RULE 1.010 SCOPE AND TITLE OF RULE
These rules apply to all actions of a civil nature and all
special statutory proceedings in the circuit courts and county
courts except those to which the Florida Probate Rules or the Small
Claims Rules apply. The form, content, procedure, and time for
pleading in all special statutory proceedings shall be as
prescribed by the statutes governing the proceeding unless these
rules specifically provide to the contrary. These rules shall be
construed to secure the just, speedy, and inexpensive determination
of every action. These rules shall be known as the Florida Rules
of Civil Procedure and abbreviated as Fla.R.Civ.P.
RULE 1.030 NONVERIFICATION OF PLEADINGS
Except when otherwise specifically provided by these rules or
an applicable statue, every written pleading or other paper of a
party represented by an attorney need not be verified or
accompanied by an affidavit.
RULE 1.040 ONE FORM OF ACTION
There shall be one form of action to be known as "civil
action."
RULE 1.050 WHEN ACTION COMMENCED
Every action of a civil nature shall be deemed commenced when
the complaint or petition is filed except that ancillary
proceedings shall be deemed commenced when the writ is issued or
the pleading setting forth the claim of the party initiating the
action is filed.
RULE 1.060 TRANSFERS OF ACTIONS
(a) Transfers of Courts. If it should appear at any time that
an action is pending in the wrong court of any county, it may be
transferred to the proper court within said county by the same
method as provided in rule 1.170(j).
(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 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 30 days, the action shall be dismissed without
prejudice by the court that entered the order of transfer.
RULE 1.070 PROCESS
(a) Summons; Issuance. Upon the commencement of the action,
summons or other process authorized by law shall be issued
forthwith by the clerk or judge under the clerk's or the judge's
signature and the seal of the court and delivered for service
without praecipe.
(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 shall
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 shall 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 shall 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 shall 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. Service of process by public
action 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
shall be delivered to the party upon whom service is made. The
date and hour of service shall be endorsed on the original process
and all copies of it by the person making the service. The party
seeking to effect personal service shall furnish the person making
service with the necessary copies. When the service is made by
publication, copies of the initial pleadings shall be furnished to
the clerk and mailed by the clerk with the notice of action to all
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 shall be filed with the clerk,
who shall certify or verify a copy of it without charge. The
person making service shall 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 shall 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) Summons; Time Limit. If service of the initial process
and initial pleading is not made upon a defendant within 120 days
after filing of the initial pleading and the party on whose behalf
service is required does not show good cause why service was not
made within that time, the action shall be dismissed without
prejudice or that defendant dropped as a party on the court's own
initiative after notice or on motion. A dismissal under this
subdivision shall not be considered a voluntary dismissal or
operate as an adjudication on the merits under rule 1.420(a)(1).
RULE 1.080 SERVICE OF PLEADINGS AND PAPERS
(a) Service; When Required. Unless the court otherwise
orders, every pleading subsequent to the initial pleading and every
other paper filed in the action, except applications for witness
subpoena, shall be served on each party. No service need be made
on parties against whom a default has been entered, except that
pleadings asserting new or additional claims against them shall be
served in the manner provided for service of summons.
(b) Service; How Made. When service is required or permitted
to be made upon a party represented by an attorney, service shall
be made upon the attorney unless service upon the party is ordered
by the court. Service on the attorney or party shall be made by
delivering a copy or mailing it to the attorney or the party at the
last known address or, if no address is known, by leaving it with
the clerk of the court. Service by mail shall be complete upon
mailing. Delivery of a copy within this rule shall be complete
upon: (1) handing it to the attorney or to the party, (2) leaving
it at the attorney's or party's office with a clerk or other person
in charge thereof, (3) if there is no one in charge, leaving it in
a conspicuous place therein, (4) if the office is closed or the
person to be served has no office, leaving it at the person's usual
place of abode with one person of his or her family above 15 years
of age and informing such person of the contents, or (5)
transmitting it by facsimile to the attorney's or party's office
with a cover sheet containing the sender's name, firm, address,
telephone number, and facsimile number, and the number of pages
transmitted. When service is made by facsimile, a copy shall also
be served by any other method permitted by this rule. Facsimile
service occurs when transmission is complete. Service by delivery
after 5:00 p.m. shall be deemed to have been made on the next day
that is not a Saturday, Sunday, or legal holiday.
