By Angelique Gulla, Barakat + Bossa
Since the start of the COVID-19 pandemic beginning in March of 2020, courts have had to rapidly adapt to the shutdowns that followed by turning to both short and long-term solutions to ensure that the public’s access to our justice system is not hindered. After their initial closings, courts have begun to re-open their doors and Zoom rooms as we learn to adapt and litigate within this new normal. More specifically, in Florida a number of administrative orders have been put in effect to help attorneys navigate these new waters. This article will discuss the Florida Supreme Court Order No. AOSC21-17, Florida Supreme Court Order AOSC20-23, Miami Dade Civil Circuit Order, Miami Dade County Order, Broward Civil Order, and West Palm Beach Orders before April 30, 2021 and after April 30, 2021. While there is no substitute for reading and reviewing these orders in their entirety, we have taken the time to carve out some important notes from the orders and what has changed.
Florida Supreme Court Order No. AOSC21-17 (i)
On June 4, 2021, the Florida Supreme Court issued a new COVID-19 related order, In Re: COVID-19 Health and Safety Protocols And Emergency Operational Measures for Florida Appellate and Trial Courts. The Order establishes protocols, which will become effective 12:01 a.m. on June 21, 2021, and requires all courts to implement the health and safety protocols by August 2, 2021.
As part of the administrative Order all rules of procedure regarding technology or communication are still suspended. Importantly, remote witnesses are still allowed to be sworn in and civil jury trials may be conducted remotely, if all participating parties consent to the remote trial.
It’s important to note that during voir dire, jurors may be excused for COVID-19 related issues, such as caring for an at-risk individual or uncomfortableness in the courtroom. Therefore, during voir dire it is recommended that attorneys attempt to explore potential COVID-19 concerns with the venire, particularly if the proceedings will take place in person.
All other civil trial proceedings shall be constructed remotely, except that a proceeding shall be conducted in person if the chief judge or presiding judge finds that remote conduct is inconsistent with the Constitution or infeasible.
Moreover, the June 4, 2021 Order incorporates the requirement for active case management, previously detailed in Florida Supreme Court Order No. 20-23 Amendment 12 (ii). Specifically, each circuit chief judge is required to issue an administrative order to allow for active case management in civil cases.
As a result of the Florida Supreme Court order, each county has subsequently issued administrative orders detailing the various case management plans.
In Re: COVID-19 Health and Safety Protocols and Emergency Operational Measures for Florida Appellate and Trial Courts, Fla. Admin Order. No. 21-17 (June 4, 2021).
In Re Comprehensive Covid-19 Emergency Measures for Florida Trial Courts, Admin Order No. AOSC20-23 Amend. 12, (April 13, 2021).
Miami Dade Administrative Order No. 21-09 – Circuit Court (iii)
For existing cases, the court shall ascertain the status by receipt of a Case Management Report. The Order carves out exceptions, including but not limited to the case already having a case management order, the case has already been set for trial, the case being placed on inactive status by court order, case being subject to a current moratoria, case being subject to a post-judgment proceeding, the case being subject to dismissal for pack of prosecution, or the case is uncontested.
Under the Miami Dade Administrative Order, the court intends to implement the requirements of Florida Rule of General Practice and Judicial Administration 2.545, and Florida Rules of Civil Procedure 1.1010 to honor the requirement to progress cases to resolution. Failure to file the report or follow the scheduling deadlines will result by sanctions in the presiding judge, or take any other appropriate action as provided by Florida Rule of Civil Procedure 1.200(c).
Pursuant to the Order, the Parties must file a Case Management Report, the form of which is attached as Exhibit B to the Order. The Report should be prepared collaboratively and must be filed with the court through both the E-filing portal and submitted via CourtMap. The following are the deadlines for submission of the Case Management Report, which is dependent upon the case filing date:
The Case Management Report shall serve as a comprehensive inventory of the current status of the case. It shall identify with specificity all of the completed tasks. The burden of initiating the report drafting process is on the Plaintiffs. As such, the court also indicated that reasonable disagreements should be reflected on the joint Case Management Report as opposed to filing separate reports.
For cases filed on or after April 30, 2021, the Order provides that case management orders must be entered by the court within 30 days after the last Defendant being served, but no later than 120 days after the filing of the action.
The court will assign a Case Management Track, the assignments of which are provided in Exhibit A of the Order. Under this Order, no extensions shall be granted without specific proof of diligent efforts to effect service and a written explanation of what efforts Plaintiff needs to pursue to effect service successfully. After submission, parties may amend the Case Management Order within 30 days by motion and must set forth specific facts as to why the schedule set forth is not appropriate for the case and propose an alternative schedule.
The court has set out different Case Track Assignments depending on the subject matter of the case. Exhibit A of the Order contains a chart to aid in the sorting of cases into their respective categories. Moreover, the court has provided criteria and guidance as to the categories which includes the following:
Complex Civil Cases: Actions that have been or may be designated as complex by court Order under Florida Rule of Civil Procedure 1.201 and those that have required significant discovery and typically involve more than 20 witnesses excluding records custodians. Upon such designation, the action shall proceed as provided in the rule with an anticipated resolution or trial date no later than 24 months after designated as complex.
