The opinion
604 So.2d 1110 (1992)
In re AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE.
No. 79613.
Supreme Court of Florida.
July 16, 1992.
Rehearing Denied September 30, 1992.
Benjamin H. Hill, III, President, Tampa, Alan T. Dimond, President-elect, Miami, and John F. Harkness, Jr., Executive Director, Tallahassee, on behalf of The Florida Bar, and Clifford L. Somers, Chair, Civ. Procedure Rules Committee, Tampa, for petitioner.
Richard Yale Feder, Circuit Judge, Eleventh Judicial Circuit, Miami, Honorable John L. Phillips, Circuit Judge, Fifteenth Judicial Circuit, West Palm Beach, Henry P. Trawick, Jr. of Trawick, Hammersley & Valentine, P.A., Sarasota, and Anthony C. Musto, Chair, Florida Rules of Judicial Admin. Committee, Coral Gables, responding.
PER CURIAM.
The Civil Procedure Rules Committee of The Florida Bar has submitted its quadrennial report of proposed changes in the Florida Rules of Civil Procedure. After full consideration of the recommendations of the Civil Rules Committee, the action of the Board of Governors, and the comments of interested persons, we amend the rules as set forth in the Appendix. [1] While we have adopted in large part the committee's recommendations, we have modified the proposed rules where we have deemed necessary. At this time we do not accept proposed rule 1.070(j) and proposed form 1.902(c) (service by mail); the proposed amendments to rules 1.490 (masters), 1.491 (child support enforcement), and 1.630 (extraordinary remedies); or the committee's proposal to move rules 1.700-1.830, Rules Common to Mediation and Arbitration, to the Rules of Judicial Administration. We delete rule 1.442 pursuant to this Court's opinion in Timmons v. Combs, No. 78,272, ___ So.2d ___ (Fla. July 9, 1992).
A brief explanation of additional substantive changes to the rules follows:
Subdivisions (b) and (f) of rule 1.080 are amended to allow service of pleadings and papers by facsimile (fax).
Subdivision (a) of rule 1.200 is amended to allow a party to set a case management conference in the same manner as a party may set a hearing on a motion. Subdivision (c) of the same rule is amended to remove the mandatory language and make the notice requirement for a case management conference the same as that for a hearing on a motion, i.e., reasonable notice.
Subdivision (b)(4)(D) of rule 1.310, Depositions Upon Oral Examination, is amended to clarify an ambiguity in whether the cost of the videotape copy is to be borne by the party requesting the videotaping or by the party requesting the copy. The party requesting the copy must bear the cost of that copy.
Rule 1.400, Publication of Deposition, is repealed to conform with the practice under rule 1.310(f)(3) of not filing depositions as a routine matter.
Subdivision (f) of rule 1.420, Dismissal of Actions, is amended to provide for automatic dissolution of lis pendens on claims that are settled even though the entire action may not have been dismissed.
Subdivision (g)(2) of rule 1.431, Trial Jury, is amended to minimize the inequity in numbers of peremptory challenges allowed in selecting alternate jurors in actions with multiple parties.
Subdivision (c) of rule 1.510, Summary Judgment, is amended to require timely service of opposing affidavits, whether by mail or by delivery, before the day of the hearing on a motion for summary judgment.
In rule 1.530(e), Motions for New Trial and Rehearing; Amendments to Judgments, the reference to assignments of error is eliminated to conform to amendments *1111 in the Florida Rules of Appellate Procedure.
In rule 1.540(b), Relief from Judgment, Decrees, or Orders, subdivision (b) is amended to remove the 1-year limitation for a motion based on fraud in financial affidavits used in marital cases.
In rule 1.611, the title is changed from Dissolution of Marriage (Divorce) to Marital and Post-Marital Proceedings. Subdivision (a) is reworded to explain when and how a financial affidavit must be filed.
Rule 1.612, Termination of Pregnancies of Unmarried Minors, is deleted because the related parental consent statute was declared unconstitutional in In re T.W., 551 So.2d 1186 (Fla. 1989).
In subdivision (b) of form 1.902, Summons, the title is amended to eliminate confusion by the sheriffs in effecting service.
Form 1.907(b), Garnishment, is added to effectuate section 77.0305, Florida Statutes (1991). It provides for a continuing writ of garnishment against salary or wages.
Form 1.931, Jurisdictional Statement Law; Actions for Damages, is repealed because of the inability to ensure the form's correctness at any given time because of statutory changes in the courts' jurisdictional limits.
Subdivision (b) of form 1.988, Judgment After Default, is amended to clarify that post-judgment interest only applies to the total of the principal, court costs, and attorneys' fees, if applicable.
Standard Interrogatories, Form 7 (Marriage Dissolution Interrogatories to Party), is extensively modified at the request of the Family Law Section of The Florida Bar.
The appended amended and new provisions of the Florida Rules of Civil Procedure, including new and amended forms, will become effective at midnight on January 1, 1993. Deletions are indicated by the use of struck-through type; new language is indicated by underscoring. Committee comments are included for explanation and guidance only and are not adopted as an official part of the rules.
It is so ordered.
BARKETT, C.J. and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.
APPENDIX
FLORIDA RULES OF CIVIL PROCEDURE
TABLE OF CONTENTS
1.010. SCOPE AND TITLE OF RULES
[AMENDED]
[Editorial changes only]
1.030. NONVERIFICATION OF PLEADINGS
[NO CHANGE]
1.040. ONE FORM OF ACTION
[AMENDED]
[Editorial changes only]
1.050. WHEN ACTION COMMENCED
[NO CHANGE]
1.060. TRANSFERS OF ACTIONS
[AMENDED]
[Editorial changes only]
1.070. PROCESS [AMENDED]
1.080. SERVICE OF PLEADINGS AND
PAPERS [AMENDED]
1.090. TIME [AMENDED]
[Editorial changes only]
1.100. PLEADINGS AND MOTIONS
[AMENDED]
1.110. GENERAL RULES OF PLEADING
[AMENDED]
[Editorial changes only]
1.120. PLEADING SPECIAL MATTERS
[AMENDED]
[Editorial changes only]
1.130. ATTACHING COPY OF CAUSE
OF ACTION AND EXHIBITS [AMENDED]
[Editorial changes only]
1.140. DEFENSES [AMENDED]
[Editorial changes only]
1.150. SHAM PLEADINGS [AMENDED]
[Editorial changes only]
*1112
1.160. MOTIONS [NO CHANGE]
1.170. COUNTERCLAIMS AND CROSS CLAIMSCROSSCLAIMS [AMENDED]
[Editorial changes only]
1.180. THIRD-PARTY PRACTICE [AMENDED]
[Editorial changes only]
1.190. AMENDED AND SUPPLEMENTAL PLEADINGS [AMENDED]
[Editorial changes only]
1.200. PRETRIAL PROCEDURE [AMENDED]
1.210. PARTIES [AMENDED]
[Editorial changes only]
1.220. CLASS ACTIONS [AMENDED]
[Editorial changes only]
1.221. CONDOMINIUM ASSOCIATIONS [AMENDED]
[Editorial changes only]
1.222. MOBILE HOMEOWNERS' ASSOCIATIONS [AMENDED]
[Editorial changes only]
1.230. INTERVENTIONS [AMENDED]
[Editorial changes only]
1.240. INTERPLEADER [AMENDED]
[Editorial changes only]
1.250. MISJOINDER AND NON-JOINDERNONJOINDER OF PARTIES [AMENDED]
[Editorial changes only]
1.260. SURVIVOR; SUBSTITUTION OF PARTIES [AMENDED]
[Editorial changes only]
1.270. CONSOLIDATION; SEPARATE TRIALS [AMENDED]
[Editorial changes only]
1.280. GENERAL PROVISIONS GOVERNING DISCOVERY [AMENDED]
[Editorial changes only]
1.290. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL [AMENDED]
[Editorial changes only]
1.300. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN [AMENDED]
[Editorial changes only]
1.310. DEPOSITIONS UPON ORAL EXAMINATION [AMENDED]
1.320. DEPOSITIONS UPON WRITTEN QUESTIONS [AMENDED]
[Editorial changes only]
1.330. USE OF DEPOSITIONS IN COURT PROCEEDINGS [AMENDED]
[Editorial changes only]
1.340. INTERROGATORIES TO PARTIES [AMENDED]
[Editorial changes only]
1.350. PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR
INSPECTION AND OTHER PURPOSES [AMENDED]
[Editorial changes only]
1.351. PRODUCTION OF DOCUMENTS AND THINGS WITHOUT DEPOSITION
[AMENDED]
[Editorial changes only]
1.360. EXAMINATION OF PERSONS [AMENDED]
[Editorial changes only]
1.370. REQUESTS FOR ADMISSION [AMENDED]
[Editorial changes only]