(c) Service; Numerous Defendants. In actions when the parties
are unusually numerous, the court may regulate the service
contemplated by these rules on motion or on its initiative in such
manner as may be found to be just and reasonable.
(d) Filing. All original papers shall be filed with the court
either before service or immediately thereafter. If the original
of any bond or other paper is not placed in the court file, a
certified copy shall be so placed by the clerk.
(e) Filing Defined. The filing of papers with the court as
required by these rules shall be made by filing them with the
clerk, except that the judge may permit papers to be filed with the
judge in which event the judge shall note the filing date before
him or her on the papers and transmit them to the clerk. The date
of filing is that shown on the face of the paper by the judge's
notation or the clerk's time stamp, whichever is earlier.
(f) Certificate of service.
When any attorney shall certify in substance:
"I certify that a copy hereof has been furnished to (here
insert name or names) by (delivery) (mail) (fax) this ____ day of
__________, 19___.
___________________________
Attorney"
the certificate shall be taken as prima facie proof of such service
in compliance with these rules.
(g) Service by Clerk. If a party who is not represented by an
attorney files a paper that does not show service of a copy on
other parties, the clerk shall serve a copy of it on other parties
as provided in subdivision (b).
(h) Service of Orders.
(1) A copy of all orders or judgments shall be transmitted by
the court or under its direction to all parties at the time of
entry of the order or judgment. No service need be made on parties
against whom a default has been entered except orders setting an
action for trial as prescribed in rule 1.440(c) and final judgments
that shall be prepared and served as provided in subdivision
(h)(2). The court may require that orders or judgments be prepared
by a party, may addressed envelopes for service of the order or
judgment, and may require that proposed orders and judgments be
furnished to all parties before entry by the court of the order or
judgment.
(2) When a final judgment is entered against a party in
default, the court shall mail a conformed copy of it to the party.
The party in whose favor the judgment is entered shall furnish the
court with a copy of the judgment, unless it is prepared by the
court, and the address of the party to be served. If the address
is unknown, the copy need not be furnished.
(3) This subdivision is directory and a failure to comply with
it does not affect the order or judgment or its finality or any
proceedings arising in the action.
RULE 1.090 TIME
(a) Computation. In computing any period of time prescribed
or allowed by these rule, by order of court, or by any applicable
statute, the day of the act, event, or default from which the
designated period of time begins to run shall not be included. The
last day of the period so computed shall be included unless it is
a Saturday, Sunday, or legal holiday, in which event the period
shall run until the end of the next day which is neither a
Saturday, Sunday, or legal holiday. When the period of time
prescribed or allowed is less than 7 days, intermediate Saturdays,
Sundays, and legal holidays shall be excluded in the computation.
(b) Enlargement. When an act is required or allowed to be
done at or within a specified time by order of court, by these
rules, or by notice given thereunder, for cause shown the court at
any time in its discretion (1) with or without notice, may order
the period enlarged if request therefor is made before the
expiration of the period originally prescribed or as extended by a
previous order, or (2) upon motion made and notice after the
expiration of the specified act was the result of excusable
neglect, but it may not extend the time for making a motion for new
trial, for rehearing, or to alter or amend a judgment; making a
motion for relief from a judgment under rule 1.540(b); taking an
appeal or filing a petition for certiorari; or making a motion for
a directed verdict.
(c) Unaffected by Expiration of Term. The period of time
provided for the doing of any act or the taking of any proceeding
shall not be affected or limited by the continued existence or
expiration of a term of court. The continued existence or
expiration of a term of court in no way affects the power of a
court to do any act or take any proceeding in any action which is
or has been pending before it.
