Insufficient Service of Process in Florida

In Florida, notifying someone that they have been sued in a civil lawsuit happens with a legal procedure known as “service of process.” Service of process describes the complicated system of statutes, rules, and regulations that must be strictly obeyed both by the plaintiff and those acting on his behalf (process server, sheriff, etc.).

Florida's “service of process” law applies not only to how the plaintiff effectuates service, but also in the procedures used by the defendant in objecting to how process was carried out by the plaintiff.  

Insufficient service of process in Florida can cause the lawsuit to be dismissed.

Note: for those who file a federal claim in the federal courts, there is an independent and distinct “service of process” procedure to follow under federal law. See, e.g., Rule 5 of the Federal Rules of Civil Procedure. Federal litigation is outside the scope of this article, which focuses upon filing civil causes of action defined by Florida law in Florida state courts.

What Document Begins The Process?

The legal document referred to with service of process is the “summons.” A summons is what commences a lawsuit after the plaintiff has filed his or her initial Complaint (the "complaint" is the document that defines the cause or reason for the lawsuit and sets forth the damages being sought from the defendant).

What is Service of Process?

Breaking down the phrase “service of process” begins with the term “process." This happens with the delivery of a legal document. That legal document contains a formal command to its addressee, either to perform an act or to avoid a certain action. See, Florida Statute 48.031.

What Document Begins The Process?

The legal document referred to with service of process is the “summons.” A summons is what commences a lawsuit after the plaintiff has filed his or her initial Complaint (the "complaint" is the document that defines the cause or reason for the lawsuit and sets forth the damages being sought from the defendant).

Summons

A summons explains in writing to the addressee that they have been named as a defendant in a lawsuit filed by the plaintiff. The summons also gives specific instructions regarding how this person should respond to being sued. They must appear within a certain time period (20 days) at a designated place (the civil court clerk’s office) and formally respond with their defense arguments against the claims made against them. (Generally, an “answer” is filed.)

The summons also explains what will happen if the person chooses to ignore the summons and its directives. It will detail how failure to respond to the summons will be considered as a “default” by the defendant. The judge can then enter a “default judgment” against the defendant, and this can be for the full amount requested by the plaintiff in the case (or other kinds of relief, like specific performance of a foreclosure action).

The summons must be completely accurate. If a party’s name is misspelled, or the documentation has the wrong first name or last name, then it is inadequate. All the papers in the lawsuit, summons included, must clearly identify the parties involved. See, Walker Fertilizer Co. v. Race, 123 Fla. 84, 166 So. 283, 105 A.L.R. 341 (1936).

Subpoena

During the course of the litigation, there may also be “service of process” where the process is a “subpoena.” Here, the document instructs a witness to appear at a designated time and place for the taking of testimony, or orders certain documents be produced. Failure to obey may result in an arrest warrant being issued.

Writ

Finally, there can be process involving a “writ.” These are usually writs of possession, garnishment, or execution, containing instructions for compliance with the terms of the judgment rendered in the lawsuit. For instance, a writ may be issued to a bank ordering a release of funds to the victorious party in a breach of contract lawsuit where monies have been held pending its resolution. Failure to obey may result in an arrest warrant or civil contempt order being issued.

Service is the Communication

The “service” of this legal document (the process) can be done in three different ways: (1) actual service on the party, (2) constructive service, or (3) substituted service.

Service is the means of communicating and delivering the process, i.e., the document which contains formal legal commands to the addressee. Service can involve an individual person, like the tenant in an eviction lawsuit or the husband in a divorce action. It can also involve a legal entity, such as a company, corporation, or body of government (like a state agency, county, or municipality).

When legal entities are involved, service involves their duly authorized representative, who is the human being assigned to act on the entity’s behalf insofar as the service of process. These representatives must be registered as the legal entity’s agent with the Florida Department of Corporations.

Go here to search online for the registered agent for service of process for all Florida Corporations, Limited Liability Companies, Limited Partnerships.

Service of Process to Initiate Lawsuit (Summons)

As the party plaintiff, you (or your attorney’s office) will complete the necessary form for a summons in Florida civil cases. It must comply with the language of Rule 1.902 of the Florida Rules of Civil Procedure.

