Florida Rules of Civil Procedure
RULE 1.010 | SCOPE AND TITLE OF RULES
RULE 1.020 | PRIVACY AND COURT RECORDS
RULE 1.030 | NONVERIFICATION OF PLEADINGS
Committee Notes (Rule 1.030)
RULE 1.041 | LIMITED APPEARANCE ATTORNEYS
(b) Notice of Limited Appearance.
(2) A notice of limited appearance must specifically identify the particular proceedings and specified matters in which the attorney will represent the party.
“Attorney for [Plaintiff(s)] [Defendant(s)] for the limited purpose of [matter(s) or proceeding(s)]”.(d) Service. During the attorney’s limited appearance:
(2) If the limited appearance attorney receives notice of a hearing that is outside the scope of representation, the attorney must file a notice stating the attorney will not attend the court proceeding or hearing because it is outside the scope of the representation.
RULE 1.050 | WHEN ACTION COMMENCED
RULE 1.060 | TRANSFERS OF ACTIONS
(b) Wrong Venue. When any action is filed laying venue in the wrong county, the court may transfer the action in the manner provided in rule 1.170(j) to the proper court in any county where it might have been brought in accordance with the venue statutes. When the venue might have been laid in 2 or more counties, the person bringing the action may select the county to which the action is transferred, but if no such selection is made, the matter shall be determined by the court.
(c) Method. The service charge of the clerk of the court to which an action is transferred under this rule shall be paid by the party who commenced the action within 30 days from the date the order of transfer is entered, subject to taxation as provided by law when the action is determined. If the service charge is not paid within the 30 days, the action shall be dismissed without prejudice by the court that entered the order of transfer.
Court Commentary
(b) to provide for the circumstance in which the service charge is not paid; and
(c) to require the dismissal to be by the court which entered the order of transfer.
RULE 1.061 | CHOICE OF FORUM
(2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice;
(3) if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and
(4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.
(b) Stipulations in General. The parties to any action for which a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida may stipulate to conditions upon which a dismissal must be based on forum non conveniens, subject to approval by the trial court. The decision to accept or reject the stipulation rests in the sound discretion of the trial court.
A dismissal based on forum non conveniens must not be granted unless all defendants agree to the stipulations required by subdivision (c) and any additional stipulations required by the court.
(c) Statutes of Limitation. In moving for a dismissal based on forum non conveniens, defendants will be deemed to automatically stipulate that the action will be treated in the new forum as though it had been filed in that forum on the date it was filed in Florida, with service of process accepted as of that date.
(d) Failure to Refile Promptly. When an action is dismissed in Florida for forum non conveniens, plaintiffs will automatically be deemed to stipulate that they will lose the benefit of all stipulations made by the defendant, including the stipulation provided in subdivision (c) of this rule, if plaintiffs fail to file the action in the new forum within 120 days after the date the Florida dismissal becomes final.
(e) Waiver of Automatic Stipulations. With unanimous agreement, the parties may waive the conditions provided in subdivision (c) or (d), or both, only when they demonstrate and the trial court finds a compelling reason for the waiver.
(f) Reduction to Writing. The parties must reduce their stipulation to a writing signed by them, which must include all stipulations provided by this rule and which will be deemed incorporated by reference in any subsequent order of dismissal.
(g) Time for Moving for Dismissal. A motion to dismiss based on forum non conveniens must be served not later than 60 days after service of process on the moving party.
(h) Retention of Jurisdiction. The court will retain jurisdiction after the dismissal to enforce its order of dismissal and any conditions and stipulations in the order.
Committee Notes
Subdivision (b) is amended to clarify that all of the defendants, not just the moving defendant, must agree to the stipulations required by subdivision (c) as well as any additional stipulations required by the trial court before an action may be dismissed based on forum non conveniens.
Subdivision (g) is added to require that a motion to dismiss based on forum non conveniens be served not later than 60 days after service of process on the moving party.
Subdivision (h) is added to require the court to retain jurisdiction over the action after the dismissal for purposes of enforcing its order of dismissal and any conditions and stipulations contained in the order.
Court Commentary
Subdivision (a) codifies the federal standard for reviewing motions filed under the forum-non-conveniens doctrine.
As stated in Kinney, the phrase “private interests” means adequate access to evidence and relevant sites, adequate access to witnesses, adequate enforcement of judgments, and the practicalities and expenses associated with the litigation. Private interests do not involve consideration of the availability or unavailability of advantageous legal theories, a history of generous or stingy damage awards, or procedural nuances that may affect outcomes but that do not effectively deprive the plaintiff of any remedy
“Public interests” are the ability of courts to protect their dockets from causes that lack significant connection to the jurisdiction; the ability of courts to encourage trial of controversies in the localities in which they arise; and the ability of courts to consider their familiarity with governing law when deciding whether to retain jurisdiction over a case. Even when the private conveniences of the litigants are nearly in balance, a trial court has discretion to grant a forum-non-conveniens dismissal upon finding that retention of jurisdiction would be unduly burdensome to the community, that there is little or no public interest in the dispute, or that foreign law will predominate if jurisdiction is retained.
Subdivisions (c) and (d) provide automatic conditions that shall be deemed included in every forum-non-conveniens dismissal. The purpose underlying subdivision (c) is to ensure that any statute of limitation in the new forum is applied as though the action had been filed in that forum on the date it was filed in Florida. The purpose underlying subdivision (d) is to ensure that the action is promptly refiled in the new forum. Both of these stipulations are deemed to be a part of every stipulation that does not expressly state otherwise, subject to the qualification provided in subdivision (e).
Subdivision (e) recognizes that there may be extraordinary conditions associated with the new forum that would require the waiver of the conditions provided in subdivisions (c) and (d). Waivers should be granted sparingly. Thus, the parties by unanimous consent may stipulate to waive those conditions only upon showing a compelling reason to the trial court.
Subdivision (f) requires the parties to reduce their stipulation to written form, which the parties must sign. When and if the trial court accepts the stipulation, the parties’ agreement then is treated as though it were incorporated by reference in the trial court’s order of dismissal. To avoid confusion, the parties shall include the automatic stipulations provided by subdivisions (c) and (d) of this rule, unless the latter are properly waived under subdivision (e). However, the failure to include these automatic conditions in the stipulation does not waive them unless the dismissing court has expressly so ruled.
RULE 1.070 | PROCESS
(b) Service; By Whom Made. Service of process may be made by an officer authorized by law to serve process, but the court may appoint any competent person not interested in the action to serve the process. When so appointed, the person serving process must make proof of service by affidavit promptly and in any event within the time during which the person served must respond to the process. Failure to make proof of service will not affect the validity of the service. When any process is returned not executed or returned improperly executed for any defendant, the party causing its issuance must be entitled to such additional process against the unserved party as is required to effect service.
(c) Service; Numerous Defendants. If there is more than 1 defendant, the clerk or judge must issue as many writs of process against the several defendants as may be directed by the plaintiff or the plaintiff’s attorney.
(d) Service by Publication or Any Other Means. Service of process by publication or any other means may be made as provided by statute.
(e) Copies of Initial Pleading for Persons Served. At the time of personal service of process a copy of the initial pleading must be delivered to the party on whom service is made. The date and hour of service must be endorsed on the original process and all copies of it by the person making the service. The party seeking to effect personal service must furnish the person making service with the necessary copies. When the service is made by publication, copies of the initial pleadings must be furnished to the clerk and mailed by the clerk with the notice of action to all parties whose addresses are stated in the initial pleading or sworn statement.
(f) Service of Orders. If personal service of a court order is to be made, the original order must be filed with the clerk, who must certify or verify a copy of it without charge. The person making service must use the certified copy instead of the original order in the same manner as original process in making service.
(g) Fees; Service of Pleadings. The statutory compensation for making service will not be increased by the simultaneous delivery or mailing of the copy of the initial pleading in conformity with this rule.
(h) Pleading Basis. When service of process is to be made under statutes authorizing service on nonresidents of Florida, it is sufficient to plead the basis for service in the language of the statute without pleading the facts supporting service.
(i) Service of Process by Mail. A defendant may accept service of process by mail.
(2) A plaintiff may notify any defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request must:
(B) be dispatched by certified mail, return receipt requested;
(C) be accompanied by a copy of the complaint and must identify the court in which it has been filed;
(D) inform the defendant of the consequences of compliance and of failure to comply with the request;
(E) state the date on which the request is sent;
(F) allow the defendant 20 days from the date on which the request is received to return the waiver, or, if the address of the defendant is outside of the United States, 30 days from the date on which it is received to return the waiver; and
(G) provide the defendant with an extra copy of the notice and request, including the waiver, as well as a prepaid means of compliance in writing.
(4) A defendant who, before being served with process, timely returns a waiver so requested is not required to respond to the complaint until 60 days after the date the defendant received the request for waiver of service. For purposes of computing any time prescribed or allowed by these rules, service of process will be deemed effected 20 days before the time required to respond to the complaint.
(5) When the plaintiff files a waiver of service with the court, the action must proceed, except as provided in subdivision (i)(4) above, as if a summons and complaint had been served at the time of filing the waiver, and no further proof of service is required.
Committee Notes
1972 Amendment. Subdivision (a) is amended to require the officer issuing the process to sign it and place the court seal on it. This was required by former section 47.04, Florida Statutes, and is essential to the validity of process. When the statute was repealed these procedural requirements were omitted and inadvertently not included in the rule. Subdivision (b) is changed to eliminate the predicate for court appointment of a person to make service of process. This makes the rule more flexible and permits the court to appoint someone to make service at any appropriate time.
1980 Amendment. Subdivision (i) is added to eliminate pleading evidentiary facts for “long arm” service of process. It is based on the long-standing principle in service by publication that pleading the basis for service is sufficient if it is done in the language of the statute. See McDaniel v. McElvy, 91 Fla. 770, 108 So. 820 (1926). Confusion has been generated in the decisions under the “long arm” statute. See Wm. E. Strasser Construction Corp. v. Linn, 97 So. 2d 458 (Fla. 1957); Hartman Agency, Inc. v. Indiana Farmers Mutual Insurance Co., 353 So. 2d 665 (Fla. 2d DCA 1978); and Drake v. Scharlau, 353 So. 2d 961 (Fla. 2d DCA 1978). The amendment is not intended to change the distinction between pleading and proof as enunciated in Elmex Corp. v. Atlantic Federal Savings & Loan Association of Fort Lauderdale, 325 So. 2d 58 (Fla. 4th DCA 1976). It is intended to eliminate the necessity of pleading evidentiary facts as well as those of pecuniary benefit that were used in the Elmex case. The amendment is limited to pleading. If the statutory allegations are attacked by motion, the pleader must then prove the evidentiary facts to support the statutory requirements. If denied in a pleading, the allegations must be proved at trial. Otherwise, the allegations will be admitted under rule 1.110(e).
1988 Amendment. Subdivision (j) has been added to require plaintiffs to cause service of original summons within 120 days of filing the complaint absent good cause for further delay.
1992 Amendment. Subdivision (d) is repealed because the reason for the rule ceased when process was permitted to run beyond county boundaries. The amendment to subdivision (j) (redesignated as (i)) is intended to clarify that a dismissal under this subdivision is not to be considered as an adjudication on the merits under rule 1.420(a)(1) of these rules.
1996 Amendment. Subdivision (i) is added to provide some formality to the practice of requesting waiver of service of process by a sheriff or person appointed to serve papers or by publication. The committee intends that only the manner of service will be waived by this procedure. By accepting service pursuant to this rule, the defendant will not waive any objection to venue or jurisdiction over the person or admit to the sufficiency of the pleadings or to allegations with regard to long-arm or personal jurisdiction. For example, service of process would be void should a motion to dismiss be granted because the complaint did not allege the basis for long-arm jurisdiction over a nonresident defendant. City Contract Bus Service, Inc. v. H.E. Woody, 515 So. 2d 1354 (Fla. 1st DCA 1987). Under such circumstances, the defendant must be served pursuant to law or again waive service pursuant to this rule. Subdivision (i)(2)(F) allows the defendant 20 days from receipt (or 30 days if the defendant is outside of the United States) to return the waiver. Accordingly, the committee intends that the waiver be received by the plaintiff or the plaintiff’s attorney by the twentieth day (or the thirtieth day if the defendant is outside of the United States). The former subdivision (i) has been redesignated as subdivision (j). Form 1.902 may be used to give notice of an action and request waiver of process pursuant to this rule.
2003 Amendment. Subdivision (j) is amended in accordance with Totura & Co., Inc. v. Williams, 754 So. 2d 671 (Fla. 2000). See the amendment to rule 1.190(a).
RULE 1.071 | CONSTITUTIONAL CHALLENGE TO STATE STATUTE OR COUNTY OR MUNICIPAL CHARTER, ORDINANCE, OR FRANCHISE; NOTICE BY PARTY
(b) serve the notice and the pleading, written motion, or other document drawing into question the constitutionality of a state statute or a county or municipal charter, ordinance, or franchise on the Attorney General or the state attorney of the judicial circuit in which the action is pending, by either certified or registered mail.
Committee Notes
RULE 1.080 | SERVICE AND FILING OF PLEADINGS, ORDERS, AND DOCUMENTS
(b) Filing. All documents shall be filed in conformity with the requirements of Florida Rule of Judicial Administration 2.525.
(c) Writing and written defined. Writing or written means a document containing information, an application, or a stipulation.
RULE 1.090 | TIME
(b) Enlargement.
(B) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect.
(d) For Motions. A copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing thereof shall be served a reasonable time before the time specified for the hearing.
RULE 1.100 | PLEADINGS AND MOTIONS
(b) Motions. An application to the court for an order must be by motion which must be made in writing unless made during a hearing or trial, must state with particularity the grounds for it, and must set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. All notices of hearing must specify each motion or other matter to be heard.
(c) Caption.
(2) Every motion, order, judgment, or other document must have a caption containing the name of the court, the case number, the name of the first party on each side with an appropriate indication of other parties, and a designation identifying the party filing it and its nature or the nature of the order, as the case may be.
(3) In any in rem proceeding, every pleading, motion, order, judgment, or other document must have a caption containing the name of the court, the case number, the style “In re” (followed by the name or general description of the property), and a designation of the person or entity filing it and its nature or the nature of the order, as the case may be.
(4) In an in rem forfeiture proceeding, the style must be “In re forfeiture of” (followed by the name or general description of the property).
(5) All documents filed in the action must be styled in such a manner as to indicate clearly the subject matter of the document and the party requesting or obtaining relief.
(e) Motion in Lieu of Scire Facias. Any relief available by scire facias may be granted on motion after notice without the issuance of a writ of scire facias.
Committee Notes
1972 Amendment. Subdivision (a) is amended to make a reply mandatory when a party seeks to avoid an affirmative defense in an answer or third-party answer. It is intended to eliminate thereby the problems exemplified by Tuggle v. Maddox, 60 So. 2d 158 (Fla. 1952), and Dickerson v. Orange State Oil Co., 123 So. 2d 562 (Fla. 2d DCA 1960).
1992 Amendment. Subdivision (b) is amended to require all notices of hearing to specify the motions or other matters to be heard.
2010 Amendment. Subdivision (c) is amended to address separately the caption for in rem proceedings, including in rem forfeiture proceedings.
2016 Amendment. Subdivision (c) is amended to address the naming of parties in pleadings and amended pleadings similarly to Federal Rule of Civil Procedure 10(a). Subdivision (c)(2) on Civil Cover Sheets is moved to subdivision (d), and subdivision (c)(3) on Final Disposition Forms is moved to new rule 1.545.
RULE 1.110 | GENERAL RULES OF PLEADING
(b) Claims for Relief. 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 must contain:
(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 the pleader entitled.
(c) The Answer. In the answer, a pleader must state in short and plain terms the pleader’s defenses to each claim asserted and must admit or deny the averments on which the adverse party relies. If the defendant is without knowledge, the defendant must so state, and such statement will operate as a denial. Denial must 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 must specify so much of it as is true and must 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. When the pleader does so intend to controvert all of its averments, including averments of the grounds on which the court’s jurisdiction depends, the pleader may do so by general denial.
(d) Affirmative Defenses. In pleading to a preceding pleading, a party must set forth affirmatively: 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. A pleading that sets forth an affirmative defense must contain a short and plain statement of the ultimate facts supporting the avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms if justice so requires, must treat the pleading as if there had been a proper designation. Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 1.140(b), provided this does not limit amendments under rule 1.190 even if such ground is sustained.
