WOODROW BERDEAUX AND LOUISE BERDEAUX, ET AL., APPELLANTS,
v.
EAGLE-PICHER INDUSTRIES, INC., ET AL., APPELLEES
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Nine asbestos plaintiffs appealed dismissal of their cases for failure to serve defendants within 120 days of filing. The court held that Florida Rule 1.070(j), effective January 1, 1989, applies prospectively to pending cases, but dismissal is improper for defendants actually served before the motion to dismiss was filed. Only the defendant Flintkote was properly dismissed because it was never served.
The court held that Rule 1.070(j) applies prospectively to pending cases, limiting plaintiffs to 120 days from the rule's effective date to serve defendants. However, dismissal is improper for defendants actually served prior to the filing of the motion to dismiss. Only Flintkote was properly dismissed because service was never effected on that defendant.
[1] An action shall be dismissed without prejudice or the defendant dropped as a party if service of process is not made within 120 days after filing the initial pleading, ab…
[2] A court may not dismiss an action for failure to serve a defendant within 120 days if service was effected prior to the filing of a motion to dismiss.
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Join FLexlaw to unlock all legal intelligence“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.”
The text of Florida Rule of Civil Procedure 1.070(j) establishing the 120-day service requirement
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Join FLexlaw to unlock all legal intelligenceNine asbestos complaints were filed between January 1987 and March 1988. Defendants remained unserved until August and September 1989. On September 25…
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LEVY, Judge.
Nine asbestos-litigation plaintiffs appeal the trial court’s order dismissing their actions, without prejudice, for failure to serve the defendants within 120 days subsequent to the filing of their complaints. These nine asbestos-litigation complaints were filed between January of 1987 and March of 1988. The defendants remained un-served until August and September of 1989. On September 25, 1989, the defendants filed a motion to dismiss for failure to effect timely service pursuant to Florida Rule of Civil Procedure 1.070(j). Only one defendant, “Flintkote”, was still unserved at the time the motion was filed. In its December 8, 1989 Order, the trial court dismissed all nine actions, without prejudice, for the plaintiffs’ failure to comply with Rule 1.070(j). For the following rea sons, we hold that the trial court erred in dismissing all nine actions for all defendants where service was effected prior to the filing of the Motion to Dismiss. However, defendant Flintkote was properly dismissed by the trial court in all nine actions because service was not properly effected on that particular defendant prior to the Motion to Dismiss.
Florida Rule of Civil Procedure 1.070(j), as amended, states:
(j) 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.
The effective date of Rule 1.070(j) was January 1, 1989. All nine of the actions in this case were pending at the time this amended rule took effect. The plaintiffs below urge that Rule 1.070(j) is not applicable to these actions because Rules of Court are to be applied prospectively, absent an express wording of an intention to the contrary. Their argument would suggest that cases already pending at the effective date of an amended rule would not be subject to its requirements.
The defendants below argue that Rule 1.070(j) is applicable to the nine cases while still affording a prospective treatment. They urge this court that the plaintiffs were bound by the 120-day period which would run from the effective date of the Rule, and are subject to dismissals for failure to comply with this time period.
Although we agree with the defendants that the plaintiffs were limited to 120 days, from the effective date of the Rule, within which to serve the defendants, it was improper for the trial court to dismiss eight of the nine actions.
We hold that the operation of Rule 1.070(j) is analogous to the application of Florida Rule of Civil Procedure 1.500(c)1 wherein the law of the State requires a default not be entered, under that rule, if the defendant files its answer at any time prior to the proposed entry of a default. See Humbert v. Ackerman, 541 So. 2d 1229 (Fla. 3d DCA 1989). We find, however, that the above discussion does not apply to the defendant “Flintkote”, since service of process was not ever effected upon that defendant.
Affirmed in part and reversed in part.
. Rule 1.500(c) provides:
(c) Right to Plead. A party may plead or otherwise defend at any time before default is entered. If a party in default files any paper after the default is entered, the clerk shall notify the party of the entry of default. The clerk shall make an entry on the progress docket showing the notification.
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Morales v. Sperry Rand Corp., 601 So. 2d 538 (Fla. 1992)…McDONALD, Judge. We review Morales v. Sperry Rand Corporation, 578 So. 2d 1143 (Fla. 4th DCA 1991), because of certified conflict with Berdeaux v. Eagle-Picher Industries, Inc., 575 So. 2d 1295 (Fla. 3d DCA 1990). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. At issue are the consequences of failing to obtain service of process within 120 days of the filing of a complaint as required by Florida Rule of Civil Procedure 1.070(j) when…
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Hernandez v. Page, 580 So. 2d 793 (Fla. 3d DCA 1991)…within 120 days of filing the complaint absent good cause for further delay. . While this is a case of first impression as to what constitutes good cause under Rule 1.070(j), we note this court’s statement in Berdeaux v. Eaglet-Picker Indus., Inc., 575 So. 2d 1295 (Fla. 3d DCA 1990), analogizing Rule 1.070Q) to Florida Rule of Civil Procedure 1.500(c), governing default judgments, inasmuch as dismissal is not final under either rule until the dismissal order is filed. That case contains no discussion whatsoev…
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Comisky v. Rosen Mgmt. Serv., Inc., 630 So. 2d 628 (Fla. 4th DCA 1994)…1990); Macke Laundry Services, Inc. v. Saintil, 568 So. 2d 541 (Fla. 4th DCA 1990); Cole v. Posada, 555 So. 2d 367 (Fla. 3d DCA 1989). . See Morales v. Sperry Rand Corp., 578 So. 2d 1143 (Fla. 4th DCA 1991), and Berdeaux v. Eagle-Picher Industries, 575 So. 2d 1295 (Fla. 3d DCA 1990). . See e.g. Hartford Acc. and Indem. Co. v. U.S.C.P. Co., 515 So. 2d 998 (Fla. 4th DCA 1987); Siegel v. Abramowitz, 309 So. 2d 234 (Fla. 4th DCA 1975); Doerschuck v. Doerschuck, 481 So. 2d 1317 (Fla. 4th DCA 1986) (Glickstein, J.…
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