(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.
(e) Additional Time After Service by Mail. When a party has
the right or is required to do some act or take some proceeding
within a prescribed period after the service of a notice or other
paper upon that party and the notice or paper is served upon that
party by mail, 5 days shall be added to the prescribed period.
RULE 1.100 PLEADINGS AND MOTIONS
(a) Pleadings. There shall be a complaint or, when so
designated by a statute or rule, a petition, and an answer to it;
an answer to a counterclaim denominated as such; an answer to a
crossclaim if the answer contains a crossclaim; a third-party
complaint if a person who was not an original party is summoned as
a third-party defendant; and a third-party answer if a third-party
complaint is served. If an answer or third-party answer contains
an affirmative defense and the opposing party seeks to avoid it,
the opposing party shall file a reply containing the avoidance. No
other pleadings shall be allowed.
(b) Motions. An application to the court for an order shall
be by motion which shall be made in writing unless made during a
hearing or trial, shall state with particularity the grounds
therefor, and shall 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 shall specify each motion or other matter to be heard.
(c) Caption.
(1) Every pleading, motion, order, judgment, or other paper
shall have a caption containing the name of the court, the file
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. All papers filed in the action shall be
styled in such manner as to indicate clearly the subject matter of
the paper and the party requesting or obtaining relief.
(2) A civil cover sheet (form 1.997) shall be completed and
filed with the clerk at the time an initial complaint or petition
is filed by the party initiating the action. If the cover sheet is
not filed, the clerk shall accept the complaint or petition for
filing; but all proceedings in the action shall be abated until a
properly executed cover sheet is completed and filed. The clerk
shall complete the civil cover sheet for a party appearing pro se.
(3) A final disposition form (form 1.998) shall be filed with
the clerk by the prevailing party at the time of the filing of the
order or judgment which disposes of the action. The clerk shall
complete the final disposition form for a party appearing pro se,
or when the action is dismissed for lack of prosecution pursuant to
rule 1.420(e).
(d) 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.
RULE 1.110 GENERAL RULES OF PLEADING
(a) Forms of Pleadings. Forms of action and technical forms
for seeking relief and of pleas, pleadings, or motions are
abolished.
(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 shall contain
(1) a short and plain statement of the grounds upon which the
court's jurisdiction depends, unless the court already has
jurisdiction and the claim needs no new grounds of jurisdiction to
support it, (2) a short and plain statement of the ultimate facts
showing that the pleader is entitled to relief, and (3) a demand
for judgment for the relief to which the pleader deems himself or
herself entitled. Relief in the alternative or of several
different types may be demanded. Every complaint shall be
considered to pray for general relief.
(c) The Answer. In the answer a pleader shall state in short
and plain terms the pleader's defenses to each claim asserted and
shall admit or deny the averments on which the adverse party
relies. If the defendant is without knowledge, the defendant shall
so state and such statement shall operate as a denial. Denial
shall fairly meet the substance of the averments denied. When a
pleader intends in good faith to deny only a part of an averment
the pleader shall specify so much of it as is true and shall deny
the remainder. Unless the pleader intends in good faith to
controvert all of the averments of the preceding pleading, the
pleader may make denials as specific denials of designated
averments or may generally deny all of the averments except such
designated averments as the pleader expressly admits, but when the
pleader does so intend to controvert all of its averments,
including averments of the grounds upon which the court's
jurisdiction depends, the pleader may do so by general denial.
(d) Affirmative Defenses. In pleading to a preceding pleading
a party shall 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. 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, shall 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 shall 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 shall be taken as denied or avoided.
(f) Separate Statements. All averments of claim or defense
shall be made in consecutively numbered paragraphs, the contents of
each of which shall 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 upon
a separate transaction or occurrence and each defense other than
denials shall 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 shall 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 shall be designated a supplemental
complaint or petition. The action shall then proceed in plaint or
petition. The action shall 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 shall not apply to proceedings
that may be initiated by motion under these rules.
