Florida Civil Procedure Outline PDF

**[Florida Civil Procedure Outline ]** **Overall Picture**: - **Stage 1**: Pre-Filing-Jurisdiction & Venue - **Stage 2**: Pleadings - Filing a complaint - Service of process: serving a complaint - Responding to a complaint: answers; motions; counterclaims - **Stage 3**...

**[Florida Civil Procedure Outline ]** **Overall Picture**: - **Stage 1**: Pre-Filing-Jurisdiction & Venue - **Stage 2**: Pleadings - Filing a complaint - Service of process: serving a complaint - Responding to a complaint: answers; motions; counterclaims - **Stage 3**: Discovery - Requesting information from Parties - Requesting Information from Non-parties - **Stage 4**: Pre-trial - Pre-trial conference - Filing and opposing motions - **Stage 5**: Trial - **Stage 6**: Post Trial **TIP: KNOWING WHAT STAGE YOUR IN CAN HELP YOU GET QUESTION RIGHT!** **Stage 1: Pre-Filing Jurisdiction & Venue** - ***[MUST HAVE PJ + SMJ + VENUE]*** - **Types of Jurisdiction**---court has the authority to hear a case AND enter an enforceable judgment - **[Subject matter Jurisdiction]**---authority over the legal issue **NEVER WAIVABLE!!!** - **[Personal Jurisdiction]**---authority over the defendant to enter a judgment **WAIVED IF NOT RAISED IN [FIRST RESPONSE!]** - **Two Part Analysis**: 1. Statutory basis---must be a Florida statute that grants Florida court's jurisdiction over a defendant and the defendant that's being sued must fall into a circumstance: - Served while in the state - Domiciled in Florida - Person consents to jurisdiction in the state - Person makes general appearance without timely objection (ex. I file an answer to the complaint) - Corporation: - Incorporated in Florida - Place of business in Florida - Long arm statute---Florida will automatically have jurisdiction over non-residents if they commit certain acts in the state - "Tortious acts" 2. Constitutional basis--- "due process" issue based on [fairness] - *General Jurisdiction*-a person who has [continuous], [systematic] contacts with the state - *Specific Jurisdiction*---limited contacts with the state, however, that limited contact gave rise to the lawsuit - **[In rem]**---authority over the property at issue - **Venue**---geographical area where a lawsuit may be brought **WAIVED IF NOT RAISED IN [FIRST RESPONSE!]** - **If dispute involves real property, the case [MUST BE BROUGHT] in the county the property is located** - Matters [NOT] involving real property for [Florida residents] - The county where the defendant resides [at the time lawsuit is filed] - More than one defendant, the county where any defendant resides [at the time the lawsuit is filed ] - The county where the cause of action arose - Matter NOT involving real property for [Non-residents] - County where served - County where cause of action accrued - Matters NOT involving real property for [Businesses] - [Domestic corporation] venue is proper = (1) where office is located; (2) where cause of action accrued - [Foreign corporation] venue is proper = (1) where it has an agent or (2) where the cause of action accrued - [Partnership/Unions] venue is proper = (1) where principal office is located; or (2) county of residence of any partner or member - Improvements to Land (unique to Florida) - Lawsuit against [resident contractor] CANNOT be brought outside Florida UNLESS parties stipulated **[after]** the case is filed - [Unsecured Promissory Notes] venue is proper: (1) where maker resides or; (2) where maker signed the note - **Transfer of the Case to Another Jurisdiction or Venue** - Transfer Allowed if: - Case was file in wrong jurisdiction initially - Defendant believes he cannot receive a fair trial 3. Must be filed not less than [10 days] after the case is at issue [UNLESS] good cause is shown. However, this must be supported by [two affidavits of reputable citizens] - Convenience of parties and witnesses - Counterclaim or crossclaim [EXCEEDS] jurisdictional amount - Service charges must be paid within [30 days ] - **Choice of Forum (forum non conveniens)**---another jurisdiction is more convenient **[SOLEY WITHIN THE JUDGE'S DISCRETION!]