1.380. FAILURE TO MAKE DISCOVERY; SANCTIONS [AMENDED]
[Editorial changes only]
1.390. DEPOSITIONS OF EXPERT WITNESSES [AMENDED]
[Editorial changes only]
1.400. PUBLICATION OF DEPOSITION [DELETED]
1.410. SUBPOENA [AMENDED]
[Editorial changes only]
1.420. DISMISSAL OF ACTIONS [AMENDED]
1.430. DEMAND FOR JURY TRIAL; WAIVER [AMENDED]
[Editorial changes only]
1.431. TRIAL JURY [AMENDED]
1.432. DISQUALIFICATION OF JUDGE [NO CHANGE]
1.440. SETTING ACTION FOR TRIAL [AMENDED]
[Editorial changes only]
*1113
1.442. OFFER OF JUDGMENT [AMENDED]
1.450. EVIDENCE [AMENDED]
[Editorial changes only]
1.460. CONTINUANCES [AMENDED]
[Editorial changes only]
1.470. EXCEPTIONS UNNECESSARY [AMENDED]
[Editorial changes only]
1.480. MOTION FOR A DIRECTED VERDICT [AMENDED]
[Editorial changes only]
1.481. VERDICTS [NO CHANGE]
1.490. MASTERS [AMENDED]
[Editorial changes only]
1.491. CHILD SUPPORT ENFORCEMENT [AMENDED]
[Editorial changes only]
1.500. DEFAULTS AND FINAL JUDGMENTS THEREON [AMENDED]
[Editorial changes only]
1.510. SUMMARY JUDGMENT [AMENDED]
1.520. VIEW [AMENDED]
[Editorial changes only]
1.530. MOTIONS FOR NEW TRIAL AND REHEARING; AMENDMENTS OF
JUDGMENTS [AMENDED]
1.540. RELIEF FROM JUDGMENT, DECREES, OR ORDERS [AMENDED]
1.550. EXECUTIONS AND FINAL PROCESS [AMENDED]
[Editorial changes only]
1.560. DISCOVERY IN AID OF EXECUTION [AMENDED]
[Editorial changes only]
1.570. ENFORCEMENT OF FINAL JUDGMENTS [AMENDED]
[Editorial changes only]
1.580. WRIT OF POSSESSION [AMENDED]
[Editorial changes only]
1.590. PROCESS IN BEHALF OF AND AGAINST PERSONS NOT PARTIES
[AMENDED]
[Editorial changes only]
1.600. DEPOSITS IN COURT [NO CHANGE]
1.610. INJUNCTIONS [AMENDED]
[Editorial changes only]
1.611. DISSOLUTION OF MARRIAGE (DIVORCE)MARITAL AND POST-MARITAL
PROCEEDINGS [AMENDED]
1.612. TERMINATION OF PREGNANCIES OF UNMARRIED MINORS [DELETED]
1.620. RECEIVERS [AMENDED]
[Editorial changes only]
1.625. PROCEEDINGS AGAINST SURETY ON JUDICIAL BONDS [NO CHANGE]
1.630. EXTRAORDINARY REMEDIES
[Editorial changes only]
1.650. MEDICAL MALPRACTICE PRESUIT SCREENING RULES [AMENDED]
1.700. RULES COMMON TO MEDIATION ORAND ARBITRATION [AMENDED]
[Editorial changes only]
1.710. MEDIATION RULES [AMENDED]
[Editorial changes only]
1.720. MEDIATION PROCEDURES [AMENDED]
[Editorial changes only]
1.730. COMPLETION OF MEDIATION [AMENDED]
[Editorial changes only]
1.740. FAMILY MEDIATION [NO CHANGE]
1.750. SMALL CLAIMS MATTERS [NO CHANGE]
1.800. CASE ELIGIBILITY FOR COURT-ORDERED NON-BINDING ARBITRATION
[AMENDED]
[Editorial changes only]
1.810. SELECTION, QUALIFICATION, TRAINING, AND COMPENSATION OF
ARBITRATORS [AMENDED]
[Editorial changes only]
1.820. HEARING PROCEDURES FOR NON-BINDING ARBITRATION [AMENDED]
[Editorial changes only]
*1114
1.830. VOLUNTARY BINDING ARBITRATION [AMENDED]
[Editorial changes only]
1.900. FORMS [AMENDED]
[Editorial changes only]
1.901. CAPTION [AMENDED]
[Editorial changes only]
1.902. SUMMONS [AMENDED]
1.903. CROSS-CLAIMCROSSCLAIM SUMMONS [AMENDED]
[Editorial changes only]
1.904. THIRD-PARTY SUMMONS [NO CHANGE]
1.905. ATTACHMENT [AMENDED]
[Editorial changes only]
1.906. ATTACHMENT FORECLOSURE [AMENDED]
[Editorial changes only]
1.907. GARNISHMENT [AMENDED]
1.908. REPLEVIN [AMENDED]
[Editorial changes only]
1.909. DISTRESS [AMENDED]
[Editorial changes only]
1.910. SUBPOENA FOR TRIAL [AMENDED]
[Editorial changes only]
1.911. SUBPOENA DUCES TECUM FOR TRIAL [AMENDED]
[Editorial changes only]
1.912. SUBPOENA FOR DEPOSITION [AMENDED]
[Editorial changes only]
1.913. SUBPOENA DUCES TECUM FOR DEPOSITION [AMENDED]
[Editorial changes only]
1.914. EXECUTION [NO CHANGE]
1.915. WRIT OF POSSESSION [AMENDED]
[Editorial changes only]
1.916. REPLEVIN ORDER TO SHOW CAUSE [AMENDED]
[Editorial changes only]
1.917. NE EXEAT [AMENDED]
[Editorial changes only]
1.918. LIS PENDENS [AMENDED]
[Editorial changes only]
1.919. NOTICE OF ACTION; CONSTRUCTIVE SERVICE; NO PROPERTY
[AMENDED]
[Editorial changes only]
1.920. NOTICE OF ACTION; CONSTRUCTIVE SERVICE PROPERTY [AMENDED]
[Editorial changes only]
1.921. NOTICE OF PRODUCTION FROM NON-PARTY [AMENDED]
[Editorial changes only]
1.922. SUBPOENA DUCES TECUM WITHOUT DEPOSITION [AMENDED]
[Editorial changes only]
1.923. EVICTION SUMMONS/RESIDENTIAL [NO CHANGE]
1.931. JURISDICTIONAL STATEMENT LAW; ACTIONS FOR DAMAGES
[DELETED]
1.932. OPEN ACCOUNT [NO CHANGE]
1.933. ACCOUNT STATED [NO CHANGE]
1.934. PROMISSORY NOTE [AMENDED]
[Editorial changes only]
1.935. GOODS SOLD [NO CHANGE]
1.936. MONEY LENT [NO CHANGE]
1.937. REPLEVIN [AMENDED]
[Editorial changes only]
1.938. FORCIBLE ENTRY AND DETENTION [AMENDED]
[Editorial changes only]
1.939. CONVERSION [AMENDED]
[Editorial changes only]
1.940. EJECTMENT [AMENDED]
[Editorial changes only]
1.941. SPECIFIC PERFORMANCE [AMENDED]
[Editorial changes only]
1.942. CHECK [AMENDED]
[Editorial changes only]
1.943(a). PETITION FOR DISSOLUTION OF MARRIAGE [AMENDED]
[Editorial changes only]
*1115
1.943(b). PETITION FOR SIMPLIFIED DISSOLUTION OF MARRIAGE
1.943(c). CERTIFICATE OF CORROBORATING WITNESS
1.943(d). FINANCIAL AFFIDAVIT FOR SIMPLIFIED DISSOLUTION OF
MARRIAGE
1.943(e). PROPERTY SETTLEMENT AGREEMENT FOR SIMPLIFIED
DISSOLUTION OF MARRIAGE
[(b) THROUGH (e) AMENDED AND CONSOLIDATED WITH 1.943(a)]
[Editorial changes only]
1.944. MORTGAGE FORECLOSURE [AMENDED]
[Editorial changes only]
1.945. MOTOR VEHICLE NEGLIGENCE [AMENDED]
[Editorial changes only]
1.946. MOTOR VEHICLE NEGLIGENCE WHEN PLAINTIFF IS UNABLE TO
DETERMINE WHO IS RESPONSIBLE [AMENDED]
[Editorial changes only]
1.947. TENANT EVICTION [NO CHANGE]
1.948. THIRD-PARTY COMPLAINT. GENERAL FORM [AMENDED]
[Editorial changes only]
1.949. IMPLIED WARRANTY [AMENDED]
[Editorial changes only]
1.951. FALL-DOWN NEGLIGENCE COMPLAINT [AMENDED]
[Editorial changes only]
1.960. BOND. GENERAL FORM [AMENDED]
1.961. VARIOUS BOND CONDITIONS [AMENDED]
[Editorial changes only]
1.965. DEFENSE. STATUTE OF LIMITATIONS [AMENDED]
[Editorial changes only]
1.966. DEFENSE. PAYMENT [NO CHANGE]
1.967. DEFENSE. ACCORD AND SATISFACTION [NO CHANGE]
1.968. DEFENSE. FAILURE OF CONSIDERATION [AMENDED]
[Editorial changes only]
1.969. DEFENSE. STATUTE OF FRAUDS [AMENDED]
[Editorial changes only]
1.970. DEFENSE. RELEASE [NO CHANGE]
1.971. DEFENSE. MOTOR VEHICLE CONTRIBUTORY NEGLIGENCE [AMENDED]
[Editorial changes only]
1.972. DEFENSE. ASSUMPTION OF RISK [AMENDED]
[Editorial changes only]
1.975. FINANCIAL STATEMENT FOR DISSOLUTION OF MARRIAGE (DIVORCE)
[AMENDED]
[Editorial changes only]
1.976. STANDARD INTERROGATORIES [AMENDED]
[Editorial changes only]
1.980. DEFAULT [NO CHANGE]
1.982. CONTEMPT NOTICE [AMENDED]
[Editorial changes only]
1.983. PROSPECTIVE JUROR QUESTIONNAIRE [AMENDED]
[Editorial changes only]
1.984. JUROR VOIR DIRE QUESTIONNAIRE [AMENDED]
[Editorial changes only]
1.985. STANDARD JURY INSTRUCTIONS [AMENDED]
[Editorial changes only]
1.986. VERDICTS [AMENDED]
[Editorial changes only]
1.988. JUDGMENT AFTER DEFAULT [AMENDED]
[Editorial changes only]
1.989. JUDGMENT DISMISSING FOR LACK OF PROSECUTION [AMENDED]
[Editorial changes only]
1.990. FINAL JUDGMENT FOR PLAINTIFF. JURY ACTION FOR DAMAGES
[AMENDED]
[Editorial changes only]
*1116
1.991. FINAL JUDGMENT FOR DEFENDANT. JURY ACTION FOR DAMAGES
[AMENDED]
[Editorial changes only]
1.993. FINAL JUDGMENT FOR PLAINTIFF. GENERAL FORM. NON-JURY [NO
CHANGE]
1.994. FINAL JUDGMENT FOR DEFENDANT. GENERAL FORM. NON-JURY
[AMENDED]
[Editorial changes only]
1.995(a). FINAL JUDGMENT DISSOLVING MARRIAGE [AMENDED]
[Editorial changes only]
1.995(b). FINAL JUDGMENT DISSOLVING MARRIAGE UNDER
SIMPLIFIED DISSOLUTION PROCEDURE [AMENDED AND CONSOLIDATED WITH
1.995(a)]
[Editorial changes only]
1.996. FINAL JUDGMENT OF FORECLOSURE [AMENDED]
1.997. CIVIL COVER SHEET [NO CHANGE]
1.998. FINAL DISPOSITION FORM [NO CHANGE]
APPENDIX INTERROGATORIES [AMENDED]
RULE 1.010. SCOPE AND TITLE OF RULES
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 probate and guardianship Florida Probate rRules or the summary claims procedure Small Claims rRules apply. The form, content, procecure, 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 1.040. ONE FORM OF ACTION
There shall be one form of action to be known as "civil action"."
