FL Civil Procedure Cheat Sheet
A. Court Jurisdiction
1. Personal JX: Courts Jurisdiction over parties to a lawsuit
i. PJ: D domicile in FL, D present in FL when served with process, D “at home” in FL
ii. PJ on a non-resident must satisfy: FL Long-arm statute & Con. Due Process Clause
a. FL Long-arm Statute:
i. G. PJ = if a defendant engages in “substantial and not isolated” activities
within Florida
ii. S. PJ = always where a claim arises from D (B/L/T/C/MV) in FL:
b. Constitutional minimum contacts requirement:
i.
Systematic and continuous activity within the forum jurisdiction
ii.
A cause of action arising from that activity
2. Subject Matter JX: authority of a court to hear cases relating to a specific SM
i.
20 Circuit Ct.= no aggregation of claims to meet 30k threshold unless same T/O
- If improper: Ct. transfers it, P pays clerk within 30 days/ if not dismiss w/o prejudice
- Compulsory counter claim in Circuit court that is less than 30k is OK
- Circuit exclusive JX over:
a. Probate and estate matters, guardianship, incompetence
b. Cases involving Juveniles (except traffic offenses);
c. Cases involving title or boundaries to realty;
d. Ejectment cases; tenant evicting landlord
e. Actions at law exceeding $30,000
f. Equity suits exceeding $30,000
- Non-exclusive:
a. Landlord evicting tenant over $30k (if under 30k MUST go to County)
ii.
67 County Ct. = one for each county
- If P brings claim in County and D’s counterclaim is JX of Circuit Ct. The entire case
is transferred to Circuit but only if D pays transfer costs and if he doesn’t pay for
transfer then Counterclaim is cut to $30k. – if not possibly waived
- County exclusive JX over:
a.
Actions at law not exceeding $30,000
b.
Landlord evicting tenants not exceeding $30,000 (more than $30,000 then
can go to County or Circuit)
c.
Disputes in homeowners’ associations
- Non-exclusive:
a. Equity cases not exceeding $30,000: cases can also go to Circuit
3. Venue: What county do we sue in? Geographical location of Ct. that may hear a case
i.
Local Actions: venue is the county where the land lies
ii.
Transitory Actions:
- If D resides in FL, venue is okay
a. where defendant resides when complaint filed
b. where cause of action accrued
i.
Tort: where action occurred
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ii.
Contracts: where performance was due
iii.
County where property is
c. County where property in litigation is located – ownership of chattel
If there are two D in FL living in two different counties, either county is proper venue
If D does not reside in FL, venue is OK in any county
If there are two D, one a FL resident and one a non-resident, venue must be proper for
FL resident
Retail installment contract’s proper venue only where
a.
contract was signed
b.
buyer resided either at purchase or when suit filed or
c.
product attached to land
(no agreeing to different venue by parties)
Contract provision requiring FL con/subcontractor to be sued out of state = void
Transfer of venue: If improper/proper, P/Party pays clerk within 30 days
If proper only allowed for 2 reasons:
1. A party will not receive a fair trial where originally filed- factors: opponent
undue influence (petition/affidavit), detestable moving party
(petition/affidavit), impracticable to get a qualified jury- transfer to any
county
2. Convenience of parties/ witnesses, and “interest of justice” show that another
ct. is the center of gravity – court must transfer where venue is proper.
Forum of Non Conveniens: A ct. might dismiss or stay b/c another ct. is center of
gravity and transfer is not possible b/c ct. is in another state/country
The other ct. must be adequate, and court looks at public/private factors
Motion must be made within 60 days after service of process
B. Information About The Case
1. Service of Process: (summons + copy of complaint) served to D
- Begins by issuance of summons by clerk of court. Clerk routinely issues summons at
the time the complaint is filed. Clerk need not wait to file the motion
- Multiple defendants: each get a summons and copy of complaint
- Suing a state: serve process on state or state attorney
- Suing local gov: mayor etc. is fine
- Suing non-resident: can be served by someone with legal authority so like a NY
resident can be sued by NY sheriff in that state
i.
Process may be served by sheriff/appointee or Elisor (ct. appointed) who files
proof of service – failure to file doesn’t affect validity of service
ii.
