The 120-Day Rule: What You Need to Know
Florida Rule of Civil Procedure 1.070 (j) states that a complaint must be served upon the defendant within 120 days after the complaint is filed. If it is not served within this time frame, a motion to dismiss is appropriate and the case is dismissed without prejudice. The complaint can be refiled so long as the statute of limitations has not run. A problem arises, however, if the complaint is not served within the statutory time period and the statute of limitations subsequently runs. In this scenario, any such dismissal is very prejudicial to both the attorney and his or her client and the lawyer is subject to a malpractice action.
There is a saving clause in the rule, however, which states that if the plaintiff can show “good cause” why the complaint was not served within the 120-day time frame, the time frame shall be expanded to accommodate appropriate service. This article will discuss how the courts view the various “good cause” arguments raised by plaintiffs.
For many years, plaintiffs would simply file a complaint to toll the statute of limitations and then go about their business of investigating and negotiating the case. In the 1980s, in an effort to improve judicial efficiency, the Florida Supreme Court mandated that cases on dockets needed to be expeditiously handled and moved forward. The one-year failure to prosecute statute assisted in this regard and the various circuits implemented case management conferences and other devices to move cases forward. In 1989, Fla. R. Civ. P. 1.070(j) was adopted as another measure to move cases forward. Rule 1.070(j) requires that all lawsuits have to be served within 120 days of the filing of the initial pleading.
Plaintiffs’ lawyers were not accustomed to this idea and many of the early cases in which the complaints were dismissed for a failure to timely serve involved plaintiffs’ attorneys who simply forgot to serve the complaint after filing. The Third District in Berdeaux v. Eagle Pitcher, 575 So. 2d 1295 (Fla. 3d DCA 1990), faced such a situation. In that case, the plaintiff’s lawyer perfected service prior to the hearing on the motion to dismiss. The Berdeaux court said that this situation should be treated much like a default, when, if an answer is filed before the default is entered, the default is cured.
About that same time, the Fourth District Court in Morales v. Sperry Rand, 578 So. 2d 1143 (Fla. 4th DCA 1991), faced the same issue of service not being perfected within 120 days. The Fourth District held that Rule 1.070 (j) should be enforced more strictly than the default rule, and ruled that the trial court must look to the facts to determine good cause before there could be an extension of time granted for service. These cases of opposite rulings had certified conflicts, which lead to the Florida Supreme Court issuing the Morales v. Sperry Rand, 601 So. 2d 538 (Fla. 1992), decision.
Morales v. Sperry Rand
The Florida Supreme Court in Morales held that Rule 1.070(j) should be treated more strictly than the default rule. The Supreme Court held that the plaintiff’s attorney, unlike in the default judgment rule, could not cure the problem by the perfection of service prior to the order of dismissal.
The facts in Morales showed the attorneys for the plaintiffs waited 110 days before they began the service of process. At that time the attorneys, via regular mail, began the process by asking the clerk to issue the summons by regular mail. After the Morales’ attorneys received the executed summons, they did not have enough time left to serve the defendants within the 120-day time frame. The Supreme Court held that this was only a “half-hearted” effort at serving the defendants and ruled that these facts would not support a finding of “good cause.” The Supreme Court noted that this dismissal would be harsh, even though it was a dismissal without prejudice, as the plaintiffs were unable to refile due to the running of the statute of limitations. The Morales opinion set the stage for trial courts and the district courts to review the facts of each case to determine if “good cause” was established. The Florida Supreme Court further ruled that the trial court should have broad discretion in reviewing the facts of each case and in determining if “good cause” could be established for the failure to serve the complaint within 120 days.
There have been 14 published opinions centered around the term “good cause” since the Morales decision. These decisions can basically be divided into attempts at service cases versus no attempts at service cases. In the attempts at service category, the courts have been very liberal in finding a showing of “good cause” by the plaintiff when any attempt at service is made within the 120-day period. On the other hand, in the cases in which a dismissal of the action was upheld for failure to serve within 120 days, no timely attempts at service within 120 days were made by plaintiffs’ counsel. Plaintiffs’ counsel in these cases raised excuses as to why they did not make a timely attempt at service. The courts did not find these excuses to be “good cause.”
No Attempt to Serve Cases
The Fourth District Court in Patterson v. Lowenstein, 686 So. 2d 776 (Fla. 4th DCA 1997), held that the plaintiffs’ claim that they were investigating the case after they filed it was not good cause for the plaintiffs’ failure to make any attempts at service within the 120-day period.
Similarly, the Fourth District in Hodges v. Noel, 675 So. 2d 248 (Fla. 4th DCA 1996), held that if there were no attempts, or, as in Hodges, there were no attempts made for 330 days, a motion to dismiss should be granted under such circumstances. In a slight twist to this theme, the Third District in Hernandez v. Page, 580 So. 2d 793 (Fla. 3d DCA 1991), held that because no service was attempted within eight months, the motion to dismiss should be granted. The Hernandez court noted plaintiffs’ argument that they were negotiating their claim as their reason for the delay in service. The court found the facts to be that a complaint was filed, negotiations occurred, the complaint was then voluntarily dismissed by the plaintiffs, and a new complaint was refiled but was not served for eight months and no attempts were made to serve it. The Hernandez court indicated there were no negotiations on the amended complaint, but rather, only on the original complaint. The Third District may have been leaving the door open for negotiations as a “good cause” argument.