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 Rrule 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 Rrule 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 two2 or more counties, the person bringing the action may select the county to which the action is transferred, but if no such selection is made, the matter shall be determined by the court.
(c) Method. The service charge of the clerk of the court to which an action is transferred under this rule shall be paid by the party who commenced the action within 30 days from the date the order of transfer is entered, subject to taxation as provided by law when the action is determined. If the service charge is not paid within the 30 days, the action shall be dismissed without prejudice by the court that entered the order of transfer.
Court Commentary
1984 Amendment. Because of confusion in some circuits, subdivision (c) is added:
(a) to specify who is to pay the clerk's service charge on transfer;
(b) to provide for the circumstance in which the service charge is not paid; and
(c) to require the dismissal to be by the court which entered the order of transfer.
RULE 1.070. 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 his the clerk's or the judge's signature *1117 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) Sameervice; Numerous Defendants. If there is more than one 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 his the plaintiff's attorney.
(d) Same Proceed Against Those Served. When action is brought against two or more defendants and process is served on one or more, but not on all, and the person making service returns that any defendant not served does not reside in the county, the plaintiff may proceed against the defendants served, noting the fact of non-service as to the defendants not served or the plaintiff at his option may order additional process to be delivered to the sheriffs of the counties in which such defendants reside to be served on them. Nothing in this rule shall be construed to prevent the plaintiff from bringing action thereafter against any defendant not served for the same claim but the plaintiff shall have satisfaction of only one judgment rendered for the same claim.
(e)(d) Service by Publication. Service of process by publication may be made as provided by statute.
(f)(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 him the clerk with the notice of action to all parties whose addresses are stated in the initial pleading or sworn statement.
(g)(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.
(h)(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.
(i)(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.
(j)(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).
Committee Notes
1971 Amendment. Subdivisions (f), (g), and (h) of the existing rule are combined because they deal with the same subject matter. The "notice of suit" is changed to *1118 "notice of action" to comply with the statutory change in 1967. Subdivision (g) is new and provides for substitution of a certified or verified copy of a court order that must be served. The original is to be filed with the clerk and not removed. Subdivision (i) is relettered to (h).
1972 Amendment. Subdivision (a) is amended to require the officer issuing the process to sign it and place the court seal on it. This was required by former § section 47.04, F.S. Florida Statutes, and is essential to the validity of process. When the statute was repealed these procedural requirements were omitted and inadvertently not included in the rule. Subdivision (b) is changed to eliminate the predicate for court appointment of a person to make service of process. This makes the rule more flexible and permits the court to appoint someone to make service at any appropriate time.
1980 Amendment. Subdivision (i) is added in 1980 to eliminate pleading evidentiary facts for "long arm" service of process. It is based on the long standing principle in service by publication that pleading the basis for service is sufficient if it is done in the language of the statute. See McDaniel v. McElvy, 91 Fla. 770 , 108 So. 820 (1926). Confusion has been generated in the decisions under the "long arm" statute. See Wm. E. Strasser Construction Corp. v. Linn, 97 So.2d 458 (Fla. 1957); Hartman Agency, Inc. v. Indiana Farmers Mutual Insurance Co., 353 So.2d 665 (Fla. 2d DCA 1978),; and Drake v. Scharlau, 353 So.2d 961 (Fla. 2d DCA 1978). The amendment is not intended to change the distinction between pleading and proof as enunciated in Elmex Corp. v. Atlantic Federal Savings & Loan Association of Fort Lauderdale, 325 So.2d 58 (Fla. 4th DCA 1976). It is intended to eliminate the necessity of pleading evidentiary facts as well as those of pecuniary benefit that were used in the Elmex case. The amendment is limited to pleading. If the statutory allegations are attacked by motion, the pleader must then prove the evidentiary facts to support the statutory requirements. If denied in a pleading, the allegations must be proved at trial. Otherwise, the allegations will be admitted under Rrule 1.110(e).
1988 Amendment. Subdivision (j) has been added to require plaintiffs to cause service of original summons within 120 days of filing the complaint absent good cause for further delay.
1992 Amendment. Subdivision (d) is repealed because the reason for the rule ceased when process was permitted to run beyond county boundaries. The amendment to subdivision (j) (redesignated as (i)) is intended to clarify that a dismissal under this subdivision is not to be considered as an adjudication on the merits under rule 1.420(a)(1) of these rules.
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) Sameervice; 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 to him or by mailing it to him the attorney or the party at his 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 mean be complete upon: (1) handing it to the attorney or to the party or, (2) leaving it at his the attorney's or party's office with his a clerk or other person in charge thereof or, (3) if there is no one in charge, leaving it in a conspicuous place therein or, (4) if the office is closed or the person to be served has no office, leaving it at his the person's usual place of abode with some person of *1119 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. Service by mail shall be complete upon mailing.
(c) Sameervice; 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 him the judge, in which event he 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 Rrule 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 require the party to furnish the court with stamped, 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.
Committee Notes
1971 Amendment. Subdivision (g) is added to cover the situation when a party responds by a letter to the clerk and the letter may constitute the party's answer. The clerk is then required to furnish copies to parties who have appeared in the action and who are not shown to have received copies. It is not intended to apply to those litigious persons appearing in proper person who are familiar with the requirements of the rules. Subdivision (h) is added and the first part regulates the service of copies of orders. When a party is charged *1120 with preparation of an order, it requires service of the proposed form on other parties and delivery of sufficient copies to the court to be conformed and furnished to all parties after entry. The second part is intended to notify defendant whose address is known of the determination of the action by the court. Failure to comply with either part of subdivision (h) does not affect the order or judgment in any manner.
1972 Amendment. Subdivision (h) is amended because confusion has resulted in its application. Use of the term "party" has been misconstrued. It must be read in conjunction with subdivision (b) of the rule. When service can be made on an attorney, it should be made on the attorney. The term "party" is used throughout the rules because subdivision (b) makes the necessary substitution of the party's attorney throughout the rules. No certificate of service is required. The notation with the names of the persons served with a proposed form is not to be signed. The Ccommittee intended for the court to know who had been served only. Otherwise, the Ccommittee would have used the form of certificate of service in subdivision (f). Submission of copies and mailing of them by the court has proved cumbersome in practice and so it is deleted. The purpose of the rule was to asensure that all parties had an opportunity to see the proposed form before entry by the court.
1976 Amendment. The amendment made to this rule on July 26, 1972, was intended according to the Ccommittee Nnotes "[t]o assure that all parties had an opportunity to see the proposed form before entry by the Court." This change followed on the heels of the 1971 amendment, which the Ccommittee felt had been confusing.
Two changes have been made to subdivision (h)(1), which have resulted in a wholesale redrafting of the rule. First, the provision requiring the submission of proposed orders to all counsel prior to entry by the court has been deleted, any inaccuracies in an order submitted to the court being remediable either by the court's own vigilance or later application by an interested party. Secondly, the rule now requires that conformed copies of any order entered by the court must be mailed to all parties of record in all instances (and to defaulted parties in two 2 specified instances), for purposes of advising them of the date of the court's action as well as the substance of such action. Nothing in this new rule is meant to limit the power of the court to delegate the ministerial function of preparing orders.
1992 Amendment. Subdivisions (b) and (f) are amended to allow service pursuant to this rule to be made by facsimile. "Facsimile" or "fax" is a copy of a paper transmitted by electronic means to a printer receiving the transmission at a designated telephone number. When service is made by facsimile or fax, a second copy must be served by any other method permitted by this rule to ensure that a legible copy is received.
Court Commentary
1984 Amendment. The Ccommittee is recommending an amendment to Rrule 1.530(b) to cure the confusion created by Casto v. Casto, 404 So.2d 1046 (Fla. 1981). That recommendation requires an amendment to Rrule 1.080(e) specifying that the date of filing is that shown on the face of the paper.
