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Statutory Bases for In Personam jx
- ☞ Presence = general
- ☞ Domicile (in state) = general
- ☞ Incorporation (in state) = general
- ☞ Substantial & Not Isolated activity in Fl (general)
- ☞ Long Arm = specific only--claim arises from D's doing any of the following:
- * Operating business In Fl.
- * Land in Fl (owning/possessing/mortgage/lien)
- * Tort IN FL.
- * Tort outside but injury inside: (only if engaged in solicitation/service in FL; OR products used in FL in ordinary course of commerce).
- ☞ Non-Resident Motorist Act (own/use motor vehicle type + collision in FL. = Specific jx only)
- ☞ Contact = purposeful availment & foreseeability of being sued in state.
- ☞ Relatedness (b/w contact & state) = claim arises from the contact.
- ☞ Fairness = only assessed in specific jx cases + weigh out D's severe disadvantage in having to travel ($ is not dispositive) + P's interest + State's interest in providing relief to its citizens.
Circuit Court's Subject Matter JX
- Exclusive JX :
- ☞ Probate/Incompetence/Guardianship
- ☞ Juveniles (not traffic cases)
- ☞ Title or Boundary to Realty
- ☞ Ejectment (except landlord evictions of tenants for less than $15K, but Tenant ejectment of Landlord is exclusive to circuit court).
- ☞ Equity Suits (Exceeding $15K)
- ☞ Actions at Law (Exceeding $15K)
County Court Subject Matter JX
- ☞ Actions @ law (Less than $15K = exclusive)
- ☞ Equity (Less than $15K; not exclusive = may go to circuit court too)
- ☞ Landlord eviction of Tenants (Exceeding $15K= can go to either county or circuit)
- --67 Counties
- --Try violations of municipal and county ordinances.
Aggregation for Purposes of Subject Matter
Only if all claims arise from same T/O.
Transfer b/w circuit and county
- ☞ P pays cost of transfer, +
- ☞ within 30 days, +
- __or dismissed without prejudice.
This is applicable when the case is filed in the wrong court.
- ☞ If Counter-Claim is exclusive to Circuit Court, +
- ☞ D pays transfer cost + within 30 days,
- __or his counterclaim is cut to $15K.
Permissive Joinder of Claims
☞ Once P has one claim that meets jx amount, + Add any other claim (even if unrelated)
Which County do we sue in?
- *♛ Local Action:
- ☞ Cases involving land are local action = venue is the county where the land is located.
- *♛ Transitory Action:
- ☞ D's county of residence when complaint is filed; or
- ☞ where cause of action accrued (where injury or specific performance was due); or
- ☞ where property in litigation is located.
*if more than 1 D + and all are FL
residents = where any reside.
- * if non-resident + served in FL:
- (1) place of service;
- (2) where cause of action accrued;
- (3) where property is located.
* if 1 resident D and 1 non-resident = venue must be proper for in-state resident.
= place where it keeps office for transaction of customary business
Venue & Contract to Improve Realty in FL
- 1. K to Improve FL realty;
- 2. provisions requiring suit outside state = void.
Venue & Retail Installment Sales Ks
- ☞ County where K signed;
- ☞ where buyer resided at purchase or filing;
- ☞ where product affixed to land.
no other venue stipulation allowed.
Transfer of Venue
- ♛ If OG Venue was Proper--moving party pays costs = 30 days.
- ☞ Transfer only if Party can't receive fair trial where case is filed b/c:
- --opponent has undue influence; [verified petition + affidavits of 2 uninterested & reputable citizens]
- --moving party is sooo odious; [verified petition + affidavits of 2 uninterested & reputable citizens]
- --impractical to get qualified jury.
☞ Another Court is Center of Gravity
(convenience of witnesses & interest of justice.)
- ♛ Forum Non Conveniens--if CT can't transfer b/c in different state or country. (may transfer to federal)
- ☞ 60 days after service;
- ☞ P must have her day in court or no transfer.
= P pays cost of transfer + within 30 days or dismissal. ( P chooses the venue if more than one is proper
Service of Process (who can serve)
- (1) bySherif (or appointee); OR
- (1) by An Elisor, a non-party adult + appointed by Court.
* should file a signed proof of service form (prima facie evidence of service) or affidavit if by civilian. Failure to do this doesn't affect validity of service.
Service of Process (Manner of Service)
- (1) Personal
- ☞ wherever the D is found.
