Paola A. Alvardo-Fernandez v. Matthew Mazoff

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

PAOLA A. ALVARADO-FERNANDEZ,

Appellant,

v.

MATTHEW MAZOFF,

Appellee.

No. 4D14-503

[October 8, 2014]

Appeal of a non-final order from the Circuit Court for the Seventeenth

Judicial Circuit, Broward County; Carol-Lisa Phillips, Judge; L.T. Case No.

09043628(25).

Doreen E. Lasch and Daniel J. Santaniello of Luks, Santaniello, Petrillo

& Jones, P.A., Fort Lauderdale, for appellant.

Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen &

Littky-Rubin, LLP, West Palm Beach, and Andrew J. Weinstein of

Weinstein Law Firm, Coral Springs, for appellee.

KLINGENSMITH, J.

Appellee Matthew Mazoff (“Plaintiff”) filed suit against appellant Paola

Alvarado-Fernandez (“Defendant”), a Colombian citizen, for personal

injuries sustained when Plaintiff’s car was struck by a vehicle driven by

Defendant and rented from Alamo.1 Defendant moved to dismiss the case,

alleging that (1) Plaintiff failed to strictly comply with two treaties in effect

between Colombia and the United States when attempting to serve process

on Defendant; (2) in the alternative, Plaintiff failed to comply with the

substituted service statutes; (3) Plaintiff late-filed his affidavit of

compliance; and (4) Florida Rule of Civil Procedure 1.070(j) bars the

1 Appelleeinitially filed suit against Alvarado as well as Alamo Financing, LP, and

Alamo Rental U.S., Inc. (“Alamo”). Alamo ultimately obtained a final summary

judgment in this case, which was later affirmed on appeal. Mazoff v. Alamo Fin.,

LP, 98 So. 3d 581 (Fla. 4th DCA 2012).

continuance of this case. For the reasons set forth herein, we affirm the

trial court’s denial of Defendant’s motion to dismiss.

Facts

Plaintiff initially filed an affidavit of compliance shortly after

commencing suit in which he stated that the Secretary of State accepted

service of process on behalf of Defendant, and that he attempted to serve

a copy of the summons and complaint upon Defendant via “USPS First

Class Mail International” to her last known address. That mailing never

reached Defendant. After this original attempt at service, Plaintiff

amended his complaint and tried again to serve Defendant, but was also

unsuccessful. After filing a second amended complaint, another

unsuccessful attempt at service was made. Plaintiff filed his latest

pleading, a Third Amended Complaint, in July 2012. Since that time,

Plaintiff secured eight extensions of time from the court to attempt

successful service of process.

Plaintiff ultimately effected substitute service of the Third Amended

Complaint on Defendant by serving the Secretary of State in accordance

with the provisions of section 48.161, Florida Statutes (2013). Plaintiff

also mailed a copy of the summons and complaint to Defendant via

registered mail to her last known address, which went unclaimed.

Defendant moved for dismissal of the case2 pursuant to Florida Rule of

Civil Procedure 1.070(j), alleging insufficient service of process and lack of

personal jurisdiction on various grounds.3 In the motion, Defendant

asserted that Plaintiff failed to comply with two treaties to which both the

United States and Colombia are signatories, the Inter-American Service

Convention on Letters Rogatory and Additional Protocol (the “IASC”)4 and

the Hague Service Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters (the “Hague

2Since Defendant was not located, Alamo’s counsel filed these motions on her

behalf in this proceeding.

3 On the day of the hearing on Defendant’s motion, Plaintiff filed an affidavit

stating he had obtained substitute service on Defendant pursuant section

48.161, and asked the court to accept this late-filed affidavit for consideration at

the hearing, or in the alternative, for another extension of time.

4 S. TREATY DOC. No. 27, 98th Cong., 2d Sess. (1984).

2

Convention”)5 both of which mandate strict procedures for obtaining

service of process over individuals in Colombia.

After allowing Plaintiff’s counsel the opportunity to submit case law for

the court’s review following the hearing, the trial court ultimately denied

Defendant’s motion to dismiss but made no findings of fact in its order.