RULE 1.090. TIME
(a) Computation. In computing any period of time prescribed or allowed by these rules, 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 seven 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 *1121 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 period, may permit the act to be done when failure to act was the result of excusable neglect, but it may not extend the time for making a motion for new trial, motion for rehearing, or motion to alter or amend a judgment, or making a motion for relief from a judgment under Rrule 1.540(b); or for taking an appeal or filing a petition for certiorari; or for 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 Aafter 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 him that party and the notice or paper is served upon him that party by mail, five 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 cross-claim crossclaim if the answer contains a cross-claim 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, he 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 a manner as to indicate clearly the subject matter of the paper and the party requesting or obtaining relief. [1a]
(2) A civil cover sheet (Fform 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 (Fform 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 *1122 se, or when the action is dismissed for lack of prosecution pursuant to Rrule 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.
Committee Notes
1971 Amendment. The change requires a more complete designation of the document that is filed so that it may be more rapidly identified. It also specifies the applicability of the subdivision to all of the various documents that can be filed. For example, a motion to dismiss should now be entitled "defendant's motion to dismiss the complaint" rather than merely "motion" or "motion to dismiss."
1972 Amendment. [Subdivision (a) is amended to make] a reply mandatory when a party seeks to avoid an affirmative defense in an answer or third-party answer. It is intended to eliminate thereby the problems exemplified by Tuggle v. Maddox, 1952, 60 So.2d 158 (Fla. 1952), and Dickerson v. Orange State Oil Company., App. 1960, 123 So.2d 562 (Fla. 2d DCA 1960).
1992 Amendment. Subdivision (b) is amended to require all notices of hearing to specify the motions or other matters to be heard.
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, cross-claim 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 he 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 his the answer a pleader shall state in short and plain terms his 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, he 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, he 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, he the pleader may make his denials as specific denials of designated averments or he may generally deny all of the averments except such designated averments as he the pleader expressly admits, but when he the pleader does so intend to controvert all of its averments, including averments of the grounds upon which the court's jurisdiction depends, he 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 Rrule 1.140(b); provided this shall not limit amendments under Rrule 1.190 even if such ground is sustained.
*1123 (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 hethe pleader has, and claims for relief may be stated in the alternative if separate items make up the cause of action, or if two 2 or more causes of action are joined. A party may also set forth two 2 or more statements of a claim or defense alternatively, either in one 1 count or defense or in separate counts or defenses. When two 2 or more statements are made in the alternative and one 1 of them, if made independently, would be sufficient, the pleading is not made insufficient by the insufficiency of one 1 or more of the alternative statements. A party may also state as many separate claims or defenses as he 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 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.
Committee Notes
1971 Amendment. Subdivision (h) is added to cover a situation usually arising in divorce judgment modifications, supplemental declaratory relief actions, or trust supervision. When any subsequent proceeding results in a pleading in the strict technical sense under RCP rule 1.100(a), response by opposing parties will follow the same course as though the new pleading were the initial pleading in the action. The time for answering and authority for defenses under RCP rule 1.140 will apply. The last sentence exempts post judgment motions under RCP rules 1.480(c), 1.530, and 1.540, and similar proceedings from its purview.
RULE 1.120. PLEADING SPECIAL MATTERS
(a) Capacity. It is not necessary to aver the capacity of a party to sue or to be sued, or 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, or the capacity of any party to sue or be sued in a representative capacity, he 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 *1124 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 of a board or officer, it is sufficient to aver the judgment or decree without setting forth matter showing jurisdiction to render it.
(f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.
(g) Special Damage. When items of special damage are claimed, they shall be specifically stated.
RULE 1.130. ATTACHING COPY OF CAUSE OF ACTION AND EXHIBITS
(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 Purposes. 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, or in another pleading, or in any motion.
RULE 1.140. DEFENSES
(a) When Presented.
(1) A defendant shall serve his an answer within 20 days after service of original process and the initial pleading on him the defendant, or not later than the date fixed in a notice by publication. A party served with a pleading stating a cross-claim crossclaim against him that party shall serve an answer to it within 20 days after service on him that party. The plaintiff shall serve his 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 *1125 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 relief to which the adverse party is not required to serve a responsive pleading, he the adverse party may assert any defense in law or fact to that 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, he that party may move for a more definite statement before interposing his 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 ten 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 order as it deems just.
(f) Motion to Strike. A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.
(g) Consolidation of Defenses. A party who makes a motion under this rule may join with it the other motions herein provided for and then available to him that party. If a party makes a motion under this rule but omits from it any defenses or objections then available to him that party that this rule permits to be raised by motion, he 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 he the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if he the party has made no motion, in his 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.
Committee Notes
1972 Amendment. Subdivision (a) is amended to eliminate the unnecessary statement of the return date when service is made by publication, and to accommodate the change proposed in RCP rule 1.100(a) making a reply mandatory under certain circumstances. Motions to strike under subdivision (f) are divided into two 2 categories, so subdivision (a) is also amended to accommodate this change by eliminating motions to strike under the new subdivision (f) as motions that toll the running of time. A motion to strike an insufficient legal defense will now be available under subdivision (b) and continue to toll the time for responsive pleading. Subdivision (b) is amended to include the defense of failure to state a sufficient legal defense. The proper method of attack for failure to state a legal defense remains a motion to strike. Subdivision (f) is changed to accommodate the two 2 types of motions to strike. The motion to strike an insufficient legal defense is now in subdivision (b). The motion to strike under subdivision (f) does not toll the time for responsive pleading, and can *1126 be made at any time, and the matter can be stricken from by the court on its initiative at any time. Subdivision (g) follows the terminology of fFederal rRule of Civil Procedure 12(g). Much difficulty has been experienced in the application of this and the succeeding subdivision with the result that the same defenses are being raised several times in an action. The intent of the rule is to permit the defenses to be raised one time, either by motion or by the responsive pleading, and thereafter only by motion for judgment on the pleadings or at the trial. Subdivision (h) also reflects this philosophy. It is based on federal rule 12(h) but more clearly states the purpose of the rule.
1988 Amendment. The amendment to subdivision (a) is to fix a time within which amended pleadings, responsive pleadings, or more definite statements required by the court and responses to those pleadings or statements must be served when no time limit is fixed by the court in its order. The court's authority to alter these time periods is contained in Rrule 1.090(b).
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, he that party may move to strike said the pleading or part thereof before the cause is set for trial and the court shall hear said 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) Same 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 1.170. COUNTERCLAIMS AND CROSS-CLAIMS 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 his 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 Aagainst 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 Sstate 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 Sstate.
(e) Counterclaim Maturing or Acquired Aafter Pleading. A claim which matured or was acquired by the pleader after serving his the pleading may be presented as a counterclaim by supplemental pleading with the permission of the court.
(f) Omitted Counterclaim or Cross-Claim Crossclaim. When a pleader fails to set up a counterclaim or cross-claim crossclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may set up the counterclaim *1127 or cross-claim crossclaim by amendment with leave of the court.
(g) Cross-Claim Crossclaim Aagainst Co-Party. A pleading may state as a cross-claim 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 of a counterclaim therein, or relating to any property that is the subject matter of the original action. The cross-claim crossclaim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant crossclaimant for all or part of a claim asserted in the action against the cross-claimant crossclaimant. Service of a cross-claim crossclaim on a party who has appeared in the action shall be made pursuant to Rrule 1.080(b). Service of a cross-claim 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 Iin. 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 cross-claim crossclaim, they shall be named in the counterclaim or cross-claim 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) applies apply to parties brought in under this subdivision.
(i) Separate Trials; Separate Judgment. If the court orders separate trials as provided in Rrule 1.270(b), judgment on a counterclaim or cross-claim 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 cross-claim 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 cross-claim 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 cross-claim 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 cross-claim 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.
Committee Notes
1972 Amendment. Subdivision (h) is amended to conform with the philosophy of the 1968 amendment to Rrule 1.250(c). No justification exists to require more restrictive joinder provisions for counterclaims and cross-claims crossclaims than is required for the initial pleading. The only safeguard required is that joinder does not deprive the court of jurisdiction. Subdivision (j) is amended to require deposit of the service charge for transfer when a counterclaim or cross-claim crossclaim exceeding the jurisdiction of the court in which the action is pending is filed. This cures a practical problem when the defendant files a counterclaim or cross-claim crossclaim exceeding the jurisdiction but neglects to pay the service charge to the court to which the action is transferred. The matter then remains in limbo and causes procedural difficulties in progressing the action.
1988 Amendment. The last two 2 sentences were added to subdivision (g) to counter the construction of these rules and Ssection 48.031(1), Florida Statutes, by an appellate court in Fundaro v. Canadiana Corp., 409 So.2d 1099 (Fla. 4th DCA 1982), to require service of all cross-claims *1128 crossclaims with summons pursuant to Rrule 1.070. The purpose of this amendment is to make it clear that cross-claims crossclaims must be served as initial pleadings only against a party who has not previously entered an appearance in the action.
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 he the defendant files the third-party complaint not later than twenty 20 days after he the defendant serves his 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 his defenses to the defendant's claim as provided in Rrules 1.110 and 1.140 and his counterclaims against the defendant and cross-claims crossclaims against other third-party defendants as provided in Rrule 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 his a defense as provided in Rrules 1.110 and 1.140 and his counterclaims and cross-claims crossclaims as provided in Rrule 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 him 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, he the plaintiff may bring in a third party under circumstances which would entitle a defendant to do so under this rule.
