Civil Procedure Rules amendments
Civil Procedure Rules amendments
The Florida Bar’s Civil Procedure Rules Committee has filed with the Florida Supreme Court its regular-cycle report of proposed amendments to the Florida Rules of Civil Procedure. The committee proposes amendments to rules 1.380 (Failure to Make Discovery: Sanctions); 1.420 (Dismissal of Actions); 1.431 (Trial Jury); and 1.510 (Summary Judgment); and forms 1.989 (Judgment Dismissing for Lack of Prosecution); and 1.997 (Civil Cover Sheet).
The court invites all interested persons to comment on the committee’s proposed amendments, which are reproduced in full below, as well as online at www.floridasupremecourt.org/decisions/proposed.shtml. An original and nine paper copies of all comments must be filed with the court on or before April 1, with a certificate of service verifying that a copy has been served on committee Chair Robert N. Clarke, Jr., Ausley & McMullen, P.A., P.O. Box 391, Tallahassee 32302-0391, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case for June. The chair has until April 15 to file a response to any comments filed with the court. Electronic copies of all comments and the chair’s response also must be filed in accordance with the court’s Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Label envelope to avoid erasure.
AMENDMENTS TO THE RULES OF CIVIL PROCEDURE (TWO YEAR CYCLE), CASE NO. SC05-179
RULE 1.380. FAILURE TO MAKE DISCOVERY: SANCTIONS
(a) Motion for Order Compelling Discovery. Upon reasonable notice to other parties and all persons affected, a party may apply for an order compelling discovery as follows:
(1) [No change]
(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) [No change]
(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 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.
(b) – (c) [No change]
(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. 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 (1) to appear before the officer who is to take the deposition after being served with a proper notice, (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. Any motion specifying a failure under clause (2) or (3) of this subdivision shall include a certification that the movant, in good faith, has conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. Instead of any order or in addition to it, the court shall require the party failing to act to pay the reasonable expenses caused by the failure, which may include attorneys’ fees, unless the court finds that the failure was justified or that other circumstances make an award of expenses unjust. The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by rule 1.280(c).
1972 Amendment. [No change]
2003 Amendment. [No change]
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.
RULE 1.420. DISMISSAL OF ACTIONS
(a) – (d) [No change]
(e) Failure to Prosecute. In a A ll 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 1 year 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 stipulation staying the action is approved by the court or a stay order has been filed or 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) [No change]
1976 Amendment. [No change]
1980 Amendment. [No change]
1992 Amendment. [No change]
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.
[No change]
RULE 1.431. TRIAL JURY
(a) – (b) [No change]
(c) Challenge for Cause.
(1) On motion of any party , the court shall examine any prospective juror on oath to determine whether that person is related, within the third degree, to (i) any party or to , (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. A party objecting to the juror may introduce any other competent evidence to support the objection. If it appears that the juror does not stand indifferent to the action or any of the foregoing grounds of objection exists or that the juror is otherwise incompetent, another shall be called in that juror’s place.
(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 arith metic, 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.
(d) – (h) [No change]
1971 Adoption. [No change]
1976 Amendment. [No change]
1988 Amendment. [No change]
1992 Amendment. [No change]
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).
RULE 1.510. SUMMARY JUDGMENT
(a) – (b) [No change]
(c) Motion and Proceedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall be served at least 20 days before the time fixed for the hearing. specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence (“summary judgment evidence”) on which the movant relies. The movant shall serve the motion at least 20 days before the time fixed for the hearing, and shall also serve at that time copies of any summary judgment evidence on which the movant relies that has not already been filed with the court. The adverse party may serve opposing affidavits shall identify, by notice mailed to the movant’s attorney at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent such summary judgment evidence has not already been filed with the court, the adverse party shall serve copies on the movant by mailing the affidavits them at least 5 days prior to the day of the hearing, or by delivering the affidavits them to the movant’s attorney no later than 5:00 p.m. two 2 business days prior to the day of hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions , affidavits, and other materials as would be admissible in evidence on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
(d) – (g) [No change]
1976 Amendment. [No change]
1992 Amendment. [No change]
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.
FORM 1.989. ORDER OF DISMISSAL JUDGMENT DISMISSING FOR LACK OF PROSECUTION
(a) Judgment When Motion Filed by a Party.
This action was heard on the motion to dismiss for lack of prosecution of defendant,. …………….. The court finds that it does not affirmatively appear from filing of pleadings, order of court, or otherwise for a period of 1 year before serving the motion that the action is being prosecuted, so
IT IS ADJUDGED that this action is dismissed for lack of prosecution, that plaintiff,. ………………., takes nothing by this action and that defendant,. ………………., shall go hence without day.
ORDERED at. ………………., Florida, on. ….(date)……
_____________________________________
Judge
(b) Judgment on Court’s Motion.
The court finds that it does not affirmatively appear from filing of pleadings, order of court, or otherwise for a period of 1 year that this action is being prosecuted, so
IT IS ADJUDGED as follows:
1. Good cause shall be shown why the action should not be dismissed for lack of prosecution at least 5 days before the hearing set in paragraph 3.
2. The showing of good cause shall be in writing and filed in the action.
3. If a showing of good cause is filed as provided in paragraph 2, a hearing on the question shall be held on. ….(date)….., at. …..m., before the Honorable. ………………., in his/her chambers at the. ………………. County Courthouse in. ………………., Florida.
