GERALD R. BOSARGE, SR., AND PATRICIA A. BOSARGE, HIS WIFE, APPELLANTS,
v.
AMERICAN OPTICAL CORPORATION, ET AL., APPELLEES
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The Bosarges sued Union Carbide Corporation and other defendants for asbestos-related injuries. The trial court dismissed the case based on forum non conveniens, but the appellate court reversed, holding that Union Carbide's motion to dismiss was untimely under Florida Rule of Civil Procedure 1.061(g), which requires such motions be filed within 60 days of service of process.
The appellate court held that Union Carbide's motion to dismiss for forum non conveniens was untimely because it was filed more than six months after service of process, violating the mandatory 60-day deadline in Florida Rule of Civil Procedure 1.061(g). The court therefore reversed the trial court's grant of the motion and remanded the case for further proceedings.
[1] A motion to dismiss based on forum non conveniens must be served not later than 60 days after service of process on the moving party.
[2] The sixty-day time limit prescribed by Florida Rule of Civil Procedure 1.061(g) for filing a motion to dismiss based on forum non conveniens must be strictly applied.
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Join FLexlaw to unlock all legal intelligence“A motion to dismiss based on forum non conveniens shall be served not later than 60 days after service of process on the moving party.”
The controlling procedural rule that requires timely filing of forum non conveniens motions, which Union Carbide violated.
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Join FLexlaw to unlock all legal intelligenceGerald Bosarge sustained asbestos-related injuries and filed a complaint against 53 defendants, including Union Carbide Corporation and seven other ap…
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Gerald and Patricia Bosarge filed a complaint for asbestos-related injuries allegedly sustained by Gerald Bosarge against fifty-three different defendants including eight defendants who are now appellees herein. Union Carbide Corporation (UCC) filed a motion to dismiss the Bo-sarges’ claim based on forum non conve-niens. The trial court granted the motion to dismiss the case without prejudice basing its decision on the Florida Supreme Court’s decision in Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla.1996). We reverse.
In the trial court’s order of August 9, 2004 in granting Union Carbide Corporation’s motion to dismiss,, the court stated as follows:
In accordance with the Kinney case, the Court finds the following:
1.An adequate alternative forum exists that possesses jurisdiction over the case. The parties’ private interests will not be affected detrimentally if the Motion is granted. In fact, the Court believes that the private interest of the parties weighs in favor of the alternative venue. The case does not have a sufficient nexus with-Broward County to justify Broward County’s and the State of Florida’s commitment of judicial time and resources to it.
2. There is an insignificant connection between the case and Broward County, Florida.
3. The Court through the requirements of Kinney, will ensure that the Plaintiff will be able to reinstate the suit in Alabama without undue prejudice or inconvenience.
The Bosarges argue that UCC’s motion to'dismiss for forum non conveniens was untimely under rule 1.061(g) which provides:
(g) Time for Moving for Dismissal. A motion to dismiss based on forum non conveniens shall be served not later than 60 days after service of process on the moving party.
We agree.
The complaint in this case was filed on July 28, 2003; and was served upon UCC on December 4, 2003. UCC filed its Motion to Dismiss for Forum Non Conveniens on May 21, 2004, more than six months after service of process.
The instant case is controlled by this court’s decision in Fox v. Union Carbide Corp., 910 So. 2d 422 (Fla. 4th DCA 2005), in which this court reviewed an asbestos-related case which also involved UCC. We reversed the trial court’s granting of UCC’s motion to dismiss for forum non conveniens. We held in Fox that the sixty-day time limit prescribed by Florida Rule of Civil Procedure 1.061(g) must be strictly applied and, therefore, UCC’s motion to dismiss for forum non conveniens was untimely. In the instant case, UCC filed its motion to dismiss for forum non conveniens six months after service df pro cess and, as we concluded in Fox, the trial court in the instant case erred by granting UCC’s motion to dismiss. We reverse and remand for further proceedings consistent with this opinion.
Reversed and Remanded.
STONE and GROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gerri Lynn Fihe v. Rexall Sundown, Inc., 966 So. 2d 415 (Fla. 4th DCA 2007)…ng party.” We have strictly enforced this limitation, repeatedly reversing trial court attempts to grant untimely forum non conveniens motions. See Phillips v. Am. Optical Corp., 914 So. 2d 527, 528 (Fla. 4th DCA 2005); Bosarge v. Am. Optical Corp., 913 So. 2d 1265, 1266-67 (Fla. 4th DCA 2005); Sanders v. Union Carbide Corp., 911 So. 2d 1256 (Fla. 4th DCA 2005); Fox v. Union Carbide Corp., 910 So. 2d 422, 424 (Fla. 4th DCA 2005). The third district has recently held that a trial court has the discretion to en…
Authorities Cited
- Kinney Sys., Inc. v. The Cont'l Ins. Co., 674 So. 2d 86 (Fla. 1996)
- FOX v. Union Carbide Corp., 910 So. 2d 422 (Fla. 4th DCA 2005)