Court Commentary
1984 Amendment. Subdivision (a) is amended to permit the defendant to have the same right to assert claims arising out of the transaction or occurrence that all of the other parties to the action have. It overrules the decisions in Miramar Construction, Inc. v. El Conquistador Condominium, 303 So.2d 81 (Fla. 3d DCA 1974), and Richard's Paint Manufacturing Mfg. Co. v. Onyx Paints, Inc., 363 So.2d 596 (Fla. 4th DCA 1978), to that extent. The term defendant is used throughout instead of third-party plaintiff for clarity and brevity reasons and refers to the defendant serving the summons and third-party complaint on a third-party defendant or, when applicable, to the similar summons and fourth party.
RULE 1.190. AMENDED AND SUPPLEMENTAL PLEADINGS
(a) Amendments. A party may amend his 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, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his 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 Wwith 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 *1129 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 him the objecting party in maintaining his an action or defense upon the merits.
(c) Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.
(d) Supplemental Pleadings. Upon motion of a party the court may permit him 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.
Committee Notes
1980 Amendment. The last clause of subdivision (a) is deleted to restore the decision in Scarfone v. Denby, 156 So.2d 694 (Fla. 2d DCA 1963). The adoption of Rrule 1.500 requiring notice of an application for default after filing or serving of any paper eliminates the need for the clause. This will permit reinstatement of the procedure in federal practice and earlier Florida practice requiring a response to each amended pleading, thus simplifying the court file under the doctrine of Dee v. Southern Brewing Co., 146 Fla. 588 , 1 So.2d 562 (1941).
RULE 1.200. PRETRIAL PROCEDURE
(a) Case Management Conferences. At any time after responsive pleadings or motions are due, the court may itself order, or on motion of 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 Rrule 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;
*1130 (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. Any requests for a conference under this rule shall immediately be transmitted to the appropriate judge by the clerk. Notice of a case management conference shall be served not less than 20 days before the date of the conference, Reasonable notice shall be given for a case management conference, and 20 day's 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.
Committee Notes
1971 Amendment. The three 3 paragraphs of the rule are lettered and given subtitles. The present last paragraph is placed second as subdivision (b) because the proceeding required under it is taken before that in the present second paragraph. The time for implementation is changed from settling the issues because the language is erroneous, the purpose of the conference being to settle some and prepare for the trial of other issues. The last two 2 sentences of subdivision (b) are added to require uniformity by all judges of the court and to require specification of the documentary requirements for the conference. The last sentence of subdivision (c) is deleted since it is covered by the local rule provisions of RCP rule 1.020(d). The reference to the parties in substitution for attorneys and counsel is one of style because the rules generally impose obligations on the parties except when the attorneys are specifically intended. It should be understood that those parties represented by attorneys will have the attorneys perform for them in the usual manner.
1972 Amendment. Subdivision (a) is amended to require the motion for a pretrial by a party to be timely. This is done to avoid motions for pretrial conferences made a short time before trial and requests for a continuance of the trial as a result of the pretrial conference order. The subdivision is also amended to require the clerk to send to the judge a copy of the motion by a party for the pretrial conference.
1988 Amendment. The purpose of adding subdivision (a)(5) is to spell out clearly for the bench and bar that case management conferences may be used for scheduling the disclosure of expert witnesses and the discovery of the opinion and factual information held by those experts. Subdivision (5) is not intended to expand discovery.
1992 Amendment. Subdivision (a) is amended to allow a party to set a case management conference in the same manner as a party may set a hearing on a motion. Subdivision (c) is amended to remove the mandatory language and make the notice requirement for a case management conference the same as that for a hearing on a motion; i.e., reasonable notice.
Court Commentary
1984 Amendment. This is a substantial rewording of Rrule 1.200. Subdivision (a) is added to authorize case management conferences in an effort to give the court more control over the progress of the action. All of the matters that the court can do under the case management conference can be done at the present time under other rules or because of the court's authority otherwise. The new subdivision merely emphasizes the court's authority and arranges an orderly method for the exercise of that authority. Subdivisions (a), (b), and (c) of the existing rule are relettered accordingly. Subdivision (a) of the existing *1131 rule is also amended to delete the reference to requiring the attorneys to appear at a pretrial conference by referring to the parties for that purpose. This is consistent with the language used throughout the rules and does not contemplate a change in present procedure. Subdivisions (a)(5) and (a)(6) of the existing rule are deleted since they are now covered adequately under the new subdivision (a). Subdivisions (b) and (c) of the existing rule are amended to accommodate the two 2 types of conferences that are now authorized by the rules.
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 his that person's own name without joining with him 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 his 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 when any one anyone who refuses to join, he 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. If an An infant or incompetent person who does not have a duly appointed representative, he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.
Committee Notes
1980 Amendment. Subdivisions (c) and (d) are deleted. Both are obsolete. They were continued in effect earlier because the committee was uncertain about the need for them at the time. Subdivision (c) has been supplanted by section 737.402(2)(z), Florida Statutes (1979), that gives trustees the power to prosecute and defend actions, regardless of the conditions specified in the subdivision. The adoption of section 733.212, Florida Statutes (1979), eliminates the need for subdivision (d) because it provides an easier and less expensive method of eliminating the interests of an heir at law who is not a beneficiary under the will. To the extent that an heir at law is an indispensable party to a proceeding concerning a testamentary trust, due process requires notice and an opportunity to defend, so the rule would be unconstitutionally applied.
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, in addition 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 *1132 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 that 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 cross-claim crossclaim alleging the existence of a class shall contain the following:
(1) Next to its caption the designation: "Class Representation."
(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 *1133 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.
Committee Notes
1980 Amendment. The class action rule has been completely revised to bring it in line with modern practice. The rule is based on Federal Rule of Civil Procedure 23, but a number of changes have been made to eliminate problems in the federal rule through court decisions. Generally, the rule provides for the prerequisites to class representation, an early determination about whether the claim or defense is maintainable on behalf of a class, notice to all members of the class, provisions for the members of the class to exclude themselves, the form of judgment, and the procedure governing dismissal or compromise of a claim or defense maintained on behalf of a class. The prerequisites of subdivision (a) are changed from those in Ffederal *1134 Rrule 23 only to the extent necessary to incorporate the criteria enunciated in Port Royal v. Conboy, 154 So.2d 734 (Fla. 2d DCA 1963). The notice requirements have been made more explicit and stringent than those in the federal rule.
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 section 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 section 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 Rrule 1.220.
Committee Notes
1980 Addition Adoption. The present rule relating to condominium associations [1.220(b) as adopted at 347 So.2d 608 ] is left intact but renumbered as Rrule 1.221.
RULE 1.222. MOBILE HOMEOWNERS' ASSOCIATIONSS
A mobile homeowners' association may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all home owners 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 section 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 section rule. Nothing herein limits any statutory or common- law right of any individual home owner homeowner or class of home owners homeowners to bring any action which may otherwise be available. An action under this rule shall not be subject to the requirements of Rrule 1.220.
RULE 1.230. INTERVENTIONS
Anyone claiming an interest in pending litigation may at any time be permitted to assert his 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.
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 he 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 cross-claim 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 NON-JOINDER 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.
*1135 (b) Dropping Parties. Parties may be dropped by an adverse party in the manner provided for voluntary dismissal in Rrule 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 Rrule 1.190(a). If amendment by leave of court or stipulation of the parties is permitted, parties may be added in the amended pleading without further order of court. Parties may be added by order of court on its own initiative or on motion of any party at any stage of the action and on such terms as are just.
Committee Notes
1972 Amendment. Subdivision (c) is amended to permit the addition of parties when the pleadings are amended by stipulation. This conforms the subdivision to all of the permissive types of amendment under Rrule 1.190(a). It was an inadvertent omission by the committee when the rule in its present form was adopted in 1968 as can be seen by reference to the 1968 Ccommittee Nnote.
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 Rrule 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 his 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 party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule.
(d) Public Officers; Death or Separation Ffrom Office.
(1) When a public officer is a party to an action in his an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his 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 his an official capacity, he the officer may be described as a party by his the official title rather than by name but the court may require his 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 *1136 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, cross-claim crossclaim, counterclaim, or third- party claim or of any separate issue or of any number of claims, cross-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 Rrule 1.200 and Rrule 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 any agreement under which any person may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or to reimburse a party for payments made to satisfy the judgment. Information concerning the agreement is not admissible in evidence at trial by reason of disclosure.
(3) 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 his 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 his the case and that he 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 Rrule 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.
*1137 (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 Rrule 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 Rrule 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 Rrule 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 by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. 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 Rrule 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.
*1138 (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 his the response to include information thereafter acquired.
Committee Notes
1972 Amendment. The rule is derived from FR Federal Rule of Civil Procedure 26 as amended in 1970. Subdivisions (a), (b)(2), and (b)(3) are new. Subdivision (c) contains material from former RCP rule 1.310(b). Subdivisions (d) and (e) are new, but the latter is similar to former RCP rule 1.340(d). Significant changes are made in discovery from experts. The general rearrangement of the discovery rule is more logical and is the result of 35 years of experience under the federal rules.
1988 Amendment. Subdivision (b)(2) has been added to enable discovery of the existence and contents of indemnity agreements and is the result of the enactment of Ssections 627.7262 and 627.7264, Florida Statutes, proscribing the joinder of insurers but providing for disclosure. This rule is derived from FR Federal Rule of Civil Procedure 26(b)(2). Subdivisions (b)(2) and (b)(3) have been redesignated as (b)(3) and (b)(4) respectively.
The purpose of the amendment to subdivision (b)(3)(A) (renumbered (b)(4)(A)) is to allow, without leave of court, the depositions of experts who have been disclosed as expected to be used at trial. The purpose of the subdivision (b)(4)(D) is to define the term "expert" as used in these rules.
RULE 1.290. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
(a) Before Action.