RULE 1.120 PLEADING SPECIAL MATTERS
(a) Capacity. It is not necessary to aver the capacity of a
party to sue or be sued, the authority of a party to sue or be sued
in a representative capacity, or the legal existence of an
organized association of persons that is made a party, except to
the extent required to show the jurisdiction of the court. When a
party desires to raise an issue as to the legal existence of any
party, the capacity of any party to sue or be sued, or the
authority of a party to sue or be sued in a representative
capacity, that party shall do so by specific negative averment
which shall include such supporting particulars as are peculiarly
within the pleader's knowledge.
(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 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
(a) Instruments Attached. All bonds, notes, bills of
exchange, contracts, accounts, or documents upon which action may
be brought or defense made, or a copy thereof or a copy of the
portions thereof material to the pleadings, shall be incorporated
in or attached to the pleading. No papers shall be unnecessarily
annexed as exhibits. The pleadings shall contain no unnecessary
recitals of deeds, documents, contracts, or other instruments.
(b) Part for All Purpose. Any exhibit attached to a pleading
shall 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
(a) When Presented.
(1) A defendant shall serve an answer within 20 days after
service of original process and the initial pleading on the
defendant, or not later than the date fixed in a notice by
publication. A party served with a pleading stating a crossclaim
against that party shall serve an answer to it within 20 days after
service on that party. The plaintiff shall serve an answer to a
counterclaim within 20 days after service of the counterclaim. If
a reply is required, the reply shall be served within 20 days after
service of the answer.
(2) The service of a motion under this rule, except a motion
for judgment on the pleadings or a motion to strike under
subdivision (f), alters these periods of time so that if the court
denies the motion or postpones its disposition until the trial on
the merits, the responsive pleadings shall be served within 10 days
after notice of the court's action or, if the court grants a motion
for a more definite statement, the responsive pleadings shall be
served within 10 days after service of the more definite statement
unless a different time is fixed by the court in either case.
(3) If the court permits or requires an amended or responsive
pleading or a more definite statement, the pleading or statement
shall be served within 10 days after notice of the court's action.
Responses to the pleadings or statements shall be served within 10
days of service of the pleadings or statements.
(b) How Presented. Every defense in law or fact to a claim
for relief in a pleading shall be asserted in the responsive
pleading, if one is required, but the following defenses may be
made by motion at the option of the pleader: (1) lack of
jurisdiction over the subject matter, (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. A motion
making any of these defenses shall be made before pleading if a
further pleading is permitted. The grounds on which any of the
enumerated defenses are based and the substantial matters of law
intended to be argued shall be stated specifically and with
particularity in the responsive pleading or motion. Any ground not
stated shall be deemed to be waived except any ground showing that
the court lacks jurisdiction of the subject matter may be made at
any time. No defense or objection is waived by being joined with
other defenses or objections in a responsive pleading or motion.
If a pleading sets forth a claim for a relief at the trial, except
that the objection of failure to state a legal defense in an answer
or reply shall be asserted by motion to strike the defense within
20 days after service of the answer or reply.
(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 shall be heard
and determined before trial on application of any party unless the
court orders that the hearing and determination shall 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 shall 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 notice 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 orders 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.
(1) A party waives all defenses and objections that the party
does not present either by motion under subdivisions (b), (e), or
(f) of this rule or, if the party has made no motion, in a
responsive pleading except as provided in subdivision (h)(2).
(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 in either 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.
RULE 1.150 SHAM PLEADINGS
(a) Motion to Strike. If a party deems any pleading or part
thereof filed by another party to be a sham, that party may move to
strike the pleading or part thereof before the cause is set for
trial and the court shall hear the motion, taking evidence of the
respective parties, and if the motion is sustained, the pleading to
which the motion is directed shall be stricken. Default and
summary judgment on the merits may be entered in the discretion of
the court or the court may permit additional pleadings to be filed
for good cause shown.