Service on adults: Personally served or substituted service
- Substituted service of process delivered to:
a. D’s abode, left with 15+ year old/lives there, server tells contents of doc.
b. D’s spouse anywhere in county, spouses live together, can’t be for an adversial
proceeding b/w spouses
c. D’s agent for service of process
d. Individual in charge of private mailbox/office only if the location is the only
public address of D and D still maintains mailbox/office at that location
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iii.
Service on minors: guardian/parent. Service on parent is fine. Minors need to be
represented by guardian or similar fiduciary and suit can be under either minor or
guardian’s name /
iv.
Service on incompetents: serve 2 copies on person w. custody/ask ct. for GAL
v.
Service on Corp.: Serve highest rank if not director/officer
vi.
Service on resident/registered agent: If there is neither, serve any employee at PPB
vii.
Service on non-resident w. office in FL/done business here: if no resident agent,
serve FL secretary of state and have D served personally out of state by a proper
officer or by registered/certified mail, return receipt requested.
viii. Service Nail & Posted: Where landlord sues tenant to disposes him of premise and
has failed twice (at least 6 hours apart) to make personal substituted service, then
landlord may have process posted conspicuously on the premises and have the clerk
mail process by first class to tenant at those premises.
ix.
Publication Service: Made be made as provided by statute in cases involving:
i.
Realty
ii.
Construction of a will or other written instruments
iii.
Dissolution of marriage
iv.
Adoption
- P must give a sworn statement that D cannot be found in FL after diligent search and
inquiry and must state whether D’s address is un/known. If known, must state address
in or out of FL. Copy of published notice mailed by clerk to last known address.
x.
Wavier of formal service: P mails process/wavier form to D and within 20 days D
can return waiver form. D has 60 days from receipt of waiver to respond to complaint
- If no return of waiver, P can effectuate formal service and ct. can require D to pay
costs. THIS DOES NOT WAIVE VENUE OR PJ
xi.
Filing of complaint stops SOL and P must serve D within 120 days of filing
- Court can order a different time or can dismiss w/o prejudice unless P shows good
cause for delay in serving
- Cannot serve process on Sunday unless plaintiff gives an affidavit that she has reason
to believe D will leave the state under “protection of Sunday”
xii.
Subsequent doc. (motions etc.) served via email to party’s attorney
- Email is sent by the court’s e-filing portal, service is complete when the doc. is
electronically filed otherwise service is complete when sent.
- If attorney/pro se is excused from having an email address, docs. can be delivered, or
snail mailed. The time in which to respond to any documents is increased by 5 days if
service is made by snail mail.
2. Pleadings
i.
All pleadings must have: ct. name/case file#/Parties names/attny. name, address, #,
FL bar #, email/designation of pleadings/each claim & defense/ # paragraphs
- Documents that are the basis of a claim/defense must be included in pleading
ii.
Attorney Certificate: At lease 1 attorney must sign pleadings
- Certifies attny. read document, info good support of claims/defenses/ not for delay
iii.
Party in case can recover attny. fee if losing party raised a claim or defense that
was not supported by facts or law or good faith argument for modification of law
- Payable 50/50 by losing party and attny. If lawyer acted in good faith/not liable
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ix.
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At any time in case, a party can move to recover damages for delay in litigation show
by a preponderance of the evidence that the opposing party took an act primarily for
unreasonable delay
Complaint: pleading filed + civil cover sheet (or proceeding stayed) begins action
a. Statement of ground for SMJ & PJ if suing non-resident
b. Short and plain statement of “ultimate facts” showing entitlement to relief
c. Demand for judgment. For damages: Ad damnum clause: dollar figure not req.
Special matters must be pleaded with specificity:
a. Circumstances establishing fraud
b. Facts supporting punitive damages: stated separately from general/ P can’t org.
plead punitive damages so must present evidence and then move to amend the
complaint to add punitive damages
c. Special damages: stated separately from general
D must motion/answer within 20 days/ if motion is denied must answer within 10
Defense Motions: not pleadings but request for court order
a. Issues of Form: more definite statement, to strike=(no ext.), jud. on pleadings
b. Major defenses: can be raised either in answer or by motion
1. Lack of SMJ: never waived
2. Lack of PJ: waivable
3. Improper venue: waivable
4. Insufficiency of process: waivable
5. Insufficiency of service of process: waivable
6. Failure to state cause of action: raised anytime through trial.
7. Failure to join indispensable party: raised anytime through trial.
So if D makes a motion for lack of PJ, D waives defenses 2,3,4, and 5. – must be
raised first response of complaint
Answer: D must answer or risk default and include in answer:
i.
