Term
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Definition
| power conferred on a court to render judgment over the subject matter and parties of a litigation |
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Term
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Definition
| the power of lawfully existing court to hear and determine a particular cause of action |
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Term
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Definition
mandatory appellate review:
-district court of appeal decisions declaring state statute/provision of constitution invalid
-final judgments in proceedings for validation of bonds or certificates
-review of statewide agency actions relating to rates or services of utilities; and
-final judgments of trial courts imposing the death penalty
discretionary appellate review: other district court of appeal decisions, trial court orders certified to be of great public importance, and questions of law certified by a federal court
exclusive jurisdiction: over all collateral proceedings in death-penalty judgments
advisory opinions: required to render when requested by the AG |
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Term
| SMJ: FL district courts of appeal |
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Definition
5 appellate districts
courts of last resort for many cases in FL
mandatory appellate review: as a matter of right from final judgments of trial courts, administrative actions, and certain non-final orders of circuit courts
original jurisdiction: may issue all writs necessary to exercise its jurisdiction
discretionary review: orders certified to be of great public importance
certiorari review: may review nonfinal orders of lower tribunals, and final order of circuit courts acting in their review capacity |
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Term
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Definition
20 judicial circuits
primary trial court; court of general jurisdiction
trial jurisdiction: over any matters not expressly denied by constitution or statute, including all actions not cognizable in county courts; jurisdiction over civil actions in which the amount in controversy exceeds 15k
-P can add up all of the claims it has against the D to get above the 15k jurisdictional threshold as long as they arise out of the same transaction or occurrence
-if value of injunction is above 15k, exclusive jurisdiction
appellate jurisdiction: over appeals from county courts and local government boards
-exception: judgments declaring state statute or provision of constitution invalid; appeals certified to be of great public importance (and accepted by district court of appeal)
concurrent jurisdiction: with county courts in actions in equity, landlord-tenant cases, and actions involving the right to possess RP, in which the amount in controversy does not exceed 15k; any dispute involving homeowners associations regardless of the amount |
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Term
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Definition
one in each county
original jurisdiction: over all misdemeanor, ordinance violations, all actions at law when the amount in controversy does not exceed 15k and certain family law and property matters |
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Term
| SMJ: fed courts v state courts |
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Definition
fed courts: courts of limited SMJ
state courts: unlimited SMJ |
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Term
| SMJ: fed courts: pleading SMJ |
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Definition
| basis for SMJ must be affirmatively pleaded in every fed case |
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Term
| SMJ: fed courts: waiver and objection |
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Definition
| cannot waive SMJ; can bring up lack of SMJ at any time by D or P |
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Term
| SMJ: fed courts: two types |
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Definition
| fed question and diversity |
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Term
| SMJ: fed courts: fed question |
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Definition
basis: exists for a claim that arises under federal law
well-pleaded complaint: P's claim must be based on fed law, so look to the face of the complaint, and not D's defense, or P's later answer |
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Term
| SMJ: fed courts: diversity jurisdiction |
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Definition
basis: cases between citizens of different states or citizens of a state and a foreign country if the amount in controversy exceeds 75k, exclusive of interests and costs
-probate and domestic relations cases can't be brought under diversity jurisdiction
-requires complete diversity
-minimal diversity allowed under federal interpleader act, class actions worth more than 5M, and interstate mass torts (like airline crash)
time for determination of diversity: must exist when the complaint is filed; does not matter that diversity did not exist when the c/a arose or existed when the case comes to trial as long as good faith basis |
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Term
| SMJ: fed courts: citizenship of parties |
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Definition
individuals: citizen of the state or country of domicile (residence + intention to remain)
aliens: diversity jurisdiction exists for controversies between a citizen of a state and a citizen of a foreign country
representative party: generally citizenship of representative party controls (ex: trustee)
-but legal representative of decedent's estate's, decedent's citizenship controls
-legal representative of infant/incompetent, citizenship of infant/incompetent controls
class actions: citizenship of named parties counts; class members not named may join with regard to citizenship
corporations: citizen of state incorporated and state or country of its PPB
partnerships and unincorporated associations: citizen of every state of which its members are citizens |
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Term
| SMJ: fed courts: devices to create or destroy diversity |
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Definition
actions that create or defeat diversity are permitted so long as they are not done solely for that purpose, must be genuine
moving: permitted so long as the person is really changing their domicile
assignment of a claim: permitted so long as the assignment is real and not collusive |
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Term
| SMJ: fed courts: amount in controversy |
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Definition
must exceed 75k, exclusive of interest and costs; and good faith allegation will suffice; will only be dismissed when it appears to a legal certainty that recovery in exceed of 75k cannot be had
aggregation:
-P v. D: P can aggregate all his claims against D
-P v. 2+ Ds: P cannot add up all claims; each D must meet requirement
-2+ Ps: each P must meet the requirement, unless one P meets and the other has supplemental jurisdiction
supplemental jurisdiction: when one P has a claim exceeding 75k, the claims of the other Ps can be heard regardless if all of the claims: 1) arise out of the same transaction or occurrence, and 2) complete diversity is maintained |
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Term
| SMJ: fed courts: counterclaims |
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Definition
Does a counterclaim in a diversity action have to meet the jurisdictional minimum of 75k?
If it is compulsory: no
If it is permissive: yes |
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Term
| SMJ: fed courts: supplemental jurisdiction |
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Definition
allows fed court with SMJ over a case to hear additional claims over which the court would not independently have jurisdiction; all the claims are part of the same case or controversy; constitute the same case or controversy if the arise out of a common nucleus of operative fact
federal question: issue is whether the fed court can hear state-law claims; power is discretionary
diversity:
-supplemental jurisdiction over compulsory counterclaim (arises out of the same transaction or occurrence) but a permissive counterclaim must independently satisfy diversity
-supplemental jurisdiction over cross-claims; doesn't matter that there is not diversity or amount requirement among co-Ds or co-Ps
-permissive joinder of Ps: if common nucleus of operative fact: can hear claim under supplemental jurisdiction
supplemental jurisdiction not permitted:
-claims by P against impleaded third party D's
-claims by P against additional Ds joined as necessary parties
-claims by P intervinos
-claims by P joined involuntarily |
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Term
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Definition
removal moves case from state court to fed court
transfer moves case from fed court to fed court
no procedure from removal of a case from fed court to state court; fed court can abstain from hearing a case and then have it refiled
removal is proper only if the case could have been brought originally in fed court; only D can remove; all Ds must consent to removal
in diversity case: to remove the case has to have been brought in a state where no D is a citizen
one-year limit on removal, unless P has acted in bad faith to make case non-removable |
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Term
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Definition
notice of removal is filed in fed court, copy to the state court
when notice is filed, case is removed automatically and instantly; once a copy of notice is filed with the state, the juristiction of state court ceases |
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Term
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Definition
P can file a petition for remand
fed court holds hearing to determine whether removal is proper
if proper, petition is denied and case stays in fed court
if improper, petition is granted and case goes back to state court |
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Term
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Definition
court must have authority to adjudicate the rights of the parties and the power to resolve the issues presented by the case; always concerns the D
fed courts use the long-arm statutes of the states in which they sit
two issues: 1) has the particular basis for exercising PJ over an out-of-state D been authorized by statute or by rule of court, 2) is the particular basis for exercising PJ permitted by federal constitution (due process) |
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Term
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Definition
in personam (against the person)
in rem (against the thing)
quasi in rem (sort of against the thing) |
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Term
| PJ: constitutional aspect |
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Definition
due process requires that there be minimum contact between the D and the forum state, such that it is consistent with traditional notions of fair play and substantial justice to sue the D here.
