DAWSON INSURANCE, INC., APPELLANT,
v.
QUANTUM CAPITAL NETWORK, LLC., APPELLEE
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Dawson Insurance appealed the denial of its motion to dismiss for forum non conveniens, arguing that the parties had agreed to extend the time for filing such a motion. The Florida Third District Court of Appeal affirmed the denial, holding that the motion was untimely under Rule 1.061(g), which requires such motions to be served within 60 days of service of process with no exceptions.
The motion to dismiss for forum non conveniens was untimely and properly denied. Florida Rule 1.061(g) requires such motions to be served no later than 60 days after service of process, with no exceptions. An agreement between parties to extend the time for responding to a complaint does not apply to motions to dismiss, as such motions are not pleadings under the rules.
[1] A motion to dismiss based on forum non conveniens must be served no later than 60 days after service of process on the moving party.
[2] A motion to dismiss is not a responsive pleading under the Florida Rules of Civil Procedure.
Previewing 2 of 5 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“a motion to dismiss based on forum non conveniens shall be served no later than 60 days after service of process on the moving party.”
Establishes the mandatory 60-day deadline for filing a motion to dismiss for forum non conveniens under Florida Rule 1.061(g)
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Join FLexlaw to unlock all legal intelligenceQuantum Capital Network filed suit against Dawson Insurance. Dawson filed a motion to dismiss for forum non conveniens, but did so beyond the 60-day p…
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FLETCHER, Judge.
Dawson Insurance, Inc. [Dawson] seeks to reverse a final order denying its motion to dismiss for forum non conveniens the suit filed against it by Quantum Capital Network, LLC. [Quantum].
We affirm. We find that Dawson’s motion to dismiss for forum non conveniens was untimely served beyond the sixty day period required by the Rule and we affirm on that basis. Fla. R. Civ. P. 1.061(g); see Wedge Hotel Management (Bahamas), Ltd. v. Meier, 868 So. 2d 552 (Fla. 3d DCA 2004). By the plain language of Rule 1.061(g), “a motion to dismiss based on forum non conveniens shall be served no later than 60 days after service of process on the moving party.” [e.s.]. The Rule provides no exception. As in Wedge, the purpose of the motion is “to promote the public interests that the doctrine of forum non conve-niens seeks to preserve, which includes avoiding a waste of resources” and the filing of unnecessary successive motions. Wedge at 552-53.
The appellant’s argument that Florida Rule of Civil Procedure 1.090(b) allowed the parties to agree between themselves to extend the period within which to respond to the complaint is unpersuasive for two reasons. First, Dawson did not file a responsive pleading but rather an untimely motion to dismiss. A motion to dismiss is not a “response” because it is not a “pleading” under the rules. See Fla. R. Civ. P. 1.100(a) (designating permissible pleadings and providing that “[n]o other pleadings shall be allowed”); Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla.2005) (citing to Vanderberg v. Rios, 798 So. 2d 806, 807 (Fla. 4th DCA 2001) (noting that a motion to dismiss is not a pleading)).
Second, Rule 1.090(b) indicates that a party must make its request to the court (i.e., file a motion) to enlarge a time period prescribed by the rules of civil procedure. See Fla. R. Civ. P. 1.100(b) (defining a motion as an application to the court for an order). Dawson did not file a motion with the court prior to expiration of the sixty days for an order granting it an enlargement of time within which to file a motion to dismiss for forum non conveniens. Fla. R. Civ. P. 1.090(b)(1). Dawson raised the issue with the court after the period had expired at the hearing on the motion for forum non conveniens; the court at that point had the discretion to allow the motion but only “when failure to act was the result of excusable neglect,” which claim was not raised or argued below. Fla. R. Civ. P. 1.090(b)(2).
Affirmed.
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Giovanna Settimi Caraffa v. Carnival Corp., 34 So. 3d 127 (Fla. 3d DCA 2010)…ain language of rule 1.061(g). Id. at 552. See also Costa Crociere, S.P.A. v. Escobar, 934 So. 2d 510, 511 (Fla. 3d DCA 2005) (declining to address the merits because the motion was untimely filed); Dawson Ins., Inc. v. Quantum Capital Network, LLC, 923 So. 2d 1194, 1195 (Fla. 3d DCA 2006) (affirming the denial of a motion to dismiss because it was “untimely served beyond the sixty day period” as rule 1.061(g) requires. “By the plain language of rule 1.061(g), ‘a motion to dismiss based on forum non conveniens…
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Topic v. Tamar Verduga Topic, 221 So. 3d 746 (Fla. 3d DCA 2017)…rt’s, order granting motion to dismiss.based on forum non conveniens because motion was untimely filed); Wedge Hotel Mgmt. (Bahamas), Ltd. v. Meier, 868 So. 2d 552, 553 (Fla. 3d DCA 2004). In Dawson Insurance, Inc. v. Quantum Capital Network, LLC., 923 So. 2d 1194 (Fla. 3d DCA 2006), this Court affirmed the. trial court’s denial of a motion to dismiss for forum non conveniens as untimely. In affirming, this Court concluded that: By the plain language of Rule 1.061(g), 'a motion to dismiss based on forum non…
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Gerri Lynn Fihe v. Rexall Sundown, Inc., 966 So. 2d 415 (Fla. 4th DCA 2007)…h DCA 2005). The third district has recently held that a trial court has the discretion to enlarge the sixty-day time period, but “only” when the failure to act was the result of excusable neglect. Dawson Ins., Inc. v. Quantum Capital Network, LLC, 923 So. 2d 1194, 1195 (Fla. 3d DCA 2006). Rexall admitted at the hearing that its failure to act within sixty days in the Fihe case was not the result of excusable neglect. Rather, Rexall relies on the third district’s earlier decision in Verysell-Holding LLC v. Ts…
Authorities Cited
- Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005)
- Vanderberg v. Rios, 798 So. 2d 806 (Fla. 4th DCA 2001)
- Wedge Hotel Mgmt. v. Meier, 868 So. 2d 552 (Fla. 3d DCA 2004)