(1) Petition. A person who desires to perpetuate his 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 his the petitioner's interest therein, (3) the facts which he the petitioner desires to establish by the proposed testimony and his the petitioner's reasons for desiring to perpetuate it, (4) the names or a description of the persons he 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 he 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 twenty 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 *1139 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 Rrule 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 event 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 he 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.
Committee Notes
1980 Amendment. Subdivision (d) is repealed because depositions de bene esse are obsolete. Rules 1.280 and 1.310 with the remainder of this rule cover all needed deposition circumstances and do so better. Subdivision (d) was taken from former chapter 63, Florida Statutes, and is not a complete procedure without reference to the parts of the statute not carried forward in the rule.
RULE 1.300. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN
(a) Persons Authorized. Depositions may be taken before any notary public or judicial officer or before any officer authorized by the statutes of Florida to take acknowledgments or proof of executions of deeds or by any person appointed by the court in which the action is pending.
(b) In Foreign Countries. In a foreign country depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of Florida or of the United States, or (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of his the commission to administer any necessary oath and take testimony, or (3) pursuant to a letter rogatory. A commission or a letter rogatory shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient, and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed "To the Appropriate Authority in ____ (herein name the of country) ____." Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or any similar departure from the requirements for depositions taken within Florida under these rules.
(c) Selection by Stipulation. If the parties so stipulate in writing, depositions may be taken before any person at any time or place upon any notice and in any manner and when so taken may be used like other depositions.
*1140 (d) Persons Disqualified. Unless so stipulated by the parties, no deposition shall be taken before a person who is a relative or, employee or, attorney, or counsel of any of the parties or, is a relative or employee of such any of the parties' attorney or counsel, or is financially interested in the action.
RULE 1.310. DEPOSITIONS UPON ORAL EXAMINATION
(a) When Depositions May Be Taken. After commencement of the action any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition within 30 days after service of the process and initial pleading upon any defendant, except that leave is not required (1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in subdivision (b)(2) of this rule. The attendance of witnesses may be compelled by subpoena as provided in Rrule 1.410. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
(b) Notice; Method of Taking; Production at Deposition.
(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him the person or the particular class or group to which he the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced under the subpoena shall be attached to or included in the notice.
(2) Leave of court is not required for the taking of a deposition by plaintiff if the notice states that the person to be examined is about to go out of the state and will be unavailable for examination unless his a deposition is taken before expiration of the 30-day period under subdivision (a). If a party shows that when he was served with notice under this subdivision, he that party was unable through the exercise of diligence to obtain counsel to represent him the party at the taking of the deposition, the deposition may not be used against him that party.
(3) For cause shown the court may enlarge or shorten the time for taking the deposition.
(4) Any deposition may be recorded by videotape without leave of the court or stipulation of the parties, provided the deposition is taken in accordance with this subdivision.
(A) Notice. A party intending to videotape a deposition shall state in his the notice that the deposition is to be videotaped and shall give the name and address of the operator.
(B) Stenographer. Videotaped depositions shall also be recorded stenographically, unless all parties agree otherwise.
(C) Procedure. At the beginning of the deposition, the officer before whom it is taken shall, on camera: (i) identify the style of the action;, (ii) state the date;, and (iii) swear the witness.
(D) Custody of Tape and Copies. The attorney for the party requesting the videotaping of the deposition shall take custody of and be responsible for the safeguarding of the videotape, and shall permit the viewing of it by the opposing party, and, if requested, shall provide a copy of the videotape at the expense of the requesting party requesting the copy.
(E) Cost of Videotaped Depositions. The party requesting the videotaping shall bear the initial cost of videotaping.
(5) The notice to a party deponent may be accompanied by a request made in compliance with Rrule 1.350 for the production of documents and tangible things at the taking of the deposition. The procedure of Rrule 1.350 shall apply to the request.
(6) In his the notice a party may name as the deponent a public or private corporation or, a partnership or association, or a *1141 governmental agency, and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to do so, to testify on its behalf and may state the matters on which each person designated will testify. The persons so designated shall testify about matters known or reasonably available to the organization. This subdivision does not preclude taking a deposition by any other procedure authorized in these rules.
(7) On motion the court may order that the testimony at a deposition be taken by telephone. The order may prescribe the manner in which the deposition will be taken. A party may also arrange for a stenographic transcription at his that party's own initial expense.
(c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his the officer's direction and in his the officer's presence, record the testimony of the witness, except that when a deposition is being taken by telephone, the witness shall be sworn by a person present with the witness who is qualified to administer an oath in that location. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed at the initial cost of the requesting party and prompt notice of the request shall be given to all other parties. All objections made at time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. Instead of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and he that party shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.
(d) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the circuit court where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition or may limit the scope and manner of the taking of the deposition under Rrule 1.280(c). If the order terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of any party or the deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rrule 1.380(a) apply to the award of expenses incurred in relation to the motion.
(e) Witness Review. If the testimony is transcribed, the transcript shall be furnished to the witness for examination and shall be read to or by him the witness unless the examination and reading are waived by the witness and by the parties. Any changes in form or substance that the witness wants to make shall be listed in writing by the officer with a statement of the reasons given by the witness for making the changes. The changes shall be attached to the transcript. It shall then be signed by the witness unless the parties waived the signing or the witness is ill or, cannot be found, or refuses to sign. If the transcript is not signed by the witness within a reasonable time after it is furnished to him the witness, the officer shall sign the transcript and state on the transcript the waiver, illness, absence of the witness, or refusal to sign with any reasons given therefor. The deposition may then be used as fully as though signed unless the court holds that the reasons *1142 given for the refusal to sign require rejection of the deposition wholly or partly, on motion under Rrule 1.330(d)(4).
(f) Filing; Exhibits.
(1) If the deposition is transcribed, the officer shall certify on each copy of the deposition that the witness was duly sworn by him the officer and that the deposition is a true record of the testimony given by the witness. Documents and things produced for inspection during the examination of the witness shall be marked for identification and annexed to and returned with the deposition upon the request of a party, and may be inspected and copied by any party, except that the person producing the materials may substitute copies to be marked for identification if he that person affords to all parties fair opportunity to verify the copies by comparison with the originals. If the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them and the materials may then be used in the same manner as if annexed to and returned with the deposition.
(2) Upon payment of reasonable charges therefor the officer shall furnish a copy of the deposition to any party or to the deponent.
(3) A copy of a deposition may be filed only under the following circumstances:
(A) By It may be filed by a party or the witness when the contents of the deposition must be considered by the court on any matter pending before the court. Prompt notice of the filing of the deposition shall be given to all parties unless notice is waived. A party filing the deposition shall furnish a copy of the deposition or the part being filed to other parties unless the party already has a copy.
(B) If the court determines that a deposition previously taken is necessary for the decision of a matter pending before the court, the court may order that a copy be filed by any party at the initial cost of the party.
(g) Obtaining Copies. A party or witness who does not have a copy of the deposition may obtain it from the officer taking the deposition unless the court orders otherwise. If the deposition is obtained from a person other than the officer, the reasonable cost of reproducing the copies shall be paid to the person by the requesting party or witness.
(h) Failure to Attend or to Serve Subpoena; Expenses.
(1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to the other party the reasonable expenses incurred by him and his the other party and the other party's attorney in attending, including reasonable attorney's' fees.
(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him the witness and the witness because of the failure does not attend and if another party attends in person or by attorney because he that other party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to the other party the reasonable expenses incurred by him and his that other party and that other party's attorney in attending, including reasonable attorney's' fees.
Committee Notes
1972 Amendment. Derived from FR Federal Rule of Civil Procedure 30 as amended in 1970. Subdivision (a) is derived from RCP rule 1.280(a); subdivision (b) from RCP rule 1.310(a) with additional matter added; the first sentence of subdivision (c) has been added and clarifying language added throughout the remainder of the rule.
1976 Amendment. Subdivision (b)(4) has been amended to allow the taking of a video tape videotaped deposition as a matter of right. Provisions for the taxation of costs and the entry of a standard order are included as well. This new amendment allows the contemporaneous stenographic *1143 transcription of a video tape videotaped deposition.
1988 Amendment. The amendments to subdivision (b)(4) are to provide for depositions by videotape as a matter of right.
The notice provision is to asensure that specific notice is given that the deposition will be videotaped and to disclose the identity of the operator. It was decided not to make special provision for a number of days' notice.
The requirement that a stenographer be present (who is also the person likely to be swearing the deponent) is to asensure the availability of a transcript (although not required). The transcript would be a tool to asensure the accuracy of the videotape and thus eliminate the need to establish other procedures aimed at the same objective (like timeclocks in the picture and the like). This does not mean that a transcript must be made. As at ordinary depositions, this would be up to the litigants.
Technical videotaping procedures were not included. It is anticipated that technical problems may be addressed by the court on motions to quash or motions for protective orders.
Subdivision (c) has been amended to accommodate the taking of depositions by telephone. The amendment requires the deponent to be sworn by a person authorized to administer oaths in the deponent's location and who is present with the deponent.
1992 Amendment. Subdivision (b)(4)(D) is amended to clarify an ambiguity in whether the cost of the videotape copy is to be borne by the party requesting the videotaping or by the party requesting the copy. The amendment requires the party requesting the copy to bear the cost of the copy.
Court Commentary
1984 Amendment. Subdivision (b)(7) is added to authorize deposition by telephone, with provision for any party to have a stenographic transcription at his that party's own initial expense.
Subdivision (d) is changed to permit any party to terminate the deposition, not just the objecting party.
Subdivision (e) is changed to eliminate the confusing requirement that a transcript be submitted to the witness. The term has been construed as requiring the court reporter to travel, if necessary, to the witness, and creates a problem when a witness is deposed in Florida and thereafter leaves the state before signing. The change is intended to permit the parties and the court reporter to handle such situations on an ad hoc basis as is most appropriate.