(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
All motions and applications in the clerk's office for the
issuance of mesne process and final process to enforce and execute
judgments, for entering defaults, do not require an order of court
shall be deemed motions and applications grantable as of courts by
the clerk. The clerk's action may be suspended or altered or
rescinded by the court upon cause shown.
RULE 1.170 COUNTERCLAIMS AND CROSSCLAIMS
(a) Compulsory Counterclaims. A pleading shall state as a
counterclaim any claim which at the time of serving the pleading
the pleader has against any opposing party, provided it arises out
of the transaction or occurrence that is the subject matter of the
opposing party's claim and does not require for its adjudication
the presence of third parties over whom the court cannot acquire
jurisdiction. But the pleader need not state a claim if (1) at the
time the action was commenced the claim was the subject of another
pending action, or (2) the opposing party brought suit upon 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.
(b) Permissive Counterclaim. A pleading may state as a
counterclaim any claim against an opposing party not arising out of
the transaction or occurrence that is the subject matter of the
opposing party's claim.
(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 crossclaimant for all or part
of a claim asserted in the action against the crossclaimant.
Service of a crossclaim on a party who has appeared in the action
shall be made pursuant to rule 1.080(b). Service of a crossclaim
against a party who has not appeared in the action shall 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 shall be named in the counterclaim or crossclaim
and be served with process and shall 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 shall be
transferred forthwith 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
shall order the transfer of the action and the transmittal of all
papers 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 papers and
deposit shall 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, shall 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.
RULE 1.180 THIRD PARTY PRACTICE
(a)When Available. At any time after commencement of the
action a defendant may have a summons and complaint served on a
person not a party to the action who is or may be liable to the
defendant for all or part of the plaintiff's claim against the
defendant, and may also assert any other claim that arises out of
the transaction or occurrence that is the subject matter of the
plaintiff's claim. The defendant need not obtain leave of court if
the defendant files the third party complaint not later than 20
days after the defendant serves the original answer. Otherwise,
the defendant must obtain leave on motion and notice to all parties
to the action. The person served with the summons and third-party
complaint, herein called the third-party defendant, shall make
defenses to the defendant's claim as provided in rules 1.110 and
1.140 and counterclaims against the defendant and cross claims
against other third-party defendants as provided in rule 1.170.
The third-party defendant may assert against the plaintiff any
defenses that the defendant has to the plaintiff's claim. The
third-party defendant may also assert any claim against the
plaintiff arising out of the transaction or occurrence that is the
subject matter of the plaintiff's claim against the defendant. The
plaintiff may assert any claim against the third-party defendant
arising out of the transaction or occurrence that is the subject
matter of the plaintiff's claim against the defendant, and the
third-party defendant thereupon shall assert a defense as provided
in rules 1.110 and 1.140 and counterclaims and crossclaims as
provided in rule 1.170. Any party may move to strike the third-
party claim or for its severance or separate trial. A third-party
defendant may proceed under this rule against any person not a
party to the action who is or may be liable to the third-party
defendant for all or part of the claim made in the action against
the third-party defendant.
(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.
RULE 1.190 AMENDED AND SUPPLEMENTAL PLEADINGS
(a) Amendments. A party may amend a pleading once as a matter
of course at any time before a responsive pleading is served or, if
the pleading is one to which no responsive pleading is permitted
and the action has not been placed on the trial calendar, may so
amend it at any time within 20 days after it is served. Otherwise
a party may amend a pleading only by leave of court or by written
consent of the adverse party. Leave of court shall be given freely
when justice so requires. A party shall plead in response to an
amended pleading within 10 days after service of the amended
pleading unless the court otherwise orders.
(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 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.
