LAURA L. ROBERTS, APPELLANT,
v.
EDWARD H. STIDHAM AND DEBRA D. DRISKELL, APPELLEES
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Laura Roberts appealed the dismissal of her personal injury lawsuit due to untimely service of process. The Florida District Court of Appeal reversed, holding that the process server's diligent efforts to locate and serve the defendants constituted good cause for the 32-day delay beyond the 120-day statutory deadline.
The court held that Roberts' process server's diligent efforts—including at least ten personal service attempts and investigation into the defendants' whereabouts—constituted good cause for the delay. When a plaintiff shows good cause for failure to serve within 120 days, the trial court must extend the time for service and has no discretion to deny the extension.
[1] A trial court abuses its discretion by dismissing a lawsuit with prejudice for untimely service of process when the plaintiff demonstrates good cause for the delay.
[2] When a plaintiff shows good cause for failing to serve process within 120 days, a trial court must extend the time for service.
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“Rule 1.070(j) is designed to be a case management tool, not an additional statute of limitations cutting off the liability of a tortfeasor, and it is not to be imposed inflexibly when the plaintiff demonstrates diligence and good cause.”
Establishes the fundamental purpose and proper application of the service deadline rule
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Join FLexlaw to unlock all legal intelligenceRoberts filed suit on July 23, 2007, for injuries from a motor vehicle accident occurring on October 20, 2003. Defendants Stidham and Driskell were se…
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Laura Roberts appeals from the trial court’s dismissal of her lawsuit with prejudice due to untimely service of process under Florida Rule of Civil Procedure 1.070(j)- We reverse.
Appellant filed suit on July 23, 2007, seeking damages for personal injuries suffered in a motor vehicle accident that occurred on October 20, 2003. Co-appellee, Edward Stidham, was the driver of the other vehicle that was owned by Co-appel-lee, Debra Driskell. Appellees were served on December 22, 2007.
After being served, Appellees moved to dismiss the complaint based on Appellant’s failure to comply with rule 1.070®. Appellant filed a response, conceding that service was thirty-two days late, but asserted that she had good cause for failing to serve process within 120 days. In support, she filed an affidavit by process server Jeffrey Westbrook. In addition to asserting good cause, Appellant also pointed out that the trial court possessed broad discretion to allow service outside the 120-day period if the statute of limitations would bar the refiling of the action, as was the case here.1
Westbrook’s affidavit averred that he received the summons, complaint, and discovery requests on July 31, 2007, and thereafter, on at least ten occasions, personally attempted to serve Appellees at their last known address in Crystal River. On his fifth attempt, he left a business card on their door, but they did not contact him. On December 21, 2007, Westbrook again attempted to serve Appellees at 8:30 p.m., but spoke with a neighbor who told him that Appellees spent most of their time in Georgia with family, but that they usually visited Florida over the Christmas holidays. The neighbor also informed Westbrook that she observed Driskell’s son, Edward Stidham, at the home earlier in the day. Acting on this information, Westbrook returned the next morning, and ultimately Stidham opened the back door to Westbrook’s knock. Westbrook confirmed Stidham’s identity, personally served him, and served Driskell by substitute service. Upon being served, Stidham told Westbrook that his father told him not *1157to respond to the business card Westbrook previously left at their home.
The trial court granted the motion to dismiss,2 stating that it was incumbent upon Appellant to move for an enlargement of time to effect service of process, particularly when she knew or reasonably should have known that service of process would not be accomplished within 120 days. The trial court also found that it should not have taken five months for Appellant to ask a neighbor when Appellees would be home.
In response, Appellant filed a motion for reconsideration and request for oral argument with a memorandum of law and a supplemental affidavit by Westbrook.3 Westbrook’s supplemental affidavit added that the house appeared shuttered with cobwebs on the door, and the carport, large enough for a RV, was empty. West-brook tried several times to contact the neighbors, but they did not answer his knocks. Appellant argued that West-brook’s ten attempts to serve process demonstrated a diligent effort and established good cause not to dismiss the complaint. We agree.
This court reviews the trial court’s dismissal of a complaint for failing to timely effect service under rule 1.070(j) for an abuse of discretion. Carlton v. Wal-Mart Stores, Inc., 621 So.2d 451, 454 (Fla. 1st DCA 1993). Florida Rule of Civil Procedure 1.070(j) reads:
(j) Summons; Time Limit. If service of the initial process and initial pleading 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 or drop that defendant as a party; 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. When a motion for leave to amend with the attached proposed amended complaint is filed, the 120-day period for service of amended complaints on the new party or parties shall begin upon the entry of an order granting leave to amend. A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1).