Admit: non-denials are treated as admissions
ii.
Deny
iii.
State you are “without knowledge”
iv.
Affirmative defenses: SOL, assump. of risk, lack legal capacity or capacity to
be sued, res judicata, or comparative negligence
Reply: is a responsive pleading: To deny, P does nothing & can reply to avoid
affirm. defense within 20 days
P can “Reply” to affirm. defense that P wants to avoid within 20 days
Counterclaim: Part of D’s answer and claim against opposing party/ P must respond
Counter Claim must be served to P’s attorney unless Ct. directs O/W
Compulsory CC arises from same T/O – failure to raise waives claim
Compulsory CC must be asserted w. answer if not barred and if D states no answer
then not barred
i.
If D serves answer and should of asserted compulsory CC too, the court might
let him do it if he shows excusable neglect or that justice so requires
ii.
If A sues B and B files a Compulsory Counterclaim and A voluntarily
dismisses her original claim, A’s claim is now a compulsory claim and she’s
making a mistake because she will now waive her claim
Permissive CC: does not arise from same T/O and isn’t waived if not filed
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Crossclaim: claim against a co-party/must arise same T/O/ isn’t waived if not filed
x.
Amending: P can amend 1 before D answers/ D can amend answer 1 within 20 days
- Motion to amend: if no right to amend and granted if justice so requires
- Opp. P must respond w/in 10 days of amendment
- Variance & SOL: same as federal
3. Discovery
i.
Discovery tools: No required initial disclosure but same tools as federal ct.
 Deposition: you can depose party(notice)/non-party (subpoena)
- Party can be officer, director, or managing agent of a party – can be disposed by
notice
- Parties have a right to be at deposition.
- Videotape depo is authorized without court order (if party but if non party you still
need subpoena) but they must also be stenographically recorded unless otherwise
agreed upon by parties
- Nonresident nonparty: must be subpoenaed in by court where they live so if they live
in NY then an NY court must subpoena & compelled to appear in the county they
were served aka most likely out of state bc FL wouldn’t have JX there
- Duces tecum: requires W to bring evidence with them/ documents in a hearing/depo –
no inspection or copy without ct. order unless P agrees if he doesn’t agree he puts it in
writing and other side needs to get ct order
- Court order req.: depo before case filed or less than 30 days after serve of complaint
- A person who wishes to perpetuate her own testimony but complaint has not been
filed may upon verified petition obtain a Ct. order for an oral/written depo and service
must be made upon all expected adverse parties and person being deposed which will
be granted if court believes the testimony may prevent a failure or delay of justice
- P (including corp. officers) deposed where case pending & D/nonparty county of
resident/biz (could agree o/w)
- Court may order depo to be taken for the convenience of the parties at any location
- FL court has subpoena power in all of FL
 Interrogatories: answered in writing/under oath, w/i 30 days /or 45 with complaint
- 30 interrogatories and answers binding signed by parties/obj. signed by attny.
- No requirement to supplement answer if new info coming to light makes submitted
answer wrong
- Can ask court for more if party shows good cause
 Request to produce: receiving P must respond w/i 30 or 45 agreeing/objecting
- D’s financial net worth is only discoverable for punitive damages
 Non-parties: must subpoena & give notice to all other parties his intent to serve
subpoena at least 10/15 day before subpoena is issued. Notice isn’t given to non-P
- Sub. Served by personal service/mail with written confirmation of delivery, signed by
person accepting the subpoena, and filed in court
- Nonparties may condition the preparation of copies of the documents on the payment
in advance of the reasonable copy cost
- If party objects, party seeking discovery can move for a ruling on the objection or
notice the non-party depo with a subpoena duces tecum
 Physical/mental examination: no court order needed if physical condition of the
party is in controversy
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serves notice stating reasonable time, place, manner, and scope of examination, and
person by whom exam is to be made
Other party must respond in writing w/i 30/45 days either agreeing or objecting
If condition in controversy is not physical, then examination is available only upon
motion. Must show good cause for the examination
Person examined may get report of examination, but this waives privilege on reports
regarding the same condition
Request for admission: request to admit the truth of any discoverable matter
Respond in 30/45, failure to deny = admission, admissions not binding in other lit.