- (2) Substituted
- ☞ D's Usual Place of abode, +
- ☞ with Co-resident who is at least 15 YO, +
- ☞ Contents of document communicated.
* Spousal service okay if: spouse requests service + action is not b/w them + they reside together.
- (4) Nail and Mail--very narrow.
- ☞ Landlord Ejectment of Tenant case, +
- ☞ L failed twice to serve (Personal or substitute) +
- ☞at least 6 hours apart, +
- ☞ May post conspicuously on premises & clerk mail first class.
- Service of Corps--
- (a) Officer or Director according to rank:
- i. president;
- ii. cashier, treasurer, secretary/general manager,
- iii. any director,
- iv. any officer/agent residing in FL.
- (b)OR Designated Registered Office.
* out of state = any method allowed by FL by any officer in that state who is authorized to serve process there.
Tort Reform & Pleadings
- ☛ Losing party raised claim not supported by facts/law = prevailing party can recover atty fees.
- --paid 50/50 (atty/losing party)(unless atty in good faith relied on party's statements).
☛ recover damages (at any time) for delay in litigation, if proved by preponderance of evidence.
Use of Deposition by Adversary
At trial, a deposition is subject to the rules of evidence, and evidentiary objections may be made, except for those that are waived by not being raised at the deposition.
Furthermore, the deposition may be used affirmatively when the deponent was an adverse party or an officer, director, or managing agent of an adverse party, or a person designated by the adverse party/organization to be deposed.
There is no requirement that the adverse party be unavailable to testify. (That is a requirement for using the deposition of a nonparty.) No exceptional circumstances need exist; that is more of a catch-all basis for using a deposition.
When Both Sides Seek Summary Judgment
If, after considering both sides, the court finds there is an issue for trial (in other words, that neither side showed that there is no issue for trial), it can deny both motions. Granting both motions on the same issue is logically impossible.
Waiver of Defenses
- The following defenses are waived if not raised by the defendant in his first response to the complaint, i.e., in his answer or preanswer motion:
- (i) lack of jurisdiction over the person;
- (ii) improper venue;
- (iii) insufficiency of process; and
- (iv) insufficiency of service of process.
All must be presented at the same time in the first response, or the omitted ground is waived.
Punitive Damages Pleading
1) claimant must first, on motion, make a reasonable showing by evidence in the record or proffered by the claimant that would provide a reasonable basis for recovery of punitive damages.[punitive damages may not be pleaded in the original complaint.]
2) If the trial court finds the claim for punitive damages is reasonably supported, the claimant may then amend the complaint to assert a claim for punitive damages.
The motion must be served on all parties at least 20 days before the hearing.
Statute of Limitations in Relation to Compulsory Counter Claims
The statute of limitations for a compulsory counterclaim is calculated as of the filing of the plaintiff's complaint.
The statute of limitations for a permissive counterclaim is calculated as of the filing of the permissive counterclaim.
Impleader (distinguish from interpleader)
Impleader is a device a defendant may use to bring in a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiff's claim against the defendant.
TPD--must be potentially liable to the defendant, not directly liable to the plaintiff.
--if the defendant has filed no papers at all, the clerk may enter the default
- --Otherwise, the default must be entered by the court on notice of the application for a default.
- * If he has filed papers = the defaulting party must be provided notice of the application for a default. No notice if he hasn't. The summons contains a statement that a party must answer in writing within a certain time to avoid the entry of a default.
An entry of default on the docket precludes the defendant from pleading or defending further.
Dismissal by Failure to Prosecute (no prejudice)
- 1) 10 Months w/no record activity;
- 2) Notice= *any interested person or the court may serve notice to all parties that no record activity has occurred
- 3) If no record activity occurs within 60 days after the notice is served, and no stay was issued or approved prior to the expiration of the 60-day period, the action will be dismissed for lack of prosecution unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.
Failure to Move for Directed Verdict
If a party does not timely move for a directed verdict at trial, the court (trial or appellate) may not grant a belated directed verdict but may order a new trial.
*note this applies even if the issue preserved on a directed verdict is not the one I'm using to move for a new trial.
Demand for Judgement & Costs
IF defendant does not accept the plaintiff's demand for judgment within 30 days, and the final judgment is at least 25% greater than the demand for judgment, the plaintiff is entitled to reasonable costs and attorneys' fees incurred from the date of the filing of the demand.
