25 Fla. L. Weekly Supp. 105a

Online Reference: FLWSUPP 2501NAVAInsurance — Personal injury protection — Service of process — Failure to perfect within 120 days — Motion to dismiss granted

ALTERNATIVE MEDICAL CENTER OF FLORIDA, INC., a/a/o Maria E. Navarro, Plaintiff, v. OMNI INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 14-11099 SP 25 (02). March 7, 2017. Gina Beovides, Judge. Counsel: Jocelyn Paiz and Marisol Estevez, Shuster & Saben, Miami, LLC, for Plaintiff. Manuel I. Negron, Conroy Simberg, P.A., Miami, for Defendant.

ORDER ON DEFENDANT’S MOTION TO DISMISS

This Cause came before the Court on Defendant’s Motion to Dismiss for Failure to Comply with Fla. R. Civ. P. 1.070(j). The Court, having reviewed said Motion, heard argument of counsel on November 8, 2016, and otherwise being advised in the premises, finds as follows:

Procedural History

On August 22, 2014, Plaintiff filed this claim seeking payment of Personal Injury Protection (PIP) benefits for services rendered on behalf of Maria Navarro. A pretrial conference was initially set for September 30, 2014. On September 5, 2014, Service of Process was rejected because the Defendant was incorrectly named on the subpoena. On October 15, 2014, Plaintiff filed an Amended Complaint. A year later, Plaintiff sought a new summons for a second pretrial conference to take place on September 15, 2015. There is no record that the Defendant was served to appear at said pretrial conference. On March 22, 2016, the Amended Complaint was rejected by the Clerk of Courts because the case style on the summons did not match the one listed on the Amended Complaint. On May 25, 2016, nearly two years after the initial claim was filed, Plaintiff filed yet another Amended Complaint changing the name of the Defendant from Apollo Casualty Company to Omni Insurance Company. A third pretrial conference was scheduled for July 26, 2016. At said conference, the parties submitted an Agreed Order wherein Defendant reserved the right to contest sufficiency service of process and this Court’s jurisdiction over the Defendant. Defendant also filed a Notice of Special Appearance reserving the right to contest sufficiency of service of process. At no time material thereto did Plaintiff request additional time to serve the Defendant.

Analysis

Rule 1.070(j), Florida Rules of Civil Procedure, provides:

If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period.

see also Foster v. Andrew Wayne Chung, 7 Fla. L. Weekly Supp. 278a (17th Cir. Cty Ct. January 13, 2000) (regarding the purpose of Rule 1.070(j)) (citing Bice v. Metz Cons. Co., 699 So.2d 745 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1988b] , rev. den. sub nom., James Young & Co. v. Bice, 705 So.2d 901 (Fla. 1998)); Nationsbank, N.A. v. Ziner, 726 So.2d 364 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D331a]. Pursuant to Fla. R. Civ. P. 1.070(j),¹ the time period for service of process on Defendant expired one hundred twenty (120) days after the filing of the initial pleadings. Plaintiff was unable to effect service of the Complaint until almost two years after it was filed. Further, Plaintiff failed to file an affidavit and/or provide evidence to establish good cause or excusable neglect for the failure to effect service, even after Defendant filed its Motion to Dismiss. Carlton v. Walmart Stores, Inc., 621 So.2d 451, 454 (Fla. 1st DCA 1993) (emphasis added).

THEREFORE, it is ORDERED AND ADJUDGED that: Defendant’s Motion is GRANTED.

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¹The Florida Rules of Civil Procedure were invoked in this case at the third pretrial conference. Florida Small Claims Rule 7.070 provides that “[s]ervice of process shall be effected as provided by law or as provided by Florida Rules of Civil Procedure 1.070(a)-(h).” While the Small Claims Rule is silent regarding a deadline within which to serve the Complaint, in 1996 the Rules Making Committee indicated that “Rule 7.070 is modified to preclude the application of Rule of Civil Procedure 1.070(i) because Small Claims Rule 7.110(e) already provides for dismissal of a claim for failure to prosecute after six (6) months of inactivity.” In re: Amendments to the Florida Small Claims Rules, 21 Fla. L. Weekly S439a (Fla. October 10, 1996). Proceedings are supposed to be quicker under the Small Claims Rules. Compare e.g. Fla. Small Cl. R. 7.110(e) (6 months of inactivity to notice for dismissal for lack of prosecution) with Fla. R. Civ. P. 1.420(e) (10 months of inactivity). If Plaintiff fails to effect service pursuant to 1.070(j), then service must a fortiori fail under Fla. Small Cl. R. 7.070. Thus, under either Rule, Plaintiff’s two year delay to serve the Complaint in conjunction with the lack of competent evidence regarding the delay, subjected this case to dismissal.