Florida Civil Procedure Outline PDF

**[Florida Civil Procedure Outline ]** **Overall Pictures**: - **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 Pictures**: - **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 **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*: - 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 **Stage 3: Discovery** - All relevant, non-privileged matters [are discoverable ] - 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* 19. Must be subpoenaed to compel attendance 20. Must serve a "subpoena duces tecum" to require the non-party to bring documents 21. Can be used for impeachment or former testimony exception - *Parties* 22. No subpoena required 23. Can serve with a request to "produce" 24. Deposition of a party may be used by adverse party [for any 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* 25. 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! 26. Defendant can serve discovery whenever they want! - Interrogatories