Courts look at purposeful availment by the D of protections of the forum state's laws |
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Term
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Definition
PJ can be waived
voluntarily litigating on the merits waives any objection to the lack of PJ
waives any objection to lack of PJ by substantial participation on the merits before raising that objection
must be raised at the first opportunity or its waived; either pre-answer motion to dismiss if the D chooses to file one or the answer if the D chooses not tile file a pre-answer |
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Term
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Definition
generally fed courts follow PJ law of states in which they sit
but fed courts can assert broader PJ than state courts in following cases
-when a fed statute, such as Federal Interpleader Act, authorizes nationwide service of process, or
-under Bulge Provision of Fed Rules: allows service anywhere within 100 miles of fed courthouse, even if in another state, if: impleading third party D or joining necessary D |
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Term
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Definition
-FL residents
-any person who consents to jurisdiction
-corporation incorporated in the state or has its PPB in the state
-any person or entity that engages in "continuous and systemic" activity in FL" (like a snowbird)
-foreign corporation with PPB in FL
-if in rem c/a will have jurisdiction if it has power over the property |
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Term
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Definition
for non-resident, two-step process:
1) determine whether FL court has jurisdiction over person under terms of long-arm statute
-operating or conducting a business or business venture in the state
-committing a tortious activity in FL
-owning, possessing, or using RP in FL
-contracting to insure a person, property, or risk in fl
-in an action for alimony, support, or distribution of property, satisfied if the person maintains a residence in FL at the time the action is filed or if she had resided in the state in a martial relationship before the action was filed
-causing an injury to a person in FL by an act or omission outside of the state, if at the time of the injury, the non-resident D was involved in the solicitation or distribution of products in FL
-breaching a K by failing to perform acts that were required by the K to be performed in FL
-a matter involving paternity, engaging in sexual intercourse in the state by which the chid at issue may have been conceived
step 2: cannot offend due process |
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Term
| Service of process: generally |
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Definition
requires proper service of process by statute or any method that complies with due process (notice and opportunity to be heard)
service of a summons on the D while the D is in the jurisdiction
establishes physical presence in the jurisdiction and gives D notice of the action; notice is the type of service of process used to assert in personam jurisdiction |
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Term
| Service of process: federal rules |
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Definition
authorizes service in accordance with state law where federal court sits
also provides own means for service of process
-personal delivery
-leaving summons at D's dwelling house or usual place of abode with a person of suitable age and discretion
-delivery of the summons to an authorized agent
-for persons in foreign countries, service can be made by registered mail, return receipt requested; service by mail is generally not accepted for service of process unless state law specifically so provides |
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Term
| Service of process: who to serve |
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Definition
infant: service on the infant and on the parent or guardian
FL: minors: if the person is a minor who has never been married and under 18, serve parents or guardians
adjudicated incompetent: service must be made on the incompetent and her guardian
FL: service only on guardian or person who has care or custody of the person
FL: sole proprietor: is a natural person doing business, so can serve personally or go to business and serve person; if you have tried to serve the person at the business twice and not successful, may serve sole proprietor by substitute (serving the person in charge of the business at the time of service)
partnership: service on general partner, attorney in fact, or an authorized agent
FL partnership: against any partner or any person designated to accept service; if you make one attempt to serve partner at place of business and unsuccessful, can then serve person in charge of partnership at time of service, so long as it is during regular business hours
corporation: service on an officer, director, managing agent, or an agent appointed for receiving service of process
FL: corporations: may serve by personally serving president, vice-president, or other head; if you cannot serve those people, may affect service on treasurer, secretary or GM; if not can then serve BOD; if that doesn't work, can then serve an officer or business agent of corporation resident in FL
FL: public agencies/officers (town council): serve head, in absence, vice-pres, vice-chair, etc.; if none of the above, any member of the board
FL: state of FL: serve either the state attorney or assistant state attorney in the circuit in which the action is filed and send two copies of process by registered or certified mail to FL AG
non-resident motorists: state official is appointed as the agent of the non-resident motorist |
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Term
| Service of process: in rem and quasi-in rem actions |
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Definition
| diligent effort must be made to locate all claimants to the property; if claimant cannot be located, then notice by publication is permitted; notice by publication is not sufficient if the names and addresses of the claimants can be discovered with reasonable effort |
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Term
| Service of process: waiver |
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Definition
P may, but not required to, ask a D if the D will agree to waive formal service of process.
Requesting waiver: P sends a writing to the D by certified mail, return receipt requested, requesting waiver. Complaint must also be included, as well as prepaid means of responding. Writing must inform D about waiver of process and state the date on which it was sent
D given 20 days to decide whether he will waive service, but not required to
If D agrees to waive formal service of process, gets a longer period of time to respond to the complaint: 60 days upon which D received request to waive process, but normally get 20 days to respond after formal service
If does not agree to waive and P effects formal service, D will be required to pay costs of formal service. Can avoid paying costs if there is good cause for failing to agree to waive service |
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Term
| Service of process: initial filing and service |
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Definition
P files complaint with court, which stops the running of the SOL, but doesn't begin the action because D hasn't been served with process
P has 120 days from filing the complaint to formally serve the D or get the D to waive formal service and inform the court; can be extended by showing of good cause or excusable neglect |
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Term
| Service of process: who may serve process |
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Definition
| any person authorized by law to do so (sheriff) OR any person who is at least 18, competent, and resident of FL so long as the person does not have an interest in the subject matter |
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Term
| Service of process: how to formally serve in FL |
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Definition
1) personal service: physical delivery of the required process to the D
2) substituted service: physical delivery of the required process is not to the D himself, but to an agent authorized to accept such service as a substitute
3) constructive service: by way of publication in a newspaper or posting in certain places; not favored and may only be used in certain circumstances (when personal or substituted services not available) |
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Term
| Service of process: FL personal service |
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Definition
most likely to satisfy constitutional requirement of notice
1) physically delivering the required process to the: delivery could occur wherever the D is; FL law requires an employer to let a process server into a private area of a business to serve process
2) without actual physical delivery: leaving required process at D's usual place of abode with any person residing therein who is 15 or older so long as you inform that person of the contents of what you are giving them |
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Term
| Service of process: FL substituted service on nonresidents |
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Definition
nonresident who does a certain thing in FL will be deemed to have appointed the FL Secretary of State as her agent to accept process. These persons are:
-owners or operators of cars in the state
-persons who operate and maintain a watercraft in the state
-persons who operate and maintain an aircraft in the state
-persons operating, conducting, or engaging in a business or business venture in the state |
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Term
| Service of process: FL constructive service |
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Definition
| cannot use if you could use personal or substituted service; may only be made in a defined set of cases; required to submit a sworn statement laying out why service by publication is allowed and necessary; can only be made in a defined set of cases such as ownership/division of property, certain family law related matters (custody of children, adoption, paternity) |
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Term
| Service of process: FL service of motions or other subsequent papers |
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Definition
