CIVIL PROCEDURE 101. Presentation by: Judge Emily Peacock, Scott Silverman, Esq. and Loren Beer, Esq.

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1 CIVIL PROCEDURE 101 Presentation by: Judge Emily Peacock, Scott Silverman, Esq. and Loren Beer, Esq.

2 The Federal Rules govern the conduct of all civil actions brought in Federal district courts. The Florida Rules apply to all actions of a civil nature and all special statutory proceedings in the circuit courts and county courts of Florida, except those to which the Florida Probate Rules, the Florida Family Law Rules of Procedure, or the Small Claims Rules apply.

3 What is a Pleading? A motion is not a pleading, it is an application to the court for an order. Federal Rule 7(a) and Florida Rule 1.100(a) specifically designate the following as pleadings: (1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer.

4 The Commencement of the Lawsuit Pleadings Under Federal Rule 8(a) A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. Pleadings Under Florida Rule 1.110(b) A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim, must state a cause of action and shall contain: (1) a short and plain statement of the grounds upon which the court s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which the pleader deems himself or herself entitled. Relief in the alternative or of several different types may be demanded. Every complaint shall be considered to demand general relief. Identical pleading requirements under Federal and State law.

5 Complex Business Litigation Division Cases appropriate for this division: Cases with an amount in controversy greater than $150,000 Regardless of the amount in controversy, claims related to: Intellectual property; Trade secrets and non-compete agreements; Securities and state securities laws; Antitrust statute; Shareholder derivative actions; Corporate trust affairs; and Internal affairs or governance, dissolution or liquidation rights, obligations between owners, limited liability companies or partnerships and the like. Cases inappropriate for this division: Personal injury, survivorship or wrongful death; Individual and class action consumer claims; Occupational heath or safety; Environmental claims not involving the sale or disposition of a business; Eminent Domain; Certain types of malpractice cases; Employment law, other than those cases relating to trade secrets and non-compete agreements; Administrative agency, tax an review of zoning decisions; Governmental elections; Individual residential real estate; Collection or professional fees; Actions by insurers to collect premiums; and Proceedings to enforce judgments.

6 Complexity Determination A complex business case, is defined as an eligible case involving complex legal and case management issues requiring extensive judicial management in order to expedite the case, to promote effective decision making by the court, counsel and parties, and to keep costs reasonable. When determining whether a case should remain in the Complex Business Litigation Division, the Court will consider: Pretrial motions; management of large number of parties, documents and expert witnesses; high degree of case management; potential impact on parties business; and claims raised. The court should make this determination no later than the initial case management conference.

7 Serving a Complaint Federal Rule: Rule 4(c)(1): The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service. Rule 4(m): If a defendant is not served within 120 days after the complaint is filed, the court on motion or on its own after notice to the plaintiff must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. State Rule: Rule 1.070(j): If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period... A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1). A Plaintiff has 120 days to serve a defendant with the lawsuit. After 120 days, the court must either direct that service be effectuated within a specific period of time or dismiss the action without prejudice. If the plaintiff shows good cause for the failure, the court must extend the time for an appropriate period. There is no distinction between federal and state practice.

8 Pleading with Specificity: Fraud or Mistake, Conditions Precedent or Special Damages FRAUD OR MISTAKE: There are identical specificity requirements for pleading fraud or mistake in federal and state court. Federal Rule 9(b): In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally. Florida Rule 1.120(b): In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with such particularity as the circumstances may permit. Malice, intent, knowledge, mental attitude, and other condition of mind of a person may be averred generally. CONDITIONS PRECEDENT: Federal Rule 9(c) and Florida Rule 1.120(c) identically require that when pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity. SPECIAL DAMAGES: Federal Rule 9(g) and Florida Rule 1.120(g) identically require when items of special damage are claimed, they shall be specifically stated.

9 Civil Cover Sheet Florida Rule 1.100(c)(2): A civil cover sheet (form 1.997) shall be completed and filed with the clerk at the time an initial com- plaint or petition is filed by the party initiating the action. If the cover sheet is not filed, the clerk shall accept the complaint or petition for filing; but all proceedings in the action shall be abated until a properly executed cover sheet is completed and filed. The clerk shall complete the civil cover sheet for a party appearing pro se.

10 Responding to a Complaint in State Court Unless a different time is prescribed in a Florida statute, an answer must be filed within 20 days after service of the pleading containing the claim(s) to which the answer is made. [Fla. R. Civ. P (a)] Exceptions: If a preanswer motion to dismiss or for a more definite statement is denied or postponed for trial, the time to answer is 10 days after the court s order. If a preanswer motion for more definite statement is granted, the time to answer is 10 days after service of the more definite statement. If the court permits or requires the filing of an amended or more responsive pleadings, this pleading must be served within 10 days of notice of the court s action. Any response to this pleading must be filed within 10 days of the service of it. [Fla. R. Civ. P (a)]

