Hello, Borigata. You are correct that the "posted" service was
invalid under Florida law, and does not give the court personal
jurisdiction over the defendant thus served.
As commenter ponder852 pointed out, Florida law requires service on an
apparent manager of the business, not simply posting it.
48.031 Service of process generally; service of witness subpoenas
Substitute service may be made on an individual doing business as a
sole proprietorship at his or her place of business, during regular
business hours, by serving the manager of the business if one or more
attempts to serve the owner have been made at the place of business.
http://www.megalawserve.com/states/fl.php
Note that these statutes are strictly construed, and it is going to be
up to the plaintiff to prove that service was valid:
?Furthermore, statutes that govern service of process are to be strictly
construed to insure that a defendant receives notice of the proceedings . .
. . The burden of proving the validity of the service of process is on the
plaintiff. Carter v. Lil Joe Records, 829 So. 2d 953 (Fla. 4th DCA 2002).
Absent strict compliance with the statutes governing service of process,
the court lacks personal jurisdiction over the defendant. Sierra Holding
v. Inn Keepers Supply, 464 So. 2d 652 (Fla. 4th DCA 1985).?
Anthony v. Gary J. Rotella & Associates (2005), internal quotations omitted.
http://www.4dca.org/July2005/07-20-05/4D04-4245.pdf
Also from the same case, we see the following citation of interest:
?In Hauser v. Schiff, the third district held that substitute service of
process was not effectuated by a process server who went to the
defendant?s place of business and, without seeing the defendant, left the
summons and complaint with the secretary. 341 So. 2d 531 (Fla. 3d DCA
1977).?
You then ask in the comments for cases in which the lack of
jurisdiction has been used as a defense. And this is going to be more
difficult, because the lack of personal service cannot be "sprung" at
the end of the case. It has to be raised UP FRONT, and when it is
raised as an issue up front, the plaintiff has the chance to fix it by
effecting proper service.
Here is the Florida procedure for raising the objection of invalid service:
?Every defense in law or fact to a claim for relief in a pleading
shall be asserted in the responsive pleading, if one is required, but
the following defenses may be made by motion at the option of the
pleader: (1) lack of jurisdiction over the subject matter, (2) lack of
jurisdiction over the person, (3) improper venue, (4) insufficiency of
process, (5) insufficiency of service of process, (6) failure to state
a cause of action, and (7) failure to join indispensable parties. A
motion making any of these defenses shall be made before pleading if a
further pleading is permitted.?
Florida Rule of Civil Procedure 1.140(b).
Note that failure to assert the defense will result in a waiver.
http://www.florida-justice.com/Fla.R.Civ.P..PDF
Note the language from the rule: "A motion making any of these
defenses shall be made BEFORE PLEADING if a further pleading is
permitted." That means that you have to raise the jurisdictional
issue in a motion before you file your answer. The motion is called a
"motion to quash service."
Here are a couple of cases that discuss the matter:
"A defendant who timely asserts a challenge to the court?s jurisdiction over the
person of the defendant is not prejudiced by participation in the
trial of the suit and defending the matter thereafter on the merits.
His challenge is preserved and he may obtain a review of the question
of personal jurisdiction upon appeal should he suffer an adverse final
judgment in the cause." State ex
rel. Eli Lilly and Co. v. Shields, 83 So. 2d 27 (Fla. 1955), quoted in
Berne v. Beznos (2001)
http://www.3dca.flcourts.org/3d01-2075.pdf
From the same case:
"Under Babcock, it is necessary for a defendant to make a timely
objection to personal jurisdiction or service of process. If the
defending party fails to raise a timely objection then it is true that
adefendant who pleads to the merits waives the objection. On the other
hand, if a defending party timely raises an objection to personal
jurisdiction or service of process, then that
defendant may plead to the merits and actively defend the lawsuit
without waiving the objection."
In that case, the plaintiff had served the papers on the concierge at
the defendant's building. The court held that to be insufficient, and
granted the motion to quash service.
I hope you have found this information helpful. Please don't hesitate
to ask for clarification before rating the answer if there's anything
further I can provide. Best of luck. |