RULE 1.200 PRETRIAL PROCEDURE
(a) Case Management Conferences. At 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 shall be specified in the order or notice
setting the conference. At such a conference the court may:
(1) schedule or reschedule the service of motions, pleadings,
and other papers;
(2) set or reset the time of trials, subject to rule 1.440(c);
(3) coordinate the progress of the action if complex
litigation factors are present;
(4) limit, schedule, order, or expedite discovery;
(5) schedule disclosure of expert witnesses and the discovery
of facts known and opinions held by such experts;
(6) schedule or hear motions in limine;
(7) pursue the possibilities of settlement;
(8) require filing of preliminary stipulations if issues can
be narrowed;
(9) consider referring issues to a master for findings of
fact; and
(10) schedule other conferences or determine other matters
that may aid in the disposition of the action.
(b) Pretrial Conference. After 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:
(1) the simplification of the issues;
(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; and
(5) any matters permitted under subdivision (a) of this rule.
(c) Notice. Reasonable notice shall be given for a case
management conference, and 20 days' notice shall 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 shall be specified in
the order. Orders setting pretrial conferences shall be uniform
throughout the territorial jurisdiction of the court.
(d) Pretrial Order. The court shall make an order reciting
the action taken at a conference and any stipulations made. The
order shall control the subsequent course of the action unless
modified to prevent injustice.
RULE 1.210 PARTIES
(a) Parties Generally. Every action may be prosecuted in the
name of the real party in interest, but an executor, 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. 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. 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.
(b) Infants or Incompetent Persons. When an infant or
incompetent person has a representative, such as a guardian or
other like fiduciary, the representative may sue or defend on
behalf of the infant or incompetent person. An infant 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 an infant or
incompetent person not other wise represented in an action or shall
make such other order as it deems proper for the protection of the
infant or incompetent person.
RULE 1.220 CLASS ACTIONS
(a) Prerequisites to Class Representation. Before any claim
or defense may be maintained on behalf of a class by one party or
more suing or being sued as the representative of all the members
of a class, the court shall first conclude that (1) the members of
the class are so numerous that separate joinder of each member is
impracticable, (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) Claims and Defenses Maintainable. A claim or defense may
be maintained on behalf of a class if the court concludes that the
prerequisites of subdivision (a) are satisfied, and that:
(1) the 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; or
(2) 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; 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 (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.
(c) Pleading Requirements. Any pleading, counterclaim, or
crossclaim alleging the existence of a class shall contain the
following:
(1) Next to its caption the designation: "Class Representation
Allegations," specific recitation of:
(2) Under a separate heading, designated as "Class
Representation Allegations," specific recitation of:
(A) the particular provision of subdivision (b) under
which it is claimed that the claim or defense is maintainable
on behalf of a class;
(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)(i) the approximate number of class members, (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; and
(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.
(d) Determination of Class Representation; Notice; Judgment:
Claim or Defense Maintained Partly on Behalf of a Class.
(1) As soon as practicable after service of any pleading
alleging the existence of a class under this rule and before
service of an order for pretrial conference or a notice for trial,
after hearing the court shall enter an order determining whether
the claim or defense is maintainable on behalf of a class on the
application of any party or on the court's initiative.
Irrespective of whether the court determines that the claim or
defense is maintainable on behalf of a class, the order shall
separately state the findings of fact and conclusions of law upon
which the determination is based. In making the determination the
court (A) may allow the claim or defense to be so maintained, and,
if so, shall state under which subsection of subdivision (b) the
claim or defense is to be maintained, (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.
(2) 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. 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.
Unless otherwise ordered by the court, the party asserting the
existence of the class shall initially pay for the cost of giving
notice. The notice shall inform each member of the class that (A)
any member of the class who files a statement with the court by the
date specified in the notice asking to be excluded shall be
excluded from the class, (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.
(3) The judgment determining a claim or defense maintained on
behalf of a class under subdivision (b)(1) or (b)(2), whether or
not favorable to the class, shall include and describe those
persons whom the court finds to be members of the class. The
judgment determining a claim or defense maintained on behalf of a
class under subdivision (b)(3), whether or not favorable to the
class, shall include and identify those to whom the notice provided
in subdivision (d)(2) was directed, who have not requested
exclusion and whom the court finds to be members of the class.