When a plaintiff shows good cause for failure to serve process within 120 days, the trial court must extend the time for service and has no discretion to do otherwise. Pixton v. Williams Scotsman, Inc., 924 So.2d 37, 39 (Fla. 5th DCA 2006). The trial court has broad discretion to extend the time for service even when good cause for failing to meet the 120-day deadline has not been shown. Bacchi v. Manna of Hernando, Inc., 743 So.2d 34, 34 (Fla. 5th DCA 1999). However, even when there has been no showing of good cause or excusable neglect and the statute of limitations has run, discretion should be exercised in favor of allowing the plaintiff *1158an extension to accomplish service. Kohler v. Vega-Maltes, 838 So.2d 1249, 1250 (Fla. 2d DCA 2003). Even without a motion to extend, dismissal is required only if reasonable cause for the delay in service is not documented. Root v. Little, 721 So.2d 836, 837 (Fla. 5th DCA 1998). Rule 1.070(j) is designed to be a case management tool, not an additional statute of limitations cutting off the liability of a tortfea-sor, and it is not to be imposed inflexibly when the plaintiff demonstrates diligence and good cause. Id.
We deem Appellant’s efforts to effect service sufficient to establish good cause for failure to comply with rule 1.070© and hold that the trial court abused its discretion in dismissing the lawsuit, effectively depriving Appellant of her day in court. Additional steps can always be taken to effect service of process. While what was not done may be relevant, the affirmative steps taken in this case were clearly adequate to avoid a dismissal with prejudice.
REVERSED.
LAWSON, EVANDER and COHEN, JJ., concur.
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Regions Bank v. Buoncervello, 220 So. 3d 1225 (Fla. 5th DCA 2017)…Wagner v. Strickland, 908 So. 2d 549, 550 (Fla. 1st DCA 2005). Generally, the trial court enjoys “broad discretion to extend the time for service even when good cause for failing to meet the 120-day deadline has not been shown.” Roberts v. Stidham, 19 So. 3d 1155, 1157 (Fla. 5th DCA 2009) (citing Bacchi v. Manna of Hernando, 743 So. 2d 34, 34 (Fla. 5th DCA 1999)). When the statute of limitations has run, preventing refiling of the complaint, trial courts should exercise discretion in favor of extending the s…
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Brander v. Trisha Stoddard, 78 So. 3d 101 (Fla. 4th DCA 2012)…Fla. 4th DCA 2004)). Moreover, the standard of review of a trial court’s dismissal of a complaint for failing to timely effect service of process is abuse of discretion. Arison v. Offer, 669 So. 2d 1128, 1129 (Fla. 4th DCA 1996); Roberts v. Stidham, 19 So. 3d 1155, 1157 (Fla. 5th DCA 2009). On the face of the record, Brander’s motion for rehearing has sufficient merit because it appears that Charlotte Theriault, Marcus Brander, Brooke Brander, and Casey Brander were timely served. See Freeland v. Freeland, 9…
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Vennila Amaran v. Aubyn Marath, M.D., 34 So. 3d 88 (Fla. 3d DCA 2010)…4th DCA 1999) (holding that it is erroneous to drop a party and dismiss a [*92] case where the statute of limitations has run because it effectively adjudicates the complaint on the merits in contravention of Rule 1.070(j)); see Roberts v. Stidham, 19 So. 3d 1155 (Fla. 5th DCA 2009); Premier Cap., 994 So. 2d at 360; Carter v. Winn-Dixie Store, Inc., 889 So. 2d at 960; Chaffin v. Jacobson, 793 So. 2d 102 (Fla. 2d DCA 2001) (finding an abuse of discretion in not extending period of time for service where statu…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pansy O. Carlton v. Wal-Mart Stores, Inc., 621 So. 2d 451 (Fla. 1st DCA 1993)
- Lashawn D. Brown v. State, 924 So. 2d 37 (Fla. 1st DCA 2006)
- Kohler v. Vega-Maltes, 838 So. 2d 1249 (Fla. 2d DCA 2003)
- Callahan v. State, 743 So. 2d 34 (Fla. 1st DCA 1999)
- Carroll v. Fla. Dep't OF Corr., 721 So. 2d 836 (Fla. 5th DCA 1998)
- Root v. Little, 721 So. 2d 836 (Fla. 5th DCA 1998)