Florida law requires a plaintiff to exercise due diligence to locate and personally serve a defendant before falling back on substituted service. In Rebalko v. Atallah, No. 4D2024-2131, Florida’s Fourth District Court of Appeal held that two attempts at personal service were not enough to satisfy that standard.
L. ANTON REBALKO vs. IHAB ATALLAH and JESSICA ATALLAH
No. 4D2024-2131, 4th DCA
What Happened
The plaintiff served the defendant through substituted service on the Secretary of State. The plaintiff argued that the defendant had already waived service by filing two notices for deposition, and that even if the filing did not amount to a waiver, service was still proper.
Before resorting to substituted service, the plaintiff made only 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.
What Due Diligence Requires in Florida
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 Florida Supreme Court has explained that due diligence requires an honest and thorough effort to personally serve the defendant.
In one case, three attempts at an address found through Sunbiz were not enough, because the plaintiff made no additional inquiries or follow-up efforts. By contrast, in another case 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. There, the court found that the efforts met the due diligence standard.
Why Two Attempts Fell Short
Here, the plaintiff made only two attempts at service, and both fell during the holiday season when many people are traveling or away from home. There were no return visits at different hours, no follow-up on what the woman at the door said, and no effort to confirm the defendant’s whereabouts through other sources. The court found that this was not a diligent search, reversed the ruling, and sent the case back for further proceedings.
What This Means for Florida Litigants
The lesson is that due diligence is measured by the quality and thoroughness of the effort, not simply by the number of attempts. A plaintiff who wants substituted service to hold up should be prepared to show a real, documented search for the defendant.
Practical steps often include attempting service on different days and at different times, following up on information the process server gathers in the field, speaking with neighbors or others who may know the defendant’s whereabouts, and checking additional sources such as Sunbiz, property records, and the post office. Relying on a handful of attempts during a holiday week is the kind of thin effort that invites reversal.
Courts look at the totality of the circumstances, so no single checklist guarantees a finding of due diligence. What matters is whether the record shows a genuine attempt to find and serve the person, rather than a race to file for substituted service. Building that record early, before service is ever challenged, is far easier than trying to reconstruct it after a defendant moves to quash.
For defendants, the same rule cuts the other way. If you were served by substitution after only a cursory attempt at personal service, the manner of service may be open to challenge, and a successful challenge can unwind a default or other relief entered against you.
If you are dealing with a service-of-process or due diligence question in Florida litigation, the team at Cox Law, PLLC can help. The full opinion is available here: Rebalko v. Atallah, No. 4D2024-2131.