*Same goes for P if he receives 25% less than offered
Sanctions & Discovery
- f a party, after proper notice, willfully refuses to attend his own deposition, to be sworn, or to obey an order to provide or permit discovery in any form (depositions, interrogatories, production of documents, or medical examination), he subjects himself, after proper service and an opportunity to be heard, to any of the following sanctions:
- (i) a judgment by default, complete or partial; (ii) a dismissal of his action;
- (iii) striking his pleadings, in whole or part; (iv) staying the proceedings, until order is complied with;
- (v) prohibiting the party from supporting or opposing certain claims or defenses;
- (vi) prohibiting the introduction of certain documents, things, or items of testimony; (vii) prohibiting evidence of physical or mental condition;
- (viii) contempt—except for failure to submit to a medical examination; or
- (ix) any combination of the above, or any other order that is just.
* dismissal or default require express finding of willful & deliberate conduct
PJ over Non-Resident + Tortious Injury In FL
Florida's long arm statute authorizes personal jurisdiction over a nonresident defendant
who commits a tortious act out of state that produces an injury
- Only if:
- i) defendant engage in solicitation or service activities in Florida or
- ii) that the nonresident defendant's products be used in Florida in the ordinary course of business.
The fact that the defendant may engage in interstate commerce is insufficient; the activity must have a connection with Florida, as explained.
Interlocutory Orders Appealable as of Right
venue or personal jurisdiction is proper, and nonfinal orders relating to the the granting or denial of an injunction.
*summary judgment are NOT appealable as right
Atty Instruction During Deposition:
- A party may instruct a deponent not to answer a deposition question only when:
- i) necessary to preserve a privilege,
- ii) to enforce a limitation on evidence directed by the court, or
- iii) to present a motion to terminate or limit the examination.
The fact that the client/deponent is being asked to admit liability is not grounds for refusal.
Transitory Action (not involving land)
- Transitory action,
- if the defendant is a resident of Florida,
- venue exists only in :
- i) the county in which any defendant resides at the time the action is commenced,
- ii) any cause of action accrued,
- iii) or the property in litigation is locatedi. There is no requirement that the defendants reside in the same county.
NOTE--(The federal venue statute allows venue to be placed in a judicial district based on the residence of a defendant, but all the defendants must reside in the same state.)
Leaving a copy of the summons and complaint at the individual's usual place of abode with any person residing therein who is age 15 years or older. The person served at the defendant's abode must be informed of the contents of the papers being served.
A court order authorizing such service is not required.
Claims for Relief
- Each claim for relief must contain :
- (i) a short, plain statement of the grounds for jurisdiction,
- (ii) if the defending party is a nonresident, the grounds for personal jurisdiction;
- (iii) a short, plain statement of the ultimate facts showing that the pleader is entitled to relief, and
- (iv) a demand for judgment.
As with every pleading, the claim for relief must be signed by the attorney, or, if unrepresented, by the party.
3 Exceptions to Loss of Compulsory Counter claims for failure to assert in first responsive pleading.
- counterclaims not asserted in response to the opposing party’s claim will not be lost:
- (i) where the counterclaim requires the presence of third parties over whom the court cannot acquire jurisdiction;
- (ii) where the claim was the subject matter of another pending action when the present action was commenced; or
- (iii) when the claim to which a responsive pleading is being filed was not based upon in personam jurisdiction.
Amendment as of Right
As a matter of course, a pleading may be amended once before a responsive pleading is served (not filed
) or, if no responsive pleading is required and the action has not been placed on the trial calendar, within 20 days of service of the pleading.
A motion is not a pleading. Thus, the responding party's filing of a motion to dismiss or for summary judgment before answering does not preclude the pleader's right to amend.
Deposition of Non-Party Witness
When the nonparty witness to be deposed is a resident of Florida, he may, by subpoena, be compelled to attend a deposition in the county in which he resides, is employed, or transacts business in person, or in another convenient county in which the court orders.
The plaintiff may dismiss by filing a notice prior to the retirement of the jury in a jury case or by submission to the court in a nonjury case, except that the plaintiff may not do so while a motion for summary judgment is pending.
The consent of the defendant is not required.
Summary Judgment Affidavits
Affidavits must be based on personal knowledge, must set forth such facts as would be admissible in evidence, and must show that the affiant is competent to testify.
Affidavits also must be made in good faith. If an affidavit is not made in good faith, the court may sanction the party who submitted the affidavit.
