Introduction
The State of Florida Rules of Court are created and amended by the Florida Supreme Court. The underlying purpose of all court rules are to provide a streamlined process so that cases can be processed through the court system in the most fair, efficient and cost-effective manner possible. As you read through the rules assigned for this course, it will help your understanding if you pay close attention to the headings and subheadings in bold print in each rule. The subheadings serve as a guide to lead you to important aspects of each rule. Finally, when reviewing the rules for this course, it is not necessary to read the committee notes or the court commentary that follows the rules in fine print. The notes and commentary simply indicate the years that there were amendments to the rules and what those amendments were.
I.Rules of Civil Procedure
GENERAL RULES
· 1.010. SCOPE AND TITLE OF RULES - The Rules of Civil Procedure are applicable to all civil actions filed in circuit or county court, with the exception of special rules that govern family, probate and small claims actions.
· 1.030. NONVERIFICATION OF PLEADINGS - Pleadings, motions or other documents filed by a party represented by an attorney do not have to be accompanied by the party’s notarized signature unless the party’s sworn statement is required by a specific rule or statute.
·1.050. WHEN ACTION COMMENCED - A civil action is generally considered to have begun when the original complaint or petition is filed with the court.
· 1.070. PROCESS -To begin a legal action, the defendant must be served with a summons along with the initial complaint or petition. The summons needs to be served by a process server, someone who is authorized by law to serve process. Service of the summons is usually accomplished by private process servers or the sheriff's office. A defendant can waive service of process by a process server and choose to accept service of the initial complaint or petition by mail. Once the defendant is served, they have 20 days to file an answer.
If the location of the defendant is unknown, service may be had by publication.This type of service is called constructive service and the notice must be published once a week for four consecutive weeks in a newspaper that meets the qualifications required by § 50.031, Fla. Stat. (2009). Note that mortgage foreclosure actions only require notice to be published for two consecutive weeks. Most types of cases cannot proceed based solely on constructive service.
· 1.080. SERVICE OF PLEADINGS AND PAPERS -Every pleading, motion or paper filed in the action after service of process of the initial pleading must be served by mail or other means on each party. Service is to be made on a parties’ attorney or an unrepresented party by either delivering or mailing the document to their last known address. Service by mail is complete upon its mailing. Service by facsimile is complete once the transmission is finished. However, a copy of the faxed document also must be served by hand delivery or mail. The original document is to be filed with the clerk of court either prior to service or immediately thereafter. This rule does not apply to witness subpoenas that have to be served by process.
· 1.090. TIME - Understanding this rule is particularly important because attorneys often assigned the responsibility of monitoring deadlines to their paralegals. This rule explains how to compute deadlines imposed by the rules, orders of court and applicable statutes.
There are four important guidelines to remember when computing time deadlines. First,the day of the act or event from which the time period begins to run is never counted.Second, in determining the last day of the time period being calculated,the last day of the period is not counted if it is a Saturday, Sunday, or a legal holiday. In other words, the designated time period would extend until the end of the next day that is not a Saturday, Sunday, or a legal holiday. The third guideline applies only to time periods that are less than 7 days. If the time period is 6 days or less, intervening weekends and legal holidays are not included in the time computation. The last guideline adds an extra 5 days to the time period calculation and only applies where the service of the document requiring action is made by mail. This last guideline is sometimes referred to as the "mailbox rule." The mailing date is the date of the certificate of service on the document. For example, when calculating the time deadline for a party to respond to interrogatories served by mail, an additional 5 days is added to the time period and the count begins the day after the certificate of service was signed.
The court can extend any deadlines if the request for extension is made prior to the expiration of the prescribed timeperiod. In the event that the request is made after the designated timeperiod has expired, then the court will only grant the extension of time if there is a showing that the failure to comply was due to excusable neglect. However, the court cannot extend the period of time for filing an appeal, filing a petition for certiorari, moving for directed verdict or for motions filed pursuant to Fla.R.Civ.P. 1.530 and 1.540.
· 1.100. PLEADINGS AND MOTIONS -Subsection (a) specifies all the possible documents that can be designated as pleadings under the Florida Rules of Civil Procedure. The most common pleadings include complaints, petitions and answers. Crossclaims, counterclaims, and third-party complaints are also referred to as pleadings. Pleadings have to be in writing.
A motion is a request for relief from the court in the form of an order. Motions are generally in writing. However, an ore tenus or speaking motion can be made during a hearing or trial.
