Under the non-resident witness immunity rule, when the plaintiff of a later-filed lawsuit attempts to serve a defendant with summonses before a deposition for a different cause of action or party, that service must be quashed. Queiroz v. Bentley Bay Retail, LLC, 3D17-1604 (Fla. 3d DCA Jan. 3, 2018); Murphy & Jordan, Inc. v. Ins. Co. of N. Am., 278 So. 2d 296, 297 (Fla. 3d DCA 1973). This article explores whether non-residents must prove that legal proceedings were their “sole purpose” for coming to Florida, before being entitled to claim immunity under the non-resident witness immunity rule. If you have any questions about the non-resident witness immunity rule, please contact Bernhard Law Firm at firstname.lastname@example.org, 786-871-3349, www.bernhardlawfirm.com.
This immunity rule is to be applied broadly in favor of immunity, for the purpose of motivating non-residents to appear in Florida for any proceedings without any fear that they might be served in other matters—as such, non-residents must be able to predict and expect broad protection under the immunity rule before coming to Florida proceedings. Munsell v. Bludworth, 474 So. 2d 1286, 1288 (Fla. 4th DCA 1985) (on the scope of the rule); Cordoba v. Cordoba, 393 So. 2d 589, 591 (Fla. 4th DCA 1981) (on scope of the rule); Lee v. Stevens of Florida, Inc., 578 So. 2d 867, 868 (Fla. 2d DCA 1991) (on scope of the rule); see also Francini v. Int’l Marble Trades, Inc., 546 So. 2d 777, 778 and n.1 (Fla. 3d DCA 1989) (on policy and rigid limitation on any exceptions). Because immunity must be broadly and inclusively applied, “the general rule of immunity mandates a strict application of any exceptions.” Munsell at 1288 (emphasis added).
Immunity applies regardless of the non-resident defendant’s contacts in Florida—i.e. regardless of the non-resident’s Florida business, property, family, activities, or other relationships upon which the defendant is likely coming to Florida proceedings. Queiroz at *4 (specifically stating that contacts to Florida are irrelevant to the non-resident witness immunity rule); Francini at 778 (holding non-resident was immune from service at a Florida deposition over his Florida company’s failure to pay for marble supplies in Florida, when served instead on a derivative suit for not settling the Florida marble dispute); Murphy at 297 (holding non-residents were immune from service while in Miami pursuant to notices of deposition of their Florida company, when served instead on claims against the non-resident company and officers); Lee at 867–68 (Fla. 2d DCA 1991) (holding non-resident was immune from service after a Florida arbitration proceeding over construction on his Florida condo, when served instead on a suit for improvements to his Florida condo and collection on a Florida note); Munsell at 1286–88 (holding non-resident was immune from service at a Florida hearing over return of his $300K cash seized by Florida police from a car trunk in Ft. Lauderdale, when served with an investigative subpoena as to his other Florida activities); Cordoba at 590–92 (Fla. 4th DCA 1981) (holding non-resident husband was immune from service throughout the Florida trial over his Florida home and child custody).
Further, non-resident immunity applies even if the defendant has not testified or presented any evidence whether the proceeding before which he was served was the “sole purpose” of his trip. Queiroz at *1–4; Francini at 777–79; Murphy at 296–97; Lee at 867–68; Munsell at 1286–88; Cordoba at 590–92.
None of these appellate decisions have in any way required submission of evidence or testimony that a proceeding was the “sole purpose” of his or her trip. At most, some of these decisions merely mention an affidavit of non-residency to sustain immunity, although the majority of them rely on argument alone. Id.
Nevertheless, some litigants argue that a non-resident should prove that legal proceedings were the sole purpose for the non-resident’s trip to Florida, before he or she can be entitled to immunity. These arguments come from a misreading of dicta in the single-paragraph decision of Pomerantz v. Hollowell, 502 So. 2d 1314, 1314 (Fla. 3d DCA 1987) and the limited and regularly distinguishable Doe v. White, 687 So. 2d 59, 60 (Fla. 5th DCA 1997).
