BART CONNELLY, APPELLANT,
v.
CROWN CRUISE LINE, INC. S.A., AND PALM BEACH CRUISE LINE, INCORPORATED, S.A. JANE DOE, JOHN DOE AND XYZ, INC., UNIDENTIFIED INDIVIDUALS AND CORPORATIONS, APPELLEES
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Bart Connelly appeals the trial court's dismissal of his complaint for failure to serve defendants within 120 days of filing, without giving him an opportunity to be heard. The appellate court reverses, holding that due process and Florida Rule of Civil Procedure 1.070(i) require the trial court to provide notice and a hearing before dismissing for untimely service.
The trial court erred in dismissing the case without giving Connelly an opportunity to be heard and present evidence regarding why service was not made within the required 120-day period. Under Florida Rule of Civil Procedure 1.070(i) and due process requirements, the trial court must provide notice and a hearing before dismissing for untimely service.
[1] A trial court cannot dismiss an action under Rule 1.070(i) for failure to serve process within 120 days without first providing the plaintiff an opportunity to show good…
[2] Due process requires that a party be given an opportunity to be heard before their case is dismissed for failure to serve process within the time prescribed by rule.
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Join FLexlaw to unlock all legal intelligence“In order to satisfy the second part of Rule 1.070(i), the trial court had to give the party on whose behalf service is required an opportunity to show good cause why service was not made within the 120-day time period.”
Establishes the requirement for due process notice and hearing before dismissal
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Join FLexlaw to unlock all legal intelligenceConnelly filed a complaint against Crown Cruise Line, Inc. S.A., Palm Beach Cruise Line, Incorporated, S.A., and other defendants. The trial court sua…
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PER CURIAM.
Appellant, Bart Connelly, plaintiff below, appeals the trial judge’s order of dismissal entered without notice or hearing. The trial court, sua sponte, dismissed the case because the plaintiff had not served the defendants within 120 days of filing the complaint.
Florida Rule of Civil Procedure 1.070(i) provides that an action shall be dismissed without prejudice if (1) service of initial process is not made upon defendant within 120 days after filing of the initial pleading and (2) the party on whose behalf service is required does not show good cause why service was not made within that time.
In the instant ease, service of initial process was not made upon defendant within 120 days after filing of the initial pleading, thus satisfying the first part of Rule 1.070(i).
In order to satisfy the second part of Rule 1.070(i), the trial court had to give the party on whose behalf service is required an opportunity to show good cause why service was not made within the 120-day time period.
Appellant correctly argues that the trial court had no authority to dismiss the instant case without giving him an opportunity to be heard and to present any evidence he might have regarding the reasons he did not serve the defendants within the required time frame. Based on Rule 1.070(i) and fundamental requirements of due process, the trial court erred in dismissing Plaintiffs case without giving him an opportunity to show good cause why service was not made within the required time. See Hernandez v. Page, 580 So. 2d 793, 795 (Fla. 3d DCA 1991) (rule allowing dismissal where service is not made within 120 days after filing is intended as a useful tool for docket management, not an “instrument of oppression”); Greco v. Pedersen, 583 So. 2d 783, 785 (Fla. 2d DCA 1991) (suggesting that rule allowing dismissal for untimely service of process would be better served if trial court were authorized to issue an order to show cause after 90 days from the filing of the complaint, giving plaintiff 30 additional days in which to serve process or show cause why service cannot be achieved). Accordingly, we reverse and remand the trial court’s order of dismissal with instructions to give Appellant an opportunity to show cause why service was not made within 120 days of the filing of the complaint.
REVERSED AND REMANDED.
GUNTHER, FARMER and PARIENTE, JJ., concur.
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Lenoir v. Jones, 979 So. 2d 1129 (Fla. 1st DCA 2008)…iate period. (emphasis added). A plaintiff is entitled to both notice and the opportunity to show good cause why process has not been served prior to a trial court’s sua sponte dismissal of his or her case. Connelly v. Crown Cruise Line, Inc. S.A., 636 So. 2d 886, 887 (Fla. 4th DCA 1994); Alvarez v. U.S. Sec. Ins. Co., 650 So. 2d 707, 707-708 (Fla. 3d DCA 1995). Because the trial court dismissed Appellant’s complaint without providing him notice or an opportunity to show good cause, we REVERSE and REMAND wit…
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Fed. Home Loan Mortg. v. Lascio, 653 So. 2d 1150 (Fla. 4th DCA 1995)….070(i), Florida Rules of Civil Procedure (1993). We reverse and remand with directions for the trial court to allow the plaintiff an opportunity to show good cause why service was not timely effected. See Connelly v. Crown Cruise Line, Inc. S.A., 636 So. 2d 886 (Fla. 4th DCA 1994); Alvarez v. U.S. Sec. Ins. Co., 650 So. 2d 707 (Fla. 3d DCA 1995). REVERSED AND REMANDED. GUNTHER, KLEIN and SHAHOOD, JJ., concur.…
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Carter v. Mendez, 139 So. 3d 984 (Fla. 4th DCA 2014)…2008) (citations omitted). [*986] We have also held that notice and an opportunity to be heard are necessary due process requirements before a court can dismiss a case, sua sponte, for failure to serve. See Connelly v. Crown Cruise Line, Inc. S.A., 636 So. 2d 886, 887 (Fla. 4th DCA 1994). In Connelly, we stated: Appellant correctly argues that the trial court had no authority to dismiss the instant case without giving him an opportunity to be heard and to present any evidence he might have regarding the rea…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hernandez v. Page, 580 So. 2d 793 (Fla. 3d DCA 1991)
- Greco v. Kjell Pedersen, 583 So. 2d 783 (Fla. 2d DCA 1991)