once initial service of process of complaint and summons is accomplished or waived, others papers in the case also need to be served; unless excused by the court, should be by email; presumed service is effective on the date the email is sent
if e-mail service is excused or if you are dealing with an unrepresented party who does not provide you with an email address, then you can serve by personal delivery, mail, or by giving it to the clerk of the court
-can also leave it at the attorney's office or party's office with a clerk or other person in charge or an obvious place
-if person does not have an office or it is closed, can serve it as person's usual place of abode with family member older than 15, telling them what it is
-can also be effected by fax |
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Term
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Definition
question of administrative convenience; asks whether the particular court is the proper place to hear the case. D's responsibility to object if venue is improper
FL: venue is based on counties
claim of improper venue must be raised at the first opportunity |
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Term
| Venue: fed courts: general rule |
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Definition
federal venue is proper in a district:
-where any D resides if all D reside in the same state
-where the claim arose (where a substantial part of the events or omission on which the claim is based occurred or where a substantial part of the property that is subject of the action is located)
If neither of the above, federal venue is proper in any district where D can be served
P's residence does not count |
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Term
| Venue: fed courts: residence |
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Definition
individuals: domicile
business entities: every districts in which PJ exists |
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Term
| Venue: fed courts: transfer and removal |
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Definition
for a case begun in state court and removed to fed court, venue is automatically proper in the federal district where the state court sits, even if that would otherwise not be so
transfer is only to a district with proper venue; exception: transfer to a district without proper venue may occur when all parties consent
-a suit brought in a district with proper venue may be transferred for convenience to another district with proper venue
-a suit brought in district without proper venue may be transferred to a district with proper venue, rather than dismissal
-choice of law: if suit was brought in a district with proper venue and case is transferred to another district, law of transferor forum controls; if suit was brought in a district that lacked proper venue, law of transferee court controls |
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Term
| Venue: FL: local v transitory actions |
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Definition
local actions: once against property having a fixed location, such as an action to quiet title to RP
-rule: venue lies in the county in which property is located
transitory actions: one that is not a local action
-rule: venue in such actions lies in either: 1) the county in which the D resides, or 2) county in which c/a accrues
-exception: actions concerning promissory note may only be brought in the county in which the note was executed |
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Term
| Venue: FL: venue in particular cases |
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Definition
venue in a case against more than one D: any county in which any D resides, as well as the county in which c/a accrues
venue in a case with more than one c/a: county in which any of the c/a arose, as well as where any of the Ds reside
agreements as to venue: generally parties can agree in a K to have venue in a particular place, including outside of FL; if it is a K for improvement of RP and venue is outside of RP it is void against public policy if action concerns a resident contractor or sub-contractor
corporation as a D: in county in which c/a accrued or in county in which FL corporation has office for the transaction for its business
-if non-FL corporation: where the c/a accrues and in county in which such corporation has an agent or other representative
venue in actions against the state or state agency: in county in which it maintains its principal headquarters; exceptions:
-statute can change general rule
-in a suit concerning P's constitutional rights, then in the county in which the invasion of those rights is threatened or has occurred
-when a state agency is a joint tortfeasor in a case, then in the county in which the c/s accrued
-in cases in which a party files a petition for access to a public record |
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Term
| Venue: FL: change of venue |
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Definition
even if venue is appropriate, D may challenge P's initial choice by making a motion to change venue (transfer the case); grounds are based on fairness
-party opposing transfer has undue influence over minds of county's residence
-party that wants the change is so disliked that a fair trial cannot be had; and
-when it otherwise appears impracticable to get a fair jury in the county
also possible to transfer to another county when it is for the convenience of the parties and witnesses and in the interest of justice
strong presumption to not transfer |
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Term
| Venue: FL: forum non conveniens |
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Definition
jurisdiction is proper but the case will be fair and more convenient elsewhere
court may grant (in its discretion) if:
-adequate alternative forum has jurisdiction
-private interests favor the alternative forum as balanced against the P's choice
-public interests favor the alternative forum; and
-P can reinstate suit without undue inconvenience or prejudice
must file motion within 60 days of service of process
parties may stipulate to conditions for forum non conveniens subject to approval by court |
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Term
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Definition
Erie: when federal court hears state claims, apply state substantive law
state substantive law:
-substantive rules on what must be proved to win a case and what defenses may be asserted
-SOL on state c/a
-burdens of proof on state c/a
-state rules on COL
another covered by the federal rules of civ pro is procedural
federal common law
-judge-made federal law that overrides inconsistent state or local law
-makes only when they encounter important federal interests that are not covered by a statute
determining applicable state law
-follow precedent from highest court in that state
-if there is no precedent, predict how highest court would rule
-give respectful attention to decisions of lower state courts |
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Term
| Commencement of proceedings: federal |
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Definition
federal civil action is begun by filing a complain with the court clerk
for diversity actions, state law controls when an action is begun |
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Term
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Definition
| complaint, answer, third-party complaint, reply |
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Term
| Claim for relief (complaint) |
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Definition
document in which a party asks for some remedy such as an injunction or damages; most common one is the complaint
recovery is not limited by the claim for relief as stated in the complaint, except for default judgments (but if suing in excess of 10k need to say that you are suing in excess of 10k damages)
FRE: just need a short and plain statement of the claim; give fair notice of the pleader's contention
-but if it is a fraud/mistake or special damages, it requires a special pleading: stated with particularity/specificity (same for FL)
FL: requires three things
-short, plain statement showing that the court has jurisdiction, unless the court already has jurisdiction
-short and plain statement of the ultimate facts showing the pleader is entitled to relief (saying one was negligent = ultimate fact, but that one owed a duty of care is not an ultimate fact; would need to plead ultimate facts showing relationship under the law that imposes a duty of care)
-demand for relief being sought |
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Term
| Closing pleadings (D's answer): FL |
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Definition
Answer: D must respond to each of the factual allegations the P has made. D can admit, deny, or indicate lack of knowledge sufficient to form an answer
-if D says he lacks knowledge it is treated as a denial
-if D fails to say one of the three things, everything other than the amount of damages is deemed to have been admitted
D has special burden to plead certain affirmative defenses in the answer (20 of them, see next slide); if fails to do so, deemed waived
Must file answer 20 days from formal service of complaint and summons
-if waiver of service, 60 days from date received request for service
-applies to third-party complaints and answers
-day of the act at issue does not count in terms of calculating time |
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Term
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Definition
| must be filed within 21 days of service of the pleadings to which it responds |
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Term
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Definition
defenses may be asserted in an answer, but may use a pre-answer motion to raise certain defenses or other matters; they are optional; pre-answer motion needs to be filed on the same timeline as the answer
consolidated motion rule: amy of these motions must be made in a single motion; all defenses must be raised in the first response to the complaint
-some of the defenses spoil if not done correctly (PJ, venue, insufficient process/service of process)
-some defenses are saved up to a point even if they are not treated appropriately (failure to state a c/a and join an indispensable party; may be made by a motion for judgment on the pleadings or at trial on the merits)
-SMJ can be raised at any time
types:
-motion for a more definite statement (complaint is such that a response cannot be framed without more detail)
-motion to strike (seeks to remove from a pleading any matters that are redundant, immaterial, scandalous, etc.)
