DALE LEE LENOIR, APPELLANT,
v.
JOHN M. JONES, EMPLOYEE OF STATE OF FLORIDA, APPELLEE
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Appellant Lenoir appeals dismissal of his civil action for failure to serve the defendant within 120 days of filing. The trial court dismissed sua sponte without notice or opportunity for Lenoir to show good cause. The court reversed, holding that Florida procedure requires notice and a hearing opportunity before dismissal on this ground.
A plaintiff is entitled to both notice and an opportunity to show good cause before a trial court may sua sponte dismiss an action for failure to timely serve process. The trial court erred in dismissing Appellant's complaint without providing these procedural protections.
[1] A trial court may not sua sponte dismiss a case for failure to serve a defendant within 120 days without providing the plaintiff notice and an opportunity to show good ca…
[2] Florida Rule of Civil Procedure 1.070(j) requires a trial court to provide notice and an opportunity to show good cause before dismissing an action for failure to effectu…
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Join FLexlaw to unlock all legal intelligence“If service of the initial process ... is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant 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 ... 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.”
Sets forth the procedural requirement in Florida Rule of Civil Procedure 1.070(j) requiring notice and opportunity to show good cause before dismissal
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Join FLexlaw to unlock all legal intelligenceAppellant filed a complaint against John M. Jones, an employee of the State of Florida. The trial court, on its own initiative, dismissed the case bec…
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PER CURIAM.
Appellant, Dale Lee Lenoir, the plaintiff below, appeals the trial court’s order of dismissal entered without notice. The trial court, sua sponte, dismissed the case because Appellant had not served Appel-lee, John M. Jones, within 120 days of filing the complaint. Appellant argues that the trial court erred in dismissing his claim without providing notice or the opportunity to show good cause for the failure to effectuate service of process. We agree, and, accordingly, we reverse and remand for further proceedings consistent with this opinion.
Florida Rule of Civil Procedure 1.070(j) provides, in pertinent part, as follows:
If service of the initial process ... is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant 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 ... 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.
(emphasis added). A plaintiff is entitled to both notice and the opportunity to show good cause why process has not been served prior to a trial court’s sua sponte dismissal of his or her case. Connelly v. Crown Cruise Line, Inc. S.A., 636 So. 2d 886, 887 (Fla. 4th DCA 1994); Alvarez v. U.S. Sec. Ins. Co., 650 So. 2d 707, 707-708 (Fla. 3d DCA 1995). Because the trial court dismissed Appellant’s complaint without providing him notice or an opportunity to show good cause, we REVERSE and REMAND with directions for the trial court to allow Appellant an opportunity to show good cause why service was not timely effectuated.
BROWNING, C.J., LEWIS, and HAWKES, JJ., concur.
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Runner O. Santana v. Henry, 12 So. 3d 843 (Fla. 1st DCA 2009)…es not raised by proper pleadings.” Liton Lighting v. Platinum Televi [*848] sion Group, Inc., 2 So. 3d 366, 367 (Fla. 4th DCA 2008) (citing Kerrigan, Estess, Rankin & McLeod v. State, 711 So. 2d 1246, 1249 (Fla. 4th DCA 1998)). See Lenoir v. Jones, 979 So. 2d 1129, 1130 (Fla. 1st DCA 2008) (trial court’s sua sponte dismissal reversed because plaintiff was not given notice or an opportunity to be heard); Mumma v. Mumma, 734 So. 2d 571, 571 (Fla. 4th DCA 1999) (trial court did not have inherent power to dismiss…
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Carter v. Mendez, 139 So. 3d 984 (Fla. 4th DCA 2014)…notice.” Likewise, the First District, in Lenoir v. Jones, held that “[a] plaintiff is entitled to both notice and the opportunity to show good cause why process has not been served prior to a trial court’s sua sponte dismissal of his or her case.” 979 So. 2d 1129, 1130 (Fla. 1st DCA 2008) (citations omitted). [*986] We have also held that notice and an opportunity to be heard are necessary due process requirements before a court can dismiss a case, sua sponte, for failure to serve. See Connelly v. Crown Crui…
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Jenkins v. M.F. (Fla. 5th DCA 2019)…ano v. Nicoletti, 15 So. 3d 751, 752 (Fla. 3d DCA 2009) (“[W]here a trial court wishes sua sponte to raise the legal sufficiency of the complaint, the court must give the plaintiffs notice and a reasonable opportunity to respond.”); Lenoir v. Jones, 979 So. 2d 1129, 1130 (Fla. 1st DCA 2008) (“A plaintiff is entitled to both notice and the opportunity to show good cause why process has not been served prior to a trial court’s sua sponte dismissal of his or her case.”). Moreover, the judge’s speculation that the…
Previewing 3 of 29 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bart Connelly v. Crown Cruise Line, 636 So. 2d 886 (Fla. 4th DCA 1994)
- Henry v. State, 650 So. 2d 707 (Fla. 3d DCA 1995)