** - If Defendant wants the case removed, must file motion within [60 days] of service of process (note: the case is actually dismissed) - Adequate forum exists (must have SMJ + PJ) - Balancing test favors - Plaintiff must refile the action in new forum within [120 days] after the date of Florida dismissal - Treated as if filed on the date originally filed in Florida **Florida's 4-Tier Court System** - County Court - Circuit Court - District Court - Florida Supreme Court **How Each Court Establishes SMJ (make a chart)** - Florida trial and district courts---legislature - Florida supreme court---Florida Constitution - Modification requires an amendment to the Constitution - Florida supreme court cannot hear any matter that the FL Constitution does not allow it to hear! - County Courts - When a counterclaim is filed that exceeds the jurisdiction of the original court, the entire case must be transferred to the court that has jurisdiction over the counterclaim. - All misdemeanors [UNLESS] there is a concurrent felony (if concurrent felony, then circuit court - Violations of municipal and county ordinances - Landlord tenant evictions (50k or less) if exceed then circuit - HOAs---concurrent jurisdiction (both county and circuit) - simplified/uncontested divorces - Traffic offenses - Amounts in controversy 50k or less (excluding fees) - Equity cases---50k or less - Circuit Courts - Probate and estate matters - Juvenile matters EXCEPT traffic offenses - All matters arising out of a felony - Challenging tax assessments - Ejectment---putting someone out who has no right to be on the property (i.e. no lease) - Title or boundaries to property - Family law and juvenile dependency matters - Amounts in controversy GREATER THAN 50k - All equity cases - Most county court appeals - Matters not within the exclusive jurisdiction of county courts (catch-all) - District Courts of Appeal - Any appeal that's taken as a [matter of right] (the FL const. guarantees) from final trial court orders that are not directly appealable to the Supreme Court - FL Supreme Court - Court **[MUST]** hear (MEMORIZE) - Death penalty - DCA opinions declaring a statute or constitutional provision invalid - Bonds - Agency action regarding utility rates - Court **[MAY]** decide if they want to hear it - Declaring a statue valid (note: validity v. invalidity) - Decisions affecting constitutional/statutory officers - Certified questions - Conflicting opinions of DCA opinions - Opinions interpreting how the Constitution applies - Powers of the Florida Supreme Court (why are we talking about this here) - May issue advisory opinions to [Governor] regarding his powers and responsibilities - Determine number of lowers courts along with the number or judges - Adopt rules of procedure - Admission and discipline of lawyers in Florida - Discipline and remove judicial officers - Issuance of certain writs (not heavily tested) **Stage 2: Pleadings** - **[Pleadings]** - failure to include a civil cover sheet does not result in dismissal, but standby of the case - **MUST INCLUDE:** - Name of court, case number - name of parities - name of attorney, FL bar number, telephone - identification of what type of pleading - numbered paragraphs - separate claims of relief - **Commencement of Complaint** - **MUST INCLUDE** 4. A short plain statement of the [grounds for jurisdiction] 5. A short plain statement of the [ultimate facts] showing entitlement to relief 6. A [demand for judgment] for relief, may be made in the alternative - **Special pleadings**---claims for: (1) fraud; (2) mistake; (3) denial of performance or occurrence; or (4) special damages **must be plead with [PARTICULARITY]!** - **Verification**---some pleadings must be verified (signed by plaintiff) such as mortgages foreclosure or injunctions - Copies of documents upon which a claim or defense is based must be [attached] to the pleading---(ex. contract) - **[Service of Process ]** - Defendant(s) must be served with: - Summons - Complaint or initial pleading - Once complaint is filed, the defendant must be served with process in **[120 days]** UNLESS they can show good cause or excusable neglect) - Defendant may consent to service of process by mail after receiving request to **[waive service]** (60 days v. 20 days to respond to the complaint) - Defendant has 20 (in state) or 30 (out of state) days to accept service - Waiving service ~≠~ DOES NOT WAIVE ANY DEFENSE! - Process may be served by: - Sheriff or **"elisor"** (someone appointed/authorized by Sheriff) - Non-party 18 years or older appointed by the court - After process is served, a return/proof of service must be signed and filed with the court - Non-party appointed by the court shall make proof of service by affidavit - No service on **[Sunday]** unless permitted to prevent a defendant from leaving the state - **[How Process Served]** - Individuals - Personal deliverance or in his presence (process server able to identify defendant) - At usual place of abode; with a resident who is 15 years of age or older; who is informed of the contents - On a spouse anywhere in county if (1) not an adversary proceeding between spouses; (2) the spouse requests such service or. Is a party to the action; and (3) they reside together - In a private area at their place of employment - The only address that's available is a mailbox or shared office space, then I can serve the person that in charge of the mailbox or shared office space - Residential Tenants - After two (2) attempts six hours apart, then can service process by attaching summons and copy of complaint to door and by clerk mailing copy of summons and complaint by first-class mail to defendant at premises involved in eviction. - Minor/Incompetent - Minor---parent or legal guardian - Incompetent---two copies on person who has care or custody or legal guardian - Sole Proprietors - At their place of business - After two (2) attempts, on person in charge of business at time of service - Partnerships - One (1) attempt to serve partner or designated employee, then on person in charge of partnership - If partner is served = partnership and that partner is bound - If person in charge is served = [only] partnership bound - Domestic Limited Partnership---on general partner or agent (partnership and general partners bound); then Secretary of State - Foreign Limited Partnership---on general partner found in the state or agent; Secretary of State - Corporations - Registered agent or employee at principal place of business - Head of corporation; officer; director - LLCs - Registered agent; member or manager; secretary of State - Non-Residents - Natural persons and partnerships engaged in business in the state---on anyone doing business in the state - Individuals - Secretary of state *[and]* Notice by registered or certified mail [or] - Personal service by authorized person in the state where service is made - State of Florida---serve state attorney or assistant state attorney for judicial circuit where case is filed and two (2) copies to the attorney general - Local Governments---by serving heads of governing bodies, or in their absence, members of the governing bodies *(ex. the head of the city of Orlando is the Mayor)* - ***[Refusal to Accept Service ]*** - A process server must obtain an employer's permission to serve an employee at their place of employment. Once permission is granted, the process must be served in a private area at the place of employment - **[Defendant's Response to Complaint ]** - [Can respond by:] (1) *motion* - Responding with an MTD: 7. Lack of SMJ 8. lack of PJ (waivable) 9. improper venue (waivable) 10. insufficiently of process---defect on face of summons (waivable) - *ex. name being misspelled* 11. insufficiency of service of process---defect in how process was served (waivable) 12. failure to state a claim upon which relief can be granted 13. failure to join indispensable parties - *if an MTD is denied, Defendant has [10 days]* from entry of order denying the motion to answer the complaint - ***Motion for More Definite Statement---***must be made before filing a responsive pleading and must point out the defects complained of and defect desired - ***Motion to Strike***---insufficient defense or any redundant, immaterial, impertinent, or scandalous matter **[OR]** - \(2) *answer* within [20 days] after service of process. If defendant waives the [60 days] from receipt - Respond to the allegations of the complaint by (1) admit; (2) deny (3) admit in part and deny in part or (4) state "lack sufficient information to admit or deny" (has the effect of a denial) - Raise affirmative defenses **FAILURE TO ASSERT AFFIRMATIVE DEFENSE [MAY] RESULT IN WAIVER!** - If defendant asserts a [counterclaim] plaintiff must respond within 20 days after services---**two types of counterclaims**: 14. *Compulsory*---arises from same T/O as plaintiff's claim; if you don't raise it, you waive it! 15. *Permissive*---DOES NOT arise from same T/O; if you don't pled it you can raise the claim again. - **Amendments (1:40)** - *Parties can amend a pleading*: - a party may amend a pleading "once" as a matter of course at any time "before a responsive pleading was served" any subsequent amendments MUST be (1) leave of court or (2) written consent of the party - Without the court's permission before the responsive pleading is served or within [20 days] after serving the pleading [**IF** no responsive pleadings are required ] - Complaint can still be amended in other ways: 16. Leave of court to amend if "justice so requires" 17. Parties have [10 days] to filed a response to an amended pleading - Amendment is allowed for an "unrelated claim" - Relation Back Doctrine - Relation back---amendments relate back to original date of filing [even if] filed [after] statute of limitations if: 18. Concern the same conduct, T/O as original pleading 19. Exception: if the claim the party seeks to add was time barred as of the date of the original filing the doctrine DOES NOT apply **Stage 3: Discovery** - All relevant, non-privileged matters [are discoverable] (prove or disprove a material fact) - In FL, "relevant" evidence tends to prove or disprove a material fact - The standard for discoverable evidence is [NOT] the same as admissible evidence - Protective orders---allows court to deny or limit discovery that is [embarrassing, annoying, oppressive or poses an undue burden ] - **[Discovery Tools ]** - **Depositions**---oral or written; can be served on parties or non-parties - *Non-parties* 20. Must be subpoenaed to compel attendance 21. Must serve a "subpoena duces tecum" to require the non-party to bring documents 22. Can be used for impeachment or former testimony exception - *Parties* 23. No subpoena required 24. Can serve with a request to "produce" 25. [purpose] (everything that a party says is an admission)---admission by a party opponent (federal rules of evidence---non-hearsay, FL rules of evidence---exception to hearsay) **IT COMES IN REGARDLESS!