FRANCINE GARFINKEL, APPELLANT,
v.
LEIGH C. KATZMAN, ALAN B. GARFINKEL, KATZMAN GARFINKEL ROSENBAUM, LLP, A FLORIDA LIMITED LIABILITY PARTNERSHIP, AND DANIEL S. ROSENBAUM, APPELLEES
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Francine Garfinkel, a non-party witness, challenged a trial court order finding she waived her objection to the court's jurisdiction by filing a motion for protective order seeking to quash a deposition subpoena for lack of service. The Fourth District Court of Appeal reversed, holding that a non-party's defensive motion challenging lack of service and jurisdiction does not constitute a waiver.
A non-party does not waive her objection to lack of service and personal jurisdiction by filing a defensive motion for protective order, even when that motion joins substantive arguments about the scope of the deposition. The joinder of defenses and objections does not result in waiver.
[1] A court lacks jurisdiction over a non-party witness who has not been served with a deposition subpoena.
[2] Filing a motion for protective order that seeks to quash a deposition subpoena for lack of service does not waive the objection to personal jurisdiction.
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Join FLexlaw to unlock all legal intelligence“A court lacks jurisdiction over a non-party and the authority to require the non-party to appear for deposition where she has not been served with the deposition subpoena.”
Establishes the foundational principle that lack of service deprives the court of jurisdiction over a non-party witness
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Join FLexlaw to unlock all legal intelligenceGarfinkel, a non-party witness, was served with a deposition subpoena. She filed a motion for protective order that sought to quash the subpoena for l…
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Francine Garfinkel, a non-party witness, challenges an order of the trial court finding she waived her objection to the court’s exercise of jurisdiction over her person by filing a motion for protective order that sought to quash the deposition subpoena for lack of service and to limit any deposition permitted on the grounds of the spousal and litigation privileges. We reverse.
A court lacks jurisdiction over a non-party and the authority to require the non-party to appear for deposition where she has not been served with the deposition subpoena. See Anderson Invs. Co. v. Lynch, 540 So.2d 832, 833 (Fla. 4th DCA 1988); Ward v. Gibson, 340 So.2d 481, 482 (Fla. 3d DCA 1976). Garfinkel’s motion for protective order plainly raised the issue of lack of service and the joinder of substantive arguments directed to the scope of any deposition ultimately held did not result in a waiver of her claim of lack of service and thus lack of jurisdiction. See Fla. R. Civ. P. 1.140(b) (“No defense or objection is waived by being joined with other defenses or objections_”); Berne v. Beznos, 819 So.2d 235, 238 (Fla. 3d DCA 2002) (“[I]f a defending party timely raises an objection to personal jurisdiction or service of process, then that defendant may plead to the merits and actively defend the lawsuit without waiving the objection.”). The filing of the motion for protective order, seeking to quash or limit the deposition, was defensive and not a claim for affirmative relief that resulted in a waiver of the claim of lack of service and personal jurisdiction. See Babcock v. Whatmore, 707 So.2d 702, 704 (Fla.1998) (“[A] defendant waives a challenge to personal jurisdiction by seeking affirmative relief — such requests are logically inconsistent with an initial defense of lack of jurisdiction.”); Banco de Costa Rica v. Rodriguez, 573 So.2d 833, 834 (Fla.1991) (holding defendant’s filing of motion to quash deposition subpoena raising lack of service was a defensive action that did not result in waiver of claim of lack of personal jurisdiction).
*42 Joannou v. Corsini, 543 So.2d 308 (Fla. 4th DCA 1989), the authority relied upon by appellee, is distinguishable. There, this court found a waiver where Joannou raised a claim of lack of personal jurisdiction after he had filed a motion for protective order asserting that, as a party, he had been entitled to notice of depositions and was not afforded the same. Id. at 311.
Accordingly, we reverse the order finding Garfinkel waived her claim of lack of personal jurisdiction and requiring her to appear for deposition. We reject Garfinkel’s claim that the April 2011 hearing precipitating the order on rehearing served as the evidentiary hearing on the matter of service of the deposition subpoena and that she is therefore entitled to immediate entry of an order quashing the subpoena. We remand the matter to the trial court for further proceedings consistent with this opinion.
Reversed and Remanded.
MAY, C.J., and CIKLIN, J., concur.
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Sierra v. U.S. Bank Tr., N.A., 299 So. 3d 402 (Fla. 4th DCA 2020)…relief does not subject the movant to the court’s jurisdiction. Babcock v. Whatmore, 707 So. 2d 702, 704 (Fla. 1998) (“[A] defendant waives a challenge to personal jurisdiction by seeking affirmative relief . . . .”); see also Garfinkel v. Katzman, 76 So. 3d 40, 41 (Fla. 4th DCA 2011) (holding defensive motions that do not seek affirmative relief do not waive challenges to service or personal jurisdiction). ---PAGE 3--- 3 As U.S. Bank concedes, Appellants did not waive their challenge to service of proc…
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Bornstein v. The Bank OF NEW York Mellon, 219 So. 3d 832 (Fla. 4th DCA 2017)…affirmative relief on the merits of the case.”) (quoting DiGiovanni v. BAC Home Loans Servicing, L.P., 83 So. 3d 934, 936 (Fla. 2d DCA 2012)); Moo Young v. Air Canada, 445 So. 2d 1102, 1104 (Fla. 4th DCA 1984). For example, in Garfinkel v. Katzman, 76 So. 3d 40, 41 (Fla. 4th DCA 2011), we held that the'filing of a motion for protective order seeking to quash or limit a deposition was defensive and not a claim for affirmative relief that waived the service and personal jurisdiction challenges. See also Babc…
Authorities Cited
- Babcock v. Whatmore, 707 So. 2d 702 (Fla. 1998)
- Joannou v. Corsini, 543 So. 2d 308 (Fla. 4th DCA 1989)
- J.H. v. State, 819 So. 2d 235 (Fla. 1st DCA 2002)
- T. C. (Ted) Ward v. Gibson, 340 So. 2d 481 (Fla. 3d DCA 1976)
- Banco de Costa Rica v. Norberto Rodriguez, 573 So. 2d 833 (Fla. 1991)
- Int'l Bankers INS. v. Arnone, 540 So. 2d 832 (Fla. 4th DCA 1988)
- Anderson Invs. Co. Ltd. v. The Honorable Thomas M. Lynch, 540 So. 2d 832 (Fla. 4th DCA 1988)