file your complaint?
file a petition with the court requesting an order authorizing the deposition, and ONLY for the purpose of preserving or perpetuating testimony
Which experts must be disclosed in interrogatories?
ONLY those which a party intends to call at trial

must also recite the substance of the expert's anticipated testimony and the grounds for the expert's opinion if asked
What is a stakeholder entitled to with interpleader?
reasonable attorneys' fees and costs
Multiple Defendants that are contesting venue
where an action is brought against multiple defendants, venue may lie where any of them resides, or where the cause of action arose

if one defendant fails to assert improper venue, venue is proper as to them and, therefore, against the others too
Condition of Impleader
the 3rd party defendant must be ameanable to personal jurisdiction in FL
Where do you file a notice of appeal?
with the trial court from which the appeal is taken (not with the appellate court itself)

Note: appellant must 1st seek to stay the enforcement of a lower court injunction in the lower court when making an appeal
What should a judge do when there is a discrepancy between the general verdict and the specific finding of legal justification?
he MAY NOT permit the verdict to stand based on the inconsistency
What is the FL Supreme Court NOT allowed to review on appeal?
a DCA decision that merely construes a state statute
When is a claim of lack of jurisdiction waived?
when a party makes an appearance and claims rights under Rules of Civil Procedure