(4) When appropriate, (A) a claim or defense may be brought or
maintained on behalf of a class concerning particular issues, or
(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.
(e) Dismissal or Compromise. After a claim or defense is
determined to be maintainable on behalf of a class under
subdivision (d), the claim or defense shall not be voluntarily
withdrawn, dismissed, or compromised without approval of the court
after notice and hearing. Notice of any proposed voluntary
withdrawal, dismissal, or compromise shall be given to all members
of the class as the court directs.
RULE 1.221 CONDOMINIUM ASSOCIATIONS
After control of a condominium association is obtained by unit
owners other than the developer, the association may institute,
maintain, settle, or appeal actions or hearings in its name on
behalf of all unit owners concerning matters of common interest,
including, but not limited to, the common elements; the roof and
structural components of a building or other improvements;
mechanical, electrical, and plumbing elements serving an
improvement or a building; representations of the developer
pertaining to any existing or proposed commonly used facilities;
and protesting ad valorem taxes on commonly used facilities. If
the 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 action under this rule. Nothing
herein limits any statutory or common law right of any individual
unit owner or class of unit owners to bring any action which may
otherwise be available. An action under this rule shall not be
subject to the requirements of rule 1.220.
RULE 1.222 MOBILE HOMEOWNERS' ASSOCIATION
A mobile homeowners' association may institute, maintain,
settle, or appeal actions or hearing in its name on behalf of all
homeowners concerning matters of common interest, including, but
not limited to: the common property; 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. If the 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. Nothing herein limits any statutory or common-law right of
any individual homeowner or class of homeowners to bring any action
which may otherwise be available. An action under this rule shall
not be subject to the requirements of rule 1.220.
RULE 1.230 INTERVENTIONS
Anyone 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
court in its discretion.
RULE 1.240 INTERPLEADER
Persons 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. 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.
The provisions of this rule supplement and do not in any way limit
the joinder of parties otherwise permitted.
RULE 1.250 MISJOINDER AND NONJOINDER OF PARTIES
(a) Misjoinder. Misjoinder of parties is not a ground for
dismissal of an action. Any claim against a party may be severed
and proceeded with separately.
(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 as
are just.
(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.
RULE 1.260 SURVIVOR; SUBSTITUTION OF PARTIES
(a) Death.
(1) 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 and, together with the notice
of hearing, shall be served on all parties as provided in rule
1.080 and upon persons not parties in the manner provided for the
service of a summons. Unless the motion for substitution is made
within 90 days after the death is suggested upon the record by
service of a statement of the fact of the death in the manner
provided for the service of the motion, the action shall be
dismissed as to the deceased party.
(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.
The death shall be suggested upon the record and the action shall
proceed in favor of or against the surviving parties.
(b) Incompetency. If a party becomes incompetent, the court,
upon motion served as provided in subdivision (a) of this rule, may
allow the action to be continued by or against that person's
representative.
(c) Transfer of Interest. In case of any transfer of
interest, the action may be continued by or against the original
part, 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.
(1) When a public officer is a party to an action in an
official capacity and during its pendency dies, resigns, or
otherwise ceases to hold office, the action does not abate and the
officer's successor is automatically substituted as a party.
Proceedings following the substitution shall be in the name of the
substituted party, but any misnomer not affecting the substantial
rights of the parties shall be disregarded. An order of
substitution may be entered at any time, but the omission to enter
such an order shall not affect the substitution.
(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
(a) Consolidation. 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.
(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
(a) Discovery Methods. Parties may obtain discovery by one or
more of the following methods: depositions upon oral examination
or written questions; written interrogatories; production of
documents or things or permission to enter upon land or other
property for inspection and other purposes; physical and mental
examinations; and requests for admission. Unless the court orders
otherwise and under subdivision (c) of this rule, the frequency of
use of these methods is not limited, except as provided in rule
1,200 and rule 1.340.
