Florida Rules of Civil Procedure – Part 4

Florida Rules of Civil Procedure – Part 4

The Florida Rules of Civil Procedure are the rules that govern how civil litigation in conducted in Florida’s state courts. The purpose of civil litigation is to resolve disputes, usually concerning money, by enforcing obligations and duties between parties to the action. The term “civil” is used in contrast to “criminal” actions, which have their own rules of procedure.

Procedural rules govern only the process through which substantive interests are maintained or redressed. Florida adopted the Rules of Civil Procedure in 1967 and they have been revised many times since then. The Rules were most recently amended in June 2022.

Florida’s Rules of Civil Procedure are generally organized in the order in which a case would progress through the various stages of litigation. This is the first in a series of articles providing a brief overview of some of the more important rules.

Rule 1.010 to Rule 1.090 deal with general matters related to litigation. Rule 1.100 to Rule 1.130 deal with requirements related to pleadings and motions. Rule 1.140 to Rule 1.190 deal with requirements related to defenses, counterclaims, crossclaims, and third party practice.

Rule 1.200 to Rule 1.270 deal with requirements related to pleadings, parties, and pre-trial matters. Rule 1.280 to Rule 1.410 deal with the procedures related to discovery. Rule 1.420 to Rule 1.481 deal with the procedures related to trials.

Rule 1.490 to Rule 1.491 deals with the procedures related to magistrates. Rule 1.500 deals with the procedures related to defaults and default judgments. Rule 1.510 deals with the procedures related summary judgment.

Rule 1.525 to Rule 1.540 deal with the procedures related to post-trial motions. Rules 1.550 to Rule 1.600 deal with the procedures related the enforcement of judgments. Rule 1.700 to Rule 1.830 deal with the procedures related to mediation and arbitration.

Pretrial Procedures

As noted, Rule 1.200 to Rule 1.270, the focus of this article, deals with pre-trial matters and parties.

Rule 1.200 – Pretrial Procedure

Rule 1.200 provides for case management conferences and pretrial conferences, both of which are designed to expedite the disposition of litigation. See Beasley v. Girten, 61 So. 2d 179, 180 (Fla. 1952); Crystal Lake Golf Course, Inc. v. Kalin, 252 So. 2d 379, 381 (Fla. 4th DCA 1971). They can accomplish a great deal toward clarification and simplification of the material issues. Hillsborough Cnty. v. Sutton, 8 So. 2d 401, 402 (Fla. 1942).

The difference between the two is that the case management conference can be convened earlier in the case, giving the court more control over the progress of an action. Conversely, the pretrial conference is designed to be convened closer to trial to facilitate the progress of the actual trial. A conference is mandatory if either party requests it. See Beasley, 61 So. 2d at 180.

Case Management Conference

As for case management conferences, Rule 1.200 provides, “[a]t any time after responsive pleadings or motions are due, the court may order, or a party, by serving a notice may convene, a case management conference. The matter to be considered must be specified in the order or notice setting the conference.” Fla. R. Civ. P. 1.200(a).

At a case management conference the court may:

• schedule or reschedule the service of motions, pleadings, and other documents;
• set or reset the time of trials, subject to rule 1.440(c);
• coordinate the progress of the action if the complex litigation factors contained in rule 1.201(a)(2)(A) – (a)(2)(H) are present;
• limit, schedule, order, or expedite discovery;
• 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;
• consider the need for advance rulings from the court on the admissibility of documents and electronically stored information;
• 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;
• schedule disclosure of expert witnesses and the discovery of facts known and opinions held by such experts;
• schedule or hear motions in limine;
• pursue the possibilities of settlement;
• require filing of preliminary stipulations if issues can be narrowed;
• consider referring issues to a magistrate for findings of fact; and
• schedule other conferences or determine other matters that may aid in the disposition of the action.

Fla. R. Civ. P. 1.200(a)(1)–(13).

Pretrial Conference

As for pretrial conferences, Rule 1.200 provides, “[a]fter the action is at issue the court itself may or shall on the timely motion of any party require the parties to appear for a conference to consider and determine”

• the simplification of the issues;
• the necessity or desirability of amendments to the pleadings;
• the possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof;
• the limitation of the number of expert witnesses; and
• the potential use of juror notebooks; and
• any matters permitted under [Rule 1.200(a)].

Fla. R. Civ. P. 1.200(b)(1)–(6).

Notice

Rule 1.200 further provides, “[r]easonable notice must be given for a case management conference, and 20 days’ notice must be given for a pretrial conference. On failure of a party to attend a conference, the court may dismiss the action, strike the pleadings, limit proof or witnesses, or take any other appropriate action. Any documents that the court requires for any conference must be specified in the order.” Fla. R. Civ. P. 1.200(c).