Subdivision (f) is the Ccommittee's action in response to the petition seeking amendment to Rrule 1.310(f) filed in the Supreme Court Case No. 62,699. Subdivision (f) is changed to clarify the need for furnishing copies when a deposition, or part of it, is properly filed, to authorize the court to require a deposition to be both transcribed and filed, and to specify that a party who does not obtain a copy of the deposition may get it from the court reporter unless ordered otherwise by the court. This eliminates the present requirement of furnishing a copy of the deposition, or material part of it, to a person who already has a copy in subsectiondivision (f)(3)(A).
Subsectiondivision (f)(3)(B) broadens the authority of the court to require the filing of a deposition that has been taken, but not transcribed.
Subdivision (g) requires a party to obtain a copy of the deposition from the court reporter unless the court orders otherwise. Generally, the court should not order a party who has a copy of the deposition to furnish it to someone who has neglected to obtain it when the deposition was transcribed. The person should obtain it from the court reporter unless there is a good reason why it cannot be obtained from the reporter.
RULE 1.320. DEPOSITIONS UPON WRITTEN QUESTIONS
(a) Serving Questions; Notice. After commencement of the action any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in Rrule 1.410. The deposition of a *1144 person confined in prison may be taken only by leave of court on such terms as the court prescribes. A party desiring to take a deposition upon written questions shall serve them with a notice stating (1) the name and address of the person who is to answer them, if known, and, if the name is not known, a general description sufficient to identify him the person or the particular class or group to which he that person belongs, and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or, a partnership or association, or a governmental agency in accordance with Rrule 1.310(b)(6). Within 30 days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within 10 days after being served with cross questions, a party may serve redirect questions upon all other parties. Within 10 days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time.
(b) Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the party taking the depositions to the officer designated in the notice, who shall proceed promptly to take the testimony of the witness in the manner provided by Rrules 1.310(c), (e), and (f) in response to the questions and to prepare the deposition, attaching the copy of the notice and the questions received by him the officer. The questions shall not be filed separately from the deposition unless a party seeks to have the court consider the questions before the questions are submitted to the witness.
Committee Notes
1972 Amendment. Derived from FR Federal Rule of Civil Procedure 31 as amended in 1970. The name of interrogatories has been changed to questions to avoid confusion with interrogatories to parties under RCP rule 1.340. Language changes resulting from the rearrangement of the discovery rules have been inserted and subdivision (d) deleted.
RULE 1.330. USE OF DEPOSITIONS IN COURT PROCEEDINGS
(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice of it so far as admissible under the rules of evidence applied as though the witness were then present and testifying in accordance with any of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.
(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent or a person designated under Rrule 1.310(b)(6) or 1.320(a) to testify on behalf of a public or private corporation, a partnership or association, or a governmental agency that is a party may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the Sstate, unless it appears that the absence of the witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or (F) the witness is an expert or skilled witness.
(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him the party to introduce any *1145 other part that in fairness ought to be considered with the part introduced, and any party may introduce any other parts.
(5) Substitution of parties pursuant to Rrule 1.260 does not affect the right to use depositions previously taken and, when an action in any court of the United States or of any Sstate has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken for it.
(6) If a civil action is afterward brought, all depositions lawfully taken in a medical liability mediation proceeding may be used in the civil action as if originally taken for it.
(b) Objections to Admissibility. Subject to the provisions of Rrule 1.300(b) and subdivision (d)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part of it for any reason that would require the exclusion of the evidence if the witness were then present and testifying.
(c) Effect of Taking or Using Depositions. A party does not make a person his the party's own witness for any purpose by taking his the person's deposition. The introduction in evidence of the deposition or any part of it for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition under subdivision (a)(2) of this rule. At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him that party or by any other party.
(d) Effect of Errors and Irregularities.
(1) As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.
(2) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
(3) As to Taking of Deposition.
(A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition unless the ground of the objection is one that might have been obviated or removed if presented at that time.
(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind that might be obviated, removed, or cured if promptly presented are waived unless timely objection to them is made at the taking of the deposition.
(C) Objections to the form of written questions submitted under Rrule 1.320 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within 10 days after service of the last questions authorized.
(4) As to Completion and Return. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, or otherwise dealt with by the officer under Rrules 1.310 and 1.320 are waived unless a motion to suppress the deposition or some part of it is made with reasonable promptness after the defect is, or with due diligence might have been, discovered.
Committee Notes
1972 Amendment. Derived from FR Federal Rule of Civil Procedure 32 as amended in 1970. Subdivisions (a), (b), and (c) are former RCP rules 1.280(d), (f), and (g) respectively. Subdivision (d) is derived from the entire former RCP rule 1.330.
*1146 RULE 1.340. INTERROGATORIES TO PARTIES
(a) Procedure for Use. Without leave of court, any party may serve upon any other party written interrogatories to be answered (1) by the party to whom the interrogatories are directed, or, (2) if that party is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish the information available to that party. Interrogatories may be served on the plaintiff after commencement of the action and on any other party with or after service of the process and initial pleading upon that party. The interrogatories shall not exceed 30, including all subparts, unless the court permits a larger number on motion and notice and for good cause. If the Ssupreme Ccourt has approved a form of interrogatories for the type of action, the initial interrogatories shall be in the form approved by the Ccourt. Other interrogatories may be added to the approved forms without leave of court, so long as the total of approved and additional interrogatories does not exceed 30. Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the grounds for objection shall be stated and signed by the attorney making it. The party to whom the interrogatories are directed shall serve the answers and any objections within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the process and initial pleading upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rrule 1.380(a) on any objection to or other failure to answer an interrogatory.
(b) Scope; Use at Trial. Interrogatories may relate to any matters that can be inquired into under Rrule 1.280(b), and the answers may be used to the extent permitted by the rules of evidence except as otherwise provided in this subdivision. An interrogatory otherwise proper is not objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or calls for a conclusion or asks for information not within the personal knowledge of the party. A party shall respond to such an interrogatory by giving the information he the party has and the source on which the information is based. Such a qualified answer may not be used as direct evidence for or impeachment against the party giving the answer unless the court finds it otherwise admissible under the rules of evidence. If a party introduces an answer to an interrogatory, any other party may require him that party to introduce any other interrogatory and answer that in fairness ought to be considered with it.
(c) Option to Produce Records. When the answer to an interrogatory may be derived or ascertained from the records of the party to whom the interrogatory is directed or from an examination, audit, or inspection of the records or from a compilation, abstract, or summary based on the records and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party to whom it is directed, an answer to the interrogatory specifying the records from which the answer may be derived or ascertained and offering to give the party serving the interrogatory a reasonable opportunity to examine, audit, or inspect the records and to make copies, compilations, abstracts, or summaries is a sufficient answer. An answer shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party interrogated, the records from which the answer may be derived or ascertained, or shall identify a person or persons representing the interrogated party who will be available to assist the interrogating party in locating and identifying the records at the time they are produced.
(d) Effect on Co-Party. Answers made by a party shall not be binding on a co-party.
(e) Service and Filing. Interrogatories shall be arranged so that a blank space is provided after each separately numbered interrogatory. The space shall be reasonably sufficient to enable the answering party to insert the answer within the space. *1147 If sufficient space is not provided, the answering party may attach additional papers with answers and refer to them in the space provided in the interrogatories. The interrogatories shall be served on the party to whom the interrogatories are directed and copies shall be served on all other parties. A certificate of service of the interrogatories shall be filed, giving the date of service and the name of the party to whom they were directed. The answers to the interrogatories shall be served upon the party originally propounding the interrogatories and a copy shall be served on all other parties by the answering party. The original or any copy of the answers to interrogatories may be filed by any party when the court should consider the answers to interrogatories in determining any matter pending before the court. The court may order a copy of the answers to interrogatories filed at any time when the court determines that examination of the answers to interrogatories is necessary to determine any matter pending before the court.
Committee Notes
1972 Amendment. Subdivisions (a), (b), and (c) are derived from FR Federal Rule of Civil Procedure 33 as amended in 1970. Changes from the existing rule expand the time for answering, permit interrogatories to be served with the initial pleading or at any time thereafter, and eliminate the requirement of a hearing on objections. If objections are made, the interrogating party has the responsibility of setting a hearing if he that party wants an answer. If the interrogatories are not sufficiently important, the interrogating party may let the matter drop. Subdivision (b) covers the same matter as the present RCP rule 1.340(b) except those parts that have been transferred to RCP rule 1.280. It also eliminates the confusion between facts and opinions or contentions by requiring that all be given. Subdivision (c) gives the interrogated party an option to produce business records from which the interrogating party can derive the answers to questions. Subdivision (d) is former subdivision (c) without change. Former subdivision (d) is repealed because it is covered in RCP rule 1.280(e). Subdivision (e) is derived from the New Jersey rules and is intended to place both the interrogatories and the answers to them in a convenient place in the court file so that they can be referred to with less confusion. The requirement for filing a copy before the answers are received is necessary in the event of a dispute concerning what was done or the appropriate times involved.
1988 Amendment. The word "initial" in the 1984 amendment to subdivision (a) resulted in some confusion, so it has been deleted. Also the total number of interrogatories which may be propounded without leave of court is enlarged to 30 from 25. Form interrogatories which have been approved by the Ssupreme Ccourt must be used; and those so used, with their subparts, are included in the total number permitted. The amendments are not intended to change any other requirement of the rule.
Court Commentary
1984 Amendment. Subdivision (a) is amended by adding the reference to approved forms of interrogatories. The intent is to eliminate the burden of unnecessary interrogatories.