30 max request of admissions that may be served on a party unless the parties agree to
more or the court orders more for good cause
Scope of Discovery: anything relevant to SM of the case
Privilege not discoverable
Must assert privilege expressly in privilege log
Accidental disclosure of privilege material does not waive privilege if the party serves
a written notice w/i 10 days of discovering disclosure. The other party must return or
destroy material but can challenge the assertion of privilege
Must request discovery of facts known and opinions of experts retained for trial
If the expert is expected to testify, send interrogatories to the other party, seeking
expert name, substance of facts + opinion, grounds for opinions/ Relationship
between party and expert, / pay expert’s fee.
No need ct. order to depose expert – so can depose without leave of ct.
If expert is not expected to testify, then discovery absent exceptional need
Enforcement of Discovery Rules
Discovery disputes: party seeks protective orders or partial/total failures
To get any sanction, moving party first try to confer with other party
Partial Failure:
i.
Seek an order compelling answers to unanswered questions and costs
including attorney’s fees incurred to bring motion
ii.
If party violates the order compelling, merits sanctions plus attorney’s fees
incurred
Total Failure: Merit sanctions plus cost/attny. fees incurred bringing motion
In a false denial of request to admit= you can recover costs of having to prove the
issue including attorney’s fees
Different Merit Sanctions: establishment order, strike pleadings, stay proceedings
until discovery is given, disallow evidence, contempt, (dismiss case or enter default =
only if willful or deliberate refusal to obey discovery order)
C. Multiparty Litigation
i.
Proper Parties
 Permissive joinder: these parties may be joined since claims arise from same T/O
- If Ps have independent COA against same D: cannot join even if same T/O unless
spouses/parents and or their children may join together
 Necessary & indispensable parties should be joined b/c relationship with the action
1. If A is necessary and should be joined by the court:
i.
Without absentees, court may not be able to accord complete relief or
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Absentee’ interest may be harmed in a practical way if she isn’t joined
2. If there is PJ over A
3. If the absentee cannot be joined, then court must decide either to proceed without
A or dismiss the whole case. A is indispensable if court decides to dismiss rather
than proceed
Intervention: absentee can join with in discretion of ct. but not req. to intervene
Impleader: D adds a new party who is 3rd party D and is/ may be liable for all or part
of the underlying claim, so D seeks indemnity or contribution from 3rd party.
3RD party must have PJ
Right to implead w/i 20 days of serving answer. After = you need court permission
3rd party can raise defenses that defendant could raise against the Plaintiff
3rd party can assert a claim against P and vice versa as long as the claim arises from
the same T/O as underlying case.
Interpleader: One holding money/property can force all claimants into a 1 lawsuit
Stakeholder deposits the property in court and recovers his costs and attorney’s fees
(if innocent party) and disappears/ Claimants litigate, and court decides who gets the
property
If stakeholder is interested (it believes it has right to $), then it would deposit property
and not disappear but participate in litigation.
Class Actions: fit case within 1 of the 3 types of classes & ct. must certify class act.
Initial req.: same as fed.
i.
Numerosity
ii.
Commonality
iii.
Typicality
iv.
Adequate representation
Notice (paid by rep) required to ALL types of class and must inform that they can opt
out, bound by jud if they don’t, and enter separate appearance in case through counsel
Parties may only settle/voluntarily dismiss with court approval: court gives notice to
all members and considers feedback in deciding voluntary dismissal/ settlement
D. Adjudication
i. Termination of Case without Trial
 Voluntary dismissal: File notice of dismissal but not allowed if case has been
submitted to jury/motion of SJ is pending/property in ct. custody/ indepen. CC
- Even if parties agree on dismissal not allowed if property in ct. custody
- First v. dismissal is w/o prejudice and second is dismissed w. prejudice
- Lis pendens is automatically canceled when dismissal filed. A lis pendens is a written
notice that a lawsuit has been filed concerning real estate, involving either the title to
the property or a claimed ownership interest in it. – automatic if dismissal is recorded
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Default/Default by Judgment: If D fails to plead within 20 days of service
Entry of default: filed by clerk if D didn’t file anything/by judge if D files something
P must make an application for entry of default & D only gets notice if he filed
something.