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.” Fla. R. Civ. P. 1.200(d).

Rule 1.201 – Complex Litigation

Rule 1.201 addresses special procedure applicable to “complex litigation.” A “complex action” is “one that is likely to involve complicated legal or case management issues and that may require extensive judicial management to expedite the action, keep costs reasonable, or promote judicial efficiency.” Fla. R. Civ. P. 1.201(a)(1). However, since Rule 1.201 is a specialized rule, not applicable to most actions, further discussion is omitted.

Rule 1.210 – Parties

A party to a lawsuit is generally the person or entity that is litigating the action and is named as a participant in the case.

Parties Generally

Rule 1.210 provide, “[e]very action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought.” Fla. R. Civ. P. 1.210(a).

“All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs and any person may be made a defendant who has or claims an interest adverse to the plaintiff.” Fla. R. Civ. P. 1.210(a). “Any person may at any time be made a party if that person’s presence is necessary or proper to a complete determination of the cause. Persons having a united interest may be joined on the same side as plaintiffs or defendants, and anyone who refuses to join may for such reason be made a defendant.” Fla. R. Civ. P. 1.210(a).

Rule 1.220 – Class Actions

Rule 1.220 outlines the procedures applicable to class actions. A class action lawsuit permits the determination of all aspects of a controversy in a single suit when the number of claimants or defendants is very large. In a class action, the interests of the members of the class are pursued by the class representative acting on behalf of the group. The purpose of the class action is to provide litigants who share common questions of law and fact with an economically viable means of addressing their needs in court. See Johnson v. Plantation Gen. Hosp. Ltd. P’ship, 641 So. 2d 58, 60 (Fla. 1994).

Prerequisites to Class Representation

Before a claim or defense may be maintained on behalf of a class by one party, the court must first conclude that four requirements are met: “(1) The numerosity requirement. The members of the class must be so numerous that joinder of all members is impractical; (2) The commonality requirement. There are questions of fact or law common to the class; (3) The typicality requirement. The claim or defense of the representative party must be typical of the claim or defense of the class; [and] (4) The adequate representation requirement. The representative party can fairly and adequately protect the interests of the class.” Fla. R. Civ. P. 1.220(a).

Claims and Defenses Maintainable

Even after all these requirements are met, the court must conclude that one of the three alternative requirements delineated in Fla. R. Civ. P. 1.220(b) has also been met. Rule 1.220(b) provides for certification of a class action in three instances.

First, where “[t]he prosecution of separate claims or defenses by or against individual members of the class would create a risk of either: (a) inconsistent or varying adjudications concerning individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or (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.” Fla. R. Civ. P. 1.220(b)(1).

Second, where “the party opposing the class has acted or refused to act on grounds generally applicable to all the members of the class, thereby making final injunctive relief or declaratory relief concerning the class as a whole appropriate.” Fla. R. Civ. P. 1.220(b)(2).

Third, where neither of the above apply “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.” Fla. R. Civ. P. 1.220(b)(3).

“The conclusions shall be derived from consideration of all relevant facts and circumstances, including (A) the respective interests of each member of the class in individually controlling the prosecution of separate claims or defenses, (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.” Fla. R. Civ. P. 1.220(b)(3).

Pleading Requirements

Rule 1.220(c) addresses the pleading requirements for class action claims, which is beyond the scope of this article.

Determination of Class Representation; Notice; Judgment: Claim or Defense Maintained Partly on Behalf of a Class

The trial court is obliged to make a determination at an early stage as to whether the suit can properly proceed as a class action. Fla. R. Civ. P. 1.220(d). However, this determination must be made before service of an order for pretrial conference or a notice for trial. Fla. R. Civ. P. 1.220(d)(1). A party seeking class certification has the burden of pleading and proving each and every element required by Rule 1.220 for certification of the class. See Courtesy Auto Group, Inc. v. Garcia, 778 So. 2d 1000, 1002 (Fla. 5th DCA 2000).

“As soon as is practicable after the court determines that a claim or defense is maintainable on behalf of a class, notice of the pendency of the claim or defense shall be given by the party asserting the existence of the class to all the members of the class.” Fla. R. Civ. P. 1.220(d)(2).”The notice shall be given to each member of the class who can be identified and located through reasonable effort and shall be given to the other members of the class in the manner determined by the court to be most practicable under the circumstances.” Fla. R. Civ. P. 1.220(d)(2).