(b) Scope of Discovery. Unless otherwise limited by order of
the court in accordance with these rules, the scope of discovery is
as follows:
(1) In General. Parties may obtain discovery regarding any
matter, not privileged, that is relevant to the subject matter of
the pending action, whether it relates to the claim or defense of
the party seeking discovery or the claim or defense of any other
party, including the existence, description, nature, custody,
condition, and location of any books, documents, or other tangible
things and the identity and location of persons having knowledge of
any discoverable matter. It is not ground for objection that the
information sought will be inadmissible at the trial if the
information sought appears reasonably calculated to lead to the
discovery of admissible evidence.
(2) Indemnity Agreements. A party may obtain discovery of the
existence and contents of an 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) Trial Preparation: Materials. Subject to the provisions
of subdivision (b)(4) 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.
(4) 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:
(A) By interrogatories a party may require any other
party to identify each person whom the other party expects to
call as an expert witness at trial and to state the subject
matter on which the expert is expected to testify, and to
state the substance of the facts and opinions to which the
expert is expected to testify and a summary of the grounds for
each opinion. 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. Upon motion, the court may
order further discovery by other means, subject to such
restrictions as to scope and other provisions pursuant to
subdivision (b)(4)(C) of this rule concerning fees and
expenses as the court may deem appropriate.
(B) A party may discover facts known or opinions held by
an expert who has been retained or specially employed by
another party in anticipation of litigation or preparation for
trial and who is not expected to be called as a witness at
trial, only as provided in rule 1,360(b) or upon a showing of
exceptional circumstances under which it is impracticable for
the party seeking discovery to obtain facts or opinions on the
same subject by other means.
(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)(4)(A) and (b)(4)(B) of this rule; and
concerning discovery from an expert obtained under subdivision
(b)(4)(A) of this rule the court may require, and concerning
discovery obtained under subdivision (b)(4)(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).
(c) Protective Orders. Upon motion by a party or by the
person from whom discovery is sought, and for good cause shown, the
court in which the action is pending may make any order to protect
a party or person from annoyance, embarrassment, oppression, or
undue burden or expense that justice requires, including one or
more of the following: (1) that the discovery not be had; (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 be a method of discovery other than that
selected by the party seeking discovery; (4) 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. If the
motion for a protective order is denied in whole or in part, the
court may, on such terms and conditions as are just, order that any
party or person provide or permit discovery. The provisions of
rule 1.380(a)(4) apply to the award of expenses incurred in
relation to the motion.
(d) Sequence and Timing of Discovery. Except as provided in
subdivision (b)(4) or unless the court upon motion for the
convenience of parties and witnesses and in the interest of justice
orders otherwise, methods of discovery may be used in any sequence,
and the fact that a party is conducting discovery, whether by
deposition or otherwise, shall not delay any other party's
discovery.
(e) 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.
RULE 1.290 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
(a) Before Action.
(1) Petition. A person who desires to perpetuate that
person's own testimony or that of another person regarding any
matter that may be cognizable in any court of this state may file
a verified petition in the circuit court in the county of the
residence of any expected adverse party. The petition shall be
entitled in the name of the petitioner and shall show: (1) that the
petitioner expects to be a party to an action cognizable in a court
of Florida, but is presently unable to bring it or cause it to be
brought, (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; and
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.
(b) Pending Appeal. If an appeal has been taken from a
judgment of any court or before the taking of an appeal if the time
therefor has not expired, the court in which the judgment was
rendered may allow the taking of the depositions of witnesses to
perpetuate their testimony for use in the even of further
proceedings in the court. In such case the party who desires to
perpetuate the testimony may make a motion for leave to take the
deposition upon the same notice and service as if the action was
pending in the court. The motion shall show (1) the names and
addresses of persons to be examined and the substance of the
testimony which the movant expects to elicit from each, and (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.
(c) Perpetuation by Action. This rule does not limit the
power of a court to entertain an action to perpetuate testimony.