Holding

It is not necessary to establish good cause or excusable neglect to avoid dismissal under Fla.R.Civ.P. 1.070(j).

The rule may be found at http://coxlawflorida.com/florida-rules-of-civil-procedure/rule-1-070-process/

Facts

Mitschke–Collande and other Hiers sought to establish a constructive trust over property on Star Island in Miami Beach, Florida that was that was transferred to Skipworth Properties,  an Isle of Man Trust by, Thomas Kramer. A Swiss Court later found that Kramer had   misappropriated approximately $90,000,000.00 in assets.  Skipworth Properties later granted a $12,000,000.00 mortgage to SwissPartners.  The Hiers initiated their action in 2003, but did not serve SwissPartners.

After exhaustion of Swiss appellate remedies, the Hiers filed a Second Amended Complaint and served SwissPartners in Circuit Court of the original action.  SwissPartners promptly moved to dismiss the matter as service was not perfected within 120 days pursuant to Fla.R.CIv.P. 1.070(j).  SwissPartners argued that the Heirs were required to establish “good cause” or “excusable neglect” in order to overcome the 120–day requirement for service. The trial court accepted the construction of the rule advanced by SwissPartners and dismissed the Second Amended and Supplemented Complaint with Prejeduce against SwissPartners as the statute of limitations had run.

Issue

 Whether the Trial Court’s interpretation of Fla.R.Civ.P. 1.070(j) required a showing of good cause” or “excusable neglect.”

Rationale

The Third District Court noted that language of the rule provided three-(3) options for  the Trial Court:  (1) direct that service be effected within a specific time; (2) dismiss the action without prejudice; or (3) drop that party as a defendant in the case. The Trial Court has these three options when there was no excusable neglect shown. Citing to precedent, the Third District Court held that where no good cause or excusable neglect exists, the trial court is left to exercise its discretion as to which of the three options to select except where the statute of limitations has run. Where the statute of limitations has run, discretion should normally be exercised in favor of extending the time for service of process to allow the case to proceed on the merits.   Where good cause or excusable neglect for failure to make timely service has been demonstrated, a trial court must extend the time for service “and has no discretion to do otherwise.”

The Court erred by finding that the Plaintiff to be able to proceed, the Court “would have to establish good cause” and excusable neglect.

The entire opinion may be found at:

http://www.3dca.flcourts.org/Opinions/3D15-1501.pdf

 

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