Gonzalez v. City of Coral Gables

Gonzalez v. City of Coral Gables

3d DCA, 3/6/24

No. 3D22-1942, 2024 WL 948886

Per Curiam (Lindsey, Lobree, Bokor)

Topics: Service of Process

Plaintiff filed a complaint suing the City of Coral Gables three days before the expiration of the four-year statute of limitations for the claim. He waited more than a year to serve the complaint on the City. When it was served, the City filed a Motion to Dismiss pursuant to Florida Rule of Civil Procedure 1.070(j). The rule, in pertinent part, states:

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.

The trial court granted the motion to dismiss. Gonzalez filed a Motion for Rehearing and Reconsideration, and the trial court denied that motion. Gonzales appealed.

Without summarizing the particular facts, the DCA reversed “because the trial court erred in finding there was no good cause for the late service.” An uncontroverted nine-page affidavit setting forth detailed circumstances of good cause was filed of record six days prior to the hearing on the Motion to Dismiss. Under caselaw, if good cause is shown, rule does not contemplate a dismissal that effectively would be with prejudice in this context—where good cause was shown and service was accomplished prior to the court or the party acting pursuant to 1.070(j)). REVERSED AND REMANDED.

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