-motion to dismiss
-motion to strike a sham pleading (pleading is so lacking in merit that it should be dismissed; party can be sanctioned)
-motion for judgment on the pleadings (pleadings completely agree on facts, but if there is a factual dispute, proper motion is for summary judgment) |
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Term
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Definition
-Lack of SMJ
-Lack of PJ
-Improper venue
-Insufficient process (doesn't apply if process was waived)
-Insufficient service of process (doesn't apply if process was waived)
-failure to state a cause of action
-failure to join an indispensable party |
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Term
| D's answer: FL: affirmative defense |
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Definition
Must plead in answer:
-accord and satisfaction
-arbitration and award
-assumption of risk
-contributory negligence
-discharge in bankruptcy
-duress
-estoppel
-failure of consideration
-fraud
-illegality
-injury by fellow servant
-laches
-license
-payment
-release
-res judicata
-Statute of Frauds
-statute of limitations
-waiver
-and any other matter constituting an avoidance or affirmative defense. |
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Term
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Definition
| required when a responsive pleading contains an affirmative defense; must be filed within 20 days of service of the document containing the affirmative defense |
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Term
| Supplementing or amending a pleading: FL |
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Definition
supplementing: does not change what has been done; adds additional occurrences or events that took place after the filing of the initial pleading
amending: will change a pleading; can amend:
-if a responsive pleading is required, can amend once as of right at any time before the responsive pleading has been filed
-if no responsive pleading is required, may amend once as of right with 20 days of its service, so long as the case has not been placed on the trial docket
-may also amend with the written consent of the other parties or by leaven of court; should be given when justice so requires
an amendment can relate back to the date the original pleading was filed; will relate back if the new claim or defense arises out of the same conduct, transaction or occurrence that was set forth in the original pleading
amendment and punitive damages: person may not simply assert a claim for punitive damages in the complaint or counterclaim; must:
-file a motion for leave to amend the pleading to make the claim, and
-demonstrate by the submission of evidence that it has made a prima facie case that it is entitled to an award of punitive damages |
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Term
| Supplementing or amending a pleading: fed |
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Definition
as of right: may be amended once at any time within 21 days of service of the pleading or within 21 days of D's response
after party has amended or time for amending as of right has elapsed, leave to amend must be sought from court; should be freely granted
will relate back if it concerns the same conduct, transaction or occurrence as the original pleading
an amendment to add or change a party against whom a claim is asserted must: concern the same conduct, transaction or occurrence as the original pleading and party to be added must have known that the action should have been brought against that party |
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Term
| Certification of pleadings: fed |
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Definition
verification: most pleadings are not verified (sown in) nor need to be
certification: pleadings and all other documents, including motions and discovery requests, must be certified by the attorney's record; signature certifies that:
-there is an appropriate legal basis for filing
-attorney certifies that to the best of her knowledge after reasonable inquiry there is no improper purpose
the legal contentions are warranted by existing law or by a nonfrivolous argument for a change in the law
-factual allegations have evidentiary support or are likely to have such support after discovery
violation of certification requirements can be raised by court or opposing party; move to dismiss or seek sanctions; attorney can be made to bear the cost of baseless or improper filing |
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Term
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Definition
| an action should not be dismissed for having the wrong P until a reasonable time has been made for the substitution of the correct P |
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Term
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Definition
minors and incompetents may sue or be sued only through a guardian
partnerships can sue or be sued as an entity if federal jurisdiction is based on federal question; if based on diversity, then each and every partner must be made a party to the litigation and complete diversity applies |
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Term
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Definition
anyone 18 or older; minors may only sue or be sued through a parent or guardian; if over 18, can lose the ability to sue or be sued if deemed legally incompetent, but not all legally incompetent persons lose that ability (in guardianship proceeding, have to have ability to sue/be sued taken away)
corporations: by virtue of being a corporation, have the capacity to sue/be sued
partnership: capacity to sue/be sued in own name
homeowner's association: so long as not controlled by developer, may sue in own name on behalf of all its members in connection with matters of common interest to the members |
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Term
| Permissive joinder of parties |
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Definition
Joinder by Ps: any number of Ps may join if they assert claims arising out of the same transaction or occurrence and there is a common question of law or fact
any number of D's may be joined in the same action if the claims against them arise out of the same transaction or occurrence and there is a common question of law or fact
diversity cases: no party can be joined whose presence would defeat complete diversity; if complete diversity is maintained and if any P has a claim that exceeds 75k, other Ps with smaller claims can come in under supplemental jurisdiction
FL: all persons having an interest in subject of action and in obtaining the relief demanded may join as P
FL: any person can be a D if he has an interest adverse to hte P
FL: gives trial court discretion to sever claims and parties |
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Term
| Compulsory joinder of parties |
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Definition
Joinder by D
necessary party: someone whose participation in the lawsuit is necessary for a just adjudication; absent that party, complete relief cannot be accorded to the existing parties
-necessary party has an interest in the litigation which will be impeded if the litigation goes forward without that party, or
-there is a substantial risk of double or inconsistent liability
necessary party must be joined if feasible; it is feasible if: 1) it will not deprive the court of SMJ and 2) court can assert PJ over necessary party
-bulge provision applies: necessary party can be served under any of the provisions of the state long arm statute and necessary party can be served within 100 miles of federal courthouse
if a necessary party cannot be joined, court decides whether to continue without necessary party or dismiss the case (party considered indispensable)
-dismissal is without prejudice |
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Term
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Definition
outsider who volunteers to enter a lawsuit; primarily concerned with Ds
intervention as of right: may be had when outsider claims an interest in the subject matter of lawsuit, that as practical matter, may be compromised by disposition of pending action
permissive intervention: may be allowed whenever there is a common question of law or fact between the intervenor's claim and main claim
must be timely: reasonable promptness
no supplemental jurisdiction for either
FL: decision is at the discretion of the trial judge (no of right); look at whether person seeking to intervene has an interest in the pending litigation, such that the interest could be affected by the outcome of the litigation
-can make a motion to intervene at any time under the rule
-intervenor cannot add new claims |
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Term
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Definition
used to resolve problem of competing claims to the same property; designed to avoid inconsistent obligations or multiple claims; property at issue = stake (real or personal, tangible or intangible), personal holding property = stakeholder, persons claiming property = claimants (stakeholder can also be a claimant)
stakeholders can invoke interpleader either as P or D
rule interpleader: remedy available in a lawsuit or court's jurisdiction
statutory interpleader: Federal Interpleader Act; only need amount of 500+, nationwide service of process, venue is proper in any district where any claimant resides, SMJ based on minimal diversity |
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Term
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Definition
lost if not pleaded; arises out of the same transaction or occurrence as the claim to which it responds
fed: no independence jurisdiction is required; if SMJ over main claim, SMJ over compulsory counterclaim; filing of complaint tolls SOL for main claim and compulsory counterclaims |
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Term
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Definition
may be pleaded now or raised later; do not arise out of the same transaction or occurrence
fed: to bring must have a jurisdictional base; no supplemental jurisdiction
if barred by SOL, cannot be brought |
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Term
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Definition
| claims asserted against a co-party (p v. co-p, d v. co-d); must arise out of the same transaction or occurrence as the main complaint; never compulsory |
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Term
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Definition
D brings into suit someone who is or may be liable to D for all or part of P's claim against him; impleaded party = 3rd party D; original D = 3rd party P
impleader comes within court's supplemental jurisdiction (amount and citizenship doesn't matter) but supplemental jurisdiction does not extend to claims by original P against third-party D (P can only bring claim against impleaded party unless jurisdiction is met)
third-party D must meet PJ
FL: possible at any time in action; D will not need court's permission if done within 20 days of D serving answer, but after need court's permission by filing a motion
-original P can assert claims against third party D and vice versa as long as they arise from same transaction and occurrence
-third party D can assert any defenses against original P that D had |
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Term
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Definition
requirements:
-numerousness: too many parties to join
-common questions of law or fact
-typicality of claims by class reps
-adequacy of representation by the representative's lawyer
requires judicial approval
every named rep must be completely diverse from opposing parties and at least one of them must have a claim worth more than 75k
Class Action Fairness Act of 2005: allows very large class actions of 100 or more members with more than 500M with minimal diversity |
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Term
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Definition
FL state court may hear a class action assuming all requirements are satisfied, even with respect to a nationwide class of people. Requirements:
-numerosity
-commonality (common question of law or fact)
-typicality (class rep has claim that is cohesive of other class members)
-class representative can fairly and adequately represent the class members' interests
class action must be deemed appropriate (fit into one of three groups)