Motion for Relief from Judgment
- must be filed within a reasonable time not to exceed one year:
- (i) mistake, inadvertence, surprise, or excusable neglect;
- (ii) newly discovered evidence that, by due diligence, could not have been discovered in time to move for a new trial; or
- (iii) fraud, misrepresentation, or other misconduct of the adverse party.
- A motion for relief from a judgment or order on the following grounds must be made within a reasonable time, with no outer cap:
- (i) the judgment is void;
- (ii) the judgment has been satisfied, released, or discharged, or a prior judgment on which it was based has been reversed or otherwise vacated, or it is no longer equitable to give the judgment prospective effect; or
- (iii) a final divorce judgment was based on a fraudulent financial affidavit.
What Commences an Action?
- ☛ Filing of Complaint initiates action.
- ☛ Reqs of Complaint:
- i) SMJ, (if non-resident also pj)
- ii) ultimate facts showing entitlement to relief,
- iii) Demand for judgment (prayer).
- iv) filed w/ A Civil Cover Sheet (failure to do this = stayed proceedings)
Complaint & Special Matters/ Special Damages
- SPECIAL MATTERS
- ☛ Circumstances of Fraud;
- ☛ Facts supporting punitive damages (intentional or gross negligent; remember not to do this in complaint, I must put forth the evidence from which court can see a reasonable basis for recovery, and then move for amendment in order to request puni/dam.]
- ☛ Special Damages= those that don't normally flow from an event:
First Defensive Response
- ☛ within 20 days of service (feds give 21);
- -----if by Motion:
- -----if by Answer Pleading.
☛ pj; venue; insufficient process; improper service = must all be raised in whatever the first Defensive Response
is or it's waived.
☛ Failure to join a party, failure to state a claim = I can raise at any time through trial.
☛ SMJ is never waived = raise it at any time.
- ☛ 20 days after service;
- ☛ BUT-if Motion filed = 10 days after the motion is denied. (unless motion to strike is used, you don't get the extra 10 days).
- ☛ admit, deny, or without knowledge. Failure to deny or claim lack of knowledge is admission. (never on issue of damages though)
☛ Affirmative Defenses MUST be in Answer. [waiver]
☛ Required if Answer contains Affirmative defense the P doesn't think applies. (to deny do nothing)
- ☛ Filed W/ Responsive Pleading (ANSWER) Or it's WAIVED!
- ☻ CT may let him assert it anyway if he shows excusable neglect or justice requires.
☛ Arises from same T/O as opposing party claim;
☛ Once raised, P shouldn't dismiss since now his claim is compulsory and will be waived.
☛ P has 20 days to Respond or risk default.
(as of right)
☛ P = once b4 D serves an Answer pleading. ( motion is not an answer);
☛ D = once within 20 days of serving his answer pleading.
Amending by Motion
☛ if no right → seek leave of court + attach amended pleading to motion = opposing party must respond within 10 days(admit/deny etc).
Amendment & Variance
☛ Variance--where evidence presented at trial doesn't match the pleading. if opposing side doesn't object = amendment is ok; if he does = not ok.
Amendment & SOL
- Relation Back of Claim:
- ☛ relate back if : concerns same T/O as original pleading;
- Relation Back of new Defendant:
- ☒ Concerns same T/O,
- ☒ New D knew or Should've known of this case + within 120 days of filing,
- ☒ D Knew that but-for a mistake, she would've been named in original suit.
- ☛ No Mandatory Disclosures
- ☛ Physical Examination = no court order needed. ( if in controversy + reasonable time and place set for examination; opposing party has 30 days or 45 if it came with complaint, to agree or object)
- ☛ No Duty to supplement discovery if answers were true and complete when made. (total opposite from feds)
- ☛ may discover anything relevant to the subject matter of the case. (anything reasonably calculated to lead to admissible evidence.)
- ☛ party or non party;
- ☛ video is ok if notice & subpoena state.
- ☛ failure to object during depo = waiver for trial.
- ☛ Subject to Rules of Evidence. Any party can use depos at trial:
- -----i) impeach deponent;
- -----ii) any purpose if deponent is adversary;
- ---- iii) any purpose + if Deponent is dead/ill/100 miles from trial/beyond subpeana power.
- ☛ P = where case is pending;
- ☛ D = county of residence or business;
- ☛ W/Non Party = county of residence/business or agreement.
- ☛ court can order it anywhere.
- Court Order Required if:
- i) depo is before filing of case.
- ii) P wants to depo less than 30 days after complaint; (unless notice states W is leaving state and won't be available; or D has already deposed W]