Every document filed with the court must have a caption at the top of the document’s first page. The caption must contain the name of the court, the case number, the name of the first party on each side as well as any other parties and include each party's designation (such as plaintiff and defendant). The caption must also include the title of the document and identify the party who is filing it. Other documents filed with the court that can't be designated as either pleadings or motions can be simply referred to as "papers."
· 1.110. GENERAL RULES OF PLEADING -All pleadings that set up a claim for relief (i.e. complaints counterclaims, etc.) must state a cause of action. They must also indicate the basis for the court's jurisdiction, set forth the ultimate facts that entitle them to relief, and demand judgment in their favor.
Responsive pleadings must respond to each averment (consecutively numbered paragraphs with allegations) in the plaintiff's initial pleading by admitting, denying or indicating that the responding party is without knowledge as to theallegations therein. Failure to respond results in the plaintiff's allegations being deemed admitted, except for those that request an amount of damages.
In addition, responsive pleadings may contain affirmative defenses in which the defendant takes the offense and responds to the plaintiff’s allegations with his or her own charges based on legal principles. For example, the statute of limitations is an affirmative defense that can be used if the time for filing a particular cause of action has expired. Another affirmative defense is arbitration and award. This affirmative defense is used when the parties have already been to arbitration and the arbitrator has rendered a binding decision over issues that can not be relitigated in court.
· 1.120. PLEADING SPECIAL MATTERS -There is ordinarily no need to allege in a pleading that a litigant has the legal capacity to become a party to a civil case. However, the status of the person who is serving as a representative party must always be identified. For example, the personal representative of an estate must indicate that he or she is appearing in a representative capacity.
There is no requirement that a party make a specific allegation regarding a mental state, such as knowledge or intent. A party may generally allege that all conditions precedent to a cause of action have been met. Moreover, it is sufficient to allege that official documents or acts were done in compliance with the law. A foreign judgment may also be generally alleged. It is only necessary to make a specific allegation of time and place if leaving out this information would make the pleading too vague and ambiguous to answer.For example, in an asbestos lawsuit is difficult to specify a date and time when the plaintiff first became ill. On the other hand, a party must specifically allege in a pleading any circumstances constituting fraud or mistake.
· 1.140. DEFENSES -A defendant has 20 days to file an answer after being served with original process and the initial pleading. Also, a plaintiff has 20 days to file an answer after service of a counterclaim. In addition the responsive pleading needs to set forth all available legal or factual defenses.
A defendant may choose to raise certain defenses by filing an appropriate motion within the 20 day deadline instead of filing an answer. The following defenses may be made by motion: lack of jurisdiction over the subject matter or over the person, improper venue, insufficiency of process or service of process, and failure to state a cause of action or to join indispensable parties. These defenses may also be raised in a responsive pleading. All defenses not raised are deemed waived except for the defense of lack of subject matter jurisdiction that may be raised at any time.
A party may also file a motion for more definite statement in the event that a party is unable to draft a response because the pleading being responded to is too vague or ambiguous. Another type of motion that can be filed in response to a pleading is a motion to strike. The purpose of the motion to strike is to ask the court strike repetitive, immaterial, improper or scandalous matter from the other party's pleading.
Once the time has lapsed to file any pleadings, any party may file a motion for judgment on the pleadings requesting that the courtreview solely the pleadings and enter judgment by applying the law to undisputed facts.
· 1.150. SHAM PLEADINGS -A sham pleading is an obviously irresponsible and meaningless pleading or part of a pleading made with the sole intent to harass a party or to delay the trial proceedings.Furthermore, a sham pleading must is not pled in good faith. In other words, it is known by the pleading party to be untrue. A sham pleading is clearly false and does not raise any legitimate issues. The proper response to a sham pleading is to file a verified ("sworn to") motion to strike.
· 1.170. COUNTERCLAIMS AND CROSSCLAIMS -A counterclaim states in writing any claim the pleader has against the opposing party. A crossclaim is a pleading regarding any claim by one party against a co-party. In some situations, the court's permission is needed to file a counterclaim or crossclaim. For example, a counterclaim by supplemental pleading may be filed with the court's permission if a new claim is acquired by the party after they already served their pleading. In addition, the court may allow the filing of a counterclaim or crossclaim by amendment if a party inadvertently neglected to file it with their initial pleading. Additional parties may be brought in to the original action by being named in a counterclaim or crossclaim and being served with process.
