L. ANTON REBALKO vs. IHAB ATALLAH and JESSICA ATALLAH
No. 4D2024-2131, 4th DCA
The plaintiff here served the defendant through substituted service through the Secretary of State.
The plaintiff argued that the defendant had waived service by filing two notices for deposition, and assuming for the sake of argument that this filing did not amount to a waiver, the plaintiff claimed that service was still proper. The plaintiff made two attempts to personally serve the defendant. On the first attempt, no one was at the residence and there was no car in the driveway. On the second attempt, a woman estimated to be about sixty years old told the process server that the defendant is in and out and not there most of the time. The server did not ask any further questions, and the door was shut. After that, substituted service was filed.
The court held that substituted service was not proper because the plaintiff failed to exercise due diligence in trying to locate the defendant. In a series of decisions, the Supreme Court has explained that due diligence requires an honest and thorough effort to personally serve the defendant. In one case, three attempts at service at an address found through Sunbiz dot org were not enough because the plaintiff made no additional inquiries or follow-up efforts. By contrast, in another case where there were nine attempts, contact with neighbors, and a visit to a retail location where the server learned the tenant had moved out during the night, the court found that the efforts met the due diligence standard.
In this case, the plaintiff only made two attempts at service, both during the holiday season when many people are away. As a result, the case was reversed and sent back for further proceedings. Case may be found here: https://flcourts-media.flcourts.gov/content/download/2452562/opinion/Opinion_2024-2131.pdf.