Pleadings
How many days does a defendant (civilian) have to serve answer?
20 days after service of original process and the initial pleading on the defendant.
What is a compulsory counterclaim?
A compulsory claim that arises out of the same transaction or occurrence that is the subject of the main claim. Must be raised in original answer or in amended answer after leave of court, or barred from future action.
May be asserted for damages in excess of the amount claimed in the initial action. (If request exceeds jurisdiction limit, may be transferred to another court)
Real Party is the actual person in the action
Nominal is the party representing them
(Although a claim for personal injury of a minor child must be brought by the parent or guardian of the minor, the Minor is the real party in interest)
What are examples of work product?
incident reports, witness statements, accident reports, contents of insurance company claim, surveillance video
Party is entitled to a copy of her own statement
Witness entitled to a copy of her own statement upon request
How do I ask for punitive damages?
A motion for leave to amend a pleading to assert a claim for punitive damages shall made a reasonable showing, BY EVIDENCE TO BE PROFFERED BY THE CLAIMANT, the provides a reasonable basis for recovery of such damages.
Under 768.28, How many days does a state agency have to respond to a complaint?
What about for a tort action?
40 days
30 days for Tort
When can a Defendant file a Third-Party claim without leave of court?
Is a Third-Party Compulsory?
1.Within 20 days of service of Answer.
Otherwise must obtain leave of court.
2. Never Compulsory.
What may you obtain in discovery concerning a person expected to be called an expert witness?
1. Scope of employment in the pending case and compensation for such services
2. Expert's general litigation experience, including percentage of work performed for plaintiffs and Defs
3. identity of other cases, within a reasonable time period, in which the expert has testified by depo or trial
Only required to produce financial and business records under Most unusual circumstances
YOU CANNOT GET EXPERT'S COLLEGE TRANSCRIPTS, TAX RETURNS OR ANNUAL EARNINGS
Does a court have to grant a Bifurcation of Punitive Damage Claim?
Yes. Upon request.
Can an expert witness be deposed without motion or order of court?
If the court denies a motion directed toward a complaint, how many days does the party have to file the responsive pleading?
Ex. Filed a motion to dismiss for lack of PJ, court denies, how long to now file an Answer.
Within 10 days after the filing of the court's order
When can you amend a pleading?
Once as a matter of course at any time before a responsive pleading is served or, if the pleading is not to which no responsive pleading is permitted and action not on trial calendar, you may amend it at any time within 20 days after it is served.
You can amend with leave of court after motion or written consent of the Adverse Party.
Rule 1.250 Misjoinder and Nonjoinder of Parties
What is this? And what is the best remedy for this?
Party is improperly joined.
Misjoinder of parties is not a ground for dismissal of an action. Any claim against a party may be severed and proceeded with separately.
Discovery Methods
Depositions upon oral examination or written questions;
Written Interrogatories;
Production of documents or things or permission to enter upon land or other property for inspection and other purposes;
Physical and mental examinations;
Request for admissions
1.280(b)(6) Claims of Privilege or Protection of Trial Preparation Materials
Timely assert you claims to privilege in Objections or a Motion for Protection Order Supported by an Affidavit and Contemporaneous Privilege Log
Failure to file a privilege log can result in waiver of the privilege
What defenses can be waived if not asserted in the first motion/responsive pleading?
-Venue
-PJ
-SMJ raised at any time
What does Relation Back mean?
When the claim or defense arises out of the same transaction or occurrence set forth in the original pleading, the amendment relates back to the date of original pleading. (This can be helpful for SOL)
If amended claim attempts to add a new party, DOES NOT relate back.
When is work product discoverable?
"only upon a showing that the party seeking discovery has need of the materials in the preparation of his case and he is unable without UNDUE HARDSHIP to obtain the SUBSTANTIAL EQUIVALENT of the materials by any other means
Does the information in general discovery need to be admissible?
Nope. Just needs to appear reasonably calculated to lead to the discovery of admissible evident.
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery, or claim or defense of other party.
Rule 1.240 Interpleader
Persons having claims against the plaintiff may be joined as Defs and required to interpleader (take off er) when their claims are such that the plaintiff is or may be exposed to double or multiple liability.
2 stage action:
1) the trial court determines whether interpleader is proper
2) trial court determines who is actually entitled to the stake
There must be ONE stakeholder, multiple claimants, and potential liability to ONLY one claimant
May deposit the stake into the court registry or order alternative safekeeping
Under rule 1.150, a sham pleading is one that is inherently and palpably false, and the party asserting the pleading must know of the falsity. In order to petition the court to strike the sham pleading the petition must be the following:
1) verified
2) state facts of why the pleading is a sham
3) supported by affidavit or deposition testimony.
There must also be an evidentiary hearing on the sham pleading and there must be notice given on the evidentiary hearing. The court must hold the hearing prior to trial.
What does it mean to Amend to Conform to the Evidence?
How do you make the amendment?
This happens at trial via an ORE TENUS motion to amend the pleadings to conform to the evidence
What do you need to Intervene
-An interest in the matter of the litigation, such that the intervenor will either gain or lost by the direct legal operation and effect of the judgment (No indirect)
1) Size of interest
2) Potential for Conflict or New Interests; and
3) Source of the Interest
Immediately appealable because it is a final determination of the rights of the intervenor (within 30 days)
Elements for Consolidation
When actions involving a common question of law of fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated;
Courts Factors will Consider:
1) whether the litigation will be accelerated due to the consolidation;
2) unnecessary costs and delays;
3) the possibility for inconsistent verdicts;
4) whether consolidation would eliminate duplicative trials that involve substantially the same core of operative facts and questions of law, and
5) whether consolidation would deprive a party of a substantive right
Motions to consolidate must be made before trial. Consolidation is not appropriate where the actions are not concurrently pending before the same court.
Rule 1.260 Survivor; Substitution of Parties
What must you do.
In the event of the death, a suggestion of death on the record
-File a substation notice within 90 days of suggestion (if you don't case can be dismissed)
-Motion for substitution can be made by ANY party
-When a public officer dies, resigns, action does not abate the officer's successor is AUTOMATICALLY substituted as a party