EXCHANGE NATIONAL BANK OF CHICAGO ET AL., APPELLANTS,
v.
ROTOCAST PLASTIC PRODUCTS, INC., ETC., ET AL., APPELLEES
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Exchange National Bank appealed an ex parte order commissioning a private process server to serve a defendant in a usury and fraud case. The Florida appellate court reversed, holding that the trial court improperly appointed a private process server without requiring the plaintiff to show that the sheriff was disqualified, in default, or unable to serve, and without compliance with local rules requiring an under-oath motion stating specific reasons.
The appointment of a private process server was improper because: (1) the plaintiff's motion failed to allege that the sheriff or deputy sheriffs were disqualified, in default, or unable to serve; (2) the motion contained no allegation regarding the competence or disinterest of the proposed process server; and (3) the motion was not made under oath and did not state why the Civil Division of the Sheriff's Department could not be used, as required by local rules.
[1] A court may appoint a competent person not interested in the action to serve process under Fla.R.Civ.P. …
[2] A motion requesting the appointment of a process server must be made under oath and state with particularity the reasons why the Civil Division of the Sheriff's Departmen…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the court may appoint any competent person not interested in the action to serve the process”
Establishes the general authority to appoint private process servers under Rule 1.070(b), but only under proper circumstances
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Join FLexlaw to unlock all legal intelligenceRotocast Plastic Products filed a complaint against Exchange National Bank, Edward Sax, Lincolnshire Financial Services, and Steven Bronson (vice-pres…
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PER CURIAM.
Defendants appeal an ex parte order commissioning Janet R. Pimley for the service of summons and complaint upon defendant Steven Bronson.
Plaintiff, Rotocast Plastic Products, filed a complaint for usury, fraud, etc. against Exchange National Bank of Chicago, Edward Sax, Lincolnshire Financial Services and Steven Bronson, vice-president of Exchange National Bank. The complaint alleged that Bronson was a resident of Chicago, Illinois. All defendants filed motions to dismiss which were denied except that of Bronson, whose dismissal motion was granted for insufficiency of service of process. Thereafter, plaintiff filed a motion for an order issuing a commission to Janet R. Pim-ley for the service of process on defendant Bronson in accordance with Sections 48.161, 48.181, Florida Statutes (1975) and Fla.R. Civ.P. 1.070. Without a hearing, the court granted the motion and entered an order commissioning Pimley for the service of summons and complaint on Bronson. Bronson and the other defendants appeal. We reverse.
The courts have the inherent power to appoint a process server upon default or disqualification of the sheriff or other officers so authorized, and under Fla.R.Civ.P. 1.070(b), the court may appoint any competent person not interested in the action to serve the process. See Petition of Stoll, 309 So. 2d 190 (Fla. 1st DCA 1975). Plaintiff’s motion fails to allege disqualification, default or inability on the part of the sheriff or deputy sheriffs of Dade County and further contains no allegation as to the competence or disinterest of Janet Pimley.
Rule 6 (general jurisdiction division) of the Local Rules of Practice for the circuit court of the 11th Judicial Circuit provides in pertinent part:
“RULE 6
“ORDERS FOR APPOINTMENT OF COURT OFFICERS
* * * * * *
“When an attorney requests the appointment of a process server, he shall submit a motion, under oath, stating his reasons with particularity, why he cannot use the Civil Division of the Sheriff’s Department, together with an order as described in the above paragraphs.”
Plaintiff’s motion was not made under oath, nor did it state why the civil division of the sheriff’s department could not be used.
Reversed.
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Citator
Cited By
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Peter F.K. Baraban v. Sussman, 439 So. 2d 1046 (Fla. 4th DCA 1983)…ow the provisions of the mentioned Rule in order to effectively obtain the appointment of an elisor (process server). See Petition of Stoll, 309 So. 2d 190 (Fla. 1st DCA 1975) and Exchange National Bank of Chicago v. Rotocast Plastic Products, Inc., 352 So. 2d 145 (Fla. 3d DCA 1977). Moreover, strict compliance with service of process procedures is required. Electro Engineering Products Co., Inc. v. Lewis, 352 So. 2d 862 (Fla.1977). We hold that service of process upon Defendant, Baraban, made by Dane Obra-d…
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The Bradley Fiduciary Corp. & Irv Zimmerman v. Citizens & S. Int'l Bank, 431 So. 2d 196 (Fla. 3d DCA 1983)…FERGUSON, Judge. A motion for the appointment of a special process server need not allege default, disqualification or inability on the part of the sheriff to serve process. Exchange National Bank of Chicago v. Rotocast Plastic Products, Inc., 352 So. 2d 145 (Fla. 3d DCA 1977), cited by appellants, which required that a plaintiff seeking the appointment of a special process server state under oath why the civil division of the sheriff’s department could not be used to serve process, enforced a Local Rul…1 / 2
Authorities Cited
- Petition of Marc Alan Stoll and Gregory Lloyd Miele, 309 So. 2d 190 (Fla. 1st DCA 1975)