(e) Effect of Failure to Deny. 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 must be taken as denied or avoided.
(f) Separate Statements. All averments of claim or defense must be made in consecutively numbered paragraphs. The contents of each paragraph must be limited as far as practicable to a statement of a single set of circumstances, and a paragraph may be referred to by number in all subsequent pleadings. Each claim founded on a separate transaction or occurrence and each defense other than denials must be stated in a separate count or defense when a separation facilitates the clear presentation of the matter set forth.
(g) Joinder of Causes of Action; Consistency. A pleader may set up in the same action as many claims or causes of action or defenses in the same right as the pleader has, and claims for relief may be stated in the alternative if separate items make up the cause of action, or if 2 or more causes of action are joined. A party may also set forth 2 or more statements of a claim or defense alternatively, either in 1 count or defense or in separate counts or defenses. When 2 or more statements are made in the alternative and 1 of them, if made independently, would be sufficient, the pleading is not made insufficient by the insufficiency of 1 or more of the alternative statements. A party may also state as many separate claims or defenses as that party has, regardless of consistency and whether based on legal or equitable grounds or both. All pleadings must be construed so as to do substantial justice.
(h) Subsequent Pleadings. When the nature of an action permits pleadings subsequent to final judgment, and the jurisdiction of the court over the parties has not terminated, the initial pleading subsequent to final judgment must be designated a supplemental complaint or petition. The action must then proceed in the same manner and time as though the supplemental complaint or petition were the initial pleading in the action, including the issuance of any needed process. This subdivision does not apply to proceedings that may be initiated by motion under these rules.
Committee Notes
2014 Amendment. The last two paragraphs of rule 1.110(b) regarding pleading requirements for certain mortgage foreclosure actions were deleted and incorporated in new rule 1.115.
RULE 1.115 | PLEADING MORTGAGE FORECLOSURES
(2) allege with specificity the factual basis by which the claimant is a person entitled to enforce the note under section 673.3011, Florida Statutes.
(c) Possession of Original Promissory Note. If the claimant is in possession of the original promissory note, the claimant must file under penalty of perjury a certification contemporaneously with the filing of the claim for relief for foreclosure that the claimant is in possession of the original promissory note. The certification must set forth the location of the note, the name and title of the individual giving the certification, the name of the person who personally verified such possession, and the time and date on which the possession was verified. Correct copies of the note and all allonges to the note must be attached to the certification. The original note and the allonges must be filed with the court before the entry of any judgment of foreclosure or judgment on the note.
(d) Lost, Destroyed, or Stolen Instrument. If the claimant seeks to enforce a lost, destroyed, or stolen instrument, an affidavit executed under penalty of perjury must be attached to the claim for relief. The affidavit must:
(2) set forth facts showing that the claimant is entitled to enforce a lost, destroyed, or stolen instrument pursuant to section 673.3091, Florida Statutes; and
(3) include as exhibits to the affidavit such copies of the note and the allonges to the note, audit reports showing receipt of the original note, or other evidence of the acquisition, ownership, and possession of the note as may be available to the claimant.
(e) Verification. When filing an action for foreclosure on a mortgage for residential real property the claim for relief shall be verified by the claimant seeking to foreclose the mortgage. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement:
Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.
RULE 1.120 | PLEADING SPECIAL MATTERS
(b) Fraud, Mistake, Condition of the Mind. 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.
(c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.
(d) Official Document or Act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.
(e) Judgment or Decree. In pleading a judgment or decree of a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or officer, it is sufficient to aver the judgment or decree without setting forth matter showing jurisdiction to render it.
(f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.
(g) Special Damage. When items of special damage are claimed, they shall be specifically stated.
RULE 1.130 | ATTACHING COPY OF CAUSE OF ACTION AND EXHIBITS
(b) Part for All Purposes. Any exhibit attached to a pleading must be considered a part thereof for all purposes. Statements in a pleading may be adopted by reference in a different part of the same pleading, in another pleading, or in any motion.
RULE 1.140 | DEFENSES
(2)
(B) When sued pursuant to section 768.28, Florida Statutes, the Department of Financial Services or the defendant state agency has 30 days from the date of service within which to serve an answer to the complaint or crossclaim or a reply to a counterclaim.
(4) If the court permits or requires an amended or responsive pleading or a more definite statement, the pleading or statement must be served within 10 days after the filing of the court’s order unless a different time is fixed by the court. Responses to the pleadings or statements must be served within 10 days of service of the pleadings or statements.
(2) lack of jurisdiction over the person,
(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.
(c) Motion for Judgment on the Pleadings. After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.
(d) Preliminary Hearings. The defenses 1 to 7 in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment in subdivision (c) of this rule must be heard and determined before trial on application of any party unless the court orders that the hearing and determination must be deferred until the trial.
(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, that party may move for a more definite statement before interposing a responsive pleading. The motion must point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after the filing of the order or such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.
(f) Motion to Strike. A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.
(g) Consolidation of Defenses. A party who makes a motion under this rule may join with it the other motions herein provided for and then available to that party. If a party makes a motion under this rule but omits from it any defenses or objections then available to that party that this rule permits to be raised by motion, that party shall not thereafter make a motion based on any of the defenses or objections omitted, except as provided in subdivision (h)(2) of this rule.
(h) Waiver of Defenses.
(2) The defenses of failure to state a cause of action or a legal defense or to join an indispensable party may be raised by motion for judgment on the pleadings or at the trial on the merits in addition to being raised either in a motion under subdivision (b) or in the answer or reply. The defense of lack of jurisdiction of the subject matter may be raised at any time.
Committee Notes
1988 Amendment. The amendment to subdivision (a) is to fix a time within which amended pleadings, responsive pleadings, or more definite statements required by the court and responses to those pleadings or statements must be served when no time limit is fixed by the court in its order. The court’s authority to alter these time periods is contained in rule 1.090(b).
2007 Amendment. Subdivision (a) is amended to conform rule 1.140 to the statutory requirements of sections 48.111, 48.121, and 768.28, Florida Statutes. The rule is similar to Federal Rule of Civil Procedure 12(a).
RULE 1.150 | SHAM PLEADINGS
(b) Contents of Motion. The motion to strike shall be verified and shall set forth fully the facts on which the movant relies and may be supported by affidavit. No traverse of the motion shall be required.
RULE 1.160 | MOTIONS
RULE 1.170 | COUNTERCLAIMS AND CROSSCLAIMS
(2) the opposing party brought suit on that party’s claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim and the pleader is not stating a counterclaim under this rule.
(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.
(d) Counterclaim against the State. These rules shall not be construed to enlarge beyond the limits established by law the right to assert counterclaims or to claim credits against the state or any of its subdivisions or other governmental organizations thereof subject to suit or against a municipal corporation or against an officer, agency, or administrative board of the state.
(e) Counterclaim Maturing or Acquired after Pleading. A claim which matured or was acquired by the pleader after serving the pleading may be presented as a counterclaim by supplemental pleading with the permission of the court.
(f) Omitted Counterclaim or Crossclaim. When a pleader fails to set up a counterclaim or crossclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may set up the counterclaim or crossclaim by amendment with leave of the court.
(g) Crossclaim against Co-Party. A pleading may state as a crossclaim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter of either the original action or a counterclaim therein, or relating to any property that is the subject matter of the original action. The crossclaim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. Service of a crossclaim on a party who has appeared in the action must be made under Florida Rule of General Practice and Judicial Administration. Service of a crossclaim against a party who has not appeared in the action must be made in the manner provided for service of summons.
(h) Additional Parties May Be Brought In. When the presence of parties other than those to the original action is required to grant complete relief in the determination of a counterclaim or crossclaim, they must be named in the counterclaim or crossclaim and be served with process and must be parties to the action thereafter if jurisdiction of them can be obtained and their joinder will not deprive the court of jurisdiction of the action. Rules 1.250(b) and (c) apply to parties brought in under this subdivision.
(i) Separate Trials; Separate Judgment. If the court orders separate trials as provided in rule 1.270(b), judgment on a counterclaim or crossclaim may be rendered when the court has jurisdiction to do so even if a claim of the opposing party has been dismissed or otherwise disposed of.
(j) Demand Exceeding Jurisdiction; Transfer of Action. If the demand of any counterclaim or crossclaim exceeds the jurisdiction of the court in which the action is pending, the action must be transferred immediately to the court of the same county having jurisdiction of the demand in the counterclaim or crossclaim with only such alterations in the pleadings as are essential. The court must order the transfer of the action and the transmittal of all documents in it to the proper court if the party asserting the demand exceeding the jurisdiction deposits with the court having jurisdiction a sum sufficient to pay the clerk’s service charge in the court to which the action is transferred at the time of filing the counterclaim or crossclaim. Thereupon the original documents and deposit must be transmitted and filed with a certified copy of the order. The court to which the action is transferred shall have full power and jurisdiction over the demands of all parties. Failure to make the service charge deposit at the time the counterclaim or crossclaim is filed, or within such further time as the court may allow, will reduce a claim for damages to an amount within the jurisdiction of the court where the action is pending and waive the claim in other cases.
Committee Notes
1988 Amendment. The last 2 sentences were added to subdivision (g) to counter the construction of these rules and section 48.031(1), Florida Statutes, by an appellate court in Fundaro v. Canadiana Corp., 409 So. 2d 1099 (Fla. 4th DCA 1982), to require service of all crossclaims with summons pursuant to rule 1.070. The purpose of this amendment is to make it clear that crossclaims must be served as initial pleadings only against a party who has not previously entered an appearance in the action.
2012 Amendment. Subdivision (g) is amended to reflect the relocation of the service rule from rule 1.080 to Fla. R. Jud. Admin. 2.516.
RULE 1.180 | THIRD-PARTY PRACTICE
(b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against the plaintiff, the plaintiff may bring in a third party under circumstances which would entitle a defendant to do so under this rule.
Court Commentary
RULE 1.190 | AMENDED AND SUPPLEMENTAL PLEADINGS
(b) Amendments to Conform with the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues. If the evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended to conform with the evidence and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice the objecting party in maintaining an action or defense upon the merits.
(c) Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.
(d) Supplemental Pleadings. Upon motion of a party the court may permit that party, upon reasonable notice and upon such terms as are just, to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. If the court deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor.
(e) Amendments Generally. At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.
(f) Claims for Punitive Damages. A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages. The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing.
Committee Notes
2003 Amendment.Subdivision (a) is amended in accordance with Totura & Co., Inc. v. Williams, 754 So. 2d 671 (Fla. 2000). See the amendment to rule 1.070(j). Subdivision (f) is added to state the requirements for a party moving for leave of court to amend a pleading to assert a claim for punitive damages. See Beverly Health & Rehabilitation Services, Inc. v. Meeks, 778 So. 2d 322 (Fla. 2d DCA 2000).
RULE 1.200 | PRETRIAL PROCEDURE
(2) set or reset the time of trials, subject to rule 1.440(c);
(3) coordinate the progress of the action if the complex litigation factors contained in rule 1.201(a)(2)(A)–(a)(2)(H) are present;
(4) limit, schedule, order, or expedite discovery;
(5) consider the possibility of obtaining admissions of fact and voluntary exchange of documents and electronically stored information, and stipulations regarding authenticity of documents and electronically stored information;
(6) consider the need for advance rulings from the court on the admissibility of documents and electronically stored information;
(7) discuss as to electronically stored information, the possibility of agreements from the parties regarding the extent to which such evidence should be preserved, the form in which such evidence should be produced, and whether discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources;
(8) schedule disclosure of expert witnesses and the discovery of facts known and opinions held by such experts;
(9) schedule or hear motions in limine;
(10) pursue the possibilities of settlement;
(11) require filing of preliminary stipulations if issues can be narrowed;
(12) consider referring issues to a magistrate for findings of fact; and
(13) schedule other conferences or determine other matters that may aid in the disposition of the action.
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof;
(4) the limitation of the number of expert witnesses;
(5) the potential use of juror notebooks; and
(6) any matters permitted under subdivision (a) of this rule.
(d) Pretrial Order. The court must make an order reciting the action taken at a conference and any stipulations made. The order controls the subsequent course of the action unless modified to prevent injustice.
Committee Notes
1972 Amendment. Subdivision (a) is amended to require the motion for a pretrial by a party to be timely. This is done to avoid motions for pretrial conferences made a short time before trial and requests for a continuance of the trial as a result of the pretrial conference order. The subdivision is also amended to require the clerk to send to the judge a copy of the motion by a party for the pretrial conference.
1988 Amendment. The purpose of adding subdivision (a)(5) is to spell out clearly for the bench and bar that case management conferences may be used for scheduling the disclosure of expert witnesses and the discovery of the opinion and factual information held by those experts. Subdivision (5) is not intended to expand discovery.
1992 Amendment. Subdivision (a) is amended to allow a party to set a case management conference in the same manner as a party may set a hearing on a motion. Subdivision (c) is amended to remove the mandatory language and make the notice requirement for a case management conference the same as that for a hearing on a motion; i.e., reasonable notice.
2012 Amendment. Subdivisions (a)(5) to (a)(7) are added to address issues involving electronically stored information.
RULE 1.201 | COMPLEX LITIGATION
(2) In deciding whether an action is complex, the court must consider whether the action is likely to involve:
(B) management of a large number of separately represented parties;
(C) coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court;
(D) pretrial management of a large number of witnesses or a substantial amount of documentary evidence;
(E) substantial time required to complete the trial;
(F) management at trial of a large number of experts, witnesses, attorneys, or exhibits;
(G) substantial post-judgment judicial supervision; and
(H) any other analytical factors identified by the court or a party that tend to complicate comparable actions and which are likely to arise in the context of the instant action.
(B) a brief statement on the theory of damages by any party seeking affirmative relief;
(C) the likelihood of settlement;
(D) the likelihood of appearance in the action of additional parties and identification of any nonparties to whom any of the parties will seek to allocate fault;
(E) the proposed limits on the time:
(ii) to file and hear motions,
(iii) to identify any nonparties whose identity is known, or otherwise describe as specifically as practicable any nonparties whose identity is not known,
(iv) to disclose expert witnesses, and
(v) to complete discovery;
(G) the necessity for a protective order to facilitate discovery;
(H) proposals for the formulation and simplification of issues, including the elimination of frivolous claims or defenses, and the number and timing of motions for summary judgment or partial summary judgment;
(I) the possibility of obtaining admissions of fact and voluntary exchange of documents and electronically stored information, stipulations regarding authenticity of documents, electronically stored information, and the need for advance rulings from the court on admissibility of evidence;
(J) the possibility of obtaining agreements among the parties regarding the extent to which such electronically stored information should be preserved, the form in which such information should be produced, and whether discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources;
(K) suggestions on the advisability and timing of referring matters to a magistrate, master, other neutral, or mediation;
(L) a preliminary estimate of the time required for trial;
(M) requested date or dates for conferences before trial, a final pretrial conference, and trial;
(N) a description of pertinent documents and a list of fact witnesses the parties believe to be relevant;
(O) number of experts and fields of expertise; and
(P) any other information that might be helpful to the court in setting further conferences and the trial date.
(3) Notwithstanding rule 1.440, at the initial case management conference, the court will set the trial date or dates no sooner than 6 months and no later than 24 months from the date of the conference unless good cause is shown for an earlier or later setting. The trial date or dates shall be on a docket having sufficient time within which to try the action and, when feasible, for a date or dates certain. The trial date shall be set after consultation with counsel and in the presence of all clients or authorized client representatives. The court shall, no later than 2 months prior to the date scheduled for jury selection, arrange for a sufficient number of available jurors. Continuance of the trial of a complex action should rarely be granted and then only upon good cause shown.
(2) Not more than 10 days after the date set for naming experts, the parties shall meet and schedule dates for deposition of experts and all other witnesses not yet deposed. At the time of the meeting each party is responsible for having secured three confirmed dates for its expert witnesses. In the event the parties cannot agree on a discovery deposition schedule, the court, upon motion, shall set the schedule. Any party may file the completed discovery deposition schedule agreed upon or entered by the court. Once filed, the deposition dates in the schedule shall not be altered without consent of all parties or upon order of the court. Failure to comply with the discovery schedule may result in sanctions in accordance with rule 1.380.
(3) Dates by which all parties are to complete all other discovery.