Each defendant will need a completed summons form. These forms are then presented to the civil clerk’s office at the courthouse where the lawsuit is filed. The clerk’s office will stamp each summons with the Seal of the Court, as well as sign each of the forms in order to make the summons official.

Each official summons gets a copy of the complaint attached to it (as well as other documents, depending upon the case). This combination of documents will collectively be served upon each defendant as part of the plaintiff’s “service of process.”

There are three ways to serve a defendant with a summons (with its attached complaint, etc.):

Actual Service of Process

Actual service of process occurs when either an authorized private process server or a law enforcement officer (Sheriff’s Department) personally delivers the summons (and its attachments) to the defendant(s) named in the process documents.

As a general rule, the process server must make sure that he or she is hand-delivering the documents to the person named as defendant. However, there some instances where rules and regulations allow for service of process on someone other than the defendant by the process server.

For example, under Florida Statute 42.031(1)(a), the process server may also effectuate service by leaving the documents at the defendant’s usual place of abode with any person residing therein who is 15 years of age or older, as long as he informs this person of the document’s contents.

To finalize the actual service of process, the officer (or private process server) issuing the process must sign it and place the seal of the court upon it. This signature is a key element of the service of process. If the signature is forgotten or omitted, it is considered a “matter of substance” under Florida law and the summons is void. It has no legal effect. See Rule 1.070(a) of the Florida Rules of Civil Procedure.

Diligent Search Must be Made for the Defendant

The process server is paid to find the defendant in order to effectuate service of process. Many private process service companies operate in Florida specifically to meet this need for service of summons as well as subpoenas and writs.

Sometimes, the process server will not be able to find the defendant to serve him or her. In this case, there must be a showing that personal service could not be achieved. The plaintiff must be able to show that there was a diligent search and inquiry to discover the name and residence of the defendant. Then there can be effective alternative means of service of process (e.g., service by publication.)

The legal test for a diligent search is whether the plaintiff: (1) reasonably employed the knowledge at his command, (2) made diligent inquiry, and (3) exerted an honest and conscientious effort appropriate to the surrounding circumstances to acquire the information necessary to effect personal service on the defendant. See, Miller v. Partin, 31 So. 3d 224 (Fla. Dist. Ct. App. 5th Dist. 2010).

Constructive or Substituted Service of Process

Actual service of process does not happen in every civil lawsuit filed in Florida. The plaintiff often has the option of substituted or constructive service, such as when the defendant is not a Florida resident.

Constructive or substituted service of process allows service upon the defendant in other ways, such as service by publication (via a newspaper advertisement) or by personal service out of the jurisdiction where the case is filed and judgment rendered (service of process in another state).

The plaintiff must strictly comply with any attempt at constructive or substituted service of process. The law favors actual service of process because it is a clearer way to make sure that the defendant is aware of the lawsuit and his deadline to respond to the allegations within it.

With substituted or constructive service, the plaintiff must insure by careful compliance with all the service statutes that the (1) nonresident defendant; (2) unknown defendant; or (3) absent or evasive defendant has a fair chance to come before the court and defend himself within the time frame for making an appearance.  

Service by Publication

Florida Statute 49.011 allows for service by publication as an alternative to actual service of process in a civil lawsuit. Under this statute, this constructive form of service is only allowed in specific circumstances.

"A party seeking to utilize service by publication must be able to show that personal service could not be made; the plaintiff must show an honest and conscientious effort, reasonably appropriate to the circumstances, to acquire the information necessary to fully comply with the controlling statutes."  See: Dor Cha, Inc. v. Hollingsworth, App. 4 Dist., 876 So.2d 678 (2004).

For instance, under Florida Statute 49.011, service by publication is only allowed in certain kinds of lawsuits such as these:

  • To enforce lien or claim to any title or interest in property;
  • To quiet title;
  • To remove any encumbrance, lien, or cloud on title ;
  • To partition property;
  • For dissolution or annulment of marriage;
  • For the construction of any will, deed, contract, or other written instrument;
  • For a judicial declaration or enforcement of any legal or equitable right, title, claim, lien, or interest in a written instrument;
  • To reestablish a lost instrument;
  • For adoption;
  • For termination of parental rights pursuant to part VIII of chapter 39 or chapter 63;
  • For temporary custody of a minor child, under chapter 751; or
  • To determine paternity as to the legal father.

