EASTERN INVESTMENTS, LLC, APPELLANT,
v.
CYBERFILE, INC., A FLORIDA CORPORATION, AND AMY SMITH, JOINTLY AND SEVERALLY, APPELLEES
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Eastern Investments, LLC appeals the dismissal of its fraud complaint against Cyberfile, Inc. and Amy Smith. The trial court dismissed on three grounds: failure to post a nonresident cost bond, failure to register as a foreign entity, and lack of standing. The appellate court reverses, finding each defect easily remediable and that dismissal with prejudice was an abuse of discretion.
The trial court abused its discretion in dismissing with prejudice on all three grounds. Each defect was easily remediable: the bond requirement could be satisfied by posting the bond, the registration requirement could be satisfied by filing the overdue reports and paying fees, and the standing issue could be resolved by obtaining an assignment from the signatory of the contract and amending the complaint.
[1] A motion to dismiss for failure to post a nonresident cost bond pursuant to section 57.011, Florida Statutes, requires the defendant to provide the plaintiff with twenty…
[2] A plaintiff's failure to file an annual report and pay associated fees, as required by section 608.4511(7), Florida Statutes, creates a disability that can be remedied by…
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Join FLexlaw to unlock all legal intelligence“It is undisputed that the defendants never gave the plaintiff the twenty days' notice as provided for in the statute. We hold that the failure to provide such notice was fatal to the motion to dismiss.”
Establishes that the defendants' procedural failure to provide statutory notice defeated their motion to dismiss on the bond issue.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEastern Investments, a foreign limited liability company, sued Cyberfile, Inc. and Amy Smith for fraud. The defendants moved to dismiss the amended co…
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RAMIREZ, J.
Eastern Investments, LLC, appeals an order granting a motion to dismiss the Amended Complaint with prejudice. We reverse.
Eastern Investments sued Cyberfile, Inc., a Florida corporation, and Amy Smith for fraud. After an agreed order initially granting defendants’ motion to dismiss, Eastern Investments filed its amended complaint, which the defendants again moved to dismiss. In granting the motion, the court gave three reasons: (1) Failure of Eastern Investments to post a nonresident cost bond pursuant to section 57.011, Florida Statutes; (2) Eastern Investments is a foreign entity which had not registered to do business in the State of Florida with the Florida Department of State pursuant to section 608.4511(7), Florida Statutes; and (3) Eastern Investments was not a proper party to bring this action as it lacked standing.
Section 57.011 provides, in pertinent part:
Costs; security by nonresidents
When a nonresident plaintiff begins an action ... he or she shall file a bond with surety to be approved by the clerk of $100, conditioned to pay all costs which may be adjudged against him or her in said action in the court in which the action is brought. On failure to file such bond within 30 days after such commencement or such removal, the defendant may, after 20 days’ notice to plaintiff (during which the plaintiff may file such bond), move to dismiss the action or may hold the attorney bringing or prosecuting the action liable for said costs and if they are adjudged against plaintiff, an execution shall issue against said attorney.
It is undisputed that the defendants never gave the plaintiff the twenty days’ notice as provided for in the statute. We hold that the failure to provide such notice was fatal to the motion to dismiss. We do not believe that a proper substitute for such notice was provided within the defendants’ motion to dismiss listing fifteen different grounds. Nevertheless, in the motion for rehearing, plaintiff alleged that it had complied with the statute. We conclude that the trial court abused its discretion in dismissing the case with prejudice on this ground. See Diaz v. Bravo, 603 So. 2d 106, 107 (Fla. 3d DCA 1992) (stating that a motion to dismiss for failure to post a bond pursuant to section 57.011 can be easily remedied).
As to the second ground, section 608.4511(7) provides:
Any limited liability company failing to file an annual report which complies with the requirements of this section shall not be permitted to prosecute, maintain, or defend any action in any court of this state until such report is filed and all fees, penalties, and taxes due under this chapter are paid....
The language of the statute suggests that any failure to comply simply prevents a plaintiff from prosecuting the action, a disability that can be remedied at any point. And that is what we stated in Industrial Nat Mortg. Co. v. Blake, 406 So. 2d 103, 104 (Fla. 3d DCA 1981) (“Industrial Na tional could have overcome its litigious disability by the simple expedient of filing the overdue reports and paying the back taxes”)- Here, Eastern Investments alleged in its motion for rehearing: “[t]he matters upon which the court dismissed the amended complaint have been remedied herein.” We conclude that it was an abuse of discretion to dismiss on this ground.
The third basis stated for dismissal is Eastern Investments’ lack of standing. This is also an infirmity that can be easily remedied with an amended complaint by the simple expedient of obtaining an assignment from the signatory of the contract, which plaintiff claims it controls. Florida Rule of Civil Procedure 1.210(a) permits an action to be prosecuted in the name of someone other than, but acting for the real party in interest. See Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1183 (Fla. 3d DCA 1985). It was an abuse of discretion to dismiss with prejudice on this ground.
We therefore reverse and remand with directions to allow Eastern Investments to file a second amended complaint.
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Chakra 5 v. City of Miami Beach, 254 So. 3d 1056 (Fla. 3d DCA 2018)
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Juega v. Davidson, 8 So. 3d 488 (Fla. 3d DCA 2009)…it lacks standing.” Id. at 1183; see Mortgage Elec. Registration Sys., Inc. v. Revoredo, 955 So. 2d 33, 34 (Fla. 3d DCA 2007) (collection and litigation agent has standing to bring mortgage foreclosure action); Eastern Inv., LLC v. Cyberfile, Inc., 947 So. 2d 630, 632 (Fla. 3d DCA 2007) (action may be maintained by assignee; “Florida Rule of Civil Procedure 1.210(a) permits an action to be prosecuted in the name of someone other than, but acting for the real party in interest.”) The affidavit filed by the s…
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Dyck-O'Neal, Inc. v. Duffy, 180 So. 3d 1079 (Fla. 2d DCA 2015)…ion to dismiss was granted based on the plaintiffs’ failure to post a bond pursuant to section 57.011, the trial court also erred since the plaintiffs’ failure to post the bond could have been easily remedied”); cf. E. Invs., LLC v. Cyberfile, Inc., 947 So. 2d 630, 631 (Fla. 3d DCA 2007) (reversing dismissal of complaint on other grounds but noting that the plaintiff had alleged in its motion for rehearing that it had now complied with section 57.011 and, citing Diaz, stating that dismissal under that statute…
Authorities Cited
- Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178 (Fla. 3d DCA 1985)
- Indus. Nat'l Mortg. Co. v. Blake, 406 So. 2d 103 (Fla. 3d DCA 1981)
- Diaz v. Bravo, 603 So. 2d 106 (Fla. 3d DCA 1992)
- Rivers v. Se. Bank Leasing Co., 603 So. 2d 106 (Fla. 3d DCA 1992)