21 Fla. L. Weekly Supp. 366b
Online Reference: FLWSUPP 2104SCHLInsurance — Personal injury protection — Discovery — Electronic service — Because insurer was pro se litigant until its attorney filed notice of appearance and designation of email address, non-electronic service of discovery request simultaneous with summons and complaint was proper — Motion to strike is denied
DEERFIELD BACK PAIN REHAB, CORP. (Victor Schlosser, Patient), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-06540CONO (70). January 16, 2014. John D. Fry, Judge. Counsel: Thomas J. Wenzel, Cindy A. Goldstein, P.A., Coral Springs, for Plaintiff. Michael Walsh, Kubicki Draper, Ft. Lauderdale, for Defendant.
ORDER
THIS CAUSE having come before the Court on January 6, 2014, on Defendant’s Motion to Strike Plaintiff’s Discovery Requests, and having considered Defendant’s Motion to Strike Plaintiff’s Discovery Request, Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion, the court record, having heard argument, and the Court otherwise being advised of same, the Court finds as follows:
Background: This case arose from a dispute between a medical provider and an insurer regarding $9,615.20 in unpaid personal injury protection benefits. Plaintiff filed suit on or about June 10, 2013, by uploading a copy of the complaint and summons to the “ePortal” provided by the Broward County Clerk of Court. Together with the complaint and summons, Plaintiff uploaded various discovery demands. Plaintiff thereafter mailed the summons, complaint, and its discovery requests to Defendant’s Registered Agent, Florida’s Chief Financial Officer. Defendant was served on June 20, 2013. On July 15, 2013, Defense counsel filed its Notice of Appearance and Notice of E-mail designation.
On July 16, 2013, Defendant filed its Motion to Strike Plaintiff’s Discovery Requests. In its Motion, Defendant claimed that it was not required to comply with Plaintiff’s discovery requests until Plaintiff served its requests by e-mail. In support of its motion, Defendant cited Florida Rule of Judicial Administration 2.516(b)(1).
The Rule: Florida Rule of Judicial Administration 2.516(b)(1) requires that “All documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides.”
Conclusions of Law and Analysis: This issue appears to be one of first impression concerning Florida’s nascent electronic service rules. However, this Court is well aware of the Supreme Court’s efforts to move the Florida court system into the modern era by embracing electronic service. Therefore, in addition to a plain reading of the rule, this Court must take into account the spirit of the Supreme Court’s intentions when analyzing the validity of a party’s service of documents by non-electronic means (herein after “paper”).
While the Supreme Court has embraced email service, it has yet to close the door to all paper pleadings and motions. Florida Rule of Judicial Administration 2.516(b)(1) contemplates exceptions to general requirement of email service in the event the rule “otherwise provides”. The Court finds such an exception in Florida Rule of Judicial Administration 2.516(b)(1)(C) which provides rules regarding service on and by pro se litigants. A party serving documents on pro se litigants must follow Florida Rule of Judicial Administration 2.516(b)(2) which provides in relevant part “[s]ervice on and by all parties who are not represented by an attorney and who do not designate an e-mail address, . . .must be made by delivering a copy of the document or by mailing it to the party. . .at their last known address”. (Emphasis Added).
In the case sub judice, at the time Plaintiff served its discovery requests, the Defendant was a pro se litigant and remained so until its designated attorney filed a notice of appearance on or about July 12, 2013. Florida Rule of Judicial Procedure 2.516(b)(1)(A) is clear that electronic service on an attorney is mandatory, however this rule is only triggered after an attorney appears in a proceeding and designates an email address for service. Additionally, this case was not filed as a small claims lawsuit. Therefore, Plaintiff’s paper method of service was proper.
The Court finds this procedure to be in the public interest. At the outset of litigation, Plaintiff is not in a position to prognosticate which of the nearly 100,000 active attorneys in the state of Florida will be chosen by the Defendant for representation, if any, as well as the service email address that will be designated by the unknown attorney(s). Therefore, if this rule was construed to prohibit paper service on a party that would eventually retain the services of an attorney, a Plaintiff would be forced to sit idly until such date a Defendant hires an attorney and said attorney files a notice of appearance and notice of email designation. If a Defendant declined to hire an attorney or designate an email address for service, it is unclear what event would trigger Plaintiff’s ability to serve motions or other papers. This would only serve to delay the resolution of a suit (unnecessarily if Defendant remained pro se). The Supreme Court did not promulgate the electronic service rules to create unnecessary delays in litigation. This Court finds such a delay to be contrary to public policy and contrary to the 18 month resolution standard set by the Supreme Court in Florida Rule of Judicial Procedure 2.250.
It should also be noted that Florida Rules of Civil Procedure 1.340(a), 1.350(b) and 1.370(a) contemplate the simultaneous service of the initial pleading and discovery requests in that the rules provide an extended period of time to respond in the event discovery requests are served at or near the time of the complaint.
Therefore, it is ORDERED AND ADJUDGED that Defendant’s motion to strike Plaintiff’s discovery requests is denied.
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