** - *Timing* 26. Plaintiff cannot take deposition within [30 days] (reasoning for this is because the plaintiff has an advantage over the defendant) of service of complaint unless - With court's permission - Defendant has sought discovery FIRST! 27. Defendant can serve discovery whenever they want! - **Interrogatories**---limited to 30 (parties only) - [MUST] be answered within 30 days or a defendant gets 45 days (after service of complaint if longer)---**PERTAINS TO [ALL DISCOVERY ]** 28. 45 days from service of complaint - Explanation: the defendant only benefits from this rule if the discovery is served with the complaint or shortly after 29. 30 days from service of discovery - **Medical Exam (physical or mental)**---a party or someone in the party's control (parent/child) - If physical condition is in controversy---no court order needed 30. i.e. medical malpractice cases - If condition in controversy [IS NOT] physical---must get court order - **Request for Production** (parties or non-parties) - *Parties* 31. [MUST] be answered within 30 days or a defendant gets 45 days (after service of complaint if longer)---SAME AS ABOVE! - Non-parties 32. "subpoena duces tecum" - Must provide opposing counsel 10 days' notice (hand delivery) or 15 days' notice (mail or email) of intent to subpoena non-party - **Request for Admissions** (parties only)---limited to 30 entries - If not denied = admitted - [MUST] be answered within 30 days or a defendant gets 45 days (after service of complaint if longer)---SAME AS ABOVE! **Stage 4: Pre-Trial** - **[Case Management Conference]** (notice MUST be reasonable) - Court on its own motion (sua sponte) OR on motion of a party; may call a case management conference to facilitation the judicial management of the case before trial. Also: - Scheduling the service of motions, amendments - Controlling discovery - Narrowing issues - Pursuing settlement; and - Setting trial dates - **[Pre-Trial Conference]** (20 days' notice) - Once the case is ready for trial, the court may on its own or shall on timely motion of a party require the parties (or lawyers) to appear for a pre-trail conference to ready the case - Purpose: - Simplify issues - Obtain admissions of facts and of documents to avoid needless proof - Limit expert witnesses - Consider the necessity or desirability of amendments to the pleadings **NEITHER A [CASE MANAGEMENT CONFERENCE] NOR A [PRE-TRIAL CONFERENCE] HAS TO TAKE PLACE IN FLOIRDA CIVIL CASE, ONLY UPON MOTION OF THE JUDGE OR THE PARTY!** - **[Termination W/O Trial ]** - **Motion to Dismiss** - **Default Judgment**---based on a defendant's failure to appear or fail to respond before the default is entered - Default does not entitle plaintiff to relief - Recovery cannot exceed or be different in kind that that in the claim for relief - Two steps: 33. Entry of default in the docket by [the clerk] 34. A [default judgment] that actually awards (entered by the judge) - No default judgment may be entered against a [minor/incompetent] unless he is represented by someone who has appeared - The clerk must mail final judgment against a party - A [default judgment may be set aside] like any other judgment - **Summary Judgment** - **Two-part analysis:** 35. There is no [genuine issue of material fact] and 36. Does the law favor me winning based on the facts that aren't in dispute? - The judge MUST state the reasons on the record - A motion for summary judgment must be based on [admissible evidence]; court only need to review cited materials - Summary judgment may be partial - **Timing**---any time [20 days] after commencement of the action or after service of a motion for summary judgment by an adverse party 37. [Movant MUST] serve the motion and supporting documents at least [40 days before] the hearing on the motion; opposing party's response MUST be filed at least [20 days before] the hearing - Motion itself must state with particularity the grounds upon which it is based and the substantial matters of law to be argued - *Motion may be supported or opposed with*: 38. Affidavits - Must be made on personal knowledge; must