Yet, the Pomerantz decision in now way requires proof of a non-resident’s sole purpose in traveling to Florida. Any reference to “sole purpose” was in passing to the particular facts of that case. Pomerantz at 1314. It is plainly non-controlling dicta. Id.
In Doe, the Fifth District Court limited its decision to the very unique and specific facts thereunder: “[t]he general rule of immunity is inapplicable under the facts of this case.” Doe at 60. In Doe, the defendant was a cruise ship crewman who raped a 13-year-old girl while at sea with her family on the cruise. Id. Upon docking, Florida sheriffs arrested the rapist on the cruise ship and held him in custody thereafter and throughout his criminal trial. Id.
Upon conviction, he was transferred to ICE for deportation, where he was served with summons on the raped girl’s civil action. Id. The Fifth District Court held that “[j]ust as any other nonresident who comes into the state voluntarily, allegedly commits a crime here, and gets arrested, [the rapist] was subject to service of process in any civil action.” Id.
The Fifth District Court held that “the purpose behind the witness immunity rule would not be served by its application in this case [as it] would not aid or protect the due administration of justice, but would rather hinder it. Further, there is no chilling effect on [the rapist’s] access to the courts.” Id. at n.1. These very unusual facts are almost always plainly distinguishable and the holding inapplicable to any circumstances in which a non-resident is claiming immunity.
No other Court has ever stated that there is a “sole purpose” requirement or evidentiary burden to that effect for non-residents. Queiroz at *1–4; Pomerantz at 1314; Francini at 777–79; Murphy at 296–97; see also Lee at 867–68; Munsell at 1286–88; Cordoba at 590–92. There is no such requirement, and retroactively creating and imposing one would violate the rule for broad application of immunity, and strict application of any exceptions. Munsell at 1288 (“the general rule of immunity mandates a strict application of any exceptions.”); Cordoba at 591; Lee at 868; Francini at 778 and n.1.
Retroactively imposing a “sole purpose” requirement and evidentiary burden would also defeat the purpose and policy of the non-resident witness immunity rule, eliminating any non-resident’s faith in Florida courts to create a predictable and safe environment that incentivizes arrival and participation in proceedings.
Further, the administration of such a requirement is untenable. The purpose of one’s arrival in Florida is a purely subjective matter, and there is almost never a “sole purpose” for any such trip. Any attempt to prove, counter, and judicially determine such a “sole purpose” requirement would devolve into a series of further depositions, intrusive cross-examinations, and expansive discovery to test the veracity of the non-resident’s statement as to his or her “sole purpose.” Fear of this alone would prevent any non-resident from even raising the non-resident witness immunity rule, and in turn from coming to this jurisdiction to participate in any proceeding—the exact effect the rule was designed to prevent.
Ultimately, a non-resident’s having business, property, family, and other contacts with Florida has always been part and parcel of any enforcement of the non-resident witness immunity rule. See supra (citing and explaining Florida contacts/contexts in Queiroz at *4; Francini at 778; Murphy at 297; Lee at 867–68; Munsell at 1286–88; and Cordoba at 590–92). Otherwise, the non-resident would not likely have testimony to provide in Florida proceedings.
Instead of a “sole purpose” requirement, the non-resident witness immunity rule has a safe-harbor period that accounts for the realities of any non-resident visit, from eating, to sleeping, to attorney preparation meetings, and so on. As most trial courts confirm, the rule provides immunity for a reasonable time before and after going to [court, depositions, arbitration, proceedings, or related meetings] and in returning to their homes. This safe-harbor period also avoids an ever-devolving and intrusive examination into the non-resident’s subjective view of his “sole purpose,” and thereby creates the predictability and uniformity that incentivizes non-residents to come to Florida to participate in proceedings, among other things.
In sum, there is no sole purpose requirement to the non-resident witness rule. If you have any questions about the non-resident witness immunity rule, please contact Bernhard Law Firm at email@example.com, 786-871-3349, www.bernhardlawfirm.com.