Eastern Investments, LLC v. Cyberfile, Inc.
| Decision Date | 17 January 2007 |
| Docket Number | No. 3D06-247.,3D06-247. |
| Citation | 947 So.2d 630 |
| Parties | EASTERN INVESTMENTS, LLC, Appellant, v. CYBERFILE, INC., a Florida corporation, and Amy Smith, jointly and severally, Appellees. |
| Court | Florida District Court of Appeals |
M.J. Ejenbaum, for appellant.
Geller, Geller, Fisher & Garfinkel, Hollywood, for appellees.
Before RAMIREZ, and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
Eastern Investments, LLC, appeals an order granting a motion to dismiss the Amended Complaint with prejudice. We reverse.
Eastern Investments sued Cyberfile, Inc., a Florida corporation, and Amy Smith for fraud. After an agreed order initially granting defendants' motion to dismiss, Eastern Investments filed its amended complaint, which the defendants again moved to dismiss. In granting the motion, the court gave three reasons: (1) Failure of Eastern Investments to post a non-resident cost bond pursuant to section 57.011, Florida Statutes; (2) Eastern Investments is a foreign entity which had not registered to do business in the State of Florida with the Florida Department of State pursuant to section 608.4511(7), Florida Statutes; and (3) Eastern Investments was not a proper party to bring this action as it lacked standing.
Section 57.011 provides, in pertinent part:
Costs; security by nonresidents
When a nonresident plaintiff begins an action . . . he or she shall file a bond with surety to be approved by the clerk of $100, conditioned to pay all costs which may be adjudged against him or her in said action in the court in which the action is brought. On failure to file such bond within 30 days after such commencement or such removal, the defendant may, after 20 days' notice to plaintiff (during which the plaintiff may file such bond), move to dismiss the action or may hold the attorney bringing or prosecuting the action liable for said costs and if they are adjudged against plaintiff, an execution shall issue against said attorney.
It is undisputed that the defendants never gave the plaintiff the twenty days' notice as provided for in the statute. We hold that the failure to provide such notice was fatal to the motion to dismiss. We do not believe that a proper substitute for such notice was provided within the defendants' motion to dismiss listing fifteen different grounds. Nevertheless, in the motion for rehearing, plaintiff alleged that it had complied with the statute. We conclude that the trial court abused its discretion in dismissing the case with prejudice on this ground. See Diaz v. Bravo, 603 So.2d 106, 107 (Fla. 3d DCA 1992) ().
As to the second ground, section 608.4511(7) provides:
Any limited liability company failing to file an annual report which complies with the requirements of this section shall not be permitted to prosecute, maintain, or defend any action in any court of this state until...
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...So.2d at 9. Accordingly, as Chakra 5 and 1501 are now reinstated, the litigious disability has been cured. E. Invs., LLC v. Cyberfile, Inc., 947 So.2d 630, 631-32 (Fla. 3d DCA 2007) ("The language of the statute suggests that any failure to comply simply prevents a plaintiff from prosecutin......
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...trial court also erred since the plaintiffs' failure to post the bond could have been easily remedied"); cf. E. Invs., LLC v. Cyberfile, Inc., 947 So.2d 630, 631 (Fla. 3d DCA 2007) (reversing dismissal of complaint on other grounds but noting that the plaintiff had alleged in its motion for......
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Juega v. Davidson
...34 (Fla. 3d DCA 2007) (collection and litigation agent has standing to bring mortgage foreclosure action); Eastern Inv., LLC v. Cyberfile, Inc., 947 So.2d 630, 632 (Fla. 3d DCA 2007) (action may be maintained by assignee; "Florida Rule of Civil Procedure 1.210(a) permits an action to be pro......
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Juega v. Davidson, No. 3D05-2785 (Fla. App. 2/11/2009)
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