Lack Of Service in FL -How long before case can be dismissed?

[ThickBurger]

How long can a case stay in a "summons appear un-served" status in FL?

I have a case where the initial complaint was filed in early 2009, they tried to serve me several times but were unsuccessful. The last time summons were issue was in August 2010 for a court date in November.

The Debt is NOW out of SOL, but not out of SOL when the complaint was filed (2 years ago.)

To my understanding, the SOL is tolled when a complaint is filed.

Therefore, is there a way to get the case dismissed for lack of service? Then they would have to refile the case, but the SOL is expired now so that would be beneficial to me.

FWIW, I don't understand why they can't serve me. I am NOT trying to avoid service.

Edited May 7, 2012 by ThickBurger

[Prosay]

How long can a case stay in a "summons appear un-served" status in FL?

I have a case where the initial complaint was filed in early 2009, they tried to serve me several times but were unsuccessful. The last time summons were issue was in August 2010 for a court date in November.

The Debt is NOW out of SOL, but not out of SOL when the complaint was filed (2 years ago.)

To my understanding, the SOL is tolled when a complaint is filed.

Therefore, is there a way to get the case dismissed for lack of service? Then they would have to refile the case, but the SOL is expired now so that would be beneficial to me.

FWIW, I don't understand why they can't serve me. I am NOT trying to avoid service.

Not sure about Florida, but I think in Tenn, a case must be re-filed within one year or it is automatically dis-missed.

Might want to call the court clerk or google "florida statutes/summons"

[ThickBurger]

Here's what I found...

Rule 1.070

Summons; Time Limit.* If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading and the party on whose behalf service is required does not show good cause why service was not made within that time, the action shall be dismissed without prejudice or that defendant dropped as a party on the court’s own initiative after notice or on motion. A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1). Amended September 29, 1971, effective December 13, 1971; July 26, 1972, effective January 1, 1973; October 9, 1980, effective January 1, 1981; October 6 and December 30, 1988, effective January 1, 1989; July 16, 1992, effective January 1, 1993; October 31, 1996, effective January 1, 1997.

My Understanding is 120 Days, or about 4 months from the filing.

So in my case is that August 2010 or early 2009? Doesn't matter in either case I guess.

So anyone ever done this before? Do I just go to the court and say dismiss for lack of service?

If successful, can a case like this be "re-opened" or will they have to file a new one of they want?

[ThickBurger]

Just a quick bump. Any one have any other input on this topic?

[Guest usctrojanalum]

I'm not sure Courts by me do this administratively and just dismiss the cases on their own when a defendant is not served in 4 months time.

[fightemdontfold]

The clerk's office in my state told me that they let them sit there for a year if service has not been executed. Sure enough I reviewed a couple files that had been there for 8-10 months. After a year the case is dismissed without prejudice.

[formerpara]

I live in FL and have looked at the cases filed by several JDB's in my county. What I've observed in my county is that in cases where the defendant can't be served the cases just sit on the docket. I went to a consumer lawyer who informed me that in a case where the plaintiff does nothing for 10 months the defendant has to file a motion to dismiss for lack of prosecution. Then the plaintiff has 60 days to do something or the court will have to dismiss the case. I have a situation where my husband was sued in the wrong county. We answered and advised them that they violated the FDCPA and they still filed an affidavit and "account docs" (a copy of the last statement). We were never sent the docs I found out from checking the docket so I don't know what they actually are. It's almost 2 years since they filed anything so I'm going to wait until the SOL has expired to file a MTD.

What county are you in?

Edited March 23, 2011 by formerpara

[ThickBurger]

I live in FL and have looked at the cases filed by several JDB's in my county. What I've observed in my county is that in cases where the defendant can't be served the cases just sit on the docket. I went to a consumer lawyer who informed me that in a case where the plaintiff does nothing for 10 months the defendant has to file a motion to dismiss for lack of prosecution. Then the plaintiff has 60 days to do something or the court will have to dismiss the case. I have a situation where my husband was sued in the wrong county. We answered and advised them that they violated the FDCPA and they still filed an affidavit and "account docs" (a copy of the last statement). We were never sent the docs I found out from checking the docket so I don't know what they actually are. It's almost 2 years since they filed anything so I'm going to wait until the SOL has expired to file a MTD.

What county are you in?

I'm in Brevard. Where did the attorney get 10 months from? The closest thing I found was the quote I stated above, which says 120 days. But I'm not sure on exactly how to take action on this.

[formerpara]

Florida Rules of Civil Procedure 1.420 states that if there is no activity for 10 months then you can file a MTD for lack of prosecution. Then the plaintiff has 60 days to "do something" and if not then the judge has to dismiss the case. Are you out of SOL or close to it?