(4) The court shall schedule periodic case management conferences and hearings on lengthy motions at reasonable intervals based on the particular needs of the action. The attorneys for the parties as well as any parties appearing pro se shall confer no later than 15 days prior to each case management conference or hearing. They shall notify the court at least 10 days prior to any case management conference or hearing if the parties stipulate that a case management conference or hearing time is unnecessary. Failure to timely notify the court that a case management conference or hearing time is unnecessary may result in sanctions.
(5) The case management order may include a briefing schedule setting forth a time period within which to file briefs or memoranda, responses, and reply briefs or memoranda, prior to the court considering such matters.
(6) A deadline for conducting alternative dispute resolution.
(2) Any change regarding the estimated trial time.
(3) The names of the attorneys who will try the case.
(4) A list of the names and addresses of all non-expert witnesses (including impeachment and rebuttal witnesses) intended to be called at trial. However, impeachment or rebuttal witnesses not identified in the case status report may be allowed to testify if the need for their testimony could not have been reasonably foreseen at the time the case status report was prepared.
(5) A list of all exhibits intended to be offered at trial.
(6) Certification that copies of witness and exhibit lists will be filed with the clerk of the court at least 48 hours prior to the date and time of the final case management conference.
(7) A deadline for the filing of amended lists of witnesses and exhibits, which amendments shall be allowed only upon motion and for good cause shown.
(8) Any other matters which could impact the timely and effective trial of the action.
Committee Notes
RULE 1.210 | PARTIES
(b) Minors or Incompetent Persons. When a minor or incompetent person has a representative, such as a guardian or other like fiduciary, the representative may sue or defend on behalf of the minor or incompetent person. A minor or incompetent person who does not have a duly appointed representative may sue by next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for a minor or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the minor or incompetent person.
Committee Notes
2003 Amendment. In subdivision (a), “an executor” is changed to “a personal representative” to conform to statutory language. See § 731.201(25), Fla. Stat. (2002).
RULE 1.220 | CLASS ACTIONS
(2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class,
(3) the claim or defense of the representative party is typical of the claim or defense of each member of the class, and
(4) the representative party can fairly and adequately protect and represent the interests of each member of the class.
(B) adjudications concerning individual members of the class which would, as a practical matter, be dispositive of the interests of other members of the class who are not parties to the adjudications, or substantially impair or impede the ability of other members of the class who are not parties to the adjudications to protect their interests; or
(3) the claim or defense is not maintainable under either subdivision (b)(1) or (b)(2), but the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy. The conclusions shall be derived from consideration of all relevant facts and circumstances, including
(B) the nature and extent of any pending litigation to which any member of the class is a party and in which any question of law or fact controverted in the subject action is to be adjudicated,
(C) the desirability or undesirability of concentrating the litigation in the forum where the subject action is instituted, and
(D) the difficulties likely to be encountered in the management of the claim or defense on behalf of a class.
(2) Under a separate heading, designated as “Class Representation Allegations,” specific recitation of:
(B) the questions of law or fact that are common to the claim or defense of the representative party and the claim or defense of each member of the class;
(C) the particular facts and circumstances that show the claim or defense advanced by the representative party is typical of the claim or defense of each member of the class;
(D)
(ii) a definition of the alleged class, and
(iii) the particular facts and circumstances that show the representative party will fairly and adequately protect and represent the interests of each member of the class;
(E) the particular facts and circumstances that support the conclusions required of the court in determining that the action may be maintained as a class action pursuant to the particular provision of subdivision (b) under which it is claimed that the claim or defense is maintainable on behalf of a class.
(B) may disallow the class representation and strike the class representation allegations, or
(C) may order postponement of the determination pending the completion of discovery concerning whether the claim or defense is maintainable on behalf of a class. If the court rules that the claim or defense shall be maintained on behalf of a class under subdivision (b)(3), the order shall also provide for the notice required by subdivision (d)(2). If the court rules that the claim or defense shall be maintained on behalf of a class under subdivision (b)(1) or subdivision (b)(2), the order shall also provide for the notice required by subdivision (d)(2), except when a showing is made that the notice is not required, the court may provide for another kind of notice to the class as is appropriate. When the court orders postponement of its determination, the court shall also establish a date, if possible, for further consideration and final disposition of the motion. An order under this subsection may be conditional and may be altered or amended before entry of a judgment on the merits of the action.
(B) the judgment, whether favorable or not, will include all members who do not request exclusion, and
(C) any member who does not request exclusion may make a separate appearance within the time specified in the notice.
(4) When appropriate,
(B) class representation may be divided into subclasses, and each subclass may be treated as a separate and distinct class and the provisions of this rule shall be applied accordingly.
Committee Notes
RULE 1.221 | HOMEOWNERS’ ASSOCIATIONS AND CONDOMINIUM ASSOCIATIONS
(2) the roof or structural components of a building, or other improvements (in the case of homeowners’ associations, being specifically limited to those improvements for which the association is responsible);
(3) mechanical, electrical, or plumbing elements serving a property or an improvement or building (in the case of homeowners’ associations, being specifically limited to those elements for which the association is responsible);
(4) representations of the developer pertaining to any existing or proposed commonly used facility;
(5) protests of ad valorem taxes on commonly used facilities; and, in the case of homeowners’ associations,
(6) defense of actions in eminent domain or prosecution of inverse condemnation actions. If an association has the authority to maintain a class action under this rule, the association may be joined in an action as representative of that class with reference to litigation and disputes involving the matters for which the association could bring a class action under this rule. Nothing herein limits any statutory or common law right of any individual homeowner or unit owner, or class of such owners, to bring any action that may otherwise be available. An action under this rule shall not be subject to the requirements of rule 1.220.
Committee Notes
2007 Amendment. Consistent with amendments to section 720.303(1), Florida Statutes, homeowners’ associations have been added to the rule.
RULE 1.222 | MOBILE HOMEOWNERS’ ASSOCIATIONS
structural components of a building or other improvements;
mechanical, electrical, and plumbing elements serving the park property; and
protests of ad valorem taxes on commonly used facilities.
1988 Editor's Note
RULE 1.230 | INTERVENTIONS
RULE 1.240 | INTERPLEADER
RULE 1.250 | MISJOINDER AND NONJOINDER OF PARTIES
(b) Dropping Parties. Parties may be dropped by an adverse party in the manner provided for voluntary dismissal in rule 1.420(a)(1) subject to the exception stated in that rule. If notice of lis pendens has been filed in the action against a party so dropped, the notice of dismissal shall be recorded and cancels the notice of lis pendens without the necessity of a court order. Parties may be dropped by order of court on its own initiative or the motion of any party at any stage of the action on such terms
(c) Adding Parties. Parties may be added once as a matter of course within the same time that pleadings can be so amended under rule 1.190(a). If amendment by leave of court or stipulation of the parties is permitted, parties may be added in the amended pleading without further order of court. Parties may be added by order of court on its own initiative or on motion of any party at any stage of the action and on such terms as are just.
Committee Notes
RULE 1.260 | SURVIVOR; SUBSTITUTION OF PARTIES
(2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action shall not abate. A statement noting the death shall be filed and served on all parties as provided in Rule of General Practice and Judicial Administration 2.516 and the action shall proceed in favor of or against the surviving parties.
(c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule.
(d) Public Officers; Death or Separation from Office
(2) When a public officer sues or is sued in an official capacity, the officer may be described as a party by the official title rather than by name but the court may require the officer’s name to be added.
RULE 1.270 | CONSOLIDATION; SEPARATE TRIALS
(b) Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, crossclaim, counterclaim, or third-party claim or of any separate issue or of any number of claims, crossclaims, counterclaims, third-party claims, or issues.
RULE 1.280 | GENERAL PROVISIONS GOVERNING DISCOVERY
(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(2) Indemnity Agreements. A party may obtain discovery of the existence and contents of any agreement under which any person may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or to reimburse a party for payments made to satisfy the judgment. Information concerning the agreement is not admissible in evidence at trial by reason of disclosure.
(3) Electronically Stored Information. A party may obtain discovery of electronically stored information in accordance with these rules.
(4) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(5) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative, including that party’s attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Without the required showing a party may obtain a copy of a statement concerning the action or its subject matter previously made by that party. Upon request without the required showing a person not a party may obtain a copy of a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for an order to obtain a copy. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred as a result of making the motion. For purposes of this paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording or transcription of it that is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
(5) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(ii) Any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed in accordance with rule 1.390 without motion or order of court.
(iii) A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial:
2. The expert’s general litigation experience, including the percentage of work performed for plaintiffs and defendants.
3. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.
4. An approximation of the portion of the expert’s involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services.
(C) Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(5)(A) and (b)(5)(B) of this rule; and concerning discovery from an expert obtained under subdivision (b)(5)(A) of this rule the court may require, and concerning discovery obtained under subdivision (b)(5)(B) of this rule shall require, the party seeking discovery to pay the other party a fair part of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
(D) As used in these rules an expert shall be an expert witness as defined in rule 1.390(a).
(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
(5) that discovery be conducted with no one present except persons designated by the court;
(6) that a deposition after being sealed be opened only by order of the court;
(7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and
(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
(d) Limitations on Discovery of Electronically Stored Information.
(2) In determining any motion involving discovery of electronically stored information, the court must limit the frequency or extent of discovery otherwise allowed by these rules if it determines that
(ii) the burden or expense of the discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
(f) Supplementing of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired.
(g) Court Filing of Documents and Discovery. Information obtained during discovery shall not be filed with the court until such time as it is filed for good cause. The requirement of good cause is satisfied only where the filing of the information is allowed or required by another applicable rule of procedure or by court order. All filings of discovery documents shall comply with Florida Rule of Judicial Administration 2.425. The court shall have authority to impose sanctions for violation of this rule.
(h) Apex Doctrine. A current or former high-level government or corporate officer may seek an order preventing the officer from being subject to a deposition. The motion, whether by a party or by the person of whom the deposition is sought, must be accompanied by an affidavit or declaration of the officer explaining that the officer lacks unique, personal knowledge of the issues being litigated. If the officer meets this burden of production, the court shall issue an order preventing the deposition, unless the party seeking the deposition demonstrates that it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of discoverable information. The court may vacate or modify the order if, after additional discovery, the party seeking the deposition can meet its burden of persuasion under this rule. The burden to persuade the court that the officer is high-level for purposes of this rule lies with the person or party opposing the deposition.
(i) Form of Responses to Written Discovery Requests. When responding to requests for production served pursuant to rule 1.310(b)(5), written deposition questions served pursuant to rule 1.320, interrogatories served pursuant to rule 1.340, requests for production or inspection served pursuant to rule 1.350, requests for production of documents or things without deposition served pursuant to rule 1.351, requests for admissions served pursuant to rule 1.370, or requests for the production of documentary evidence served pursuant to rule 1.410(c), the responding party shall state each deposition question, interrogatory, or discovery request in full as numbered, followed by the answer, objection, or other response.
Committee Notes
1988 Amendment. Subdivision (b)(2) has been added to enable discovery of the existence and contents of indemnity agreements and is the result of the enactment of sections 627.7262 and 627.7264, Florida Statutes, proscribing the joinder of insurers but providing for disclosure. This rule is derived from Federal Rule of Civil Procedure 26(b)(2). Subdivisions (b)(2) and (b)(3) have been redesignated as (b)(3) and (b)(4) respectively.
The purpose of the amendment to subdivision (b)(3)(A) (renumbered (b)(4)(A)) is to allow, without leave of court, the depositions of experts who have been disclosed as expected to be used at trial. The purpose of subdivision (b)(4)(D) is to define the term “expert” as used in these rules.
1996 Amendment. The amendments to subdivision (b)(4)(A) are derived from the Supreme Court’s decision in Elkins v. Syken, 672 So. 2d 517 (Fla. 1996). They are intended to avoid annoyance, embarrassment, and undue expense while still permitting the adverse party to obtain relevant information regarding the potential bias or interest of the expert witness.
Subdivision (b)(5) is added and is derived from Federal Rule of Civil Procedure 26(b)(5) (1993).
2011 Amendment. Subdivision (f) is added to ensure that information obtained during discovery is not filed with the court unless there is good cause for the documents to be filed, and that information obtained during discovery that includes certain private information shall not be filed with the court unless the private information is redacted as required by Florida Rule of Judicial Administration 2.425.
2012 Amendment. Subdivisions (b)(3) and (d) are added to address discovery of electronically stored information.
The parties should consider conferring with one another at the earliest practical opportunity to discuss the reasonable scope of preservation and production of electronically stored information. These issues may also be addressed by means of a rule 1.200 or rule 1.201 case management conference.
Under the good cause test in subdivision (d)(1), the court should balance the costs and burden of the requested discovery, including the potential for disruption of operations or corruption of the electronic devices or systems from which discovery is sought, against the relevance of the information and the requesting party’s need for that information. Under the proportionality and reasonableness factors set out in subdivision (d)(2), the court must limit the frequency or extent of discovery if it determines that the discovery sought is excessive in relation to the factors listed.
In evaluating the good cause or proportionality tests, the court may find its task complicated if the parties know little about what information the sources at issue contain, whether the information sought is relevant, or how valuable it may be to the litigation. If appropriate, the court may direct the parties to develop the record further by engaging in focused discovery, including sampling of the sources, to learn more about what electronically stored information may be contained in those sources, what costs and burdens are involved in retrieving, reviewing, and producing the information, and how valuable the information sought may be to the litigation in light of the availability of information from other sources or methods of discovery, and in light of the parties’ resources and the issues at stake in the litigation.
Court Commentary
RULE 1.285 | INADVERTENT DISCLOSURE OF PRIVILEGED MATERIALS
(b) Duty of the Party Receiving Notice of an Assertion of Privilege. A party receiving notice of an assertion of privilege under subdivision (a) shall promptly return, sequester, or destroy the materials specified in the notice, as well as any copies of the material. The party receiving the notice shall also promptly notify any other party, person, or entity to whom it has disclosed the materials of the fact that the notice has been served and of the effect of this rule. That party shall also take reasonable steps to retrieve the materials disclosed. Nothing herein affects any obligation pursuant to R. Regulating Fla. Bar 4-4.4(b).
(c) Right to Challenge Assertion of Privilege. Any party receiving a notice made under subdivision (a) has the right to challenge the assertion of privilege. The grounds for the challenge may include, but are not limited to, the following:
(2) The disclosing party, person, or entity lacks standing to assert the privilege.
(3) The disclosing party, person, or entity has failed to serve timely notice under this rule.
(4) The circumstances surrounding the production or disclosure of the materials warrant a finding that the disclosing party, person, or entity has waived its assertion that the material is protected by a privilege.
(d) Effect of Determination that Privilege Applies. When an order is entered determining that materials are privileged or that the right to challenge the privilege has been waived, the court shall direct what shall be done with the materials and any copies so as to preserve all rights of appellate review. The recipient of the materials shall also give prompt notice of the court’s determination to any other party, person, or entity to whom it had disclosed the materials.
RULE 1.290 | DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
(2) the subject matter of the expected action and the petitioner’s interest therein,
(3) the facts which the petitioner desires to establish by the proposed testimony and the petitioner’s reasons for desiring to perpetuate it,
(4) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and
(5) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each;
shall ask for an order authorizing the petitioner to take the deposition of the persons to be examined named in the petition for the purpose of perpetuating their testimony.
(2) Notice and Service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court at a time and place named therein for an order described in the petition. At least 20 days before the date of hearing the notice shall be served either within or without the county in the manner provided by law for service of summons, but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make an order for service by publication or otherwise, and shall appoint an attorney for persons not served in the manner provided by law for service of summons who shall represent them, and if they are not otherwise represented, shall cross-examine the deponent.
(3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the deposition shall be taken upon oral examination or written interrogatories. The deposition may then be taken in accordance with these rules and the court may make orders in accordance with the requirements of these rules. For the purpose of applying these rules to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.
(4) Use of Deposition. A deposition taken under this rule may be used in any action involving the same subject matter subsequently brought in any court in accordance with rule 1.330.
(2) the reason for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay in justice, it may make an order allowing the deposition to be taken and may make orders of the character provided for by these rules, and thereupon the deposition may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the court.
Committee Notes
RULE 1.300 | PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN
(b) In Foreign Countries. In a foreign country depositions may be taken
(2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony, or
(3) pursuant to a letter rogatory.