Streamlined Civil Cases: Actions in which parties all have some knowledge of the event in controversy at the time it occurs and the discovery required to establish contested facts involves less than 10 witnesses, and includes all uncontested cases.
General Civil Cases: All other actions which are cases in which one party has more knowledge of the subject of the controversy than the other, but which will generally require fewer than 20 depositions, excluding records custodians.
In Re Establishment of Procedures for Active Case Management in the Circuit Civil Division Pursuant to AOSC 20-23A12, Fla. Admin. Order No. 21-09 (April 30, 2021)
Miami Dade Administrative Order No. 21-080 – County Court (iv)
For new cases, the Order provides that case management orders must be entered within 30 days after the last Defendant being served, but no later than 120 days after the filing of the action. No extensions on service without specific proof of diligent effort to serve and written explanation.
Moreover, the County Order creates track assignments, which will be assigned upon the filing of a new case, with the criteria as follows:
Streamlined County Civil Cases: Cases in which there are few parties; non-complex issues related to liability and damages; few anticipated pretrial motions; limited need for discovery; few witnesses; minimal documentary evidence; and an anticipated trial length of less than two days.
General County Civil Cases: All other county civil cases.
For existing cases, the same exceptions to the Case Management Report in Circuit court apply. Importantly, the County Order does not impose the requirement of the submission of a Case Management Report. Instead, a Case Management Order shall be entered by the court by December 3, 2021, with the following deadlines:
Broward Administrative Order No. 21-19 – Civ (v)
The Civil Case Management Plan is to be used as a model for purpose of establishing time standards, improving the court’s ability to provide early and continuous management of civil cases as required by Florida Rule of General Practice and Judicial Administration 2.545, and to promote uniformity of practice throughout the Seventeenth Judicial Circuit.
For new cases, the clerk of court shall designate each case as complex, streamlined, or general based upon information listed on the Civil Cover Sheet and according to the case classifications. After the initial designation, judges may transfer cases from one category to another under their discretion. It is important to note that nothing prohibits a judge presiding over a general civil division from declaring an action complex and then directing that the action remain in his or her general civil division for disposition.
The designations are as follows:
Complex Case Track: Involves actions with extraordinary complexity as to require or benefit from early intervention and individual judicial management and are those cases that have been or may be designated by court order as complex under Florida Rule of Civil Procedure 1.201, or which may be directly filed to a complex litigation division or declared complex and assigned to a complex litigation division.
Streamlined Cases: Those cases normally requiring little judicial intervention, and which have relatively simple procedural and legal issues that can be resolved promptly by early referral to mediation, alternative dispute resolution or expedited hearing. Notwithstanding classification, the presiding judge shall consider whether the case involves few parties, non-complex issues, few pretrial motions, limited discovery, few witnesses, minimal discovery, less than 2 days trial.
General Cases: These cases represent the large majority of standard civil cases that normally will not require a high level of judicial case management to reach timely resolution unless unusual pre-trial delay arises.
The Order also establishes time standards and goals. However, upon a showing of extraordinary circumstances, certain unique cases may have cause for reasonable delay beyond these periods. The time periods are as follows:
The Uniform Case Management Order will be issued by the presiding judge. For cases filed on or after April 30, 2021the Case Management Order is due within 30 days. For cases filed before April 30, 2021, the presiding judge shall issue the Civil Management Order within thirty days of service of the Complaint on the last defendant or respondent or by December 3, 2021, whichever later, provided that the court has not already issued a pretrial order. The Order to be used by presiding judge is attached to the Administrative Order as Exhibit B.
In Re Establishment & Implementation of Civil Case Management Plan, Fla. Admin. Order No. 2021-19-Civ Amend. 2 (May 19, 2021).
Palm Beach Administrative Order No. 3.108 – Cases Filed on or Before April 29, 2021 (vi)
This Order applies to all civil cases pending in both the county and circuit courts in Palm Beach County on or before April 29, 2021.
This Order does not include cases that are subject to the rules of small claims, the rules of family law or the rules of probate. It also does not permit cases that require or permit summary procedure including actions for residential evictions under Florida Chapter 82, unlawful detainer Under Florida Chapter 83.59, certain actions to enforce liens on real and personal property under Chapter 85, certain condominium actions under Chapter 718, actions to remove mobile homeowners or mobile homes, certain regulatory actions.
Additionally, the following types of civil cases filed on or before April 29, 2021 are exempt: Post judgment cases in reopen status, cases where there has been no record activity for 6 or more months, cases where a trial or scheduling order has already been entered, cases that have already been designated as complex cases under Rule 1.240, cases that have been placed on inactive status, residential foreclosure cases, personal injury protection (PIP) cases, and tobacco cases assigned to Division A1.
Like the other orders, Palm Beach has set out definitions and guidelines in order to categorize cases into their respective tracks and time frames. The tracks are as follows:
Complex Case Track: Involve those cases with extraordinary complexity as to require or benefit from early intervention and individual judicial management, defined by Florida Rule of Civil Procedure 1.201. Cases may only be assigned by motion or stipulation on the parties with court approval, or by designation by the court. Once designated as a complex case, a Case Management Conference will be set within sixty (60) days from the designation of complex.