Once default is entered, D cannot answer or file a motion
Entry of judgment: only entered by judge & D gets notice of hearing on damages
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P can only recover what’s stated in complaint nothing more
Relief from Judgment: Before judgment, D can make motion to set aside default but
must show either good cause (excusable neglect) or due diligence after learning
D can also make motion to set aside judgment after entry of judgment -same req.
Involuntary Dismissal:
There is no action for 10 months because P failed to prosecute then
After 10 months, notice can be given and 60 days after notice is given then motion to
involuntary dismiss can be made by Ct., D, or any party in action for failure to
prosecute: Ct. will dismiss unless P can show good cause 5 days before hearing
In a nonjury trial after P completes presentation, D can move for involuntary
dismissal on grounds that P hasn’t proven case and no right to relief
Ct. could move for inv. Dismissal for failure of adverse party to comply with ct. order
Any inv. dismissal is presumed w/prejudice unless the court said otherwise or unless
it was based upon JX, venue, failure to prosecute, or indispensable parties
So it’s possible for a Ct. to order an involuntary dismissal w/o prejudice
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Rule Nisi: court order asking party to show cause so judge does not enter order
Scire Facias: Order requiring one to show cause why some matter of the record like a
judgment should not be revived and enforced.
 Summary Judgment: must show there is no genuine dispute on a material fact and is
entitled to judgment as a matter of law
- Party must serve notice of hearing date with reasonable timing
- D may move any time and P must wait 20 days after filing complaint
- Party opposing the motion may serve its evidence by snail mail at least 5 days before
the hearing or by delivering, electronically filing it, or emailing it to movant’s lawyer
no later than 5pm two days before hearing
- Ct. can review affidavits, pleading, deps, interrogatories, admissions, but not oral
testimony
ii. Pretrial Judicial Management
 Case Management Conference: Judge has discretion in deciding whether to hold
CMC Court may convene this with reasonable notice – blueprint for overall case
scheduling, discovery, setting trial date etc.- Ct. responsibility and must specify matters
to be considered at conference
 Pretrial Conference: Ct. gives 20-day notice and considers issues to simplify trialjudge is required to schedule pre-trial upon timely motion of party
 Failure to attend: Ct. takes action to award merits: severe if willful
iii. Trial
 Magistrates: With parties’ permission a circuit court can refer matters to a
magistrate and have 10 days to object decision- ultimate decision is for judge
 ADR: Judge can order to use mediation/arbitration and either’s conference must take
place w/I 60 days of court orders. P can move to dispense ADR for good cause
- Mediation: Must complete within 45 days of first mediation conference- unless ct.
extends. Mediator reports to ct. if case cannot be settled. If settled, terms are put in
writing and filed and case jointly dismissed
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Arbitration: Must complete within 30 days of first arbitration hearing
Nonbinding: very informal, evidence summarized by counsel, arbitrators send
written decision to parties and court that sets forth conclusions and findings, decision
becomes final unless a party request trial de novo within 20 days
Binding: two or more adverse parties must agree and enter written agreement setting
out hearing procedures or court will set procedures. Decision is sent to parties and
court which can be appealed to circuit court in 30 days if not it becomes final –
grounds for appeal are narrow
- Voluntary Trial Resolution: case heard by attorney w. decision enforceable in
circuit – similar to binding arbitration
 Offer of Judgment/Proposal for Settlement
 Expedited Trial: if parties agree, discovery completed in 60 days and trial in 1
 Jury Trial: must demand in writing within 10 days after service of last pleading
- Withdrawal of demand only allowed if other party agrees
- 6 jurors or 12 in eminent domain cases
- Unlimited striking jurors for cause
- 3 preemptory challenges for each side: 2 P and 3 D= P get 9 and D get 9
- Jury can submit written, unsigned questions directed to witnesses or court.