(c) Selection by Stipulation. If the parties so stipulate in writing, depositions may be taken before any person at any time or place upon any notice and in any manner and when so taken may be used like other depositions.
(d) Persons Disqualified. Unless so stipulated by the parties, no deposition shall be taken before a person who is a relative, employee, attorney, or counsel of any of the parties, is a relative or employee of any of the parties’ attorney or counsel, or is financially interested in the action.
RULE 1.310 | DEPOSITIONS UPON ORAL EXAMINATION
(2) if special notice is given as provided in subdivision (b)(2) of this rule.
(b) Notice; Method of Taking; Production at Deposition.
(2) Leave of court is not required for the taking of a deposition by plaintiff if the notice states that the person to be examined is about to go out of the state and will be unavailable for examination unless a deposition is taken before expiration of the 30-day period under subdivision (a). If a party shows that when served with notice under this subdivision that party was unable through the exercise of diligence to obtain counsel to represent the party at the taking of the deposition, the deposition may not be used against that party.
(3) For cause shown the court may enlarge or shorten the time for taking the deposition.
(4) Any deposition may be audiovisually recorded without leave of the court or stipulation of the parties, provided the deposition is taken in accordance with this subdivision.
ii. identify the method for audiovisually recording the deposition and, if applicable, provide the name and address of the operator of the audiovisual recording equipment in the body of the notice.
(C) Procedure. At the beginning of the deposition, the officer before whom it is taken must, on camera:
(ii) state the date, and
(iii) put the witness under oath as provided in subdivision (c)(1).
(E) Cost of Audiovisually Recorded Depositions. The party requesting the audiovisual recording must bear the initial cost of the recording.
(6) In the notice a party may name as the deponent a public or private corporation, a partnership or association, or a governmental agency, and designate with reasonable particularity the matters on which examination is requested. The organization so named must designate one or more officers, directors, or managing agents, or other persons who consent to do so, to testify on its behalf and may state the matters on which each person designated will testify. The persons so designated must testify about matters known or reasonably available to the organization. This subdivision does not preclude taking a deposition by any other procedure authorized in these rules.
(7) A deposition may be taken by communication technology, as that term is defined in Florida Rule of General Practice and Judicial Administration 2.530, if stipulated by the parties or if ordered by the court on its own motion or on motion of a party. The order may prescribe the manner in which the deposition will be taken. In addition to the requirements of subdivision (b)(1), a party intending to take a deposition by communication technology must:
(B) identify the specific form of communication technology to be used and provide instructions for access to the communication technology in the body of the notice.
(2) If requested by a party, the testimony must be transcribed at the initial cost of the requesting party and prompt notice of the request must be given to all other parties. A party who intends to use an audio or audiovisual recording of testimony at a hearing or trial must have the testimony transcribed and must file a copy of the transcript with the court.
(e) Witness Review. If the testimony is transcribed, the transcript must be furnished to the witness for examination and must be read to or by the witness unless the examination and reading are waived by the witness and by the parties. Any changes in form or substance that the witness wants to make must be listed in writing by the officer with a statement of the reasons given by the witness for making the changes. The changes must be attached to the transcript. It must then be signed by the witness unless the parties waived the signing or the witness is ill, cannot be found, or refuses to sign. If the transcript is not signed by the witness within a reasonable time after it is furnished to the witness, the officer must sign the transcript and state on the transcript the waiver, illness, absence of the witness, or refusal to sign with any reasons given therefor. The deposition may then be used as fully as though signed unless the court holds that the reasons given for the refusal to sign require rejection of the deposition wholly or partly, on motion under rule 1.330(d)(4).
(f) Filing; Exhibits.
(2) Upon payment of reasonable charges therefor the officer must furnish a copy of the deposition to any party or to the deponent.
(3) A copy of a deposition may be filed only under the following circumstances:
(B) If the court determines that a deposition previously taken is necessary for the decision of a matter pending before the court, the court may order that a copy be filed by any party at the initial cost of the party, and the filing party must comply with rules 2.425 and 1.280(g).
(h) Failure to Attend or to Serve Subpoena; Expenses.
(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena on the witness and the witness because of the failure does not attend and if another party attends in person or by attorney because that other party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to the other party the reasonable expenses incurred by that other party and that other party’s attorney in attending, including reasonable attorneys’ fees.
Committee Notes
1976 Amendment. Subdivision (b)(4) has been amended to allow the taking of a videotaped deposition as a matter of right. Provisions for the taxation of costs and the entry of a standard order are included as well. This new amendment allows the contemporaneous stenographic transcription of a videotaped deposition.
1988 Amendment. The amendments to subdivision (b)(4) are to provide for depositions by videotape as a matter of right.
The requirement that a stenographer be present (who is also the person likely to be swearing the deponent) is to ensure the availability of a transcript (although not required). The transcript would be a tool to ensure the accuracy of the videotape and thus eliminate the need to establish other procedures aimed at the same objective (like time clocks in the picture and the like). This does not mean that a transcript must be made. As at ordinary depositions, this would be up to the litigants.
Technical videotaping procedures were not included. It is anticipated that technical problems may be addressed by the court on motions to quash or motions for protective orders.
Subdivision (c) has been amended to accommodate the taking of depositions by telephone. The amendment requires the deponent to be sworn by a person authorized to administer oaths in the deponent’s location and who is present with the deponent.
1996 Amendment. Subdivision (c) is amended to state the existing law, which authorizes attorneys to instruct deponents not to answer questions only in specific situations. This amendment is derived from Federal Rule of Civil Procedure 30(d) as amended in 1993.
2010 Amendment. Subdivision (b)(5) is amended to clarify that the procedure set forth in rule 1.351 must be followed when requesting or receiving documents or things without testimony, from nonparties pursuant to a subpoena. The amendment is intended to prevent the use of rules 1.310 and 1.410 to request documents from nonparties pursuant to a subpoena without giving the opposing party the opportunity to object to the subpoena before it is served on the nonparty as required by rule 1.351.
2011 Amendment. A reference to Florida Rule of Judicial Administration 2.425 and rule 1.280(f) is added to require persons filing discovery materials with the court to make sure that good cause exists prior to filing discovery materials and that certain specific personal information is redacted.
Court Commentary
Subdivision (d) is changed to permit any party to terminate the deposition, not just the objecting party.
Subdivision (e) is changed to eliminate the confusing requirement that a transcript be submitted to the witness. The term has been construed as requiring the court reporter to travel, if necessary, to the witness, and creates a problem when a witness is deposed in Florida and thereafter leaves the state before signing. The change is intended to permit the parties and the court reporter to handle such situations on an ad hoc basis as is most appropriate.
Subdivision (f) is the committee’s action in response to the petition seeking amendment to rule 1.310(f) filed in the Supreme Court Case No. 62,699. Subdivision (f) is changed to clarify the need for furnishing copies when a deposition, or part of it, is properly filed, to authorize the court to require a deposition to be both transcribed and filed, and to specify that a party who does not obtain a copy of the deposition may get it from the court reporter unless ordered otherwise by the court. This eliminates the present requirement of furnishing a copy of the deposition, or material part of it, to a person who already has a copy in subdivision (f)(3)(A).
Subdivision (f)(3)(B) broadens the authority of the court to require the filing of a deposition that has been taken, but not transcribed.
Subdivision (g) requires a party to obtain a copy of the deposition from the court reporter unless the court orders otherwise. Generally, the court should not order a party who has a copy of the deposition to furnish it to someone who has neglected to obtain it when the deposition was transcribed. The person should obtain it from the court reporter unless there is a good reason why it cannot be obtained from the reporter.
RULE 1.320 | DEPOSITIONS UPON WRITTEN QUESTIONS
(2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation, a partnership or association, or a governmental agency in accordance with rule 1.310(b)(6).
(b) Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served must be delivered by the party taking the depositions to the officer designated in the notice, who must proceed promptly to take the testimony of the witness in the manner provided by rules 1.310(c), (e), and (f) in response to the questions and to prepare the deposition, attaching the copy of the notice and the questions received by the officer. The questions must not be filed separately from the deposition unless a party seeks to have the court consider the questions before the questions are submitted to the witness. Any deposition may be audiovisually recorded without leave of the court or stipulation of the parties, provided the deposition is taken in accordance with rule 1.310(b)(4).
Committee Notes
RULE 1.330 | USE OF DEPOSITIONS IN COURT PROCEEDINGS
(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a public or private corporation, a partnership or association, or a governmental agency that is a party may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition;
(C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment;
(D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena;
(E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or
(F) the witness is an expert or skilled witness.
(5) Substitution of parties pursuant to rule 1.260 does not affect the right to use depositions previously taken and, when an action in any court of the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken for it.
(6) If a civil action is afterward brought, all depositions lawfully taken in a medical liability mediation proceeding may be used in the civil action as if originally taken for it.
(c) Effect of Taking or Using Depositions. A party does not make a person the party’s own witness for any purpose by taking the person’s deposition. The introduction in evidence of the deposition or any part of it for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition under subdivision (a)(2) of this rule. At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by that party or by any other party.
(d) Effect of Errors and Irregularities.
(2) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
(3) As to Taking of Deposition.
(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind that might be obviated, removed, or cured if promptly presented are waived unless timely objection to them is made at the taking of the deposition.
(C) Objections to the form of written questions submitted under rule 1.320 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within 10 days after service of the last questions authorized.
Committee Notes
1998 Amendment. Subdivision (a)(1) was amended to clarify that, in addition to the uses of depositions prescribed by these rules, depositions may be used for any purpose permitted by the Florida Evidence Code (chapter 90, Fla. Stat.). This amendment is consistent with the 1980 amendment to Rule 32 of the Federal Rules of Civil Procedure.
RULE 1.340 | INTERROGATORIES TO PARTIES
(2) if that party is a public or private corporation or partnership or association or governmental agency, by any officer or agent, who must furnish the information available to that party.
(b) Scope; Use at Trial. Interrogatories may relate to any matters that can be inquired into under rule 1.280(b), and the answers may be used to the extent permitted by the rules of evidence except as otherwise provided in this subdivision. An interrogatory otherwise proper is not objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or calls for a conclusion or asks for information not within the personal knowledge of the party. A party must respond to such an interrogatory by giving the information the party has and the source on which the information is based. Such a qualified answer may not be used as direct evidence for or impeachment against the party giving the answer unless the court finds it otherwise admissible under the rules of evidence. If a party introduces an answer to an interrogatory, any other party may require that party to introduce any other interrogatory and answer that in fairness ought to be considered with it.
(c) Option to Produce Records. When the answer to an interrogatory may be derived or ascertained from the records (including electronically stored information) of the party to whom the interrogatory is directed or from an examination, audit, or inspection of the records or from a compilation, abstract, or summary based on the records and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party to whom it is directed, an answer to the interrogatory specifying the records from which the answer may be derived or ascertained and offering to give the party serving the interrogatory a reasonable opportunity to examine, audit, or inspect the records and to make copies, compilations, abstracts, or summaries is a sufficient answer. An answer must be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party interrogated, the records from which the answer may be derived or ascertained, or must identify a person or persons representing the interrogated party who will be available to assist the interrogating party in locating and identifying the records at the time they are produced. If the records to be produced consist of electronically stored information, the records must be produced in a form or forms in which they are ordinarily maintained or in a reasonably usable form or forms.
(d) Effect on Co-Party. Answers made by a party shall not be binding on a co-party.
(e) Service and Filing. Interrogatories must be served on the party to whom the interrogatories are directed and copies must be served on all other parties. A certificate of service of the interrogatories must be filed, giving the date of service and the name of the party to whom they were directed. The answers to the interrogatories must be served on the party originally propounding the interrogatories and a copy must be served on all other parties by the answering party. The original or any copy of the answers to interrogatories may be filed in compliance with Florida Rule of General Practice Judicial Administration 2.425 and rule 1.280(g) by any party when the court should consider the answers to interrogatories in determining any matter pending before the court. The court may order a copy of the answers to interrogatories filed at any time when the court determines that examination of the answers to interrogatories is necessary to determine any matter pending before the court.
Committee Notes
1988 Amendment. The word “initial” in the 1984 amendment to subdivision (a) resulted in some confusion, so it has been deleted. Also the total number of interrogatories which may be propounded without leave of court is enlarged to 30 from 25. Form interrogatories which have been approved by the supreme court must be used; and those so used, with their subparts, are included in the total number permitted. The amendments are not intended to change any other requirement of the rule.
2011 Amendment. A reference to Florida Rule of General Practice and Judicial Administration 2.425 and rule 1.280(f) is added to require persons filing discovery materials with the court to make sure that good cause exists prior to filing discovery materials and that certain specific personal information is redacted.
2012 Amendments. Subdivision (c) is amended to provide for the production of electronically stored information in answer to interrogatories and to set out a procedure for determining the form in which to produce electronically stored information.
Court Commentary
Subdivision (c) is amended to add the requirement of detail in identifying records when they are produced as an alternative to answering the interrogatory or to designate the persons who will locate the records.
Subdivision (e) is changed to eliminate the requirement of serving an original and a copy of the interrogatories and of the answers in light of the 1981 amendment that no longer permits filing except in special circumstances.
Subdivision (f) is deleted since the Medical Liability Mediation Proceedings have been eliminated.
RULE 1.350 | PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES
(2) to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of rule 1.280(b) and that are in the possession, custody, or control of the party to whom the request is directed; or
(3) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation on it within the scope of rule 1.280(b).
(c) Persons Not Parties. This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land.
(d) Filing of Documents. Unless required by the court, a party shall not file any of the documents or things produced with the response. Documents or things may be filed in compliance with Florida Rule of General Practice and Judicial Administration 2.425 and rule 1.280(g) when they should be considered by the court in determining a matter pending before the court.
Committee Notes
1980 Amendment. Subdivision (b) is amended to require production of documents as they are kept in the usual course of business or in accordance with the categories in the request.
2011 Amendment. A reference to Florida Rule of Judicial Administration 2.425 and rule 1.280(f) is added to require persons filing discovery materials with the court to make sure that good cause exists prior to filing discovery materials and that certain specific personal information is redacted.
2012 Amendment. Subdivision (a) is amended to address the production of electronically stored information. Subdivision (b) is amended to set out a procedure for determining the form to be used in producing electronically stored information.
RULE 1.351 | PRODUCTION OF DOCUMENTS AND THINGS WITHOUT DEPOSITION
(b) Procedure. A party desiring production under this rule may not cause a subpoena to be issued until 10 days after notice by delivery or e-mail service (15 days after notice by mail service) on every other party of the intent to serve a subpoena. If the notice is served with original process, the subpoena shall not issue earlier than 45 days after service on the last-served party. The proposed subpoena shall be attached to the notice and shall state the time, place, and method for production of the documents or things, and the name and address of the person who is to produce the documents or things, if known, and if not known, a general description sufficient to identify the person or the particular class or group to which the person belongs; shall include a designation of the items to be produced; and shall state that the person who will be asked to produce the documents or things has the right to object to the production under this rule and that the person will not be required to surrender the documents or things. A copy of the notice and proposed subpoena shall not be furnished to the person upon whom the subpoena is to be served. If any party serves an objection to production under this rule within 10 days of service by delivery or e-mail of the notice, (15 days if service by U.S. mail), or within 45 days of service of process if the notice is served with original process, the documents or things shall not be produced pending resolution of the objection in accordance with subdivision (d).
(c) Subpoena. If no objection is made by a party under subdivision (b), an attorney of record in the action may issue a subpoena or the party desiring production shall deliver to the clerk for issuance a subpoena together with a certificate of counsel or pro se party that no timely objection has been received from any party, and the clerk shall issue the subpoena and deliver it to the party desiring production. Service within the state of Florida of a nonparty subpoena shall be deemed sufficient if it complies with rule 1.410(d) or if
(2) written confirmation of delivery, with the date of service and the name and signature of the person accepting the subpoena, is obtained and filed by the party seeking production.
(d) Ruling on Objection. If an objection is made by a party under subdivision (b), the party desiring production may file a motion with the court seeking a ruling on the objection or may proceed pursuant to rule 1.310.
(e) Copies Furnished. If the subpoena is complied with by delivery or mailing of copies as provided in subdivision (c), the party receiving the copies shall furnish a legible copy of each item furnished to any other party who requests it upon the payment of the reasonable cost of preparing the copies.
(f) Independent Action. This rule does not affect the right of any party to bring an independent action for production of documents and things or permission to enter upon land.