Here's an excert from FRCP 1.420:

(e) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

I have a document ready to go for this in another case. Just waiting for the SOL to run so that when they refile it will be out of SOL.

Edited March 24, 2011 by formerpara

[ThickBurger]

Florida Rules of Civil Procedure 1.420 states that if there is no activity for 10 months then you can file a MTD for lack of prosecution. Then the plaintiff has 60 days to "do something" and if not then the judge has to dismiss the case. Are you out of SOL or close to it?

Here's an excert from FRCP 1.420:

(e) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

I have a document ready to go for this in another case. Just waiting for the SOL to run so that when they refile it will be out of SOL.

I am out of SOL now, but when the case was file, it's still within SOL.

How would you interpret this:

"Rule 1.070

Summons; Time Limit.* If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading and the party on whose behalf service is required does not show good cause why service was not made within that time, the action shall be dismissed without prejudice or that defendant dropped as a party on the court’s own initiative after notice or on motion. A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)"

[formerpara]

If it were me I'd file a motion to dismiss citing that rule because it references the rule I mentioned.

I was given some excellent advice by BV80 and called a bunch of consumer lawyers in my town. I got some free advice and then actually paid a very small fee to get excellent advice. Look for a motion to dismiss on this board and them post it for help.

[ThickBurger]

If it were me I'd file a motion to dismiss citing that rule because it references the rule I mentioned.

I was given some excellent advice by BV80 and called a bunch of consumer lawyers in my town. I got some free advice and then actually paid a very small fee to get excellent advice. Look for a motion to dismiss on this board and them post it for help.

Care to share this advice or perhaps PM me the attorney who assisted you? I have no problem paying a small fee.

[Guest usctrojanalum]

How would you interpret this:

"Rule 1.070

Summons; Time Limit.* If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading and the party on whose behalf service is required does not show good cause why service was not made within that time, the action shall be dismissed without prejudice or that defendant dropped as a party on the court’s own initiative after notice or on motion. A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)"

Bring a motion to dismiss based on this. It says that you can get this dismissed without prejudice if you bring a motion.

[ThickBurger]

Bring a motion to dismiss based on this. It says that you can get this dismissed without prejudice if you bring a motion.

Would bringing a motion allow the plaintiff to serve me right then and there?

[Defendant9]

Dismissal is without prejudice. P can refile within SOL. The 120 limit is a policy rule that encourages plaintiffs to prosecute their cases. Filing a dismissal will not allow you to escape the action since P can always refile and serve you IF within SOL.

Since you are past SOL it would seem that failure to serve you may allow you to get this dismissed and P could not refile because the transaction is past SOL. Check with FL lawyer.

Edited March 25, 2011 by Defendant9

[ThickBurger]

Dismissal is without prejudice. P can refile within SOL. The 120 limit is a policy rule that encourages plaintiffs to prosecute their cases. Filing a dismissal will not allow you to escape the action since P can always refile and serve you.

How can plaintiff refile within SOL when it's expired at the time of "refilling" ? SO basically I won't be able to use SOL as defense ever in this case?

Ahhh this is so confusing.

Anyone recommend an attorney in my area? Brevard County? I'm even willing to travel out of the county.

[Guest usctrojanalum]

How can plaintiff refile within SOL when it's expired at the time of "refilling" ? SO basically I won't be able to use SOL as defense ever in this case?

This is getting technical, but typically the statute of limitations is tolled when a lawsuit is filed until the case is disposed of. The rules on this are typically very specific though, and I don't want to speak for Florida without actually knowing.

[Defendant9]

Yes, but if he gets a dismissal for lack of service the original tolled date is lost. It would seem they cannot refile since the SOL is now past.

OP need to consult a FL litigator to learn if the plaintiff has any tricks that would allow him to reach back within the SOL.

[ThickBurger]

I just want to update this, I know it's been over a year... but I think I can put this in the WIN column. This was against Midland for $8k. OC was CiTi.

I spoke with a few attorneys and there was one that really stood out (found on the NACA site - Southeast Consumer Law Group ) .... He suggest we file a motion to dismiss based on lack of service. We filed the motion, and the Plaintiff dismissed the case (without prejudice) even before we could make it to court. Other attorneys took the "don't poke the sleeping bear" approach. I was really impressed with this attorney's communication and experience.

Now I'm officially out of SOL, and per my attorney, they can refile the case but then we can have an affirmative defense of out of SOL, and possible claims of FDCPA violations.

Thanks everyone!