CHARLES KOHLER, APPELLANT,
v.
ANGELICA T. VEGA-MALTES, APPELLEE
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Charles Kohler appeals the trial court's dismissal of his complaint for failure to serve the defendant within 120 days of filing. The District Court of Appeal reversed, holding that Kohler demonstrated good cause and excusable neglect, and even without such showing, the trial court abused its discretion by dismissing when the statute of limitations had run and service had been accomplished by the time of the dismissal hearing.
The court held that Kohler's circumstances—the serious illness and surgery of his litigation assistant and the death of his counsel's mother—constituted good cause and excusable neglect. Additionally, even absent such showing, the trial court abused its discretion by dismissing the action where service had been accomplished by the hearing date and the statute of limitations had expired, given Florida's policy favoring resolution of cases on the merits.
[1] A trial court must extend the time for service of process if the plaintiff demonstrates good cause or excusable neglect for the failure to make timely service.
[2] If a plaintiff fails to show good cause or excusable neglect for not serving process within 120 days, the trial court has discretion whether to dismiss the complaint.
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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 the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period.”
Statement of the governing Florida Rule of Civil Procedure 1.070(j) regarding service of process requirements and the discretionary nature of dismissal.
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Join FLexlaw to unlock all legal intelligenceKohler filed his complaint on December 1, 2000, requiring service by April 2, 2001. A summons was issued on March 2, 2001, but an affidavit of nonserv…
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WHATLEY, Judge.
Charles Kohler appeals the dismissal of his complaint for failure to comply with Florida Rule of Civil Procedure 1.070Q), which requires service of process within 120 days of filing the complaint. We reverse.
Florida Rule of Civil Procedure 1.0700) provides the following:
If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period....
In Chaffin v. Jacobson, 793 So. 2d 102, 104 (Fla. 2d DCA 2001), this court held that if a plaintiff demonstrates good cause or excusable neglect for the failure to make timely service, the trial court must extend the time for service and it has no discretion to do otherwise. However, this court further held that if neither good cause nor excusable neglect is shown, the trial court still has discretion in deciding whether to dismiss a complaint. Id. This court noted that Florida has a long-standing policy in favor of resolving civil disputes on the merits, and therefore, where the statute of limitations has run and there has been no showing of good cause or excusable neglect, discretion should be exercised in favor of giving the plaintiff an extension of time to accomplish service. Id. This court held that the trial court abused its discretion in not extending the period of time for service where service had been obtained at the time of the hearing on the motion to dismiss and the statute of limitations had run. Id.
In the present case, Kohler filed his complaint on December 1, 2000, and therefore, service was required to be accomplished by April 2, 2001. On March 2, 2001, a summons was issued, and on April 16, an affidavit of nonservice was filed by Kohler’s private investigation firm. On May 17, 2001, Kohler filed a motion for extension of time to accomplish service, which was granted, and on July 18, Kohler filed an affidavit of compliance.
On March 17, 2001, the litigation assistant for Kohler’s counsel became very ill and missed work during the following weeks, and on April 11, 2001, the assistant underwent surgery. On March 21, 2001, the mother of Kohler’s counsel unexpectedly passed away, and counsel was out of the office for a couple of weeks.
We agree with Kohler that such facts establish good cause and excusable neglect for the failure to timely effectuate service of process. Further, even if there had not been a showing of good cause or excusable neglect, the trial court abused its discretion in granting the motion to dismiss where the statute of limitations had run and an affidavit of compliance had been filed at the time of the hearing on the motion to dismiss. Id.
Reversed and remanded for further proceedings.
SILBERMAN and KELLY, JJ„ Concur.
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Kevin v. Brown, 884 So. 2d 1065 (Fla. 2d DCA 2004)…s an abuse of discretion not to allow additional time for service of the summonses even in the absence of a showing of good cause or excusable neglect. Chaffin v. Jacobson, 793 So. 2d 102, 103-104 (Fla. 2d DCA 2001); see also Kohler v. Vegar-Maltes, 838 So. 2d 1249 (Fla. 2d DCA 2003); Britt v. City of Jacksonville, 874 So. 2d 1196 (Fla. 1st DCA 2004). The complaint should not have been dismissed on the basis of expiration of the statute of limitations, and there does not appear to be another viable ground for…
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Roberts v. Stidham, 19 So. 3d 1155 (Fla. 5th DCA 2009)…ever, even when there has been no showing of good cause or excusable neglect and the statute of limitations has run, discretion should be exercised in favor of allowing the plaintiff [*1158] an extension to accomplish service. Kohler v. Vega-Maltes, 838 So. 2d 1249, 1250 (Fla. 2d DCA 2003). Even without a motion to extend, dismissal is required only if reasonable cause for the delay in service is not documented. Root v. Little, 721 So. 2d 836, 837 (Fla. 5th DCA 1998). Rule 1.070(j) is designed to be a case man…
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Miranda v. Young, 19 So. 3d 1100 (Fla. 2d DCA 2009)…abuse of discretion not to allow additional time for service of the summonses even in the absence of a showing of good cause or excusable neglect” if the order of dismissal is entered after the statute of limitations has run); Kohler v. Vega-Maltes, 838 So. 2d 1249, 1250 (Fla. 2d DCA 2003) (“[Wjhere the statute of limitations has run and there has been no showing of good cause or excusable neglect, discretion should be exercised in favor of giving the plaintiff an extension of time to accomplish service.”). W…
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- Chaffin v. Jacobson, 793 So. 2d 102 (Fla. 2d DCA 2001)