Committee Notes
1996 Amendment. This rule was amended to avoid premature production of documents by nonparties, to clarify the clerk’s role in the process, and to further clarify that any objection to the use of this rule does not contemplate a hearing before the court but directs the party to rule 1.310 to obtain the desired production. This amendment is not intended to preclude all communication between parties and nonparties. It is intended only to prohibit a party from prematurely sending to a nonparty a copy of the required notice or the proposed subpoena. This rule was also amended along with rule 1.410 to allow attorneys to issue subpoenas. See Committee Note for rule 1.410.
2007 Amendment. Subdivisions (b) and (d) were amended to permit a party seeking nonparty discovery to have other parties’ objections resolved by the court.
2010 Amendment. Subdivision (a) is amended to clarify that the procedure set forth in rule 1.351, not rule 1.310, shall be followed when requesting or receiving documents or things, without testimony, from nonparties pursuant to a subpoena.
2012 Amendment. Subdivision (b) is amended to include email service as provided in Fla. R. Jud. Admin. 2.516.
RULE 1.360 | EXAMINATION OF PERSONS
(B) In cases where the condition in controversy is not physical, a party may move for an examination by a qualified expert as in subdivision (a)(1). The order for examination shall be made only after notice to the person to be examined and to all parties, and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
(C) Any minor required to submit to examination pursuant to this rule shall have the right to be accompanied by a parent or guardian at all times during the examination, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the minor’s examination.
(3) Upon request of either the party requesting the examination or the party or person to be examined, the court may establish protective rules governing such examination.
(2) By requesting and obtaining a report of the examination so ordered or requested or by taking the deposition of the examiner, the party examined waives any privilege that party may have in that action or any other involving the same controversy regarding the testimony of every other person who has examined or may thereafter examine that party concerning the same condition.
(3) This subdivision applies to examinations made by agreement of the parties unless the agreement provides otherwise. This subdivision does not preclude discovery of a report of an examiner or taking the deposition of the examiner in accordance with any other rule.
Committee Notes
1988 Amendment. This amendment to subdivision (a) is intended to broaden the scope of rule 1.360 to accommodate the examination of a person by experts other than physicians.
RULE 1.370 | REQUESTS FOR ADMISSION
(b) Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to rule 1.200 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining an action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against that party in any other proceeding.
Committee Notes
2003 Amendment. The total number of requests for admission that may be served without leave of court is limited to 30, including all subparts.
RULE 1.380 | FAILURE TO MAKE DISCOVERY; SANCTIONS
(2) Motion. If a deponent fails to answer a question propounded or submitted under rule 1.310 or 1.320, or a corporation or other entity fails to make a designation under rule 1.310(b)(6) or 1.320(a), or a party fails to answer an interrogatory submitted under rule 1.340, or if a party in response to a request for inspection submitted under rule 1.350 fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, or if a party in response to a request for examination of a person submitted under rule 1.360(a) objects to the examination, fails to respond that the examination will be permitted as requested, or fails to submit to or to produce a person in that party’s custody or legal control for examination, the discovering party may move for an order compelling an answer, or a designation or an order compelling inspection, or an order compelling an examination in accordance with the request. The motion must include a certification that the movant, in good faith, has conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to rule 1.280(c).
(3) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer shall be treated as a failure to answer.
(4) Award of Expenses of Motion. If the motion is granted and after opportunity for hearing, the court shall require the party or deponent whose conduct necessitated the motion or the party or counsel advising the conduct to pay to the moving party the reasonable expenses incurred in obtaining the order that may include attorneys’ fees, unless the court finds that the movant failed to certify in the motion that a good faith effort was made to obtain the discovery without court action, that the opposition to the motion was substantially justified, or that other circumstances make an award of expenses unjust. If the motion is denied and after opportunity for hearing, the court shall require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion that may include attorneys’ fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred as a result of making the motion among the parties and persons.
(2) If a party or an officer, director, or managing agent of a party or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or rule 1.360, the court in which the action is pending may make any of the following orders:
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence.
(C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party.
(D) Instead of any of the foregoing orders or in addition to them, an order treating as a contempt of court the failure to obey any orders except an order to submit to an examination made pursuant to rule 1.360(a)(1)(B) or subdivision (a)(2) of this rule.
(E) When a party has failed to comply with an order under rule 1.360(a)(1)(B) requiring that party to produce another for examination, the orders listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows the inability to produce the person for examination.
(2) the admission sought was of no substantial importance, or
(3) there was other good reason for the failure to admit.
(2) to serve answers or objections to interrogatories submitted under rule 1.340 after proper service of the interrogatories, or
(3) to serve a written response to a request for inspection submitted under rule 1.350 after proper service of the request, the court in which the action is pending may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule.
(e) Failure to Preserve Electronically Stored Information; Sanctions for Failure to Preserve. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Committee Notes
2003 Amendment. Subdivision (c) is amended to require a court to make a ruling on a request for reimbursement at the time of the hearing on the requesting party’s motion for entitlement to such relief. The court may, in its discretion, defer ruling on the amount of the costs or fees in order to hold an evidentiary hearing whenever convenient to the court and counsel.
2005 Amendment. Following the example of Federal Rule of Civil Procedure 37 as amended in 1993, language is included in subdivision (a)(2) that requires litigants to seek to resolve discovery disputes by informal means before filing a motion with the court. This requirement is based on successful experience with the federal rule as well as similar local rules of state trial courts. Subdivision (a)(4) is revised to provide that a party should not be awarded its expenses for filing a motion that might have been avoided by conferring with opposing counsel. Subdivision (d) is revised to require that, where a party failed to file any response to a rule 1.340 interrogatory or a rule 1.350 request, the discovering party should attempt to obtain such responses before filing a motion for sanctions.
2012 Amendment. Subdivision (e) is added to make clear that a party should not be sanctioned for the loss of electronic evidence due to the good-faith operation of an electronic information system; the language mirrors that of Federal Rule of Civil Procedure 37(e). Nevertheless, the good-faith requirement contained in subdivision (e) should prevent a party from exploiting the routine operation of an information system to thwart discovery obligations by allowing that operation to destroy information that party is required to preserve or produce. In determining good faith, the court may consider any steps taken by the party to comply with court orders, party agreements, or requests to preserve such information.
2013 Amendment. This rule was amended to add “substantially” before “justified” in subdivisions (a)(4), (b)(2), and (d), to make the rule internally consistent and to make it more consistent with Federal Rule of Civil Procedure 37, from which it was derived.
2019 Amendment. Subdivision (e) of this rule was amended to make it consistent with Federal Rule of Civil Procedure 37(e).
RULE 1.390 | DEPOSITIONS OF EXPERT WITNESSES
(b) Procedure. The testimony of an expert or skilled witness may be taken at any time before the trial in accordance with the rules for taking depositions and may be used at trial, regardless of the place of residence of the witness or whether the witness is within the distance prescribed by rule 1.330(a)(3). No special form of notice need be given that the deposition will be used for trial.
(c) Fee. An expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine. The court shall also determine a reasonable time within which payment must be made, if the deponent and party cannot agree. All parties and the deponent shall be served with notice of any hearing to determine the fee. Any reasonable fee paid to an expert or skilled witness may be taxed as costs.
(d) Applicability. Nothing in this rule shall prevent the taking of any deposition as otherwise provided by law.
Committee Notes
1988 Amendment. Subdivision (c) has been amended to clarify the procedure to be used in paying an expert witness for his or her appearance at a deposition.
RULE 1.410 | SUBPOENA
(b) Subpoena for Testimony before the Court.
(2) On oral request of an attorney or party and without praecipe, the clerk must issue a subpoena for testimony before the court or a subpoena for the production of documentary evidence before the court signed and sealed but otherwise in blank, both as to the title of the action and the name of the person to whom it is directed, and the subpoena must be filled in before service by the attorney or party.
(2) condition denial of the motion on the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, documents, or tangible things.
(d) Service. A subpoena may be served by any person authorized by law to serve process or by any other person who is not a party and who is not less than 18 years of age. Service of a subpoena on a person named within must be made as provided by law. Proof of such service must be made by affidavit of the person making service except as applicable under rule 1.351(c) for the production of documents and things by a nonparty without deposition, if not served by an officer authorized by law to do so.
(e) Subpoena for Taking Depositions.
(2) A person may be required to attend an examination only in the county wherein the person resides or is employed or transacts business in person or at such other convenient place as may be fixed by an order of court.
(g) Depositions before Commissioners Appointed in this State by Courts of Other States; Subpoena Powers; etc. When any person authorized by the laws of Florida to administer oaths is appointed by a court of record of any other state, jurisdiction, or government as commissioner to take the testimony of any named witness within this state, that witness may be compelled to attend and testify before that commissioner by witness subpoena issued by the clerk of any circuit court at the instance of that commissioner or by other process or proceedings in the same manner as if that commissioner had been appointed by a court of this state; provided that no document shall be compulsorily annexed as an exhibit to such deposition or otherwise permanently removed from the possession of the witness producing it, but in lieu thereof a photostatic copy may be annexed to and transmitted with such executed commission to the court of issuance.
(h) Subpoena of Minor. Any minor subpoenaed for testimony has the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except on a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor’s testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor.
Committee Notes
1980 Amendment. Subdivision (c) is revised to conform with section 48.031, Florida Statutes (1979).
1996 Amendment. This rule is amended to allow an attorney (as referred to in Fla. R. Jud. Admin. 2.060(a)B(b)), as an officer of the court, and the clerk to issue subpoenas in the name of the court. This amendment is not intended to change any other requirement or precedent for the issuance or use of subpoenas. For example, a notice of taking the deposition must be filed and served before a subpoena for deposition may be issued.
2012 Amendment. Subdivision (c) is amended to reflect the relocation of the service rule from rule 1.080 to Fla. R. Jud. Admin. 2.516.
2012 Amendment. Subdivision (c) is amended to address the production of electronically stored information pursuant to a subpoena. The procedures for dealing with disputes concerning the accessibility of the information sought or the form for its production are intended to correspond to those set out in Rule 1.280(d).
RULE 1.420 | DISMISSAL OF ACTIONS
(B) by filing a stipulation of dismissal signed by all current parties to the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.
(c) Dismissal of Counterclaim, Crossclaim, or Third-Party Claim. The provisions of this rule apply to the dismissal of any counterclaim, crossclaim, or third-party claim.
(d) Costs. Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action, once the action is concluded as to the party seeking taxation of costs. When one or more other claims remain pending following dismissal of any claim under this rule, taxable costs attributable solely to the dismissed claim may be assessed and judgment for costs in that claim entered in the action, but only when all claims are resolved at the trial court level as to the party seeking taxation of costs. If a party who has once dismissed a claim in any court of this state commences an action based upon or including the same claim against the same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.
(e) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.
(f) Effect on Lis Pendens. If a notice of lis pendens has been filed in connection with a claim for affirmative relief that is dismissed under this rule, the notice of lis pendens connected with the dismissed claim is automatically dissolved at the same time. The notice, stipulation, or order shall be recorded.
Committee Notes
1980 Amendment. Subdivision (e) has been amended to except from the requirement of record activity a stay that is ordered or approved by the court.
1992 Amendment. Subdivision (f) is amended to provide for automatic dissolution of lis pendens on claims that are settled even though the entire action may not have been dismissed.
2005 Amendment. Subdivision (e) has been amended to provide that an action may not be dismissed for lack of prosecution without prior notice to the claimant and adequate opportunity for the claimant to re-commence prosecution of the action to avert dismissal.
Court Commentary
RULE 1.430 | DEMAND FOR JURY TRIAL; WAIVER
(b) Demand. 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. The demand may be indorsed upon a pleading of the party.
(c) Specification of Issues. 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.
(d) Juror Participation Through Audio-Video Communication Technology. Prospective jurors may participate in voir dire or empaneled jurors may participate in the jury trial through audio-video communication technology, as described in Florida Rule of General Practice and Judicial Administration 2.530(c), if stipulated by the parties in writing and authorized by the court. The written stipulation and a written motion requesting authorization must be filed with the court within 60 days after service of a demand under subdivision (b) or within such other period as may be directed by the court.
(e) Waiver. A party who fails to serve a demand as required by this rule waives trial by jury. If waived, a jury trial may not be granted without the consent of the parties, but the court may allow an amendment in the proceedings to demand a trial by jury or order a trial by jury on its own motion. A demand for trial by jury may not be withdrawn without the consent of the parties.
Committee Notes
RULE 1.431 | TRIAL JURY
(2) To assist in voir dire examination at trial, any court may direct the clerk to furnish prospective jurors selected for service with a questionnaire in the form approved by the supreme court from time to time. The prospective jurors must be asked to complete and return the forms. Completed forms may be inspected in the clerk’s office and copies must be available in court during the voir dire examination for use by parties and the court.
(c) Challenge for Cause.
(ii) the attorney of any party, or
(iii) any other person or entity against whom liability or blame is alleged in the pleadings, or is related to any person alleged to have been wronged or injured by the commission of the wrong for the trial of which the juror is called, or has any interest in the action, or has formed or expressed any opinion, or is sensible of any bias or prejudice concerning it, or is an employee or has been an employee of any party or any other person or entity against whom liability or blame is alleged in the pleadings, within 30 days before the trial.
(2) The fact that any person selected for jury duty from bystanders or the body of the county and not from a jury list lawfully selected has served as a juror in the court in which that person is called at any other time within 1 year is a ground of challenge for cause.
(3) When the nature of any civil action requires a knowledge of reading, writing, and arithmetic, or any of them, to enable a juror to understand the evidence to be offered, the fact that any prospective juror does not possess the qualifications is a ground of challenge for cause.
(e) Exercise of Challenges. All challenges must be addressed to the court outside the hearing of the jury in a manner selected by the court so that the jury panel is not aware of the nature of the challenge, the party making the challenge, or the basis of the court’s ruling on the challenge, if for cause.
(f) Swearing of Jurors. No one shall be sworn as a juror until the jury has been accepted by the parties or until all challenges have been exhausted.
(g) Alternate Jurors.
(2) If alternate jurors are called, each party is entitled to one peremptory challenge in the selection of the alternate juror or jurors, but when the number of parties on opposite sides is unequal, the opposing parties are entitled to the same aggregate number of peremptory challenges to be determined on the basis of 1 peremptory challenge to each party on the side with the greater number of parties. The additional peremptory challenges allowed pursuant to this subdivision may be used only against the alternate jurors. The peremptory challenges allowed pursuant to subdivision (d) of this rule must not be used against the alternate jurors.
(i) Communication with the Jury. This rule governs all communication between the judge or courtroom personnel and jurors.
(2) Exception for Certain Routine Communication. The court must, by pretrial order or by statement on the record with opportunity for objection, set forth the scope of routine ex parte communication to be permitted and the limits imposed by the court with regard to such communication.
(B) In no event shall ex parte communication between courtroom personnel and jurors extend to matters that may affect the outcome of the trial, including statements containing any fact or opinion concerning a party, attorney, or procedural matter or relating to any legal issue or lawsuit.
(4) Notification of Jury Communication. Courtroom personnel must immediately notify the court of any communication to or from a juror or among jurors in contravention of the court’s orders or instructions, including all communication contrary to the requirements of this rule.
Committee Notes
1976 Amendment. Subdivision (e) has been added to establish a procedure for challenging jurors without members of the panel knowing the source of the challenge, to avoid prejudice. Subdivision (f) is a renumbering of the previously enacted rule regarding alternate jurors. Subdivision (g) has been added to establish a procedure for interviewing jurors. See also Canons of Professional Responsibility DR 7 108.
1988 Amendment. Subdivision (f) has been added to ensure the right to “back-strike” prospective jurors until the entire panel has been accepted in civil cases. This right to back-strike until the jurors have been sworn has been long recognized in Florida. Florida Rock Industries, Inc. v. United Building Systems, Inc., 408 So. 2d 630 (Fla. 5th DCA 1982). However, in the recent case of Valdes v. State, 443 So. 2d 223 (Fla. 1st DCA 1984), the court held that it was not error for a court to swear jurors one at a time as they were accepted and thereby prevent retrospective peremptory challenges. The purpose of this subdivision is to prevent the use of individual swearing of jurors in civil cases. Former subdivisions (f) and (g)have been redesignated as (g) and (h) respectively.
1992 Amendment. Subdivision (g)(2) is amended to minimize the inequity in numbers of peremptory challenges allowed in selecting alternate jurors in actions with multiple parties.
