WILLIE CARTER, APPELLANT,
v.
WINN-DIXIE STORE, INC., AND WILLIAMS & ROWE CO., APPELLEE
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Appellant Carter filed a negligence complaint pro se near the statute of limitations deadline, but failed to serve defendants within the required 120-day period due to administrative delays. The trial court dismissed the case with prejudice for failure to comply with Florida Rule of Civil Procedure 1.070(j), but the appellate court reversed because the trial court may not have been aware it had discretion to extend the service period even without good cause when the statute of limitations has run.
A trial court has broad discretion to extend the time for service of process even without a showing of good cause if warranted by the circumstances, particularly when the applicable statute of limitations would bar a refiled action. The trial court's dismissal must be reversed and remanded because it is unclear whether the trial court was aware of this discretionary authority.
[1] A court may grant an extension of time for service of process under Rule 1.070(j) even without a showing of good cause.
[2] A trial court has broad discretion to extend the time for service of process under Rule 1.070(j) even when good cause has not been shown.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the effect of a 1999 amendment to Rule 1.070(j) was to grant courts "broad discretion to extend the time for service even when good cause has not been shown."”
Establishes the primary holding that courts have discretionary authority to extend service deadlines without requiring good cause.
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Join FLexlaw to unlock all legal intelligenceCarter filed a pro se negligence complaint just before the four-year statute of limitations expired. He retained counsel a few days before the 120-day…
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HAWKES, J.
Appellant challenges the trial court’s order dismissing his action against Appellees with prejudice for failure to comply with Florida Rule of Civil Procedure 1.070(j), which requires a plaintiff to serve process on the defendant within 120 days from filing the complaint. Because it is unclear whether the trial court was aware it was permitted to grant an extension of time for service, even without a showing of good cause, we reverse and remand.
FACTUAL & PROCEDURAL HISTORY
Appellant filed his pro se negligence complaint just prior to the expiration of the four year statute of limitations.1 A few days prior to the end of the 120 day service period, Appellant retained counsel, who, with the assistance of a paralegal from another law firm, began attempts to perfect service upon Appellees, Winn-Dix-ie Stores, Inc. and Williams & Rowe Co. Two weeks later, the paralegal received a notice that the summons needed correction due to an administrative error. After making the corrections, the paralegal then re-submitted the summons. A second delay occurred with Winn-Dixie’s summons when it was sent to the wrong Sheriffs department. Ultimately, Winn-Dixie was served 34 days past the expiration of the 120 day period, while Williams & Rowe Co. was served 38 days late. After both parties filed motions to dismiss for failure to comply with the 120 day rule, the trial court dismissed the case against both defendants (on two separate occasions), finding that Appellant failed to show good cause for the delay. The dismissal precluded Appellant from re-filing due to the running of the statute of limitations.
CONSIDERATION OF THE STATUTE OF LIMITATIONS
As we recently noted, the effect of a 1999 amendment to Rule 1.070(j) was to grant courts “broad discretion to extend the time for service even when good cause has not been shown.” Britt v. City of Jacksonville, 874 So. 2d 1196, 1197 (Fla. 1st DCA 2004) (emphasis added) (citing Totura & Co., Inc. v. Williams, 754 So. 2d 671, 677 (Fla.2000) (citation omitted)). Specifically, we have held that “[a] court may grant relief from dismissal even where good cause has not been shown if the applicable statute of limitations would bar the refiled action.”2 Id. at 1198.
Here, the trial court’s order mentioned the parties’ stipulation that the statute of limitations had run. However, it is unclear if the trial court was aware that even without good cause, it was still permitted to grant an extension of time for service if it was warranted under the circumstances. REVERSED and REMANDED for reconsideration in light of this opinion.
WOLF, C.J. and WEBSTER, J., Concur. . See § 95.1 l(3)(a), Fla. Stat. (2002).
. See also Chaffin v. Jacobson, 793 So. 2d 102, 104 (Fla. 2d DCA 2001) (holding trial court abused its discretion by not extending the time for service where the statute of limitations had run, and where service had been achieved at the time of the hearing on the motion to dismiss); Skrbic v. QCRC Assocs. Corp., 761 So. 2d 349, 354 (Fla. 3d DCA 2000) (Cope, J., concurring & dissenting) (opining that where there has been no showing of good cause or excusable neglect, but where statute of limitations has run, discretion should normally be exercised in favor of giving an extension of time for service of process); Nationsbank N.A. v. Ziner, 726 So. 2d 364, 367 (Fla. 4th DCA 1999) (holding trial court abused its discretion by dropping defendant as a party based on plaintiff's failure to timely serve defendant because statute of limitations had run).
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SLY v. McKEITHEN, 27 So. 3d 86 (Fla. 1st DCA 2009)…748 So. 2d 263, 264-65 (Fla.1999). Rule 1.070(j) was amended in 1999 in order to broaden the trial court’s discretion to allow an extension of time for service of process “even when good cause has not been shown.” Carter v. Winn-Dixie Store, Inc., 889 So. 2d 960, 961 (Fla. 1st DCA 2004) (quoting Britt v. City of Jacksonville, 874 So. 2d 1196, 1197 (Fla. 1st DCA 2004)) (emphasis added). Prior to the amendments, application of Rule 1.070(j) often resulted in harsh consequences: “such as where noncompliance tr…
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Wagner v. Garland Strickland, 908 So. 2d 549 (Fla. 1st DCA 2005)…analysis of the possible bases for the trial court’s dismissal order. An order dismissing a cause of action for failure to timely serve the complaint under Rule 1.070(j), is reviewed for an abuse of discretion. See Carter v. Winn-Dixie Store, Inc., 889 So. 2d 960, 961 (Fla. 1st DCA [*551] 2004). The remaining grounds for dismissal asserted by Mr. Strickland present questions of law to be reviewed under the de novo standard. See Dep’t of Agric. & Consumer Services v. Mid-Florida Growers, Inc., 570 So. 2d 892,…
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Premier Cap., LLC v. Davalle, 994 So. 2d 360 (Fla. 3d DCA 2008)…as a party.” Chaffin, 793 So. 2d at 103-04. As such, even if no showing of good cause or excusable neglect is presented, the trial court has the option to exercise its discretion to extend the time for service. Id.; Carter v. Winn-Dixie Store, Inc., 889 So. 2d 960 (Fla. 1st DCA 2004). In Chaffin, the trial court granted a motion to dismiss without prejudice because of the plaintiffs failure to perfect service within the 120-day time limit set forth in rule 1.070(j). Chaffin, 793 So. 2d at 103. The statute of…1 / 2
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Totura & Co., Inc. v. Williams, 754 So. 2d 671 (Fla. 2000)
- Chaffin v. Jacobson, 793 So. 2d 102 (Fla. 2d DCA 2001)
- Nationsbank, N.A. v. Ziner, 726 So. 2d 364 (Fla. 4th DCA 1999)
- Britt v. The City OF Jacksonville, 874 So. 2d 1196 (Fla. 1st DCA 2004)
- K.A. v. State, 761 So. 2d 349 (Fla. 4th DCA 2000)
- Ljubo Skrbic v. QCRC Assocs. Corp., 761 So. 2d 349 (Fla. 3d DCA 2000)