· 1.190. AMENDED AND SUPPLEMENTAL PLEADINGS -A party may amend their pleading once at any time before the response to the pleading is served or, if no response is required and the action has not been set for trial, within 20 days after their original pleading was served. Otherwise, a pleading can only be amended with the permission of the court or with the written consent of the opposing party. Generally, the amended pleading will relate back to the date of the original pleading. The court may permit amendments so long as they do not affect the substantial rights of either party. A motion to amend the pleading to seek punitive damages must demonstrate that there is a reasonable likelihood for recovery of such damages and must be served no later than 20 days before a hearing. When issues that were not in the pleadings are litigated at trial, with the expressed or implied consent of the parties, these issues will be treated as if they had been properly raised in the pleadings.
· 1.210. PARTIES - Lawsuits can be filed without using the name of the real party in interest. For example, representatives, administrators, guardians, next friends, trustees, etc. may sue in their own name without joining the party for whose benefit the case has been filed. In the event that minor child or an incompetent person does not have a representative, the court will appoint a guardian ad item to represent their interests.
· 1.230 INTERVENTIONS - Anyone who has an interest in pending litigation may intervene as long as the intervention will not cause the disruptionof or delay to the main proceeding.
· 1.240 INTERPLEADER - In a case where the plaintiff may be liable to more than one party, the defendants may be joined into a single action so that they may litigate among themselves to determine which, if any, has a valid claim. Defendants exposed to multiple liability can obtain interpleader by filing a crossclaim or counterclaim.
FORMS (Students should review, but are not required to read them in their entirety)
· 1.901. CAPTION -This section provides a form of the caption that appears at the top of all documents filed with the court.The caption is also sometimes referred to as the case "style."
· 1.902. SUMMONS - The summons is the document used when serving an initial pleading on a party. This section provides a form general summons and a form summons for an individual. The summons for the individual appears in English, Spanish and French so that there is no question that the individual is clearly advised of their obligation to file an answer within 20 days. In addition, a form for service by mail is provided, which includes a waiver of service of process in the event the defendant would like to save time, money and the potential embarrassment of being served by a process server or the sheriff's office. · 1.912. SUBPOENA FOR DEPOSITION -This section provides two forms of subpoenas for the taking of a deposition of a party or witness. The subpoena may either be issued by the clerk's office or by the attorney for the party requesting the deposition.
· 1.913. SUBPOENA DUCES TECUM FOR DEPOSITION -This section provides two forms of subpoenas duces tecum for the taking of a deposition of a party or witness where the deponent is asked to bring certain documents or things with them to the deposition. The subpoena may either be issued by the clerk's office or by the attorney for the party requesting the deposition.
· 1.976. STANDARD INTERROGATORIES - In certain cases, attorneys are required to use the form interrogatories approved by the Florida Supreme Court as their first set of interrogatories. The form interrogatories for personal injury negligence, medical malpractice and automobile negligence cases can be found in Appendix I of the Florida Rules of Civil Procedure.
· 1.977. FACT INFORMATION SHEET - A judgment creditor, in addition to other discovery methods, is entitled to have the judgment debtor complete Form 1.977. Generally the judgment debtor is given 45 days from the date of the order to complete this form and file a notice of compliance with the clerk of court and serve a copy on the judgment creditor or the judgment creditor's attorney. The judgment debtor's failure to comply may result in him or her being found in contempt of court. This section provides two different fact information sheet forms, one for individuals and one for business entities.
· 1.997. CIVIL COVER SHEET -This Form is attached to the original complaint or petition and filed with the clerk's office.
Discussion of First Written Assignment: Civil Cover Sheet. In completing the Civil Cover Sheet, began by filling in the caption. However, leave the case number and judge's name blank as the clerk's office will fill in this information when the case is filed. Section II of theCivil Cover Sheet requires that an "X" to be placed next to the type of case being filed. Definitions of the different case types are provided in these instructions that accompany the Civil Cover Sheet. Next, it needs to be determined whether the client is likely to have a better result if the case is heard by a jury or by a judge. Finally, leave the date andthe signaturelines blank to be completed by the party’s attorney.
DISCOVERY
· 1.280. GENERAL PROVISIONS GOVERNING DISCOVERY - Subsection (a) identifies all the different discovery methods. They are: oral or written depositions, interrogatories, requests for production, requests for admission, and physical examinations. The parties may use some or all of these methods of discovery in any order or sequence.
Parties may conduct discovery regarding anything that is relevant to the subject matter of the pending case as long as it is not privileged. It doesn't matter whether or not the information sought through discovery would be admissible into evidence at trial as long as the information could reasonably lead to the discovery of admissible evidence.