2005 Amendment. Subdivision (c)(1) is amended to ensure that prospective jurors may be challenged for cause based on bias in favor of or against nonparties against whom liability or blame may be alleged in accordance with the decisions in Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), or Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262 (Fla. 1996).
2013 Amendment. Subdivision (i) governs the responsibility of the court for ensuring that parties and their counsel are aware of all contact with the jury that could affect the outcome of the case. Trial judges may have differing views on what constitutes harmless or routine ex parte communication with jurors. Reasonable variations are therefore permitted, provided the judge adequately advises counsel, before the trial begins, of the specific circumstances under which the court has determined that jury communications will not be reported to the parties. The rule does not prevent the bailiff or other courtroom personnel from discussing such routine matters as juror parking, location of break areas, how and when to assemble for duty, dress, and which items of a juror’s personal property may be brought into the courthouse or jury room. However, for example, questions or remarks from a juror about such matters as the length of a witness’s testimony, when court will adjourn on a given day, or how long the trial may take to complete should be reported to the judge, as these matters may be of interest to the parties. Any doubt as to whether a communication may or may not be of interest to the parties should be resolved in favor of promptly informing the court, the parties, and counsel, even if it is after the fact. This will best ensure that the parties have the opportunity to object to any improper communication and give the court an opportunity to cure any prejudice, if an objection is made.
RULE 1.440 | SETTING ACTION FOR TRIAL
(b) Notice for Trial. Thereafter any party may file and serve a notice that the action is at issue and ready to be set for trial. The notice must include an estimate of the time required, indicate whether the trial is to be by a jury or not and whether the trial is on the original action or a subsequent proceeding, and, if applicable, indicate that the court has authorized the participation of prospective jurors or empaneled jurors through audio-video communication technology under rule 1.430(d). The clerk must then submit the notice and the case file to the court.
(c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than 30 days from the service of the notice for trial. By giving the same notice the court may set an action for trial. In actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with Florida Rule of General Practice and Judicial Administration 2.516.
(d) Applicability. This rule does not apply to actions to which chapter 51, Florida Statutes (1967), applies or to cases designated as complex pursuant to rule 1.201.
Committee Notes
1980 Amendment. Subdivision (b) is amended to specify whether the trial will be on the original pleadings or subsequent pleadings under rule 1.110(h).
1988 Amendment. Subdivision (c) was amended to clarify a confusion regarding the notice for trial which resulted from a 1968 amendment.
2012 Amendment. Subdivision (c) is amended to reflect the relocation of the service rule from rule 1.080 to Fla. R. Jud. Admin. 2.516.
Court Commentary
Subdivision (c) is amended to delete the reference to law actions so that the rule will apply to all actions in which unliquidated damages are sought.
RULE 1.442 | PROPOSALS FOR SETTLEMENT
(b) Service of Proposal. A proposal to a defendant shall be served no earlier than 90 days after service of process on that defendant; a proposal to a plaintiff shall be served no earlier than 90 days after the action has been commenced. No proposal shall be served later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier.
(c) Form and Content of Proposal for Settlement.
(2) A proposal shall:
(B) state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served, subject to subdivision (F);
(C) exclude nonmonetary terms, with the exceptions of a voluntary dismissal of all claims with prejudice and any other nonmonetary terms permitted by statute;
(D) state the total amount of the proposal;
(E) state with particularity the amount proposed to settle a claim for punitive damages, if any;
(F) state whether the proposal includes attorneys’ fees and whether attorneys’ fee are part of the legal claim; and
(G) include a certificate of service in the form required by Florida Rule of General Practice and Judicial Administration 2.516.
(4) Notwithstanding subdivision (c)(3), when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract, a joint proposal made by or served on such a party need not state the apportionment or contribution as to that party. Acceptance by any party shall be without prejudice to rights of contribution or indemnity.
(e) Withdrawal. A proposal may be withdrawn in writing provided the written withdrawal is delivered before a written acceptance is delivered. Once withdrawn, a proposal is void.
(f) Acceptance and Rejection.
(2) In any case in which the existence of a class is alleged, the time for acceptance of a proposal for settlement is extended to 30 days after the date the order granting or denying certification is filed.
(h) Costs and Fees.
(2) When determining the reasonableness of the amount of an award of attorneys’ fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following factors:
(B) The number and nature of proposals made by the parties.
(C) The closeness of questions of fact and law at issue.
(D) Whether the party making the proposal had unreasonably refused to furnish information necessary to evaluate the reasonableness of the proposal.
(E) Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties.
(F) The amount of the additional delay cost and expense that the party making the proposal reasonably would be expected to incur if the litigation were to be prolonged.
(j) Effect of Mediation. Mediation shall have no effect on the dates during which parties are permitted to make or accept a proposal for settlement under the terms of the rule.
Committee Notes
2000 Amendment. Subdivision (f)(2) was added to establish the time for acceptance of proposals for settlement in class actions. “Filing” is defined in rule 1.080(e). Subdivision (g) is amended to conform with new rule 1.525.
2012 Amendment. Subdivision (c)(2)(G) is amended to reflect the relocation of the service rule from rule 1.080 to Fla. R. Jud. Admin. 2.516.
2013 Amendment. Subdivision (f)(1) was amended to reflect the relocation of the rule regarding additional time after service by mail or e-mail from rule 1.090(e) to Fla. R. Jud. Admin. 2.514(b).
2013 Amendment. Subdivision (c)(2)(B) is amended to clarify that a proposal for settlement must resolve all claims between the proponent and the party to whom the proposal is made except claims for attorneys’ fees, which may or may not be resolved in the proposal.
RULE 1.450 | EVIDENCE
(b) Filing. When documentary evidence is introduced in an action, the clerk or the judge shall endorse an identifying number or symbol on it and when proffered or admitted in evidence, it shall be filed by the clerk or judge and considered in the custody of the court and not withdrawn except with written leave of court.
Committee Notes
1996 Amendment. Former subdivision (a) entitled “Adverse Witness” is deleted because it is no longer needed or appropriate because the matters with which it deals are treated in the Florida Evidence Code.
Court Commentary
Subdivision (e): This rule was originally promulgated by the supreme court in Carter v. Sparkman, 335 So. 2d 802, 806 (Fla. 1976).
In The Florida Bar, in re Rules of Civil Procedure, 391 So. 2d 165 (Fla. 1980), the court requested the committee to consider the continued appropriateness of rule 1.450(e). In response, the committee recommended its deletion. After oral argument in The Florida Bar: In re Rules of Civil Procedure, 429 So. 2d 311, the court specifically declined to abolish the rule or to adopt a similar rule for other types of actions.
The committee again considered rule 1.450(e) in depth and at length and again recommends its deletion for the reason that no exception should be made in the rule to a particular type of action.
Subdivision (f): The West’s Desk Copy Florida Rules of Court, at page 62, points out:
“The per curiam opinion of the Florida Supreme Court of June 21, 1979 (403 So.2d 926) provides:The retention of court records is the subject of Florida Rule of Civil Procedure 2.075.‘On March 8, 1979, the Court proposed new Rule 1.450 of the Florida Rules of Civil Procedure which would provide for the disposal of exhibits and depositions in civil matters. Absent further action by the Court, the proposed rule was to become effective July 2, 1979. The Court has carefully considered the responses received regarding proposed Rule 1.450(f) and now feels that the July 2, 1979, effective date does not allow sufficient time for full reflection on matters raised in these responses. Therefore, the effective date for Rule 1.450(f) is, by this order, delayed until further order of the Court.’”
RULE 1.452 | QUESTIONS BY JURORS
(b) Procedure. Any juror who has a question directed to the witness or the court shall prepare an unsigned, written question and give the question to the bailiff, who will give the question to the judge.
(c) Objections. Out of the presence of the jury, the judge will read the question to all counsel, allow counsel to see the written question, and give counsel an opportunity to object to the question.
RULE 1.453 | JURY REQUEST TO REVIEW TESTIMONY
(b) Request for Transcripts. If any juror requests to have a transcript of trial testimony, the court must inform the jury that transcripts are not available but that they can request a readback or playback of testimony, which request may or may not be granted at the court’s discretion. If a juror makes only a general request for transcripts, as opposed to identifying any particular witness’s testimony that they wish to review, the court must also instruct the jury that, if they request a readback or playback, they must specify the particular trial testimony they wish to have read or played back. If, after being properly instructed in accordance with this subdivision, the jury requests a readback or playback of any trial testimony, the court must follow the procedures set forth in subdivision (a).
RULE 1.455 | JUROR NOTEBOOKS
RULE 1.460 | CONTINUANCES
Committee Notes
1988 Amendment. The supreme court, by adopting Florida Rule of Civil Procedure 2.085(c), effective July 1, 1986, required all motions for continuance to be signed by the litigant requesting the continuance. The amendment conforms rule 1.460 to rule 2.085(c); but, by including an exception for good cause, it recognizes that circumstances justifying a continuance may excuse the signature of the party.
RULE 1.470 | EXCEPTIONS UNNECESSARY; JURY INSTRUCTIONS
(b) Instructions to Jury. The Florida Standard Jury Instructions appearing on The Florida Bar’s website may be used, as provided in Florida Rule of General Practice and Judicial Administration 2.580, by the trial judges in instructing the jury in civil actions. Not later than at the close of the evidence, the parties shall file written requests that the court instruct the jury on the law set forth in such requests. The court shall then require counsel to appear before it to settle the instructions to be given. At such conference, all objections shall be made and ruled upon and the court shall inform counsel of such instructions as it will give. No party may assign as error the giving of any instruction unless that party objects thereto at such time, or the failure to give any instruction unless that party requested the same. The court shall orally instruct the jury before or after the arguments of counsel and may provide appropriate instructions during the trial. If the instructions are given prior to final argument, the presiding judge shall give the jury final procedural instructions after final arguments are concluded and prior to deliberations. The court shall provide each juror with a written set of the instructions for his or her use in deliberations. The court shall file a copy of such instructions.
(c) Orders on New Trial, Directed Verdicts, etc. It shall not be necessary to object or except to any order granting or denying motions for new trials, directed verdicts, or judgments non obstante veredicto or in arrest of judgment to entitle the party against whom such ruling is made to have the same reviewed by an appellate court.
Committee Notes
2010 Amendment. Portions of form 1.985 were modified and moved to subdivision (b) of rule 1.470 to require the court to use published standard instructions where applicable and necessary, to permit the judge to vary from the published standard jury instructions, and notes only when necessary to accurately and sufficiently instruct the jury, and to require the parties to object to preserve error in variance from published standard jury instructions and notes.
2014 Amendment. Florida Standard Jury Instructions include the Florida Standard Jury Instructions—Contract and Business Cases.
RULE 1.480 | MOTION FOR A DIRECTED VERDICT
(b) Reservation of Decision on Motion. When a motion for a directed verdict is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 15 days after the return of a verdict, a party who has timely moved for a directed verdict may serve a motion to set aside the verdict and any judgment entered thereon and to enter judgment in accordance with the motion for a directed verdict. If a verdict was not returned, a party who has timely moved for a directed verdict may serve a motion for judgment in accordance with the motion for a directed verdict within 15 days after discharge of the jury.
(c) Joined with Motion for New Trial. A motion for a new trial may be joined with this motion or a new trial may be requested in the alternative. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.
Committee Notes
2010 Amendment. Subdivision (b) is amended to conform to 2006 changes to Federal Rule of Civil Procedure 50(b) eliminating the requirement for renewing at the close of all the evidence a motion for directed verdict already made at the close of an adverse party’s evidence.
2013 Amendment. Subdivision (b) is amended to change the time for service of a motion from 10 to 15 days after the specified event.
RULE 1.481 | VERDICTS
RULE 1.490 | MAGISTRATES
(b) Special Magistrates. The court may appoint members of The Florida Bar as special magistrates for any particular service required by the court, and they shall be governed by all the provisions of law and rules relating to magistrates except they shall not be required to make oath or give bond unless specifically required by the order appointing them. Upon a showing that the appointment is advisable, a person other than a member of the Bar may be appointed.
(c) Reference. No reference shall be to a magistrate, either general or special, without the consent of the parties. When a reference is made to a magistrate, either party may set the action for hearing before the magistrate.
(d) General Powers and Duties. Every magistrate shall perform all of the duties that pertain to the office according to the practice in chancery and under the direction of the court. Process issued by a magistrate shall be directed as provided by law. Hearings before any magistrate, examiner, or commissioner shall be held in the county where the action is pending, but hearings may be held at any place by order of the court within or without the state to meet the convenience of the witnesses or the parties. All grounds of disqualification of a judge shall apply to magistrates. Magistrates shall not practice law of the same case type in the court or circuit the magistrate is appointed to serve.
(e) Bond. When not otherwise provided by law, the court may require magistrates who are appointed to dispose of real or personal property to give bond and surety conditioned for the proper payment of all moneys that may come into their hands and for the due performance of their duties as the court may direct. The bond shall be made payable to the State of Florida and shall be for the benefit of all persons aggrieved by any act of the magistrate.
(f) Notice of Hearings. The magistrate shall assign a time and place for proceedings as soon as reasonably possible after the reference is made and give notice to each of the parties. The notice or order setting a matter for hearing before the magistrate must state if electronic recording or a court reporter will be used to create a record of the proceedings. If electronic recording is to be used, the notice must state that any party may have a court reporter transcribe the record of the proceedings at that party’s expense. If any party fails to appear, the magistrate may proceed ex parte or may adjourn the proceeding to a future day, giving notice to the absent party of the adjournment.
(g) Hearings. The magistrate shall proceed with reasonable diligence in every reference and with the least practicable delay. Any party may apply to the court for an order to the magistrate to speed the proceedings and to make the report and to certify to the court the reason for any delay. The evidence shall be taken by the magistrate or by some other person under the magistrate’s authority in the magistrate’s presence and shall be filed with the magistrate’s report. The magistrate shall have authority to examine on oath the parties and all witnesses produced by the parties on all matters contained in the reference and to require production of all books, papers, writings, vouchers, and other documents applicable to the referenced matters. The magistrate shall admit evidence by deposition or that is otherwise admissible in court. The magistrate may take all actions concerning evidence that can be taken by the court and in the same manner. All parties accounting before a magistrate shall bring in their accounts in the form of accounts payable and receivable, and any other parties who are not satisfied with the account may examine the accounting party orally or by interrogatories or deposition as the magistrate directs. All depositions and documents that have been taken or used previously in the action may be used before the magistrate.
(h) Magistrate’s Report. The magistrate must file the report on the referenced matters and served copies on all parties, and include the name and address of any court reporter who transcribed the proceedings. The magistrate’s report must contain the following language in bold type:
IF YOU WISH TO SEEK REVIEW OF THE REPORT AND RECOMMENDATIONS MADE BY THE MAGISTRATE, YOU MUST FILE EXCEPTIONS IN ACCORDANCE WITH FLORIDA RULE OF CIVIL PROCEDURE 1.490(i). YOU WILL BE REQUIRED TO PROVIDE THE COURT WITH A RECORD SUFFICIENT TO SUPPORT YOUR EXCEPTIONS OR YOUR EXCEPTIONS WILL BE DENIED. A RECORD ORDINARILY INCLUDES A WRITTEN TRANSCRIPT OF ALL RELEVANT PROCEEDINGS. THE PERSON SEEKING REVIEW MUST HAVE THE TRANSCRIPT PREPARED IF NECESSARY FOR THE COURT’S REVIEW.(i) Filing Report; Notice; Exceptions. The parties may file exceptions to the report within 10 days after it is served. Any party may file cross-exceptions within 5 days from the service of the exceptions. If no exceptions are timely filed the court shall take appropriate action on the report. If exceptions are filed, the court shall resolve the exceptions at a hearing on reasonable notice. The filing of cross-exceptions shall not delay a hearing on the exceptions and cross-exceptions unless good cause is shown.
(j) Record. A party filing exceptions to the magistrate’s report must provide the court in advance of the hearing a record sufficient to support that party’s exceptions.
(2) If the party filing exceptions has the court reporter prepare less than a full transcript of proceedings before the magistrate, that party must promptly file a notice designating the portions of the transcript that have been ordered. The other parties must be given reasonable time after service of the notice to arrange for the preparation and designation of other portions of the transcript for the court to consider at the hearing.
Committee Notes
1980 Amendment. Subdivision (d) is amended to delete the specific reference to the direction of process so that process issued by the master will be governed by the law applicable to process generally.