- Jurors must each get copy of jury instruction during its deliberations
- To preserve the issue of appeal, a party must object to a jury instruction or to the
court’s failure to give a particular instruction before the jury is charged
- If counsel failed to object judge instructions at court conference preceding final
argument: waiver of objection and counsel cant object
iv. Judgment
 Direct Verdict: Effect of this order is to take the case away from the jury
- Defendant can move after Plaintiff is heard. Plaintiff goes once all evidence is heard.
 Verdict: must be unanimous/approved by judge/read by clerk
- the jury must itemize damages to be awards in three categories. : must specify
the basis for each form of damages
i.
Economic Loss: past/future loss = compensatory damages
ii.
Non-economic Loss: past/future loss = compensatory damage
iii.
Punitive damages: for intentional misconduct or gross negligence: must be
shown by clear and convincing evidence compensatory damages: Cap is that it
can’t exceed the greater of 3X compensatory awarded to each claimaint or
500k. No limit if D had specific intent to harm P or under the influence of alq.
or drugs.
 Entry of Judgment: official decision by ct.
- A party seeking judgment taxing costs or attorney’s fees or both must serve motion
within 30 days of filing judgment
- Prevailing party must file with the clerk a final disposition form at the time the court
filed the judgment disposing of the case
 Belated Directed Verdict: To file, party must have moved for directed verdict at a
proper time at trial/ must be in writing and filed within 15 days after verdict
- If granted, the court is saying that the jury reached a conclusion that reasonable
people couldn’t have reached- takes victory away and gives it to other side
v. Post-trial Motions
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Motion for new trial: Verdict returned or judgment entered, but errors at trial require
a new trial/ must be in writing, filed, and served within 15 days after return of verdict
by jury or judgment( nonjury)
- Grounds:
a. Prejudicial error at trial makes judgment unjust
b. New evidence that could not have been discovered w. due diligence
c. Prejudicial misconduct of party or juror
d. Judgment is against weight of evidence
The party should object to any event serving a basis for a new trial at the time of the event.
A Parties failure to object to evidence/testimony will preclude them from raising issue
A party could seek a new trial based upon improper closing argument if he failed to object at
the time of the argument if the argument was so harmful, incurable, and unfair that public
interest demands new trial
vi. Inherent Authority: Trial courts have inherent authority to award attorney’s fees against
a party for bad faith conduct.
Also can be imposed against attorney for bad faith
The bad faith conduct must be in the litigation
Th amount of the award must be directly related to the attorney’s fees and costs incurred by
the other side as a result of the bad faith conduct / court should rely on statute if there is one
vs inherent authority
vii. Relief from judgment: motion to set aside a judgment
Grounds:
1. Clerical errors: anytime
2. Mistake, excusable neglect, surprise: 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 max
viii.
Execution of Judgment: After Judgment entered, clerk may issue document to
sheriff that he is to levy on the defendant’s property to satisfy the judgment. Execution is
stayed for 15 days after entry of judgment
Stay pending disposition of such motions is automatic
Stay pending appeal is not automatic: must file supersedeas bond in amount of judgment plus
15 percent
E. Appellate Review
i.
Courts: file notice of appeal in trial court within 30 days after judgment
- Raise issues on which made timely objection in trial ct.
ii.
Final Judgment Rule: can only appeal a final judgment
iii.
Interlocutory Review: Appealable even though not final judgments
- Orders granting a new trial
- Orders re injunctions
- Orders determining PJ or venue
- Orders re right to immediate possession of property
- Orders on a distinct and separable claim
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Supreme ct. can’t review a decision by district court of appeals that expressly construes a
state statute: expressly interprets it
Court reporters are optional for trial and must be compensated by parties
Pending discovery motion does not preclude setting of trial date. When all pleadings have
been served in the case and there is no motion directed to those pleadings pending, a party
or court itself may take action to set a trial date
It’s up to the Ct. discretion to let the jury see accident scene or any other thing or matter in
controversy if necessary, to a just decision
Affidavit may only be signed by person with personal knowledge of what’s written
Generally, communications b/w lawyer and public entity are available for inspection.
However, a public record prepared by agency attorney reflecting mental impression, legal
theory etc. is exempt from disclosure until conclusion of litigation
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