set forth such facts as would be admissible in evidence; and must show the affiant is competent to testify 39. Depositions 40. Pleadings 41. Answers to interrogatories - **Voluntary Dismissal** - Three ways 42. By filing a notice of dismissal prior to retirement of the jury or by submission to the court in a non-jury case; this can't be done while a motion for summary judgment is pending; or when property is in the custody of the court 43. By stipulation of current parties---not applicable if property is in custody of the court 44. By obtaining a court order - Exception---if the pendency of a counterclaim that cannot stand alone - YOU ONLY [GET ONE] VOLUNTARY DISMISSAL, IF A PLAINTIFF DOES A SECOND VOLUNTARY DISMISSAL THE CASE IS DISMISSED WITH PREDJUDICE! - **Involuntary Dismissal** (normally with prejudice) - Court may dismiss the plaintiff's case involuntarily for: 45. Failure to prosecute: no activity for [10 months] and no order staying the matter was issued; any interested person may serve notice and no record served, action will be dismissed 46. Failure to comply with the rules or any order of court---including rules of local courts **Stage 5: Trial** - **Continuance** - A motion for a continuance must be: - In writing - State the facts that warrant delay - Judges are required to apply a. firm continuance policy so that continuances are few and for good cause - Except for good cause, all motions for continuance must be signed by the litigant requesting continuance as well as by the litigant's attorney - **Jury Trial** - In FL, there is a right to a jury trial in all cases at law, not in cases involving equitable relief - GOTTA ASK FOR IT! - Once it is made, a jury trial can't be withdrawn unless all parties consent - Civil = 6 jurors, except condemnation cases require twelve (12) - Each party has unlimited challenges for cause - Each party is entitled to three (3) preemptory challenges (each side must have the same number---i.e. two plaintiffs v. one defendant, the defendant will get 6) - *Jury can return*: 47. General verdict---stating which party should win without giving its specific findings on any disputed issue 48. Specific verdict---requires an answer to a specific detailed question that form the basis of how jury reached its decision - **[Trial Motions]** - **Motion to Strike**---evidence is admitted that a party believes is inadmissible - **Motion for Mistrial**---some statement, conduct, that is prejudicial that they can't receive a fair and impartial trial they can move for a mistrial - **Motion to View the Scene**---the jury can be taken to view certain things (very rare!) - **Directed Verdict (JMOL)** ---the judge concludes that no reasonable jury could return a verdict in favor of the non-moving party - Under FL rules---called directed verdict - Federal Rules---JMOL **Stage 6: Post-Trial** - Most Post-Trial Motions must be made and served within [15 days] after return of the verdict in a jury case (15 days after date of filing the judgment in a nonjury case) - The court may also grant a new trial on its own motion [not later than 15 days after] entry of judgment or within the time for ruling on a motion for a new trial - **MOST COMMON TYPES OF POST-TRIAL MOTIONS**: - Motion for New Trial---will be granted if an error was committed that was prejudicial to the moving party (can be filed by---party or the court) - Renewed Directed Verdict (RJMOL)---a party who moved for a directed verdict at any point during the trial may move for belated directed verdict on that issue - MUST HAVE MOVED FOR A DIRECTED VERDICT DURING TRIAL! - Renewed and belated directed verdict are interchangeable under FL rules - **[Judgments]** - Clerical errors may be corrected at any time, but leave of the appellate court is required if an appeal is pending - Motion to set aside---MUST BE MADE WITHIN IN ONE YEAR OF ENTRY - Mistake, inadvertence, surprise, excusable neglect - Newly discovered evidence that by due diligence could not have been discovered earlier or - Fraud, misrepresentation, or other misconduct of an adverse party - Motion for relief---CAN BE FILED WITHIN A REASONABLE TIME WHEN: - The judgment is void - The judgment has been satisfied, released vacated, or it is inequitable to enforce the judgment - A final divorce judgment was based on a fraudulent financial affidavit - **[Appeals]** - Generally, only final orders may be appealed - Notice of appeal must be filed [within 30 days] of the appealable order in the court from which the appeal is taken - Exception---non-final orders determining or concerning the following may be appealed: - Venue - Injunctions - Personal jurisdiction - Immediate possession of property - That in a claim arising under federal civil rights laws, a party is not entitled to immunity as a matter of law