Court Commentary
RULE 1.491 | GENERAL MAGISTRATES FOR RESIDENTIAL MORTGAGE FORECLOSURE MATTERS
(b) Reference.
(B) If the time set for the hearing is less than 10 days after service of the order of referral, the objection must be filed before commencement of the hearing.
(C) Failure to file a written objection to a referral to the magistrate handling residential mortgage foreclosures within the applicable time period is deemed to be consent to the order of referral.
A REFERRAL TO A MAGISTRATE FOR A RESIDENTIAL MORTGAGE FORECLOSURE MATTER REQUIRES THE CONSENT OF ALL PARTIES. YOU ARE ENTITLED TO HAVE THIS MATTER HEARD BEFORE A JUDGE. IF YOU DO NOT WANT TO HAVE THIS MATTER HEARD BEFORE A MAGISTRATE, YOU MUST FILE A WRITTEN OBJECTION TO THE REFERRAL WITHIN 10 DAYS OF THE TIME OF SERVICE OF THIS ORDER OR WITHIN THE TIME TO RESPOND TO THE INITIAL PLEADING, WHICHEVER IS LATER. IF THE TIME SET FOR THE HEARING IS LESS THAN 10 DAYS AFTER THE SERVICE OF THIS ORDER, THE OBJECTION MUST BE MADE BEFORE THE HEARING. FAILURE TO FILE A WRITTEN OBJECTION WITHIN THE APPLICABLE TIME PERIOD IS DEEMED TO BE CONSENT TO THE REFERRAL. REVIEW OF THE REPORT AND RECOMMENDATIONS MADE BY THE MAGISTRATE SHALL BE BY EXCEPTIONS AS PROVIDED IN THIS RULE. A RECORD, WHICH INCLUDES A TRANSCRIPT OF PROCEEDINGS, MAY BE REQUIRED TO SUPPORT THE EXCEPTIONS.When a reference is made to a magistrate, either party may set the action for hearing before the magistrate.
(d) Notice of Hearings; Hearings. The provisions for notice of hearings and hearings in rules 1.490(f)—(g) shall apply to proceedings under this rule.
(e) Magistrate’s Report. The provisions for the requirement of the magistrate’s report in rule 1.490(h) shall apply to proceedings under this rule.
(f) Filing Report; Notice; Exceptions; Record. The provisions for filing the report, notice, exceptions to the report, and requirements for a record in rules 1.490(i)—(j) shall apply to proceedings under this rule.
Committee Notes
2015 Amendment. The changes are intended to adopt certain procedural changes made to rule 1.490 by In re Amendments to Florida Rules of Civil Procedure, 131 So. 3d 643 (Fla. 2013).
RULE 1.500 | DEFAULTS AND FINAL JUDGMENTS THEREON
(b) By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any document in the action, that party must be served with notice of the application for default.
(c) Right to Plead. A party may plead or otherwise defend at any time before default is entered. If a party in default files any document after the default is entered, the clerk must notify the party of the entry of the default. The clerk must make an entry on the progress docket showing the notification.
(d) Setting aside Default. The court may set aside a default, and if a final judgment consequent thereon has been entered, the court may set it aside in accordance with rule 1.540(b).
(e) Final Judgment. Final judgments after default may be entered by the court at any time, but no judgment may be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other representative who has appeared in it or unless the court has made an order under rule 1.210(b) providing that no representative is necessary for the infant or incompetent. If it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter to enable the court to enter judgment or to effectuate it, the court may receive affidavits, make references, or conduct hearings as it deems necessary and must accord a right of trial by jury to the parties when required by the Constitution or any statute.
Court Commentary
This is to enable the court to judge the effect, if any, of the filing of any paper upon the default and the propriety of entering final judgment without notice to the party against whom the default was entered.
RULE 1.510 | SUMMARY JUDGMENT
(b) Time to File a Motion. A party may move for 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 movant must serve the motion for summary judgment at least 40 days before the time fixed for the hearing.
(c) Procedures.
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
(5) Timing for Supporting Factual Positions. At the time of filing a motion for summary judgment, the movant must also serve the movant’s supporting factual position as provided in subdivision (1) above. At least 20 days before the time fixed for the hearing, the nonmovant must serve a response that includes the nonmovant’s supporting factual position as provided in subdivision (1) above.
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it; or
(4) issue any other appropriate order.
(2) grant the motion on grounds not raised by a party; or
(3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.
(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court — after notice and a reasonable time to respond — may order the submitting party to pay the other party the reasonable expenses, including attorney’s fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.
Court Notes
Committee Notes
1992 Amendment. The amendment to subdivision (c) will require timely service of opposing affidavits, whether by mail or by delivery, prior to the day of the hearing on a motion for summary judgment.
2005 Amendment. Subdivision (c) has been amended to ensure 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.
2012 Amendment. Subdivision (c) is amended to reflect the relocation of the service rule from rule 1.080 to Fla. R. Jud. Admin. 2.516.
RULE 1.520 | VIEW
RULE 1.525 | MOTIONS FOR COSTS AND ATTORNEYS’ FEES
Committee Notes
2000 Adoption. This rule only establishes time requirements for serving motions for costs, attorneys’ fees, or both, and in no way affects or overrules the pleading requirements outlined by this Court in Stockman v. Downs, 573 So. 2d 835 (Fla. 1991).
RULE 1.530 | MOTIONS FOR NEW TRIAL AND REHEARING; AMENDMENTS OF JUDGMENTS
(b) Time for Motion. A motion for new trial or for rehearing must be served not later than 15 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.
(c) Time for Serving Affidavits. When a motion for a new trial is based on affidavits, the affidavits must be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.
(d) On Initiative of Court. Not later than 15 days after the date of filing of the judgment or within the time of ruling on a timely motion for a rehearing or a new trial made by a party, the court of its own initiative may order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party.
(e) When Motion Is Unnecessary; Non-Jury Case. In a non-jury action, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.
(f) Order Granting to Specify Grounds. All orders granting a new trial must state the specific grounds therefor. If such an order is appealed and does not state the specific grounds, the appellate court shall relinquish its jurisdiction to the trial court for entry of an order specifying the grounds for granting the new trial.
(g) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 15 days after the date of filing of the judgment, except that this rule does not affect the remedies in rule 1.540(b).
(h) Motion for Remittitur or Additur.
(2) If a remittitur or additur is granted, the court must state the specific statutory criteria relied on.
(3) Any party adversely affected by the order granting remittitur or additur may reject the award and elect a new trial on the issue of damages only by filing a written election within 15 days after the order granting remittitur or additur is filed.
Committee Notes
2013 Amendment. Subdivisions (b) and (g) are amended to change the deadlines for service of certain motions from 10 to 15 days after the specified event. Subdivision (d) is amended to change the deadline for a court to act of its own initiative.
2022 Amendments. The amendment to subdivision (a) does not address or affect, by negative implication, any other instance in which a motion for rehearing is or might be necessary to preserve an issue for appellate review.
Court Commentary
There is no change in the time for serving a motion for new trial in a jury action, except the motion may be served before the rendition of the judgment.
RULE 1.535 | REMITTITUR AND ADDITUR
RULE 1.540 | RELIEF FROM JUDGMENT, DECREES, OR ORDERS
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons:
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing;
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) that the judgment, decree, or order is void; or
(5) that the judgment, decree, or order has been satisfied, released, or discharged, or a prior judgment, decree, or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment, decree, or order should have prospective application.
Committee Notes
2003 Amendment. Subdivision (b) is amended to clarify that motions must be filed.
RULE 1.545 | FINAL DISPOSITION FORM
Committee Notes
RULE 1.550 | EXECUTIONS AND FINAL PROCESS
(b) Stay. The court before which an execution or other process based on a final judgment is returnable may stay such execution or other process and suspend proceedings thereon for good cause on motion and notice to all adverse parties.
RULE 1.560 | DISCOVERY IN AID OF EXECUTION
(b) Fact Information Sheet. In addition to any other discovery available to a judgment creditor under this rule, the court, at the request of the judgment creditor, shall order the judgment debtor or debtors to complete form 1.977, including all required attachments, within 45 days of the order or such other reasonable time as determined by the court. Failure to obey the order may be considered contempt of court.
(c) Final Judgment Enforcement Paragraph. In any final judgment, the judge shall include the following enforcement paragraph if requested by the prevailing party or attorney:
“It is further ordered and adjudged that the judgment debtor(s) shall complete under oath Florida Rule of Civil Procedure Form 1.977 (Fact Information Sheet), including all required attachments, and serve it on the judgment creditor’s attorney, or the judgment creditor if the judgment creditor is not represented by an attorney, within 45 days from the date of this final judgment, unless the final judgment is satisfied or post-judgment discovery is stayed. Jurisdiction of this case is retained to enter further orders that are proper to compel the judgment debtor(s) to complete form 1.977, including all required attachments, and serve it on the judgment creditor’s attorney, or the judgment creditor if the judgment creditor is not represented by an attorney.”(d) Information Regarding Assets of Judgment Debtor’s Spouse. In any final judgment, if requested by the judgment creditor, the court shall include the additional Spouse Related Portion of the fact information sheet upon a showing that a proper predicate exists for discovery of separate income and assets of the judgment debtor’s spouse.
Committee Notes
2000 Amendment. Subdivisions (b)–(e) were added and patterned after Florida Small Claims Rule 7.221(a) and Form 7.343. Although the judgment creditor is entitled to broad discovery into the judgment debtor’s finances, Fla. R. Civ. P. 1.280(b); Jim Appley’s Tru-Arc, Inc. v. Liquid Extraction Systems, 526 So. 2d 177, 179 (Fla. 2d DCA 1988), inquiry into the individual assets of the judgment debtor’s spouse may be limited until a proper predicate has been shown. Tru-Arc, Inc., 526 So. 2d at 179; Rose Printing Co. v. D’Amato, 338 So. 2d 212 (Fla. 3d DCA 1976). Failure to complete form 1.977 as ordered may be considered contempt of court.
2013 Amendment. Subdivision (e) was deleted because the filing of a notice of compliance is unnecessary for the judgment creditor to seek relief from the court for noncompliance with this rule, and because the Fact Information Sheet itself should not be filed with the clerk of the court.
RULE 1.570 | ENFORCEMENT OF FINAL JUDGMENTS
(b) Property Recovery. Final process to enforce a judgment for the recovery of property shall be by a writ of possession for real property and by a writ of replevin, distress writ, writ of garnishment, or other appropriate process or proceedings for other property.
(c) Performance of an Act. If judgment is for the performance of a specific act or contract:
(2) the court may hold the disobedient party in contempt; or
(3) the court may appoint some person, not a party to the action, to perform the act insofar as practicable. The performance of the act by the person appointed shall have the same effect as if performed by the party against whom the judgment was entered.
(e) Proceedings Supplementary. Proceedings supplementary to execution and related discovery shall proceed as provided by chapter 56, Florida Statutes. Notices to Appear, as defined by law, and supplemental complaints in proceedings supplementary must be served as provided by the law and rules of procedure for service of process.
Committee Notes
2018 Amendment. Subdivision (e) has been added to address legislative amendments to chapter 56, Florida Statutes (2016).
RULE 1.580 | WRIT OF POSSESSION
(b) Third-Party Claims. If a person other than the party against whom the writ of possession is issued is in possession of the property, that person may retain possession of the property by filing with the sheriff an affidavit that the person is entitled to possession of the property, specifying the nature of the claim. Thereupon the sheriff shall desist from enforcing the writ and shall serve a copy of the affidavit on the party causing issuance of the writ of possession. The party causing issuance of the writ may apply to the court for an order directing the sheriff to complete execution of the writ. The court shall determine the right of possession in the property and shall order the sheriff to continue to execute the writ or shall stay execution of the writ, if appropriate.
Committee Notes
RULE 1.590 | PROCESS IN BEHALF OF AND AGAINST PERSONS NOT PARTIES
RULE 1.600 | DEPOSITS IN COURT
RULE 1.610 | INJUNCTIONS
(B) the movant’s attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required.
(c) Form and Scope. Every injunction shall specify the reasons for entry, shall describe in reasonable detail the act or acts restrained without reference to a pleading or another document, and shall be binding on the parties to the action, their officers, agents, servants, employees, and attorneys and on those persons in active concert or participation with them who receive actual notice of the injunction.
(d) Motion to Dissolve. A party against whom a temporary injunction has been granted may move to dissolve or modify it at any time. If a party moves to dissolve or modify, the motion shall be heard within 5 days after the movant applies for a hearing on the motion.
Committee Notes
Court Commentary
Subdivision (b) eliminates the need for a bond on a temporary injunction issued to prevent physical injury or abuse of a natural person.
Subdivision (e) institutes a requirement that a motion to dissolve an injunction shall be heard within 5 days after the movant applies for it. This provision emphasizes the importance of a prompt determination of the propriety of injunctive relief granted without notice or, if the circumstances have changed since the issuance of the injunctive order, the need for speedy relief as a result of the changes. Former subdivisions (a), (b)(3), and (b)(4) have been repealed because the new procedure makes them superfluous. The right of the court to consolidate the hearing on a temporary injunction with the trial of the action is not affected because that can still be accomplished under rule 1.270(a).
RULE 1.620 | RECEIVERS
(b) Report. Every receiver shall file in the clerk’s office a true and complete inventory under oath of the property coming under the receiver’s control or possession under the receiver’s appointment within 20 days after appointment. Every 3 months unless the court otherwise orders, the receiver shall file in the same office an inventory and account under oath of any additional property or effects which the receiver has discovered or which shall have come to the receiver’s hands since appointment, and of the amount remaining in the hands of or invested by the receiver, and of the manner in which the same is secured or invested, stating the balance due from or to the receiver at the time of rendering the last account and the receipts and expenditures since that time. When a receiver neglects to file the inventory and account, the court shall enter an order requiring the receiver to file such inventory and account and to pay out of the receiver’s own funds the expenses of the order and the proceedings thereon within not more than 20 days after being served with a copy of such order.
(c) Bond. The court may grant leave to put the bond of the receiver in suit against the sureties without notice to the sureties of the application for such leave.
RULE 1.625 | PROCEEDINGS AGAINST SURETY ON JUDICIAL BONDS
Committee Notes
RULE 1.630 | EXTRAORDINARY REMEDIES
(b) Initial Pleading. The initial pleading must be a complaint. It must contain:
(2) a request for the relief sought; and
(3) if desired, argument in support of the complaint with citations of authority.
(c) Time. A complaint must be filed within the time provided by law.
(d) Process. If the complaint shows a prima facie case for relief, the court must issue:
(2) an alternative writ in mandamus that may incorporate the complaint by reference only;
(3) a writ of quo warranto; or
(4) a writ of habeas corpus.
(e) Response. Defendant must respond to the writ as provided in rule 1.140, but the answer in quo warranto must show better title to the office when the writ seeks an adjudication of the right to an office held by the defendant.
Committee Notes
2013 Amendment. Rule 1.630 has been amended to remove any reference to certiorari proceedings, which instead are governed by the Florida Rules of Appellate Procedure. The Florida Rules of Appellate Procedure apply when the circuit courts exercise their appellate jurisdiction.
1984 Amendment. Rule 1.630 replaces rules and statutes used before 1980 when the present Florida Rules of Appellate Procedure were adopted. Experience has shown that rule 9.100 is not designed for use in trial court. The times for proceeding, the methods of proceeding, and the general nature of the procedure is appellate and presumes that the proceeding is basically an appellate proceeding. When the extraordinary remedies are sought in the trial court, these items do not usually exist and thus the rule is difficult to apply. The uniform procedure concept of rule 9.100 has been retained with changes making the procedure fit trial court procedure. The requirement of attaching a copy of the record in subdivision (b) may not be possible within the time allowed for the initial pleading because of the unavailability of the record. In that event the plaintiff should file a motion to extend the time to allow the preparation of the record and supply it when prepared. The filing of a motion to extend the time should be sufficient to extend it until the motion can be decided by the court.
RULE 1.650 | MEDICAL MALPRACTICE PRESUIT SCREENING RULE
(b) Service of Notice of Intent to Initiate Litigation.
(2) The notice must include the names and addresses of all other parties and must be sent to each party.
(3) If, during subsequent litigation, service is challenged in the first response to the complaint, the court must conduct an evidentiary hearing as provided by section 766.106(2)(b)(2), Florida Statutes.
