25 Fla. L. Weekly Supp. 826b
Online Reference: FLWSUPP 2509RESTVenue — Small claims — Motion to dismiss for improper venue and/or forum non conveniens denied — Defendant failed to meet its burden of demonstrating why venue is improper or why case should be moved to a different forum where defendant failed to file timely affidavit in support of motion, as required by small claims rule and state statute — Subsequent invocation of rules of civil procedure did not cure or give defendant a chance for second bite at raising affirmative defenses of improper venue and/or forum non conveniens
JUAN RESTREPO, an insured individual by and through his/her assignee, CON-40 WELLNESS CENTER, INC. D/B/A BENTTREE CLINIC, Plaintiff, v. GEICO INDEMNITY COMPANY, a foreign corporation, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County, Small Claims Division. Case No. 2017SC001807. October 16, 2017. Mary Ann Boehm, Judge. Counsel: James R. Collins, FL Legal Group, Tampa, for Plaintiff. Stephanie Hoffman, Law Office of Quentin B. Fairchild, Ft. Myers, for Defendant.
ORDER ON THE DEFENDANT’SMOTION TO DISMISS FOR IMPROPER VENUE
THIS CAUSE having come before the Court on the Defendant’s Motion to Dismiss, heard on September 01, 2017, and the Court having heard arguments from both parties and having been otherwise fully advised in the premises, the Court hereby makes the following FINDINGS:
1. There is a nexus between the Plaintiff’s cause of action and the venue in Sarasota County.
2. The Administrative Local Orders/Rules of the Twelfth Judicial Circuit in and for Sarasota County do not waive/override/supersede the Florida Small Claims Rules.
3. As stipulated by Defense Counsel, the Defendant is a registered foreign corporation that does business and/or maintains agents in Sarasota County.
4. The Defendant’s Motion to Dismiss for Improper Venue raised two legal arguments: 1) Improper Venue and 2) Forum Non Conveniens.
5. At the time of the hearing on the Defendant’s Motion to Dismiss for Improper Venue, no affidavit had been filed by the Defendant in support of either of its arguments.
6. Florida Rule of Small Claims 7.060(a) requires that the Defendant file an affidavit in support of an improper venue defense at least seven (7) days prior to the schedule pretrial conference (regardless of whether or not attendance was waived).
7. Florida Statute § 47 et. al., and applicable case law further require the Defendant file an affidavit in support of a Motion to Dismiss for Improper Venue.
8. The Defendant’s counsel stipulated that it failed to file an affidavit in support of its Forum Non Conveniens argument as required by the case law presented via its own motion.
9. A strong showing is required to overcome the Plaintiff’s venue selection and the Defendant bears the burden of demonstrating why venue is improper or why the case should be moved to a different forum via an affidavit.
10. By not filing an affidavit in support of its motion, the Defendant has not met its evidentiary burden.
11. Subsequent invocation of the Florida Rules of Civil Procedure did not cure or give the Defendant a chance for a second bite at raising the affirmative defenses of Improper Venue and/or Forum Non Conveniens.
It is therefore ORDERED and ADJUDGED that:
1. The Defendant’s Motion to Dismiss for Improper Venue is DENIED both as to improper venue and forum non conveniens.
2. The Defendant’s Ore Tenus Motion for Leave to file a subsequent affidavit in support of its motion is also denied.