Under Florida Statute 49.021, service by publication is allowed only for certain kinds of defendants, such as:

  1. Any known or unknown natural person, such as unknown heirs;
  2. Any corporation or other legal entity;
  3. Any group, firm, entity, or persons who operate or do business, or have operated or done business, in this state, under a name or title which includes the word “corporation,” “company,” “incorporated,” “inc.,” or any combination thereof; and
  4. All claimants under any of such parties.

What If The Defendant Cannot Not Be Located, But His or Her Address Is Known?

Under Florida Statute 48.031(6)(a), if the plaintiff cannot locate the defendant and through a search of public records discovers his or her address at a private mailbox, a virtual office, or an executive office or mini suite, then substitute service is allowed.

It must be done by leaving a copy of the process with the person in charge of the private mailbox, virtual office, or executive office or mini suite. The process server must also confirm that the person to be served with the summons (and its complaint) does indeed maintain a mailbox, a virtual office, or an executive office or mini suite at that location.

Nonresident Defendant

Constructive or substituted service is legally valid in other situations. For instance, if the lawsuit involves a car crash and the defendant driver is not a resident of Florida, then constructive service of process will be allowed upon the nonresident defendant. His or her due process rights are not violated, because he or she agreed to be within the laws of the State of Florida when he operated his motor vehicle within the state lines. Florida Statute 48.171.

Here, the means of substituted service may be the defendant’s attorney accepting service of process on behalf of his non-resident client, after the nonresident consents to this form of substituted service. See, Pota v. Holtz, 852 So. 2d 379 (Fla. Dist. Ct. App. 3d Dist. 2003).

Spouse and Sole Proprietorships

Pursuant to Florida Statute 48.031(2), there are two more occasions when substituted service is allowed by statute. These are:

(a) on the spouse of the person to be served at any place in the county, if the cause of action is not an adversary proceeding between the spouse and the person to be served, if the spouse requests such service, and if the spouse and person to be served are residing together in the same dwelling; and

(b) on an individual doing business as a sole proprietorship at his or her place of business, during regular business hours, by serving the person in charge of the business at the time of service if two attempts to serve the owner have been made at the place of business.

Waiver of Service of Process

A plaintiff can notify the defendant that a lawsuit has been filed against the defendant, with the plaintiff asking the defendant to waive service of the summons.   If the defendant agrees, then the plaintiff does not have to formally serve the summons upon the defendant, and the defendant foregoes any challenge to the effectiveness of the service procedure.

When considering a defendant’s waiver of the formal service of process, the law insures that his or her constitutional rights to due process are not being violated by the waiver. Federal due process insists that anyone who is sued in a civil lawsuit must:

  • know and understand that they are being sued, i.e., that a lawsuit has been filed against them in a court of law; and
  • that they have a fair and reasonable amount of time to defend against the allegations made in the lawsuit.

These are constitutional protections. Accordingly, the law has specific requirements that must be met when a plaintiff wants to waive service of process on the defendant. See, Rule 1.070(i)(2)(A) to (G) of the Florida Rules of Civil Procedure.

The notice to the defendant must:

  1. be in writing;
  2. be addressed directly to the defendant, if an individual, or to an officer or managing or general agent of the defendant or other agent authorized by appointment or law to receive service of process;
  3. be dispatched by certified mail, return receipt requested;
  4. be accompanied by a copy of the complaint and must identify the court in which it has been filed;
  5. inform the defendant of the consequences of compliance and of failure to comply with the request;
  6. state the date on which the request is sent;
  7. allow the defendant 20 days from the date on which the request is received to return the waiver, or, if the address of the defendant is outside of the United States, 30 days from the date on which it is received to return the waiver; and
  8. provide the defendant with an extra copy of the notice and request, including the waiver, as well as a prepaid means of compliance in writing.