(2) Procedures for Conducting.
(B) Documents or Things. At any time after service of a notice of intent to initiate litigation on a prospective defendant, a party may request discoverable documents or things. The documents or things must be produced at the expense of the requesting party within 20 days of serving the request. A party is required to produce discoverable documents or things within that party’s possession or control. Copies of documents produced in response to the request of any party must be served on all other parties. The party serving the documents must list the name and address of the parties on whom the documents were served, the date of service, the manner of service, and the identity of the document served in the certificate of service. Failure of a party to comply with the above time limits must not relieve that party of its obligation under the statute but must be evidence of failure of that party to comply with the good faith requirements of section 766.106, Florida Statutes.
(C) Physical Examinations. After a prospective defendant has been served with a notice of intent to initiate litigation and within the presuit screening period, a party may require a claimant to submit to a physical examination. The party must give reasonable notice in writing to all parties of the time and place of the examination. Unless otherwise impractical, a claimant must be required to submit to only one examination on behalf of all parties. The practicality of a single examination must be determined by the nature of the claimant’s condition as it relates to the potential liability of each party. The report of examination must be made available to all parties on payment of the reasonable cost of reproduction. The report must not be provided to any person not a party at any time. The report must only be used for the purpose of presuit screening and the examining physician may not testify concerning the examination in any subsequent civil action. All requests for physical examinations or notices of unsworn statements must be in writing and a copy served on all parties. The requests or notices must bear a certificate of service identifying the name and address of the person on whom the request or notice is served, the date of the request or notice, and the manner of service. Any minor required to submit to examination under this rule must have the right to be accompanied by a parent or guardian at all times during the examination, except on a showing that the presence of a parent or guardian is likely to have a material, negative impact on the minor’s examination.
(D) Written Questions. Any party may request answers to written questions, the number of which may not exceed 30, including subparts. The party to whom the written questions are directed must respond within 20 days of service of the questions. Copies of the answers to the written questions must be served on all other parties. The party serving the answer to the written questions shall list the name and address of the parties on whom the answers to the written questions were served, the date of service, and the manner of service in the certificate of service. Failure of a party to comply with the above time limits will not relieve that party of its obligation under the statute, but will be evidence of failure of that party to comply with the good faith requirements of section 766.106, Florida Statutes.
(E) Unsworn Statements of Treating Healthcare Providers. A prospective defendant or his or her legal representative may also take unsworn statements of the claimant’s treating healthcare providers. The statements must be limited to those areas that are potentially relevant to the claim of personal injury or wrongful death. Subject to the procedural requirements of subdivision (c)(2)(A), a prospective defendant may take unsworn statements from claimant’s treating health care providers. The statements must only be used for the purpose of presuit screening and are not discoverable or admissible in any civil action for any purpose by any party. A party desiring to take the unsworn statement of treating healthcare providers must give reasonable notice in writing to all parties. The notice must state the time and place for taking the statement and the name and address of the treating healthcare provider to be examined. Unless otherwise impractical, the examination of any treating healthcare provider must be done at the same time by all other parties. Any party may be represented by an attorney at the taking of an unsworn statement of treating healthcare providers. Statements may be transcribed or electronically recorded, or audiovisually recorded. The taking of unsworn statements of a treating healthcare provider is subject to the provisions of rule 1.310(d) and may be terminated for abuses. If abuses occur, the abuses will be evidence of failure of that party to comply with the good faith requirements of section 766.106, Florida Statutes.
(2) A suit may not be filed against any prospective defendant for a period of 90 days after the notice of intent to initiate litigation was delivered to that party. A suit may be filed against any party at any time after the notice of intent to initiate litigation has been served and after the claimant has received a written rejection of the claim from that party.
(3) To avoid being barred by the applicable statute of limitations, an action must be filed within 60 days or within the remainder of the time of the statute of limitations after the notice of intent to initiate litigation was served, whichever is longer, after the earliest of the following:
(B) The expiration of 180 days after service of the notice of intent to initiate litigation if the claim is controlled by section 768.28(6)(a), Florida Statutes.
(C) Receipt by claimant of a written rejection of the claim.
(D) The expiration of any extension of the 90-day presuit screening period stipulated to by the parties in accordance with section 766.106(4), Florida Statutes.
Committee Notes
RULE 1.700 | RULES COMMON TO MEDIATION AND ARBITRATION
(2) Notice. Within 15 days after the designation of the mediator or the arbitrator, the court or its designee, who may be the mediator or the chief arbitrator, must notify the parties in writing of the date, the time, and, as applicable, the place of the conference or hearing and the instructions for access to communication technology that will be used for the conference or hearing, unless the order of referral, other order of the court or written stipulation specifies this information.
(2) the issue presents a question of law only;
(3) the order violates rule 1.710(b) or rule 1.800; or
(4) other good cause is shown.
(d) Disqualification of a Mediator or Arbitrator. Any party may move to enter an order disqualifying a mediator or an arbitrator for good cause. If the court rules that a mediator or arbitrator is disqualified from hearing a case, an order shall be entered setting forth the name of a qualified replacement. Nothing in this provision shall preclude mediators or arbitrators from disqualifying themselves or refusing any assignment. The time for mediation or arbitration shall be tolled during any periods in which a motion to disqualify is pending.
RULE 1.710 | MEDIATION RULES
(b) Exclusions from Mediation. A civil action shall be ordered to mediation or mediation in conjunction with arbitration upon stipulation of the parties. A civil action may be ordered to mediation or mediation in conjunction with arbitration upon motion of any party or by the court, if the judge determines the action to be of such a nature that mediation could be of benefit to the litigants or the court. Under no circumstances may the following categories of actions be referred to mediation:
(2) Habeas corpus and extraordinary writs.
(3) Bond validations.
(4) Civil or criminal contempt.
(5) Other matters as may be specified by administrative order of the chief judge in the circuit.
Committee Notes
RULE 1.720 | MEDIATION PROCEDURES
(b) Appearance at Mediation. A party is deemed to appear at a mediation conference if the following persons are physically present, or if authorized under rule 1.700(a), participating through the use of communication technology:
(2) The party’s counsel of record, if any; and
(3) A representative of the insurance carrier for any insured party who is not such carrier’s outside counsel and who has full authority to settle in an amount up to the amount of the plaintiff’s last demand or policy limits, whichever is less, without further consultation.
(d) Appearance by Public Entity. If a party to mediation is a public entity required to operate in compliance with chapter 286, Florida Statutes, that party is deemed to appear at a mediation conference by the presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity. Such representative may be physically present or, if authorized under rule 1.700(a), may participate through the use of communication technology.
(e) Certification of Authority. Unless otherwise stipulated by the parties, each party, 10 days prior to appearing at a mediation conference, must file with the court and serve all parties a written notice identifying the person or persons who will appear at the mediation conference as a party representative or as an insurance carrier representative, and confirming that those persons have the authority required by subdivision (b).
(f) Sanctions for Failure to Appear. If a party fails to appear at a duly noticed mediation conference without good cause, the court, upon motion, shall impose sanctions, including award of mediation fees, attorneys’ fees, and costs, against the party failing to appear. The failure to file a confirmation of authority required under subdivision (e) above, or failure of the persons actually identified in the confirmation to appear at the mediation conference, shall create a rebuttable presumption of a failure to appear.
(g) Adjournments. The mediator may adjourn the mediation conference at any time and may set times for reconvening the adjourned conference notwithstanding rule 1.710(a). No further notification is required for parties present at the adjourned conference.
(h) Counsel. The mediator shall at all times be in control of the mediation and the procedures to be followed in the mediation. Counsel shall be permitted to communicate privately with their clients. In the discretion of the mediator and with the agreement of the parties, mediation may proceed in the absence of counsel unless otherwise ordered by the court.
(i) Communication with Parties or Counsel. The mediator may meet and consult privately with any party or parties or their counsel.
(j) Appointment of the Mediator.
(B) a mediator, other than a senior judge, who is not certified as a mediator but who, in the opinion of the parties and upon review by the presiding judge, is otherwise qualified by training or experience to mediate all or some of the issues in the particular case.
(3) If a mediator agreed upon by the parties or appointed by a court cannot serve, a substitute mediator can be agreed upon or appointed in the same manner as the original mediator. A mediator shall not mediate a case assigned to another mediator without the agreement of the parties or approval of the court. A substitute mediator shall have the same qualifications as the original mediator.
Committee Notes
New subdivision (e) provides a process for parties to identify party representative and representatives of insurance carriers who will be attending the mediation conference on behalf of parties and insurance carriers and to confirm their respective settlement authority by means of a direct representation to the court. If necessary, any verification of this representation would be upon motion by a party or inquiry by the court without involvement of the mediator and would not require disclosure of confidential mediation communications. Nothing in this rule shall be deemed to impose any duty or obligation on the mediator selected by the parties or appointed by the court to ensure compliance.
The concept of self determination in mediation also contemplates the parties’ free choice in structuring and organizing their mediation sessions, including those who are to participate. Accordingly, elements of this rule are subject to revision or qualification with the mutual consent of the parties.
RULE 1.730 | COMPLETION OF MEDIATION
(b) Agreement. If a partial or final agreement is reached, it must be reduced to writing and signed by the parties and their counsel, if any. Signatures may be original, electronic, or facsimile and may be in counterparts. The agreement must be filed when required by law or with the parties’ consent. A report of the agreement must be submitted to the court or a stipulation of dismissal will be filed. By stipulation of the parties, the agreement may be transcribed or electronically recorded. In such event, the transcript may be filed with the court. The mediator must report the existence of the signed or transcribed agreement to the court without comment within 10 days thereof. No partial or final agreement under this rule may be reported to the court except as provided herein.
(c) Enforceability. The parties may not object to the enforceability of an agreement on the ground that communication technology was used for participation in the mediation conference if such use was authorized under rule 1.700(a).
(d) Imposition of Sanctions. In the event of any breach or failure to perform under the agreement, the court upon motion may impose sanctions, including costs, attorneys’ fees, or other appropriate remedies including entry of judgment on the agreement.
Committee Notes
RULE 1.750 | COUNTY COURT ACTIONS
(b) Limitation on Referral to Mediation. When a mediation program utilizing volunteer mediators is unavailable or otherwise inappropriate, county court matters may be referred to a mediator or mediation program which charges a fee. Such order of referral shall advise the parties that they may object to mediation on grounds of financial hardship or on any ground set forth in rule 1.700(b). If a party objects, mediation shall not be conducted until the court rules on the objection. The court may consider the amount in controversy, the objecting party’s ability to pay, and any other pertinent information in determining the propriety of the referral. When appropriate, the court shall apportion mediation fees between the parties.
(c) Scheduling. In small claims actions, the mediator shall be appointed and the mediation conference held during or immediately after the pretrial conference unless otherwise ordered by the court. In no event shall the mediation conference be held more than 14 days after the pretrial conference.
(d) Appointment of the Mediator. In county court actions not subject to the Florida Small Claims Rules, rule 1.720(f) shall apply unless the case is sent to a mediation program provided at no cost to the parties.
(e) Appearance at Mediation. In small claims actions, an attorney may appear on behalf of a party at mediation provided that the attorney has full authority to settle without further consultation. Unless otherwise ordered by the court, a nonlawyer representative may appear on behalf of a party to a small claims mediation if the representative has the party’s signed written authority to appear and has full authority to settle without further consultation. In either event, the party need not appear in person. In any other county court action, a party will be deemed to appear if the persons set forth in rule 1.720(b) are physically present or, if authorized under rule 1.700(a), participating through the use of communication technology.
(f) Agreement. Any agreements reached as a result of small claims mediation must be written in the form of a stipulation. The stipulation may be entered as an order of the court. Signatures for the stipulation may be original, electronic, or facsimile and may be in counterparts.
RULE 1.800 | EXCLUSIONS FROM ARBITRATION
A civil action may be ordered to arbitration or arbitration in conjunction with mediation upon motion of any party or by the court, if the judge determines the action to be of such a nature that arbitration could be of benefit to the litigants or the court.
Under no circumstances may the following categories of actions be referred to arbitration:
(2) Habeas corpus or other extraordinary writs.
(3) Bond validations.
(4) Civil or criminal contempt.
(5) Such other matters as may be specified by order of the chief judge in the circuit.
Committee Notes
RULE 1.810 | SELECTION AND COMPENSATION OF ARBITRATORS
(b) Compensation. The chief judge of each judicial circuit shall establish the compensation of arbitrators subject to the limitations in section 44.103(3), Florida Statutes.
Committee Notes
RULE 1.820 | HEARING PROCEDURES FOR NON-BINDING ARBITRATION
(b) Conduct of the Arbitration Hearing.
(2) Hearing procedures must be included in the notice of arbitration hearing sent to the parties and arbitration panel.
(3) Individual parties or authorized representatives of corporate parties must attend the arbitration hearing unless excused in advance by the chief arbitrator for good cause shown.
(d) Orders. The chief arbitrator may issue instructions as are necessary for the expeditious and orderly conduct of the hearing. The chief arbitrator’s instructions are not appealable. On notice to all parties the chief arbitrator may apply to the presiding judge for orders directing compliance with such instructions. Instructions enforced by a court order are appealable as are other orders of the court.
(e) Default of a Party. When a party fails to appear at a hearing, the chief arbitrator may proceed with the hearing, and the arbitration panel must render a decision based on the facts and circumstances as presented by the parties present.
(f) Record and Transcript. Any party may have a record and transcript made of the arbitration hearing at that party’s expense.
(g) Completion of the Arbitration Process.
(2) On the completion of the arbitration process, the arbitrator(s) must render a decision. In the case of a panel, a decision must be final on a majority vote of the panel.
(3) Within 10 days of the final adjournment of the arbitration hearing, the arbitrator(s) shall notify the parties, in writing, of their decision. The arbitration decision may set forth the issues in controversy and the arbitrator(’s)(s’) conclusions and findings of fact and law. The arbitrator(’s)(s’) decision and the originals of any transcripts shall be sealed and filed with the clerk at the time the parties are notified of the decision.
(4) Any transcripts or exhibits used in the arbitration must, unless otherwise ordered by the court or agreed by the parties, be retained by the party who introduced the transcripts or exhibits until the conclusion of the case, or until otherwise ordered by the court.
Committee Notes
1994 Amendment. The Supreme Court Committee on Mediation and Arbitration Rules recommends that a copy of the local arbitration procedures be disseminated to the local bar.
2003 Amendment. The statutory reference in subdivision (h) is changed to reflect changes in the statutory numbering.
2007 Amendment. Subdivision (h) is amended to avoid the unintended consequences for defendants with third-party claims who prevailed at arbitration but could not pursue those claims in a circuit court action because no motion for trial was filed despite a plaintiff or plaintiffs having filed a motion for trial that covered those claims. See State Dept. of Transportation v. BellSouth Telecommunications, Inc., 859 So. 2d 1278 (Fla. 4th DCA 2003).
RULE 1.830 | VOLUNTARY BINDING ARBITRATION
(2) Hearing Procedures. Subject to these rules and section 44.104, Florida Statutes, the parties may, by written agreement before the hearing, establish the hearing procedures for voluntary binding arbitration, including the use of communication technology as that term is defined in Florida Rule of General Practice and Judicial Administration 2.530. In the absence of such agreement, the court shall establish the hearing procedures.
(c) Arbitration Decision and Appeal.
(2) A voluntary binding arbitration decision may be appealed within 30 days after service of the decision on the parties. Appeal is limited to the grounds specified in section 44.104(10), Florida Statutes.
(3) If no appeal is filed within the time period set out in subdivision (2) of this rule, the decision shall be referred to the presiding judge who shall enter such orders and judgments as required to carry out the terms of the decision as provided under section 44.104, Florida Statutes.
RULE 1.900 | FORMS
(b) Other Forms. The other forms are sufficient for the matters that are covered by them. So long as the substance is expressed without prolixity, the forms may be varied to meet the facts of a particular case.
(c) Formal Matters. Captions, except for the designation of the document, are omitted from the forms. A general form of caption is the first form. Signatures are omitted from pleadings and motions.
Editor's Note
You'll probably need to reference it during your pursuit of justice.
For instance, you might need to invoke certain rules to protect yourself from judges/lawyers who break the law (see this example of a Florida judge who outright committed perjury).
As always, please get the justice you deserve.
Sincerely,
www.TextBookDiscrimination.com