“Good Cause” Cases with Some Attempt at Service
Approximately 11 cases have been decided since the Morales decision in 1992 which define “good cause” and found enough “good cause” to defeat a motion to dismiss for failure to serve within the 120-day period. The underlying theme in all 11 cases is that the plaintiff’s attorney made some attempt at securing service of process within the 120-day period of time. For example, good cause was found when, within the 120 days, the plaintiff attempted to serve incorrect summons, invalid complaints, or the wrong defendants.1
Two cases found “good cause” by the plaintiff when the defendants gave misinformation to the plaintiff, and an attempt to serve was made within the 120-day period based on this misinformation.2 Three additional cases excuse the plaintiffs’ failure to timely serve because valid attempts were made during the 120-day period even though no service was obtained.3
In Carlton v. Wal-Mart Stores, 621 So. 2d 451 (Fla. 1st DCA 1993), the First District Court of Appeal weighed ongoing negotiations and a waiver by the defendant against the necessity to serve within the 120-day period. While negotiations were ongoing, the plaintiffs’ attorney wrote to an agent for the defendant stating that he would not serve the complaint as long as the parties engaged in valid negotiations. The plaintiffs’ attorney also requested that the defendant notify him if it wished for the lawsuit to be served. Under this set of facts, the court held that the plaintiffs established “good cause” and the motion to dismiss was denied.
In Gambino v. The Village of Oakbrook, 164 F.R.D. 271 (M.D. Fla. 1995), there was a curious set of facts in which the plaintiff negotiated with the defendants up to 117 days after he had filed his complaint. It was at that time that the plaintiff realized that the case could not be settled and he took immediate steps to serve the defendants. This included an overnight mail of the summons (which had already been issued) to the sheriff of New York City. The sheriff received the summons within the 120-day period but failed to serve the defendants until several weeks after the 120-day period had expired. The Gambino court found, based upon the good faith negotiations, plaintiff’s attorney taking all reasonable steps to effectuate service within the 120 days, and the delivery of the complaint and summons to the sheriff within the 120 days for service, that there was sufficient “good cause” to defeat a motion to dismiss. The Gambino court went on to say, among other things, that the plaintiff did not have any control as to when service would be made upon the defendant by the sheriff after the summons was delivered. The court reiterated that the 120-day rule should be used as a helpful tool for docket management and not as an instrument of oppression.
Plaintiffs need to make some real effort toward service, not half-hearted as in Morales, to effect service within 120 days from the filing of the complaint, in order to show “good cause.” The purpose of the rule is to prevent a plaintiff from filing a suit and then taking no action whatsoever to proceed on the claim.4
Courts have ruled favorably for the plaintiff when some attempt at service is shown. The 120-day mandate imposed by the rule was not meant to be enforced harshly or inflexibly.5 However, if the plaintiffs forget to serve or “sleep on their rights,” this rule can cause a dismissal of the lawsuit. Hopefully, if this happens, the plaintiff still has time to refile.
1 Sneed v. H.B. Daniel Construction, 674 So. 2d 158 (Fla. 5th D.C.A. 1996); Stoeffler v. Castoliga, 629 So. 2d 196 (Fla. 2d D.C.A. 1993); Caban v. Skinner, 648 So. 2d 251 (Fla. 3d D.C.A. 1994); Bankers Insurance Company v. Thomas, 684 So. 2d 246 (Fla. 2d D.C.A. 1996).
2 Mid-Florida Associates v. Taylor, 641 So. 2d 182 (Fla. 5th D.C.A. 1994); Onett v. Ahola, 683 So. 2d 593 (Fla. 3d D.C.A. 1996).
3 Bice v. Metz Construction Co., 699 So. 2d 745 (Fla. 4th D.C.A. 1997); Ludwig v. Schwagel, 701 So. 2d 1256 (Fla. 5th D.C.A. 1994); Crews v. Shadburne, 637 So. 2d 979 (Fla. 1st D.C.A. 1994).
4 Bice, 699 So. 2d 745.
5 Floyd v. United States, 900 F.2d 1045 (7th Cir. 1990).
Gerald D. Schackow practices law in Gainesville, concentrating in the areas of personal injury and wrongful death. He received his B.A. from the University of Florida in 1962 and his J.D. from the University of Florida College of Law in 1965. Mr. Schackow practices with his partners Stephen Mercadante, Lynn Schackow, and Catherine Schackow.
This column is submitted on behalf of the Trial Lawyers Section, Richard A. Gilbert, chair, and D. Keith Wickenden, editor.