Dismissal or Compromise

Importantly, if the court determines that a case can proceed as a class action, the case can only be dismissed or settled with the court’s approval. “After a claim or defense is determined to be maintainable on behalf of a class … the claim or defense shall not be voluntarily withdrawn, dismissed, or compromised without approval of the court after notice and hearing.” Fla. R. Civ. P. 1.220(e). Additionally, “[n]otice of any proposed voluntary withdrawal, dismissal, or compromise shall be given to all members of the class as the court directs.” Fla. R. Civ. P. 1.220(e).

Rule 1.230 – Interventions

Sometimes third parties will assert that they have an interest in pending lawsuit and, as such, they should be parties to the action. Intervention is the term that describes the procedure by which one who was not originally a party may enter the litigation of others.

Rule 1.230 provides, “[a]nyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.” Fla. R. Civ. P. 1.230.

Rule 1.240 – Interpleader

Sometimes a person or entity, known as a stakeholder, holds property on behalf of a third party but has no personal interest in that property. Disputes can arise when someone connected to the third party asserts a legal right to the property held by the stakeholder and demands that it should be released to them. In these instances the stakeholder, now being uncertain of whom the property actually belongs to, is caught in the middle and potentially exposed to liability if the property is released to the wrong party.

Interpleader refers to the process by which a holder of property or money, having no claim to it, and being ignorant as to which of two or more claimants have a right to it, fears to be prejudiced by their proceeding against the holder to recover it, and consequently joins such claimants as defendants and requires them to interplead their claims so that the holder may not be exposed to double or multiple liability. See Black’s Law Dictionary 733 (5th ed. 1979). It is a remedy for a person holding property for another person, to which more than one person claims an interest, but which whom the holder does not know has the valid claim.

Rule 1.240 provides, “[p]ersons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability.” Fla. R. Civ. P. 1.240. “It is not ground for objection to the joinder that the claim of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of crossclaim or counterclaim.” Fla. R. Civ. P. 1.240.

There are four conditions to an interpleader action: “(1) the claims must be dependent or have common origin; (2) the same thing, debt (or duty) or stake must be claimed by the defendants; (3) the plaintiff must have no interest in the subject matter–that is, in strict interpleader as distinguished from a suit in the nature of interpleader; and (4) the plaintiff must be in a position of indifference, having incurred no independent liability to either of the claimants, but must stand indifferent between them merely as a stakeholder, and it must appear that no act on his part has caused the embarrassment of conflicting claims and the peril of double vexation.” Treasure Cay, Ltd. v. Gen. Mica Corp., 489 So. 2d 866, 866–67 (Fla. 3d DCA 1986) (quotation omitted).

Rule 1.250 – Misjoinder and Nonjoinder of Parties

Misjoinder

A misjoinder occurs when a party is included in a lawsuit when they should not be. However, “[m]isjoinder of parties is not a ground for dismissal of an action. Any claim against a party may be severed and proceeded with separately.” Fla. R. Civ. P. 1.250(a).

Dropping Parties

For a variety of reasons, in cases involving multiple defendants, the plaintiff may decide to drop one of more of the defendants from the action. “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.” Fla. R. Civ. P. 1.250(b). “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 as are just.” Fla. R. Civ. P. 1.250(b).

Nonjoinder & Adding Parties

A nonjoinder is the failure to include a party who properly should be part of the lawsuit. In such instances the party can be added to the action. “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.” Fla. R. Civ. P. 1.250(c).

Rule 1.260 – Survivor and Substitution of Parties

Death

Sometimes parties to a lawsuit pass away while the action is pending. “If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party …. Unless the motion for substitution is made within 90 days after a statement noting the death is filed and served on all parties … the action shall be dismissed as to the deceased party.” Fla. R. Civ. P. 1.260(a)(1).

“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 … and the action shall proceed in favor of or against the surviving parties.” Fla. R. Civ. P. 1.260(a)(2).

Incompetency

Sometimes a party to a lawsuit becomes incompetent while the action is pending. “If a party becomes incompetent, the court, upon motion filed and served as provided in subdivision (a) of this rule, may allow the action to be continued by or against that person’s representative.” Fla. R. Civ. P. 1.260(b).

Transfer of Interest

Sometimes a plaintiff in a lawsuit transfers their interest in the action to a third party. “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.” Fla. R. Civ. P. 1.260(c).

Rule 1.270 – Consolidation and Separate Trials

Consolidation

Rule 1.270 provides a mechanism for the court to consolidate separate lawsuits that involve common questions of law or fact into one action. “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Fla. R. Civ. P. 1.270(a).

Separate Trials

Rule 1.270 also provides a mechanism for the court to order separate trials where a case involves multiple claims, crossclaims, counterclaims, third-party claims, or issues. “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.” Fla. R. Civ. P. 1.270(b).