Once these eight requirements are met, the plaintiff can file a Waiver of Service with the court clerk. This will act as if a summons (with its attached complaint) had been served on the date and time when the waiver is filed in the clerk’s record. It will serve as proof that the defendant has been served.

If a defendant fails to comply with a request for waiver of service of process, then he or she may be ordered to pay court costs by the judge, these costs being the expense that was needed to go ahead and formally effect service upon the defendant. The defendant can argue against being ordered to pay these costs if he or she can demonstrate good cause for their failure to respond or comply with the waiver request.

Additionally, any defendant who timely returns a requested waiver of service of process before he or she is formally served is not required to respond to the allegations made in the complaint until 60 days after the date he or she received the request for waiver of service.

Avoiding Service

Sometimes, defendants will suspect or know that the plaintiff intends upon filing a lawsuit against them. They may think it is wise to avoid service of process, assuming this blocks the lawsuit from going forward.

It is true that due process protects defendants from being sued without fair and reasonable opportunity to defend themselves against the allegations. However, defendants cannot hide from service in the hopes that the plaintiff will be permanently stymied.

Under Florida law, if the defendant tries to avoid service by the process service, then the process server may leave the papers (summons and complaint) at a place where he or she knows the defendant will be able to retrieve them easily.

The process server must take reasonable steps to make sure that the defendant knows that the documents have been delivered. For instance, under Florida Statute 42.031(1)(a), it is legal for the process server to leave the summons and complaint at the defendant’s place of residence with any person at the residence who is at least 15 years old.

Here, the law assumes whoever is at the defendant’s home and answers the door for the process server will bring the process (summons and complaint) to the defendant, or otherwise apprise him or her that it has been delivered.

When there is substituted service on the defendant’s home, the defendant’s legal argument that this was not sufficient service of process will be limited to whether or not, at the time of service, the circumstances were such that it could be presumed by the process server that the lawsuit would be brought to the defendant’s attention.

What if the defendant lives in a gates community? In any Florida gated residential community, Florida law requires that the guard grant the process server unannounced entry into the community, including its common areas and common elements as long as the process server knows the defendant lives there, or is known to be within the gated community. See Florida Statute 48.031(7).

Why Service of Process is so Strict: Jurisdiction

When a lawsuit is filed in a Florida courtroom, it does not automatically give power over the defendant to the State of Florida or to that Florida judge. In fact, some defendants may not be within the limits of power exerted by our state law. For instance, someone who has never been to Florida, who has never known anyone here, or ever bought or sold any property here, may be totally outside of the reach of our laws. State jurisdiction has its limits.

However, Florida law can reach to those who live outside its boundaries through “long arm jurisdiction.” See, Florida Statute 48.193 (Florida Long Arm Statute). And, of course, Florida law applies to those who live and work here in the state through its “in personam jurisdiction.”

Jurisdiction over the defendant is demonstrated through proper service of process upon the defendant (or by the defendant’s voluntary appearing before the judge and submitting to the court’s authority over him and his property).

The Florida court does not acquire jurisdiction over a defendant unless the defendant has been served with process as prescribed by law.  See, Borden v. East-European Ins. Co., 921 So. 2d 587 (Fla. 2006).

Any judgment against a defendant is void as a matter of law if there was improper or inadequate service of process upon him or her. (This can be refuted if there is evidence that the defendant had notice of the proceedings.)

Risk to Defendant of Ignoring Service: Default Judgments

For defendants, there may be a good defense to the lawsuit if the plaintiff failed to meet the strict requirements for service of process. However, defendants also need to be aware of the power held by the plaintiffs in these early stages of the lawsuit.

If the defendant does not properly respond to the summons and complaint, either by ignoring it or by procrastinating on a response, then the plaintiff may get a complete and valid judgment against him/her. These are called “default judgments,” and are allowed under Florida law when the defendant fails to respond in a timely manner to the litigation.

A common example of a default judgment being entered in Florida is after a lender files a foreclosure action and the defendant-borrower fails to respond to the lawsuit.

Go here to review a Motion for Default Judgment form provided and approved by the Florida Supreme Court.

 

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