4. If no showing of good cause is filed within the time specified in paragraph 1, this action shall stand dismissed for lack of prosecution without further order of court on the date specified in paragraph 3 and plaintiff,. ………………., shall take nothing by this action and defendant,. ………………., shall go hence without day.
ORDERED at. ………………., Florida, on. ….(date)……
NOTE: This form accommodates those courts that dismiss on their own motion. It is optional and the court may follow the procedure of sending a motion and notice of hearing that is not self-executing.
(a) Notice of Lack of Prosecution.
PLEASE TAKE NOTICE that 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 immediately preceding service of this notice, and no stay has been issued or approved by the court. Pursuant to rule 1.420(e), if no such record activity occurs within 60 days following the service of this notice, and if no stay is issued or approved during such 60-day period, this action may 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.
(b) Order Dismissing Case for Lack of Prosecution.
This action was heard on the. ….respondent’s/court’s/interested party’s….. motion to dismiss for lack of prosecution served on. ….(date)…… The court finds that (1) notice prescribed by rule 1.420(e) was served on. ….(date)…..; (2) there was no record activity during the 10 months immediately preceding service of the foregoing notice; (3) there was no record activity during the 60 days immediately following service of the foregoing notice; (4) no stay has been issued or approved by the court; and (5) no party has shown good cause why this action should remain pending. Accordingly,
IT IS ORDERED that this action is dismissed for lack of prosecution.
ORDERED at. ………………., Florida, on. ….(date)……
____________________________
Judge
FORM 1.997. CIVIL COVER SHEET
The civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law. This form is required for the use of the Clerk of Court for the purpose of reporting judicial workload data pursuant to Florida Statute 25.075. (See instructions on the reverse of the form.)
_____________________________________________________________________________ I. CASE STYLE
(Name of Court)
Plaintiff
Case #:
________ Judge:
vs .
Defendant
_____________________________________________________________________________ II. TYPE OF CASE (Place an x in one box only. If the case fits more than one type of case, select the most definitive.
FORM 1.997. INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET
I. Case Style. Enter the name of the court, the appropriate case number assigned at the time of filing of the original complaint or petition, the name of the judge assigned (if applicable), and the name (last, first, middle initial) of plaintiff(s) and defendant(s).
II. Type of Case. Place an “X” in the appropriate box. If the cause fits more than one type of case, select the most definitive. Definitions of the cases are provided below.
(A) Simplified Dissolution of Marriage C petitions for the termination of marriage pursuant to Fla. Fam. L. R. P. 12.105.
(B) Dissolution of Marriage C petitions for the termination of marriage other than simplified dissolution.
(C) Support C IV-D C all matters relating to child or spousal support in which an application for assistance has been filed under Title IV-D, Social Security Act, except for such matters relating to dissolution of marriage petitions (sections 409.245, 409.2564, 409.2571 , and 409.2597, Florida Statutes), paternity, or URESA UIFSA.
(D) Support C Non IV-D C all matters relating to child or spousal support in which an application for assistance has not been filed under Title IV-D, Social Security Act.
(E) URESA UIFSA C IV-D C all matters relating to Chapter 88, Florida Statutes in which an application for assistance has been filed under Title IV-D, Social Security Act.
(F) URESA UIFSA C Non IV-D C all matters relating to Chapter 88, Florida Statutes, in which an application for assistance has not been filed under Title IV-D, Social Security Act.
(G) Domestic Violence C all matters relating to injunctions for protection against domestic violence pursuant to section 741.30, Florida Statutes.
(H) Domestic Relations C all matters involving adoption, paternity, change of name, child custody, separate maintenance, annulment, or other matters not included in categories (A) through (G).
(I) Auto Negligence C all matters arising out of a party’s allegedly negligent operation of a motor vehicle.
(J) Professional Malpractice C all professional malpractice lawsuits.
(K) Products Liability C all matters involving injury to person or property allegedly resulting from the manufacture or sale of a defective product or from a failure to warn.
(L) Other Negligence C all actions sounding in negligence, including statutory claims for relief on account of death or injury, not included in categories (G), (H), and (I) (I), (J), and (K).
(M) Condominium C all civil lawsuits pursuant to Chapter 718, Florida Statutes, where a condominium association is a party in the lawsuit.
(N) Eminent Domain C all matters relating to the taking of private property for public use, including inverse condemnation by state agencies, political subdivisions, and public service corporations.
(O) Real Property/Mortgage Foreclosure — all matters relating to the possession, title, and boundaries of real property. All matters involving foreclosures and sales, including foreclosures associated with condominium associations and condominium units.
(P) Contract and Indebtedness C all contract actions relating to promissory notes and other debts, including those arising from the sale of goods. Excludes contract disputes involving condominium associations.
(Q) Challenge to proposed constitutional amendment — a challenge to a legislatively initiated proposed constitutional amendment. Excludes challenges to citizen-initiated proposed constitutional amendments, because the Florida Supreme Court has direct jurisdiction of such challenges.
(R) Other Civil C all civil matters not included in categories (A) through ( P Q ).
III. Is Jury Trial Demanded In Complaint? Check the appropriate box to indicate whether a jury is being demanded in the complaint.
Date and attorney signature. DATE AND ATTORNEY SIGNATURE. Date and sign the civil cover sheet.
