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Getting the Details Right: Making Sure Service of Process Doesn’t Derail Your Florida Commercial Litigation Case

When you find yourself reaching the point of litigation in a commercial dispute, whether it is related to a breach of contract, protecting your intellectual property, or some other basis, the chances are you’re keenly aware of certain aspects of your case. You’re well-versed in the facts and perhaps some of the law related to your lawsuit (or potential lawsuit). However, there are many more details that go into getting to court and securing a successful outcome, which is why you need skilled Florida commercial litigation counsel handling your case. Some recent Florida decisions, from both federal and state court, which focused on some of the procedural hurdles at the beginning of litigation, are examples of how small details can make big differences.

The most recent case was a state court lawsuit that originated in Palm Beach County. In that case, a mortgage company sued an LLC, but it wasn’t the factual subject matter that was the interesting part. The key aspect of this case was the fact that the defendant was an LLC, and, because of that, there are certain rules that apply to serving it with notice of a lawsuit. The law says that, if you’re suing an LLC, and you are unable to serve successfully the LLC’s managing member or its registered agent, you can do what’s called “substitute service,” which involves submitting the lawsuit to the office of the Florida Secretary of State. The statutes, though, have very specific details regarding how you have to go about doing that.

Properly completing service of process is vital because, if you don’t properly serve an opponent, that opponent can raise this in court, and the court may refuse to hear your case on jurisdictional grounds, which will stymie you from obtaining relief without even getting to have a full hearing.

One requirement in order to use the Department of State method is that you have to state that the defendant you’re trying to serve either is hiding their whereabouts or else “previously conducted business in Florida, but has now become a nonresident.” In the mortgage company’s case, it didn’t proclaim either of those things, so its attempt to complete service by using the Department of State was unsuccessful, which meant that the defendant hadn’t legally been served.

Another corporate plaintiff faced a similar fate earlier this year because, when it attempted to accomplish substitute service via the Secretary of State, it failed to “mail the process through certified or registered mail, file the return receipt, and submit an affidavit of compliance” as required by Section 48.161(1) of the Florida Statutes.

Plaintiffs in a federal action faced a different problem. Several female public figures, ranging from Playboy models to a “The Price Is Right” spokesmodel to a star of “Real Housewives of Miami,” accused a Tampa swingers’ club of using their likenesses without their permission. The models’ problem in completing service was a defendant entity that was evading service. The models got what is called an “alias summons” and got a woman who allegedly said she was an employee to sign the service paperwork.

The defendant tried to argue that the models hadn’t properly completed service, since the woman who signed worked for a different company that was located in Suite 150, rather than 155 (which was the defendant’s address). The models overcame this contention because they had proof that both the doors to Suite 155 and Suite 150 opened to the same place. They also had proof that the defendant was actively evading service. One key piece of evidence was an unsuccessful attempt to serve the defendant’s registered agent, in which the agent allegedly refused to accept any papers for any “frivolous lawsuits.” This was enough to persuade the court that the defendant was evading service, which meant that the models’ efforts were enough to constitute properly serving the defendant.

In your commercial dispute, sometimes the smallest details matter the most. This can be true with regard to the facts, the law, or procedural rules. Rely on counsel who knows all of the details, great and small. The skilled South Florida commercial litigation attorneys at Stok Kon + Braverman have been helping businesses and business people protect their interests and rights for many years and are ready to help with your case.

Contact us online or by calling (954) 237-1777 to schedule your consultation and find out how this firm can help you protect your interests.

More blog posts:

‘Choice of Law’ Provision in Commercial Contract Allows LLC to Maintain Fraudulent Inducement Case, Florida Business Lawyers Blog, July 11, 2017

Florida LLC’s Method of Serving Opponent in Brazil Sufficient to Allow its Tortious Interference Case to Go Forward, Florida Business Lawyers Blog, April 26, 2017


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