Question about an alias summons

<< < (2/2)

CrzyAmeriCan:
Sry I wasn't clear. I meant after you are served. (If you get served)

In my case I filed my answer later I talked to an attorney. He told me that I should have filed a motion to dismiss but it was too late. In the Florida RCP it says that you can raise it at a defense or on motion to dismiss.

Did he give me bad info?

fraudfighter:
Quote from: "Joey"

So fraudfighter, I will do neither.  Do you know if the 120 restarts with an alias summons?

Thanks ruby, crzy and fraud.


Yep, it's a new 120.

You can't really do anything for 366 days for regular civil cases, and I guess 181 days for small claims.

fraudfighter:
Quote from: "CrzyAmeriCan"

Sry I wasn't clear. I meant after you are served. (If you get served)

In my case I filed my answer later I talked to an attorney. He told me that I should have filed a motion to dismiss but it was too late. In the Florida RCP it says that you can raise it at a defense or on motion to dismiss.

Did he give me bad info?


If some attorney told you to do something, you should take the advice down word for word and post it here for analysis.
You should always ask for the law authority which the advice is based on.

Once you've filed an answer, you have waived a dispute on service of original process if the dispute of service was not included in the answer.

You could seek to amend to add the dispute but what purpose would that serve? None. It would just force them to re-serve you if there was some defect. That's a trivial matter.

CrzyAmeriCan:
Please dont think I am trying to argue.... I just want to understand.



I found this that I think helps me to understand. Thought it might help others.

This has to do with numerous extensions of time but I think it helps shed some light


        Quote

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT JULY TERM 2006

ELWIN ENTERPRISES, INC., ETC.,
Petitioner,

v.                                         Case No. 5D06-716

HERNANDO COUNTY BOARD OF COUNTY
COMMISSIONERS, ETC., ET AL.,

Respondent.
________________________________/

Opinion filed September 1, 2006

Petition for Certiorari Review of Order
from the Circuit Court for Hernando County,
Daniel B. Merritt, Sr., Judge.
Frank A. Miller, of Caglianone, Miller &
Anthony, P.A., Brooksville , for Petitioner.
T. Patton Youngblood, Jr., of T. Patton
Youngblood, Jr., P.A., Tampa, for
Respondent, Shirley Johnson.
Douglas T. Noah, of Dean, Ringers,
Morgan & Lawton, P.A., for Respondent,
Hernando County Board of County
Commissioners.


 PER CURIAM.

Elwin Enterprises, Inc., d/b/a Detail Cleaning Services, a defendant in the
proceedings below, seeks certiorari review of the trial court’s order denying, on rehearing, its motion to dismiss filed pursuant to Florida Rule of Civil Procedure 1.070(j). That rule requires service of the initial process and pleading on a defendant to be made within 120 days after the filing of the initial pleading directed to that defendant, allows the court to extend the time for service, and authorizes certain actions by the court in the event of untimely service.1 Elwin argues that the court departed from the essential requirements of law when it denied its motion to dismiss following numerous extensions of time that were allowed by the trial court before service was effectuated. Although we can appreciate the position that Elwin is in, we cannot conclude, based on the current wording of the rule and the unique facts of this case, that the trial court departed from the essential requirements of law.

We do not find that the high standard for certiorari relief has been met. However, we remind Respondent’s counsel of his professional responsibility to conduct litigation in a manner to assure the just, speedy and inexpensive determination of every action. See The Florida Bar, Ideals and Goals of Professionalism, Std. 4 (2005 ed.). Likewise,


Florida Rule of Civil Procedure 1.070(j) provides:
(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. When
a motion for leave to amend with the attached proposed
amended complaint is filed, the 120-day period for service of
amended complaints on the new party or parties shall begin
upon the entry of an order granting leave to amend. A
dismissal under this subdivision shall not be considered a
voluntary dismissal or operate as an adjudication on the
merits under rule 1.420(a)(1).

we remind the trial court of its obligation to “take charge of all cases at an early stage in the litigation and . . . control the progress of the case thereafter until the case is determined.” Fla. R. Jud. Admin. 2.085(b).

CERTIORARI DENIED.
 
PALMER, ORFINGER and LAWSON, JJ., concur.

Navigation

[0] Message Index

[*] Previous page