Subdivision (c) is amended to add the requirement of detail in identifying records when they are produced as an alternative to answering the interrogatory or to designate the persons who will locate the records.
Subdivision (e) is changed to eliminate the requirement of serving an original and a copy of the interrogatories and of the answers in light of the 1981 amendment that no longer permits filing except in special circumstances.
Subdivision (f) is deleted since the Medical Liability Mediation Proceedings have been eliminated.
RULE 1.350. PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES
(a) Request; Scope. Any party may request any other party (1) to produce and permit the party making the request, or *1148 someone acting in his the requesting party's behalf, to inspect and copy any designated documents, including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the party to whom the request is directed through detection devices into reasonably usable form, that constitute or contain matters within the scope of Rrule 1.280(b) and that are in the possession, custody, or control of the party to whom the request is directed; or (2) to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of Rrule 1.280(b) and that are in the possession, custody, or control of the party to whom the request is directed; or (3) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation on it within the scope of Rrule 1.280(b).
(b) Procedure. Without leave of court the request may be served on the plaintiff after commencement of the action and on any other party with or after service of the process and initial pleading on that party. The request shall set forth the items to be inspected, either by individual item or category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection or performing the related acts. The party to whom the request is directed shall serve a written response within 30 days after service of the request, except that a defendant may serve a response within 45 days after service of the process and initial pleading on that defendant. The court may allow a shorter or longer time. For each item or category the response shall state that inspection and related activities will be permitted as requested unless the request is objected to, in which event the reasons for the objection shall be stated. If an objection is made to part of an item or category, the part shall be specified. When producing documents, the producing party shall either produce them as they are kept in the usual course of business or shall identify them to correspond with the categories in the request. The party submitting the request may move for an order under Rrule 1.380 concerning any objection, failure to respond to the request, or any part of it, or failure to permit inspection as requested.
(c) Persons Not Parties. This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land.
(d) Filing of Documents. Unless required by the court, a party shall not file any of the documents or things produced with the response. Documents or things may be filed when they should be considered by the court in determining a matter pending before the court.
Committee Notes
1972 Amendment. Derived from FR Federal Rule of Civil Procedure 34 as amended in 1970. The new rule eliminates the good cause requirement of the former rule, changes the time for making the request and responding to it, and changes the procedure for the response. If no objection to the discovery is made, inspection is had without a court order. While the good cause requirement has been eliminated, the change is not intended to overrule cases limiting discovery under this rule to the scope of ordinary discovery, nor is it intended to overrule cases limiting unreasonable requests such as those reviewed in Van Devere v. Holmes, App. 1963, 156 So.2d 899 (Fla. 3d DCA 1963); IBM v. Elder, App. 1966, 187 So.2d 82 (Fla. 3d DCA 1966); and Miami v. Florida Public Service Commission, 1969, 226 So.2d 217 (Fla. 1969). It is intended that the court review each objection and weigh the need for discovery and the likely results of it against the right of privacy of the party or witness or custodian.
1980 Amendment. Subdivision (b) is amended to require production of documents as they are kept in the usual course of business or in accordance with the categories in the request.
*1149 RULE 1.351. PRODUCTION OF DOCUMENTS AND THINGS WITHOUT DEPOSITION
(a) Request; Scope. A party may seek inspection and copying of any documents or things within the scope of Rrule 1.350(a) from a person who is not a party by issuance of a subpoena directing the production of the documents or things when the requesting party does not seek to depose the custodian or other person in possession of the documents or things.
(b) Procedure. A party desiring production under this rule shall give notice to every other party of the intent to serve a subpoena under this rule at least ten 10 days before the subpoena is issued. The proposed subpoena shall be attached to the notice and shall state the time, place, and method for production of the documents or things, and the name and address of the person who is to produce the documents or things, if known, and if not known, a general description sufficient to identify the person or the particular class or group to which the person belongs,; shall include a designation of the items to be produced,; and shall state that the person who will be asked to produce the documents or things has the right to object to the production under this rule and that the person will not be required to surrender the documents or things. If any party serves an objection to production under this rule within 10 days of service of the notice or the person upon whom the subpoena is to be served objects at any time before the production of the documents or things, the documents or things shall not be produced under this rule.
(c) Subpoena. If no objection is made by a party under subdivision (b), the clerk shall issue a subpoena for the production of the documents or things in accordance with the notice and deliver it to the party serving the notice. The subpoena shall require production of the documents or things specified in it. The subpoena may give the recipient an option to deliver or mail legible copies of the documents or things to the party serving the subpoena. The person upon whom the subpoena is served may condition the preparation of copies on the payment in advance of the reasonable costs of preparing the copies. The subpoena shall require production only in the county of the residence of the custodian or other person in possession of the documents or things or in the county where the documents or things are located or where the custodian or person in possession usually conducts his business.
(d) Copies Furnished. If the subpoena is complied with by delivery or mailing of copies as provided in subdivision (c), the party receiving the copies shall furnish a legible copy of each item furnished to any other party who requests it upon the payment of the reasonable cost of preparing the copies.
(e) Independent Action. This rule does not affect the right of any party to bring an independent action for production of documents and things or permission to enter upon land.
Committee Notes
1980 Adoption. This rule is designed to eliminate the need of taking a deposition of a records custodian when the person seeking discovery wants copies of the records only. It authorizes objections by any other party as well as the custodian of the records. If any person objects, recourse must be had to Rrule 1.310.
RULE 1.360. EXAMINATION OF PERSONS
(a) Request; Scope.
(1) A party may request any other party to submit to, or to produce a person in his that other party's custody or legal control for, examination by a qualified expert when the condition that is the subject of the requested examination is in controversy.
(A) When the physical condition of a party or other person under subdivision (a)(1) is in controversy, the request may be served on the plaintiff without leave of court after commencement of the action, and on any other person with or after service of the process and initial pleading on that party. The request shall specify a reasonable time, place, manner, conditions, and scope of the examination and the person *1150 or persons by whom the examination is to be made. The party to whom the request is directed shall serve a response within 30 days after service of the request, except that a defendant need not serve a response until 45 days after service of the process and initial pleading on that defendant. The court may allow a shorter or longer time. The response shall state that the examination will be permitted as requested unless the request is objected to, in which event the reasons for the objection shall be stated.
(B) In cases where the condition in controversy is not physical, including domestic relations and bastardy cases when the blood group is in issue, a party may move for an examination by a qualified expert as in subdivision (a)(1). The order for examination shall be made only after notice to the person to be examined and to all parties, and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
(2) An examination under this rule is authorized only when the party submitting the request has good cause for the examination. At any hearing the party submitting the request shall have the burden of showing good cause.
(3) Upon request of either the party requesting the examination or the party or person to be examined, the court may establish protective rules governing such examination.
(b) Report of Examiner.
(1) If requested by the party to whom a request for examination or against whom an order is made under subdivision (a)(1)(A) or (a)(1)(B) or by the person examined, the party requesting the examination to be made shall deliver to him the other party a copy of a detailed written report of the examiner setting out his the examiner's findings, including results of all tests made, diagnosis, and conclusions, with similar reports of all earlier examinations of the same condition. After delivery of the detailed written report, the party requesting the examination to be made shall be entitled upon request to receive from the party to whom the request for examination or against whom the order is made a similar report of any examination of the same condition previously or thereafter made, unless in the case of a report of examination of a person not a party the party shows that he is unable the inability to obtain it. On motion, the court may order delivery of a report on such terms as are just; and if an examiner fails or refuses to make a report, the court may exclude his the examiner's testimony if offered at the trial.
(2) By requesting and obtaining a report of the examination so ordered or requested or by taking the deposition of the examiner, the party examined waives any privilege he that party may have in that action or any other involving the same controversy regarding the testimony of every other person who has examined or may thereafter examine him that party concerning the same condition.
(3) This subdivision applies to examinations made by agreement of the parties unless the agreement provides otherwise. This subdivision does not preclude discovery of a report of an examiner or taking the deposition of the examiner in accordance with any other rule.
(c) Examiner as Witness. The examiner may be called as a witness by any party to the action, but shall not be identified as appointed by the court.
Committee Notes
1972 Amendment. Derived from FR Federal Rule of Civil Procedure 35 as amended in 1970. The good cause requirement under this rule has been retained so that the requirements of Schlagenhauf v. Holder, 1964, 85 S.Ct. 234 , 379 U.S. 104 , 85 S.Ct. 234 , 13 L. Ed. 2d 152 (1964), have not been affected. Subdivision (b) is changed to make it clear that reports can be obtained whether an order for the examination has been entered or not and that all earlier reports of the same condition can also be obtained.
1988 Amendment. This amendment to subdivision (a) is intended to broaden the scope of Rrule 1.360 to accommodate the *1151 examination of a person by experts other than physicians.
RULE 1.370. REQUESTS FOR ADMISSION
(a) Request for Admission. A party may serve upon any other party a written request for the admission of the truth of any matters within the scope of Rrule 1.280(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. Without leave of court the request may be served upon the plaintiff after commencement of the action and upon any other party with or after service of the process and initial pleading upon that party. Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request or such shorter or longer time as the court may allow but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the process and initial pleading upon him the defendant. If objection is made, the reasons shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his an answer or deny only a part of the matter of which an admission is requested, he the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he that party states that he that party has made reasonable inquiry and that the information known or readily obtainable by him that party is insufficient to enable him that party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not object to the request on that ground alone; he the party may deny the matter or set forth reasons why he the party cannot admit or deny it, subject to Rrule 1.380(c). The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. Instead of these orders the cour
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