Streamlined Case Track: Involves cases normally requiring little judicial intervention with relatively simple procedural and legal issues that can be resolved promptly by early referral to mediation or alternative dispute resolution or expedited hearings.
Expedited Case Track: Cases involving the least amount of judicial intervention.
Per the guidelines set forth in the Florida Rules of General Practice and Judicial Administration 2.250(a)(1)(B) and Florida Rule of Civil Procedure 1.201(b)(3) as well as the Circuit’s historical data, case management plans should be based on following model time frames from filing to disposition.
Complex: 24 months
General: 18 months
Streamlined: 12 months
Expedited: 8 months
The Circuit Civil and County Civil Administrative Judges have issued standing orders requesting that all parties to civil case submit an agreed Case Management Plan and Order Approving Case Management Plan for the Court’s approval and signature within specified dates based on the age of the case as follows:
|Case Filed Date||Case Management Plan Due Date|
|Before December 31, 2018||June 1, 2021|
|Between January 1, 2019, and December 31, 2019||July 1, 2021|
|January 1, 2020, and later||August 2, 2021, or 140 days from the filing of the complaint, whichever is later|
Importantly, the anticipated date the case goes to trial on the Case Management plan should not exceed disposition time frame. If a case has been pending longer than the disposition period, the disposition time frame must be adjusted as follows:
In Re Adoption and Implementation of Retroactive Civil Differentiated Case Management Plan for Cases Filed on or Before April 29, 2021, Fla. Admin. Order No. 3.108 (April 28, 2021)
Palm Beach Administrative Order No. 3.108 – Cases Filed on or After April 29, 2021 (vii)
This Order applies to all civil cases pending in both the county and circuit courts in Palm Beach County on or after April 29, 2021. The goal of this Order is to implement differentiated case flow management procedures for the purpose of ensuring that newly filed civil cases are resolved as close to the model time frames set forth in Florida Rule of General Practice and Judicial Administration 2.250(a)(1)(B). A judge is required to hold a case management hearing in each civil case within 30 days from the service deadline.
This Order’s scope, track assignments and model time frames is identical to Administrative Order No. 3.108.
The case management procedures require that the clerk provide plaintiffs who seek a summons with the applicable Standing Order for Case Management and Request for Agreed Case Management plan. With this, plaintiffs should serve this order on all parties along with a copy of the complaint. Any issues arising from attempting to agree on an Agreed Case Management Plan will not be heard at the court’s Uniform Motion Calendar. For cases where this no proper service or a responsive pleading filed by defendants at 120 days and there was previously an order to Serve issued case managers will prepare an Order of Dismissal.
Additionally, the court will order a Case Management hearing to determine the track. However, parties may opt out of attending the hearing by submitting an Agreed Case Management plan. The plan should be attached in PDF format to a proposed Order Approving agreed Case Management Plan and submitted to the divisional queue through the Circuit’s OLS system.
When parties in a small claims case, including a Personal Injury Protection case, file a stipulation to invoke the rules of civil procedure, the case will be considered a civil case for the purpose of this Order. The parties should file a stipulation order to invoke the rules of civil procedure and a completed agreed case management plan, and an order approving case management plan.
In Re Adoption and Implementation of Retroactive Civil Differentiated Case Management Plan for Cases Filed on or After April 29, 2021, Fla. Admin. Order No. 3.107 (April 28, 2021).
Although there is no quick fix for the inevitable delays incurred on the heels of COVID-19 in this states’ judicial system, these Orders help propel the legal field forward into the new normal with judicial efficiency and case resolution as the ultimate goal. If you are a practicing attorney, please consult each respective order for further details and clarification.
i In Re: COVID-19 Health and Safety Protocols and Emergency Operational Measures for Florida Appellate and Trial Courts, Fla. Admin Order. No. 21-17 (June 4, 2021).
ii In Re: Comprehensive Covid-19 Emergency Measures For Florida Trial Courts, Fla. Admin Order No. AOSC20-23, Amendment 13 (May 6, 2021).
iii In Re Establishment of Procedures for Active Case Management in the Circuit Civil Division Pursuant to AOSC 20-23A12, Eleventh Judicial Circuit Admin. Order No. 21-09 (April 30, 2021).
iv In Re: Establishment of Procedures For Active Case Management in the County Civil Division Pursuant to AOSC 20A12, Eleventh Judicial Circuit Admin. Order. No. 21-08, (April 30, 2021).
v In Re Establishment & Implementation of Civil Case Management Plan, Seventeenth Judicial Circuit Admin. Order No. 2021-19-Civ Amend. 2 (May 19, 2021).
vi In Re Adoption and Implementation of Retroactive Civil Differentiated Case Management Plan for Cases Filed on or Before April 29, 2021, Fifteenth Judicial Circuit Order No. 3.108 (April 28, 2021).
vii In Re Adoption and Implementation of Retroactive Civil Differentiated Case Management Plan for Cases Filed on or After April 29, 2021, Fifteenth Judicial Circuit Admin. Order No. 3.107 (April 28, 2021).