-group 1: 1) individual adjudications could establish incompatible standards of conduct for the party opposing the class, and 2) when non-class adjudication would practically dispose of the claims of other class members or impair their ability to protect their interest
-when the party opposing the class (usually D) has acted or refused to act in a way common to the class and relief sought is injunctive or declaratory
-court determines: 1) questions of law or fact common to class predominate over individual questions and, 2) class action is superior to other available methods of fair and efficient adjudication of the claim
once class is certified, notice must be sent to all members of the class notifying them of pendency of the action; required for the third group; for the first two groups court presumed to order notice but has discretion to find that notice not required
-person seeking the class bears cost of notice
cannot settle or dismiss an action in which a class has been certified without the permission of the court; court has to provide notice to class members and give them opportunity to object to the settlement |
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Term
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Definition
day on which act/even occurs does not count, but last day in period does; any days in middle that are weekends/legal holidays count; if last day falls on a weekend/legal holiday, next business day that counts
if service is to be by mail or email, add 5 days to whatever time is provided
court can in its discretion extend a deadline
in civil cases, all documents filed in court are filed by electronic submission |
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Term
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Definition
Mandatory disclosures: three stages (means disclosure without having to wait for a discovery request)
1) initial disclosures:
-names and addresses of persons with potentially discoverable information
-copies of descriptions of relevant documents or things
-computation of damages claimed
-applicable insurance agreements
2) disclosure of expert witnesses
-names of expert witnesses who will be called at trial
-qualifications, publications, opinions, information on which they will base their opinions, other cases in which they have testified, and compensation
3) pretrial disclosures
-30 days before trial
-lists of witnesses and exhibits
-any objections must be made within 14 days after disclosure or they are waived unless excused by the court for good cause |
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Term
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Definition
general rule: relevance; can discover anything that might be admissible at trial or might lead to something that might be admissible at trial
-discovery is not limited to admissible at trial
exceptions
-evidentiary privilege (atty-client, etc)
-work product
experts: distinction between experts who will be called as a witness at trial and those will not; if expert is going to be called, expert's reports subject to discovery but draft reports not discoverable; communications between counsel and experts not discoverable
-if expert is not going to be called as a witness, no discovery
protective order: court orders to compel or restrain discovery; requires showing of good cause |
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Term
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Definition
presumptively discoverable if: 1) relevant to subject matter of pending action, or 2) reasonably calculated to lead to discovery of admissible evidence
indemnity agreements for claims in a case are discoverable
-promotes settlement of cases, but not necessarily admissible at trial
exceptions
-privileges
-work product (but can be discoverable if party seeking discovery shows a need for the material in connection with the case and party shows that it is unable without undue hardship to obtain a substantial equivalent of the materials)
experts: can seek discovery from testifying expert, but not non-testifying expert (only allowed if party shows exceptional circumstance making it impracticable to obtain facts or opinions on the matter in any other way)
protective orders |
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Term
| Discovery device: deposition: fed |
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Definition
-questions are asked and answered orally and under oath
-limited to 10 depositions, unless court allows more
-each is limited to one day of 7 hours, unless court allows more
-any kind of notice suffices for deposition of a part but deposition of a nonparty witness requires a subpoena
-subpoena duces tecum requires deponent to bring specified documents or things
-can be taken at any time after party has mandatory disclosures
-may be taken before a notary public
if written deposition, questions are delivered to an officer who asks orally the questions written down beforehand |
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Term
| Discovery device: deposition: FL |
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Definition
-answer questions under oath by written or ora examinations
-if deponent is a party, must give notice of deposition to that party and all other party with reasonable notice; P may generally not take deposition with 30 days of service of process without court order
-if deponent is a non party, must use subpoena
-if taking deposition of entity, have to give list of topics and entity has to produce someone who will testify on behalf
-no set limit on number of depositions
-can take a deposition at any time within the course of litigation except P can't take deposition within 30 days of service of process unless court approval
-testify under oath
-usually recorded by stenographer but may videotape so long as party states intention to videotape provide for stenographer unless parties agree otherwise
-telephone deposition is only allowed by order of court
-at deposition, lawyer is required to object to any question for which objection could be fixed and failure to do so waives objection later; even after objection, witness generally required to answer question but objection preserved for later determination; but witness can choose to not answer if: 1) privilege, 2) to enforce existing court order, 3) present a motion to limit or terminate deposition
-witness has right to review transcript and make changes, witness then signs deposition, and witness can waive right to read and sign either expressly or by implication
-deposition can be used against the witness substantively or by impeachment |
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Term
| Discovery device: interrogatory: fed |
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Definition
-questions asked in writing to be answered under oath in writing
-may be used only against a party
-limited to 25 interrogatories, unless court allows more
-responses required within 30 days |
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Term
| Discovery device: interrogatories: FL |
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Definition
-may only be used against a party
-must answer within 30 days of service unless P serves interrogatories with initial complaint, in which case D has 45 days to answer
-if party objects, party propounding interrogatories may file a motion to compel response
-party may also refer requesting party to records (only when burden of deriving answer is substantially the same for parties)
-may only propound 30 interrogatories without showing good cause to a judge |
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Term
| Discovery device: discovery and inspection of documents and land: fed |
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Definition
-called a request to produce and permit inspection
-applies only to documents and land under control of a party
-thing to be produced and inspected must be described with particularity
-response is due within 30 days |
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Term
| Discovery device: discovery and inspection of documents and land: FL |
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Definition
-can be made to a party and non-party (party serve notice and non-party use subpoena)
-must respond within 30 days unless the request is served by the P with the complaint, and then D has 45 days
-person responding may also assert objections in these time frames
-requesting party may file motion to compel production or entry |
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Term
| Discovery devices: physical and mental examinations: fed |
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Definition
-can be ordered only against a party
-only permitted for a condition in controversy
-only for good cause shown |
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Term
| Discovery devices: physical and mental examinations: FL |
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Definition
-only be used against a party
-allows party to request mental or physical examination as long as condition is in controversy
-must respond within 30 days, but 45 if P served request with complaint
-if examination deals with nonphysical condition, party seeking exam must obtain a court permission
-must show good cause
-person conducting exam is required to make a report of the exam should person examined make such a request |
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Term
| Discovery devices: request for admission: fed |
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Definition
-used to streamline the lawsuit
-failure to respond within 30 days is an admission
-certification: responses to request for admission must be signed by the attorney of record, which certifies that there is a reasonable basis and good faith for denying the request
-admissions have no preclusive effect; only binding in current lawsuit |
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Term
| Discovery devices: request for admission: FL |
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Definition
-takes matter out of contention at trial
-may only be used against another party
-can deal with matters of fact or law
-if party does not respond within 30 days, or 45 if served with complaint, request will be deemed admitted by that party |
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Term
| Discovery devices: use of depositions: fed |
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Definition
-discovery does not = admissibility
-deposition of adverse party is admissible as an admission against interest
-deposition of a witness can be used to impeach
-deposition of a witness who does not testify can be used if the witness is dead or beyond court's subpoena power or otherwise unavailable |
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Term
| Discovery devices: disputes: FL |
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Definition
two step process when parties dispute about whether something is discoverable
-1) file a motion to compel the discovery that it has sought; but cannot be filed until the parties have conferred in good faith to resolve the dispute; fact of this conferral must be certified in the motion; if court grants, it will enter an order compelling discovery (presumption that court will order party who refused discovery to pay reasonable attorney's fees expended in connection with the motion to compel, but will not be made if motion did not contain a certificate of conferral, opposition was justified, or there are other reasons that would make award unjust); if motion is denied, there is a presumption that the person making the motion would have to pay reasonable attorney's fees of the person opposing the motion
-2) if the motion to compel is granted, but discovery was not produced or was incomplete in some manner, sanctions are allowed (issue be deemed in one party's favor, strike a pleading and enter a judgment, contempt, preclude a party from entering evidence) |
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Term
| Discovery devices: enforcement sanctions: fed |
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Definition
court can immediately impose sanctions in three instances of complete default
-failure to attend one's own deposition
-failure to respond to interrogatories
-failure to respond to a request for documents or things
otherwise, court should first issue an order to compel |
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Term
| Pre-trial conference: fed |
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Definition
-must be attended by the attorney who will conduct the trial
-must file pre trial statement detailing: claims and defenses, itemization of damages, requests for stipulations and admissions, list of all witnesses and exhibits, etc.