11 The Answer The Federal equivalent is Rule 8(b) Rule 1.110(c): In the answer a pleader shall state in short and plain terms the pleader s defenses to each claim asserted and shall admit or deny the averments on which the adverse party relies. If the defendant is without knowledge, the defendant shall so state and such statement shall operate as a denial. Denial shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part of an averment, the pleader shall specify so much of it as is true and shall deny the remainder. Unless the pleader intends in good faith to controvert all of the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or may generally deny all of the averments except such designated averments as the pleader expressly admits, but when the pleader does so intend to controvert all of its averments, including averments of the grounds upon which the court s jurisdiction depends, the pleader may do so by general denial. Rule 1.110(e): Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damages, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

12 Yes... But... [Affirmative Defenses] Both the federal and state rule create what is known as a mistaken designation, meaning, if a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated. Rule 1.110(d) of the Florida Rules is nearly identical to the federal rule, as it also requires that parties affirmatively plead matters constituting an avoidance or affirmative defense. The following is the non-exclusive list provided by the rule: (1) accord and satisfaction; (2)arbitration and award; (3) assumption of risk (4) contributory negligence; (5) discharge in bankruptcy; (6) duress; (7) estoppel; (8) failure of consideration; (9) fraud; (10) illegality; (11) injury by fellow servant; (12) laches; (13) license; (14) payment; (15) release; (16) res judicata; (17) statute of frauds; (18) statute of limitations; (19) waiver, and (20) any other matter constituting an avoidance or affirmative defense.

13 Intermediate Saturdays and Sundays... Compare that to Federal Rule 6(a), where no matter the period of time, persons must count every day, including intermediate Saturdays, Sundays, and legal holidays. Per Florida Rule 1.190(a), when the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

14 Mailing Days (Additional days to respond) Federal Rule 6(d) provides three (3) additional days for mailing When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), three (3) days are added after the period would otherwise expire under Rule 6(a). Florida Rule 1.090(e) adds five (5) days for mailing When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon that party and the notice or paper is served upon that party by mail, 5 days shall be added to the prescribed period.

15 Amending a Pleading [Part 1] Under Federal and Florida law, a party may amend its pleading once as a matter of course. However, under Federal law, a party may amend its responsive pleading within 21 days after serving it, whereas, under Florida law, a party may amend at any time before a responsive pleading is served. In Florida, if the pleading is one in which no responsive pleading is permitted and the action has not been calendared for trial, a party may amend it any time within 20 days after it is served. Under Federal law, parties have 21 days after service of the responsive pleading or 21 days after a Motion to Dismiss (Rule 12(b)), Motion for a More Definite Statement (Rule 12(e)) or a Motion to Strike (12(f)), whichever is earlier.

16 Amending a Pleading [Part 2] Parties are always free to amend with the consent of the other party or with leave of court. In state court, if a party motions for the court to approve its amended pleading, the party seeking to amend must attach a copy of the proposed pleading. This is not required under Federal law.

17 Responding to an Amended Pleading In Federal practice, a response to an amended pleading is due within 14 days of service,. Florida requires a party to respond within 10 days. Florida Rule 1.190(a): A party shall plead in response to an amended pleading within 10 days after service of the amended pleading unless the court otherwise orders.

18 Responding to a Crossclaim or Counterclaim Federal Rule 12(a)(1)(B): Florida Rule 1.140(a)(1): A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim. A party served with a pleading stating a crossclaim against that party shall serve an answer to it within 20 days after service on that party. The plaintiff shall serve an answer to a counterclaim within 20 days after service of the counterclaim. If a reply is required, the reply shall be served within 20 days after service of the answer.

19 Defense Motions Under Federal Rule 12(b) & Florida Rule 1.140(b) Under both federal and state law, every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader. (1) Lack of subject matter jurisdiction; (2) Lack of personal jurisdiction; (3) Improper venue; (4) Insufficiency of process; (5) Insufficiency of service of process; (6) Failure to state a cause of action; and (7) Failure to join indispensable parties.

20 Waiver Under Federal Rule 12(h) and Florida Rule 1.140(h) Failure to state of cause of action, failure to join an indispensible party, and failure to state a legal defense t a claim may be raised in any pleading, by motion for judgment on the pleadings or at trial on the merits despite any previous motions that may have been made. The following defenses are waived if not raised by the defendant in his first response to the complaint: Lack of personal jurisdiction; Improper venue; Insufficiency of process; and Insufficiency of service of process.

21 Available to parties in both federal and state court, a pretrial conference may be requested by any party or ordered by the court. A pretrial conference may be conducted to expedite disposition of the case; help the court establish early and continuing control over the case; discourage wasteful pretrial activities; improve the quality of the trial through additional preparation, and facilitate settlement. Pretrial conferences in federal court are governed by Rule 16 and Rule in state court.

22 Discovery: When can I request discovery under Federal and State law? Florida Rule 1.280(d): Except as provided in subdivision (b)(4) or unless the court upon motion for the convenience of parties and witnesses and in the interest of justice orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not delay any other party s discovery. In Federal court, a party may not propound discovery inquiries on another party until after the parties have conferred as required under Rule 26(f). To the contrary, parties to a state action may serve discovery at any time. Uniquely, in state court, the plaintiff may serve discovery on the defendant with the Complaint. Parties under both federal and state law have 30 days to respond to discovery requests. However, under state law, if discovery is served with the Complaint, a party has 45 days to respond to same.

