Today, Bernhard Law Firm won dismissal of two Brazilian shareholders in a million $ dollar guaranty lawsuit for leasing of South Beach commercial space. (Florida Bar disclaimer: results may not be typical. You may not have as beneficial a result). This dismissal came on the heels of Bernhard Law Firm’s success in appealing the initial attempted service on these Brazilian shareholders at corporate depositions in Miami. In that appeal, the Third District Court of Appeal quashed attempted service, given the Brazilians’ immunity at corporate depositions. Click HERE for that decision in Queiroz v. Bentley Bay Retail, LLC, 237 So. 3d 1108 (Fla. 3d DCA 2018).
After the Court issued its appellate mandate, no proper service was obtained on the Brazilian shareholders. Bernhard Law Firm ultimately requested that the Court dismiss and drop the shareholders from the lawsuit, given the unreasonable delay in service of process. Today, the Court agreed with Bernhard Law Firm and dismissed the shareholders from the lawsuit altogether. For more on the Florida rules requiring dismissal of defendants for unreasonable delay in service, keep reading below. If you have any questions on defense of South Florida companies, shareholders, contract actions, or guaranty demands, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, firstname.lastname@example.org. Bernhard Law Firm handles trials and appeals in business and financial disputes.
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As to the Florida law, under Florida Rule of Civil Procedure 1.070(j), the Court should drop defendants Luiz Queiroz and Karine Queiroz, given failure to serve process in nearly two years without good cause. Fla. R. Civ. P. 1.070(j) (Summons; Time Limit); Gondal v. Martinez, 606 So. 2d 490, 491 (Fla. 3d DCA 1992) (filing affidavit of diligent search over a year after complaint filed did not preclude dropping defendants for failure to serve within 120 days); Hernandez v. Page, 580 So. 2d 793, 795 (Fla. 3d DCA 1991) (aff’ing dismissal under Rule 1.070(j) on holding settlement negotiations did not amount to good cause excusing failure to serve defendants within 120 days); Powell v. Madison Cty. Sheriff’s Dept., 100 So. 3d 753, 754–55 (Fla. 4th DCA 2012) (aff’ing dismissal for failure to serve within 120 days under Rule 1.070(j)); see also Del Amico v. Fishermen’s Hosp., Inc., 715 So. 2d 1053, 1053 (Fla. 3d DCA 1998) (“dismissing a case is required when there is a failure to obtain service of process within 120 days and no good cause for this failure is demonstrated”); Uvanni v. Gallenga, 619 So. 2d 31, 31 (Fla. 3d DCA 1993) (aff’g dismissal for failure to serve within 120 days); Taco Bell Corp. v. Costanza, 686 So. 2d 773, 773 (Fla. 4th DCA 1997) (rev’g with instructions to enter order dismissing defendants from suit for non-compliance with Rule 1.070(j)); Gen. Motors Acceptance Corp. v. Lanman, 630 So. 2d 682, 682 (Fla. 4th DCA 1994) (counsel attempts to settle was not sufficient good cause to justify failure to serve within 120 days, and thus dismissal of defendants was required). Inadvertence or mistake of counsel does not constitute good cause to avoid dismissal Rule 1.070(j). Id.
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If you have any questions on defense of South Florida companies, shareholders, contract actions, or guaranty demands, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, email@example.com. Bernhard Law Firm handles trials and appeals in business and financial disputes.