-failure to comply usually means that the attorney pays the costs and the other side's attorney's fees |
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Term
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Definition
Judges may, on their own or at the request of any party, hold case-management conferences and pre-trial conferences
-used to tailor procedures to fit the case at hand, to narrow issues for trial if possible, to set schedules for the case, and to discuss settlement
the order must be served on the parties at least 20 days before the hearing (with more time granted if served by mail) |
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Term
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Definition
complex: likely to involve complicated legal or case management issues that will require extensive judicial management; factors:
-number of parties
-scope of trial
-level of pre-trial motion practice likely
either party or court can move for action to be classified as complex
-court must hold a hearing to determine if case is complex and rule within 10 days of hearing
-if determined that case is complex, close judicial supervision through case management and pre-trial conference required
-at periodic points, parties meet to consider the progress of the case and appear before the court to ensure the action is moving forward in an appropriate manner
-within 60 days of the date the court designates the matter as complex, court must hold initial case management conference
-at least 20 days before initials case management conference, attorneys for parties must meet and confer
-no later than 14 days before initial case management conference, parties must submit a written report to the judge
court is required to schedule a final case management conference no fewer than 90 days before the trial |
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Term
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Definition
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Term
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Definition
-if D has not done anything, clerk of the court will enter default upon an appropriate motion
-if party appeared but has not substantively responded to relevant pleadings (filed notice of appearance but has not answered or moved to dismiss), judge will enter the default
default judgment: might have a default, but a default itself is not a judgment; court must enter the judgment and may be required to have a hearing and take evidence on certain points (usually amount of damages); once a default judgment has entered, it is treated like any other judgment
both default and default judgment may be set aside by the court; easier to set aside a default before judgment has been entered |
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Term
| Voluntary dismissal (fed) |
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Definition
Dismissal without prejudice; can bring that claim again in a new lawsuit; P has a right to a voluntary dismissal once at any time prior to the D serving an answer or a motion for summary judgment (D's motion to dismiss does not cut off right to voluntary dismissal)
after D has filed an answer or motion for summary judgment, or P has already voluntarily dismissed once, P may seek a dismissal without prejudice on leave of court |
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Term
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Definition
party seeking affirmative relief has an absolute right to dismiss the action or any claim without court order by serving and filing a notice of dismissal at any time before a hearing on a motion for summary judgment or if there is no hearing or if the motion was denied, at any time before submission of the matter to a jury or to a judge
-exception: cannot dismiss a matter in which property has been seized or is in court custody
voluntary dismissal is without prejudice to brining the claim again
-if P has voluntarily dismissed the claim once in an earlier action, dismissal will be with prejudice
if D has asserted a counterclaim or there are cross-claims, P can still dismiss its own claims, but cannot dismiss the entire action; to dismiss the entire action, P must file a motion and dismissal would be without prejudice concerning the counterclaim and cross-claim
parties may jointly file a stipulation dismissing the action
-must often in connection with settlement
-unless the stipulation states differently, dismissal would be without prejudice
-need to specifically say it is with prejudice |
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Term
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Definition
dismissal with prejudice; lack of jurisdiction, improper venue, or failure to join a necessary party, then it is without prejudice
-all other cases it is with prejudice
-dismissal with prejudice is an adjudication on the merits
-given full rae judicata effect
-may be imposed for P's failure to prosecute or for failure to comply with any court order
-standard for appellate review: abuse of discretion |
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Term
| Involuntary dismissal (FL) |
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Definition
| way for an opposing party to force dismissal of a claim or action; most often used when the other party has failed to comply with a rule or court order; if granted, the judgment is generally with prejudice and on the merits |
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Term
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Definition
tests facts and law; partial summary judgment is allowed
-standard: there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law (no genuine dispute = no reasonable juror could find the other way)
-may be sought by either side
must be supported or opposed by particular materials in the record: depositions, answers to interrogatories, documents, affidavits, stipulations
materials in the record must generally be sworn statements, and pleadings are not sworn ( do not create a genuine dispute) |
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Term
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Definition
should be granted if there is no genuine issue of material fact and moving party is entitled to judgment as a matter of law
either party can move for summary judgment
-P can move for SJ 20 days after commencement of the action or at any point after D moves for SJ
-D may move for SJ at any time
movant must serve motion, with copies of SJ evidence at least 20 days prior to hearing
-opposing party must serve copies of any evidence it will submit in opposing motion on the movant either: 5 days before the hearing, if mailed, or by 5 p.m. 2 days before hearing, if hand delivered
if an affidavit is submitted in bad faith, party submitting the affidavit can be held in contempt and be required to pay attorney fees associated with the delay
there can be partial SJ |
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Term
| Failure to prosecute (FL) |
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Definition
when there has been no activity in an action for 10 months (and there is no stay order in the action) the court, the clerk, or any interested party may serve a notice on all parties
if no activity takes place in the 60 day period, or if no stay order is issued, court, on its own initiative or on the motion of any interested party, should dismiss the case for failure to prosecute unless other party shows good cause why the action should not be dismissed
should be without prejudice unless otherwise stated in the order |
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Term
| Offer and demand for judgment (settlement) (FL) |
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Definition
either party may offer to settle the case for a certain amount; requirements:
-offer must be in writing and ID that it is being made pursuant to FL law authorizing the offer
-offer has to contain specific information including: 1) name of party making proposal, 2) claim or claims subject to the offer, 3) monetary amount of proposal and specifically any non-monetary terms, 4) any punitive damages part of the offer, and 5) whether the amount proposed includes any for attorney's fees
-must be a certificate of service
-P may serve the offer on a D at any time 90 days after D has been served with process
-D may serve offer on P at any time 90 days after action has been commenced (when complaint is filed)
-neither party can serve offer later than 45 days before trial date
-30 days to reply
-unless accepted, assumption that it has been declined
if D makes offer and P rejects:
-D is entitled to recover reasonable costs and attorney fees incurred from date after filing of offer so long as: 1) D is judged not liable, or 2) P's judgment is at least 25% less than the offer
if P makes offer an offer and D reject and P recovers at least 25% more than the offer, P entitled to receive its costs and attorney fees incurred after the date the offer was filed
offer must be made in good faith |
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Term
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Definition
mediation: nonbinding; no decision maker; many FL courts have required mediation; if a party requests mediation, a court will usually grant
arbitration: there is a decision maker; can be binding and non-binding
voluntary trial resolution: only one decision-maker who is a member of the FL bar |
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Term
| Right to trial by jury (fed) |
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Definition
7th Amendment right to trial by jury depends on law (jury) v equity (no jury)
-if there is both legal and equitable issues, try the legal issues first
demand for jury trial must be made no later than 14 days after service of the answer or other pleading directed to the issue on which jury trial is sought
each litigant gets 3 peremptory challenges, not for cause, cannot be used for race or gender purposes
in bench trial judge is required to make findings of fact and state conclusions of law
any objections given by trial judge must be made before judge retires |
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Term
| Right to trial by jury (FL) |
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Definition
Right to trial by jury in civil case must be preserved inviolate; party waives the right if it does not claim it in an appropriate manner; may claim by filing a demand in writing at any time after the commencement of the action, but must be made no later than 10 days after the service of the last pleading directed to the issue on which one seeks a jury
venire: court will summon potential jurors from community to assemble constitutionally required random cross-section of community; then assemble petit jury (at least 6 for civil case)
voir dire: attorneys ask jurors questions to decide who they would prefer on the jury
-challenges for cause; no limits; made when there is a reason that a person cannot serve on the jury; person is closely related (within 3rd degree), attorney in the case, any person against whom liability is alleged, or has some sort of interest in the action, or call into question a person's ability to be an impartial decision-maker
-peremptory challenges: each gets 3, but if multiple opposing parties, a party will aggregate number of challenges
jurors may ask questions of witnesses by submitting questions to judge, judge then reads lawyers questions and deals with any objections, witnesses are then poses jurors' questions
if jury is able to reach a decision, it renders a verdict, which becomes a judgment