23 Limitations on Discovery Interrogatories Florida Rule limits the number of interrogatories to 30. Federal Rule 33 limits the number of interrogatories to 25. Requests for Production There are no material distinctions between the requirements of Florida Rule and Federal Rule 34. Requests for Admissions Florida Rule limits requests for admissions to 30. Federal Rule 36 does not impose the same limitation.

24 The summary judgment procedure is a method for promptly disposing of actions in which there is no genuine issue as to any material fact.

25 Timing is Everything Federal Rule 56(b) establishes a time deadline, subject to variation by local rule or court order, for the filing of a summary judgment motion Rule 56(b): Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery. No such requirement exists under Florida law. The Florida rule allows a claimant to move for a summary judgment at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party. The defending party may move for summary judgment at any time. Florida Rules 1.510(a) and (b) of the Florida Rules of Civil Procedure establish the earliest point at which a party may seek summary judgment. Rule 1.510(a): A party seeking to recover upon a claim, counterclaim, crossclaim, or third-party claim or to obtain a declaratory judgment may move for a summary judgment in that party s favor upon all or any part thereof with or without supporting affidavits at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party. Rule 1.510(b): A party against whom a claim, counterclaim, crossclaim, or third-party claim is asserted or a declaratory judgment is sought may move for a summary judgment in that party s favor as to all or any part thereof at any time with or without supporting affidavits.

26 Drafting and Responding to a Motion for Summary Judgment in State Court Rule 1.510(c) identifies the procedures a party must utilize when drafting and responding to a Motion for Summary Judgment. This section ensures that the moving party and the adverse party are each given advance notice of and, where appropriate, copies of the evidentiary material on which the other party relies in connection with a summary judgment motion. Drafting the Motion: The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence on which the movant relies. Serving the Motion: The movant shall serve the motion at least 20 days before the time fixed for the hearing, and shall also serve at that time a copy of any summary judgment evidence on which the movant relies that has not already been filed with the court. Adverse Party Obligations: The adverse party shall identify, by notice mailed to the movant s attorney at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent that summary judgment evidence has not already been filed with the court, the adverse party shall serve a copy on the movant by mail at least 5 days prior to the day of the hearing, or by delivery to the movant s attorney no later than 5:00 p.m. 2 business days prior to the day of hearing.

27 Florida Rule (c) provides in pertinent part: The judgment sought shall be rendered forthwith if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. Federal Rule 56(a) provides in pertinent part: The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

28 Demand for Jury Trial Federal Rule 38 sets the number of days at 14 rather than 10. Florida Rule Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other party a demand therefor in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. In the demand a party may specify the issues that the party wishes so tried; otherwise, the party is deemed to demand trial by jury for all issues so triable. If a party has demanded trial by jury for only some of the issues, any other party may serve a demand for trial by jury of any other or all of the issues triable by jury 10 days after service of the demand or such lesser time as the court may order. If not demanded, a party waives its right to a jury trial.

29 Sanctions for raising unsupported claims or defenses under Florida law Section , Florida Statutes Motion for Sanctions Upon the court s initiative or motion of any party, the court shall award a reasonable attorney s fee to be paid to the prevailing party (paid in equal amounts by the losing party and the losing party s attorney) on any claim or defense in which the court finds that the losing party or the losing party s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts. A motion by a party seeking sanctions must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

30 Major Difference between Federal Rule 11 and Section , Florida Statutes Rule 11 does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.

31 Final Disposition Form Florida Rule 1.100(c)(3): A final disposition form (form 1.998) shall be filed with the clerk by the prevailing party at the time of the filing of the order or judgment which disposes of the action. If the action is settled without a court order or judgment being entered, or dismissed by the parties, the plaintiff or petitioner immediately shall file a final disposition form with the clerk. The clerk shall complete the final disposition form for a party appearing pro se, or when the action is dismissed by court order for lack of prosecution pursuant to rule 1.420(e).

32 Motions for Attorneys Fees & Costs After Judgment is Entered Federal Rule 54(d) Florida Rule A claim for attorney's fees and related nontaxable expenses must be made by motion, unless the substantive law requires those fees to be proved at trial as an element of damages, no later than 14 days after the entry of judgment. Any party seeking a judgment for costs, attorneys fees, or both must serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

33 Motion for a New Trial Federal Rule 59 provides: A motion for a new trial must be filed no later than 28 days after the entry of judgment. Florida Rule 1.530(b) A motion for new trial or for rehearing shall be served not later than 10 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action. A timely motion may be amended to state new grounds in the discretion of the court at any time before the motion is determined.

34 There is no Federal Equivalent... The following is a list of additional rules not found within the Federal Rules: 1.130, 1.150, 1.201, 1.221, 1.222, 1.285, 1.390, 1440, 1.442, 1.460, and

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