Villar v. Scottsdale Ins. Co.
| Docket Number | 22-cv-21362-BLOOM/Otazo-Reyes |
| Decision Date | 03 August 2022 |
| Parties | NERY VILLAR, Plaintiff, v. SCOTTSDALE INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant Scottsdale Insurance Company's (“Defendant”) Motion to Dismiss ECF No. [6] (“Motion”). Plaintiff Nery Villar (“Plaintiff”) filed a Response in Opposition, ECF No. [15] (“Response”), to which Defendant filed a Reply, ECF No. [18] (“Reply”). The Court has carefully reviewed the Motion, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is denied.
Plaintiff filed this lawsuit against Defendant in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County Florida, on October 8, 2021, setting a service deadline of February 7, 2022. See ECF No. [1-2] at 6. In the Complaint, Plaintiff asserts two counts against Defendant: breach of contract (“Count I”) and negligence (“Count II”). See id. at 7-10. Plaintiff claims that Defendant failed to comply with a homeowner's insurance policy that was in effect on November 8, 2020. See id. On May 2, 2022, Defendant removed the case to this Court. See ECF No. [1].
In the instant Motion, Defendant argues that Plaintiff did not comply with Fla. R. Civ. P. 1.070 by failing to effectuate service of process within 120 days of filing her Complaint. See ECF No. [6] at 5-6. Defendant also claims that prior to filing the Complaint, Plaintiff did not provide the Department of Financial Services with a written Notice of Intent to Initiate Litigation (“Notice”). See id. at 6-8. Defendant argues that the Court should, therefore, dismiss the case without prejudice pursuant to Fla. Stat. § 627.70152. See id. at 8. Plaintiff responds that dismissal for failure to timely serve is not appropriate and that the Court should not retroactively apply Fla. Stat. § 627.70152 to an insurance policy that was issued before July 1, 2021, when the statute became effective. See ECF No. [15].
“In actions removed from state court, the sufficiency of service of process prior to removal is determined by the law of the state from which the action was removed.” Fla. Ltd. Inv. Properties, Inc. v. Deutsche Bank Nat'l Tr. Co., No. 21-14039-CIV, 2021 WL 4138552, at *2 (S.D. Fla. Aug. 27, 2021), report and recommendation adopted, No. 20-14039-CIV, 2021 WL 4134803 (S.D. Fla. Sept. 10, 2021); see also Hines v. Regions Bank, 782 Fed.Appx. 853, 854 (11th Cir. 2019); Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d 1285, 1286 n.1 (11th Cir. 1985).
The Florida Rules of Civil Procedure state, in relevant part, as follows:
(j)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 directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period.
Rule 1.070 provides a trial judge with broad discretion in granting an extension of time to serve process. See Premier Cap., LLC v. Davalle, 994 So.2d 360, 361 (Fla. 3d DCA 2008). Further, Florida courts have held that “the purpose of Rule 1.070(j) is to speed the progress of cases on the civil docket, but not to give defendants a ‘free' dismissal with prejudice.” Miranda v. Young, 19 So.3d 1100, 1103 (Fla. 2d DCA 2009) (quoting Chaffin v. Jacobson, 793 So.2d 102, 104 (Fla. 2d DCA 2001)). Florida courts have a long-standing policy in favor of resolving disputes on their merits rather than dismissing complaints under Rule 1.070(j). See Brown v. Ameri Star, Inc., 884 So.2d 1065, 1067 (Fla. 2d DCA 2004).
Florida Statute § 627.70152(3) states, in relevant part:
Fla. Stat. § 627.70152(3).
Further, § 627.70152(5) states, in relevant part:
Fla. Stat. § 627.70152(5).
Lastly, § 627.70152(8)(b) states, in relevant part:
Fla. Stat. § 627.70152(8)(b).
Defendant first argues that the Complaint should be dismissed because Plaintiff failed to serve the summons and Complaint on Defendant within 120 days, in violation of Rule 1.070(j). See ECF No. [6] at 5-6. Plaintiff responds that Defendant effectively waived its argument on the matter by not properly developing it, and that Rule 1.070(j) is a case management tool rather than a vehicle for sanctions. See ECF No. [15] at 4-7. Plaintiff also argues that there was good cause or excusable neglect for untimely service given the Florida Chief Financial Officer's (“CFO”) inexplicable failure to serve when Plaintiff first requested service of process through the CFO. See id. at 6-7. Defendant replies that Plaintiff has failed to establish good cause or excusable neglect for failing to comply with the timely service requirement. See ECF No. [18] at 1-3. Defendant points out that Plaintiff waited 96 days before attempting to serve Defendant through the CFO for the first time and did not seek an extension of time when it became apparent that the CFO would not be able to meet the 120-day deadline. See id.
The Court agrees with Plaintiff. As an initial matter, the Court reiterates that the Complaint was filed on October 8, 2022, the service deadline was February 7, 2022, and Plaintiff effectuated service on April 12, 2022. See ECF No. [1-2] at 1. Although the service of process was untimely, Plaintiff is persuasive in contending that her counsel's law firm had a system in place and attempted to serve process through the CFO within 96 days of filing the Complaint on January 12, 2022. See ECF No. [15] at 6.[1] It appears that the CFO, not Plaintiff, failed to effectuate service in a timely manner despite Plaintiff's good faith effort. Moreover, the Notice of Non-Service from the CFO appears to be internally inconsistent since it indicates that the CFO was unable to serve Defendant because Plaintiff - not Defendant - was not named properly. See ECF Nos. [1-2] at 11, [15-1] ¶ 16.[2] Nevertheless, Plaintiff's counsel took active steps to remedy the problem by making a second request upon the CFO to serve Defendant. See ECF No. [15-1] ¶¶ 21-23. The Court considers such circumstances to constitute excusable neglect for failure to timely serve, which permits the Court to “extend the time for service for an appropriate period.” Fla. R. Civ. P. 1.070(j).
Further as noted above, Florida courts have held that “the purpose of Rule 1.070(j) is to speed the progress of cases on the civil docket, but not to give defendants a ‘free' dismissal with prejudice.” Miranda, 19 So.3d at 1103. As such, although Plaintiff failed to meet the service deadline and did not seek an extension of time to serve, the Court denies Defendant's request to dismiss the Complaint on these grounds. The Court extends the time to serve process to April 12, 2022. Plaintiff need not file proof of...
To continue reading
Request your trial