-general verdict: finds in general terms for one party
-special verdict: requires jury to answer certain questions and judge will base judgment on answers to questions
in any case in which there is a claim for punitive damages, verdict must state the amount of punitive damages separately from any other form of damages |
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Term
| Motion for a judgment as a matter of law (fed) |
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Definition
also called for a directed verdict
-way of moving for summary judgment after the trial as begun
-standard: viewing the evidence in the light most favorable to the opposing party, evidence cannot support a contrary verdict and moving party is therefore entitled to judgment as a matter of law
-credibility of a witness: if case turns on this issue, then there is a question as to a material fact and motion will be denied
-typically made by D at the end of P's evidence and by either or both sides at the close of all evidence |
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Term
| Motion for directed verdict (FL) |
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Definition
whether, considering the evidence that would be before a jury, a rational jury could reach a verdict in favor of the non-moving party
-first opportunity to move is when the other party as rested its case
-second opportunity is when all the evidence has been submitted
-if judge grants, jury is let go and there is a winner and loser
-if it is a bench trial, it is called a motion for involuntary dismissal |
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Term
| Renewed motion for judgment as a matter of law (fed) |
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Definition
-made at the close of all the evidence that may be renewed after the verdict
-standard: evidence cannot support jury's verdict and moving party is therefore entitled to judgment as a matter of law
-had to ask originally for a motion for judgment as a matter of law
-usually made with a motion for a new trial |
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Term
| Motion to set aside the verdict (FL) |
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Definition
-if the party has timely moved for directed verdict, party may move, within 15 days after the jury returns the verdict, to set aside the verdict
-substantive standard: given the evidence and relevant law, could a rational jury do what this jury did |
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Term
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Definition
| party seeking fees and costs must file its motion requesting the fees/costs no later than 30 days after entry of judgment (or filing of a notice of voluntary dismissal) |
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Term
| Motion to disqualify a judge (FL) |
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Definition
-can be dismissed if there is something that suggests that the judge might not be able to be fair in a case
-motion must be filed within 10 days of the party learning about the reason for the purported need to disqualify |
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Term
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Definition
-can occur only with consent of all parties
-normal civil litigation is simplified
-60 day discovery period
-trial will be held within 30 days after discovery period
-trial must be no more than one day
-jury selection is limited to one hour
-each side gets no more than three hours to present their entire case |
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Term
| Motions to terminate without trial (fed) |
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Definition
motions to dismiss for failure to state a claim, motion for judgment on the pleadings, motion for SJ, or motion for judgment as a matter of law at end of P's case are irrelevant if moving party proceeds with trial once motions are denied
preliminary motions are no longer relevant once there has been a full trial
any appeal is based on the full trial, not the earlier motion |
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Term
| Motion for a new trial (fed) |
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Definition
often made with a renewed motion for judgment as a matter of law, but different
grounds for new trial include
-errors during trial that rendered judgment unfair
-newly discovered evidence
-prejudicial misconduct by a lawyer, party, or juror; and
-excessive verdict and winning party refused to accept reduction/remittitur
court must specify the reasons for granting a new trial in its order
-reason for granting a new trial is purely a question of law, so de novo review by appellate court
-most grounds for new trial are within sound discretion of trial court and reviewed on appeal only for abuse of discretion |
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Term
| Motion for a new trial (FL) |
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Definition
-must be made no more than 15 days after jury verdict (same period as time for filing a motion to set aside verdict)
-may be made together with motion to set aside; may say that it believes verdict should be set aside, but in the alternative, the least the court should do is grant a new trial
court may order a new trial or rehearing on its own initiative, without a motion
-may do so within 10 days of entry of judgment (not verdict) or before it has ruled on a motion to set aside the verdict
can use motion in a non-jury case; 15 day period from entry of judgment
reasons for new trial:
-when there is something wrong with the input to the jury (problems with evidence, jury instructions, etc.)
-given the evidence, the verdict does not seem correct (it was against the manifest weight of the evidence) |
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Term
| Motion for remittitur and additur |
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Definition
-remittitur: damages should be reduced
-additur: amount should be increased
-both are allowed
-amount of damages awarded is contrary to the manifest weight of the evidence
-party has to accept or new trial must be granted |
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Term
| Relief from judgment (FL) |
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Definition
relief from clerical error
-at any time a party can correct clerical error in judgment; not substantive
grounds for relief from judgment:
-when there has been some mistake (other than clerical)
-when there has been newly discovered evidence that with the exercise of due diligence could not have been discovered in time to move for a new trial
-when there has been fraud, misrepresentation, or other misconduct of opposing party
-when judgment in fact is void for some reason
-when judgment has been satisfied or discharged
must be filed within reasonable time
-one year window from date judgment was entered with respect to mistake, newly discovered evidence, or fraud/mistake |
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Term
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Definition
Resolve all the claims of all the parties on the merits
-partial final judgment: court may, by express designation, enter a final judgment on some claims, and that judgment is immediately appealable;
-judgment becomes final when entered by clerk on court's docket
-notice of appeal must be filed in trial court within 30 days of entry of judgment
-timely post-judgment motion tolls 30-day limit |
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Term
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Definition
-Circuit ct --> district court
-appellate court will have jurisdiction over appeals only from final judgment
notice of appeal
-party with a right to appeal must file notice of appeal within 30 days of date of judgment or order to be reviewed on appeal
-notice is filed in circuit court, not appellate court
-30 day period is tolled during time that any post-trial motions are pending; party has 30 days from decision on any such motions |
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Term
| Interlocutory appeal (fed) |
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Definition
interlocutory orders immediately appealable as of right
-injunctions
-any order that changes or affects position of property
discretionary interlocutory appeal
-any interlocutory order is appealable on leave of court (both trial and appellate courts must agree to allow appeal)
-trial court can issue a certificate for interlocutory appeal stating: that it involves a controlling question of law, and that the immediate appeal may materially advance termination of the litigation; appellate court must agree |
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Term
| Interlocutory appeal (FL) |
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Definition
review is discretionary with appellate court
-party seeking review by cert bears heavy burden
-must show that without review of non-final order there will be a clear departure from the essential requirements of law that has or will result in irreparable harm
limited to:
-injunctions
-venue
-PJ
-immediate possession of property
-child custody or immediate payment of money in family law matters
-referring a matter to arbitration or an appraisal if dealing with insurance
-decision that a party is not entitled to workers comp immunity
-decision that a class will be certified in class action case
-decision that a party is not entitled to immunity in civil rights case under fed law
-decision that a gov entity has taken an action that will inordinately burden real property
-matters granting, denying, terminating or refusing to terminate a receivership
-motions granting a new trial
-motions granting relief from judgment |
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Term
| Execution of judgments (fed) |
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Definition
-merely filing a notice of appeal does not stay P's right to collect on judgment
-to obtain stay D must file a bond to cover entire amount of judgment, plus twice the rate of interest payable should appeal be dismissed or denied
-if bond is filed in appropriate amount, P cannot execute on the judgment; if no bond filed, P is free to execute on its judgment
exception: awards of punitive damages
-in a class action suit in which punitive damages are awarded, trial court must stay execution of punitive damages award pending appeal
-for other punitive damages award, bond required is lesser of either: 1) amount of punitive damages awarded, plus twice the statutory rate of interest, or 2) 10% of D's networth (whichever is less)
discover in aid of execution: party can use various discovery techniques in aid of execution even after judgment in the case
-trial court has authority to order D to complete a fact information sheet concerning its assets
-if judgment debtor fails to do so within 45 days of order, may be held in contempt |
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Term
| Collateral order doctrine (FL) |
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Definition
-authorizes immediate appeal of orders separable from and collateral to the main suit and too important to deny immediate review
-most likely case: denial of a motion to dismiss for forum non conveniens is almost always a collateral order and immediately appealable |
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Term
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Definition
| provides for immediate appellate review of an order that is an abuse of authority |
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Term
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Definition
| appellate courts have discretion to hear interlocutory appeals from orders certifying or refusing to certify a class action |
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Term
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Definition
matters of law: appellate review is de novo
findings of fact:
-jury verdicts: must be affirmed if supported by substantial evidence
-judge's findings of fact: must be affirmed unless clearly erroneous
-judge's conclusions of law: de novo
matters of discretion: abuse of discretion; any reasonable decision will be upheld
Full faith and credit: courts in the US, whether state or federal, must give full faith and credit to judgments rendered by courts of other states, provided that rendering court had jurisdiction |
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Term
| Actions concerning access to judicial branch records (FL) |
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Definition
-presumption that public is entitled to access to judicial records
exceptions:
-documents concerning internal workings of courts in terms of judicial duties (draft opinions)
-matters concerning claims against lawyers and judges, before finding of probable cause
-documents that are confidential under some sources of law such as a statute, constitution, or a protective order dealing with something like trade secret
court may deem something non-public and some members of public may disagree; procedure:
-person file an action in seeking release of records; must be in writing, describe documents at issue, state grounds for argument, and document is not exempt from normal rule of openness, including citation to relevant legal authority
-court must hold hearing and rule on motion as soon as practicable, but no later than 30 days after filing the motion
-court must issue a written order on the motion setting forth its decision in detail
-court has express power to sanction a person if it determines that any such motion was made in bad faith or was not supported by sound factual or legal bases |
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Term
| Summary proceedings (small claims procedure) (FL) |
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Definition
-applies to actions at law seeking less than 5k filed in county courts
-starts with filing of a concise statement of the claim that must merely inform the D of the basis for the claim and amount of damages sought; notice to appear is served with statement of claim
-D in not required (absent a court order) to submit any motions or defensive pleadings like an answer
-if a party is not represented by an attorney, no discovery allowed; unless unrepresented party engages in discovery
-court required to hold pre-trial conference with parties no later than 50 days after commencement of case
-trial must be held no more than 60 days after pre-trial conference, so long as parties get at least 10 days' notice
-trial is to be conducted informally |
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Term
| Medical malpractice claims (FL) |
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Definition
-must be filed under FL med mal act for claims of med neg against healthcare providers
-arises out of rendering or failure to render medical care or services
-claimant must, after conducting its own investigation, notify each potential D of its intention to file suit; must be made at least 90 days before suit is filed, give grounds for potential claim including submission of an expert affidavit stating basis for claimed malpractice, include med records on which expert's affidavit is based, include list of med professionals P has seen in connection with claimed injury in two-year period prior to claimed negligence
-P has 60 days after D rejects claim or fails to respond within 90 days to file suit, or until actual SOL expires, whichever is longer
-after notice, potential D and/or insurer is required to conduct investigationD has 90 days after notice is sent to conduct investigation
-insurer must have system in place to conduct this type of investigation, including one or more of following: creation of panel of experienced malpractice attorneys to evaluate claim, using professional adjustor, or using a medical review committee of local or state medical association
-after conducting investigation, potential D has to respond to claimant, can reject, make an offer of settlement, or offer an admission of liability and have damages resolved by arbitration; if rejects, rejection must be accompanied by verified written opinion of an expert stating grounds
-parties may engage in informal discovery in connection with pre-suit investigation
-either party may propose binding arbitration as to damages, which can be made at any point in 90 day pre-suit investigation party (other party has 30 days to respond)
-in binding arbitration as to damages, there are requirements: 1) net economic damages are awarded, including 80% of claimed loss of wages and earning capacity offset by appropriate collateral, 2) non-economic damages are capped at 250k per incident and must be pro-rated by % reduction in person's ability to enjoy life, 3) future economic loss must be paid in periodic future payments, and 4) cannot award punitive damages
-party not required to accept proposal for binding arbitration as to damages; if D rejects P's offer, limitation on damages are not applied and claimant may recover portion of attorney's fees based on jury award; if claimant refuses D's offer, P's recovery will be limited to net economic and non-economic not to exceed 350k |
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Term
| Claims against nursing homes (FL) |
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Definition
-claimant must provide written notice to nursing home potential D, laying out allegations of violation of resident's rights
-D then has 75-day period within which to respond to claim; claimant cannot file suit in this period and SOL is tolled
-within 30 days after receiving D's response, parties must meet for mediation; claimant may not file suit until mediation is complete; SOL remains tolled
-claimant has 60 days after mediation is unsuccessful to file suit, or remainder of actual SOL, whichever is greater |
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Term
| Involuntary commitment of sexual predators (FL) |
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Definition
-SCOTUS has held that civil commitment is consistent with constitutional principles so long as there are sufficient procedures in place to satisfy due process
procedures:
-must be detailed notice to person of grounds for commitment
-an assessment by an appropriate medical/multidisciplinary team
-state bears burden at hearing of showing probable cause person remains dangerous
-person is entitled to counsel
-either the person or state attorney may request a jury
if person is involuntarily committed, he must be examined at least once a year to assess his condition; person can petition for release |
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Term
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Definition
Damages
-can be compensatory or punitive
-special damages must be pled with particularity
injunction
-so long as court has jurisdiction over the person or entity, it can issue an injunction with respect to activities anywhere
-enforced through contempt proceedings
-can obtain an injunction at the end of a full trial (permanent injunction)
temporary injunction
-extraordinary as a remedy because it is awarded before a trial on the merits
-can be entered either: 1) after an adverse proceeding in which both parties are presented, or 2) in very special circumstances, ex parte, requires an affidavit or verified complaint showing specific facts that movant will suffer irreparable injury before adverse party can be heard and movant's lawyer certifies in writing efforts that have been made to give notice and why further efforts should not be required
-must establish four things: 1) P is likely to prevail on the merits at trial, 2) without the injunction it will be likely to suffer irreparable harm, 3) balance of harms (movant will suffer more harm if injunction is not granted than D if it is granted), 4) granting injunction would serve public interest
-any part granted a temporary injunction is required to file a bond in an amount determined by a court
declaratory judgment
-court will decide a question on which there is a disagreement
-must be an actual adversarial contest between antagonistic parties such that a resolution of the issue on which the declaration is sought is required |
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Term
| Garnishment and attachment (FL) |
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Definition
-person with a judgment can make another person who owes the D money pay P instead
-attachment and distress are means by which one is able to seize property other than money |
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Term
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Definition
-an order to official to perform a ministerial act
-must show clear violation of legal right and corresponding indisputable duty to act
-must also show that he has exhausted his remedies, usually administrative ones
procedure:
-person seeking writ files a complaint setting forth statement of facts and specific relief
-court determines if complaint sets forth a prima facie case for issuance of writ
-if it does, court issues an alternative writ of mandamus
-P serves alt writ on D
-D will comply or disagree and file a response
-D bears burden of showing that writ should not be granted
-court may or may not hold evidentiary hearing |
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Term
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Definition
-unauthorized exercise of jurisdiction by lower court
-initial pleading of prima facie case
_D must comply or file response |
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Term
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Definition
| party seek review in an appellate tribunal of matter that does not come within final judgment rule |
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Term
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Definition
-final judgment on merits of a claim bars re-litigation of that claim by same parties or those in privity with the parties; prevents re-litigation of every issue that was raised or should have been raised in first litigation
requirements
-must have been a final judgment on the merits in first suit (includes default judgment, summary judgment, and dismissal with prejudice)
-second suit must be between same parties or successors in interest
-second suit must involve same claim or cause of action (both K and tort theories seek redress for same harm, then same claim)
installment sales: creditor must sue for all that is due at time of suit; accrued debt or obligation is one claim; cannot sue for payments that are not due and owing |
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Term
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Definition
requirements
-same issue of fact in both suits
-issue must have been actually and necessarily decided in first suit (default judgment here does not count)
-party to be precluded must have been a party to first suit (party to be precluded had to have been a party to first suit or successor in interest, but party invoking preclusion need not have been a party) |
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