Treaties generally

The effect that international legal agreements entered into by the United

States have upon domestic law are dependent upon the nature of the

agreement; namely, whether the agreement is self-executing or non-self-

executing.

International treaties are considered “self-executing” if they have the

force of law without the need for subsequent legislative action. See, e.g.,

Medellin v. Texas, 552 U.S. 491, 575 n.2 (2008) (“What we mean by ‘self-

executing’ is that the treaty has automatic domestic effect as federal law

upon ratification.”); Cook v. United States, 288 U.S. 102, 119 (1933) (“For

in a strict sense the [t]reaty was self-executing, in that no legislation was

necessary to authorize executive action pursuant to its provisions.”).

Treaties that are not considered self-executing are understood to require

implementing legislation to provide legal authority to carry out the

functions and obligations contemplated by the agreement, or to make

them enforceable in court by private parties. See, e.g., Medellin, 552 U.S.

at 505 (“In sum, while treaties may comprise international commitments

. . . they are not domestic law unless Congress has either enacted

implementing statutes or the treaty itself conveys an intention that it be

‘self-executing’ and is ratified on these terms.”) (internal citations and

quotations omitted). In fact, some courts have held that as a general rule

non-self-executing treaties do not confer any judicially enforceable rights

whatsoever.6

5Convention on the Service Abroad of Judicial and Extrajudicial Documents in

Civil or Commercial Matters, 20 U.S.T. 361.

6 Curtis A. Bradley, International Law in the U.S. Legal System 44 (Oxford Univ.

Press 2013); United States v. Jiminez-Nava, 243 F.3d 192, 195 (5th Cir. 2001)

(treaties “do not generally create rights that are enforceable in the courts”).

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The Hague Convention

The Hague Convention became effective in the United States on

February 10, 1969. The intention of the signatory nations to the Hague

Convention was to provide a simpler way for parties to serve process

abroad.

As a ratified treaty, the Hague Convention is of equal dignity with acts

of Congress and enjoys the constitutional status of “supreme Law of the

Land.” U.S. Const. art. VI, cl. 2; Frolova v. Union of Soviet Socialist

Republics, 761 F.2d 370, 373 (7th Cir.1985). The Convention states that

it “shall apply in all cases, in civil or commercial matters, where there is

occasion to transmit a judicial or extrajudicial document for service

abroad.” Hague Convention, art. 1 (emphasis added). Therefore, the

United States Supreme Court has held the Hague Convention is a self-

executing treaty,7 and thus preempts inconsistent methods of service

prescribed by state law in all cases to which it applies; namely, all civil or

commercial matters “where there is occasion to transmit a judicial or

extrajudicial document for service abroad.” See Volkswagenwerk

Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698-99 (1988).

To help simplify the process, the Hague Convention provides several

methods to accomplish service, and the principal method for service under

the Hague Convention is through the designated Central Authority. Hague

Convention arts. 2-6, 8-11, 19. However, the Hague Convention is

expressly inapplicable in cases where the location of the person to be

served is unknown.8

7 The Hague Convention is considered a self-executing treaty. See, e.g., Vorhees

v. Fischer & Krecke, 697 F.2d 574, 575 (4th Cir. 1983) (finding the Hague

Convention to be self-executing because it imposes affirmative and judicially

enforceable obligations without requiring implementing legislation); Ex parte

Volkswagenwerk Aktiengesellschaft, 443 So. 2d 880, 882 (Ala. 1983) (recognizing

that the Hague Service Convention is “the supreme law of the land” (quoting Am.

Trust Co. v. Smyth, 247 F.2d 149, 153 (9th Cir. 1957)). See also Dr. Ing. H.C.F.

Porsche A.G. v. Superior Court, 177 Cal. Rptr. 3d 155, 156 n.1 (Cal. Ct. App. 1981)

(noting that a convention has the status of a treaty).

8Assuming, for the sake of argument, that a defendant is located within a country

that is a party to the Hague Convention, the Convention “shall not apply where

the address of the person to be served with the document is not known.” Hague

Convention, art. 1, 20 U.S.T. 361 (1969); see also BP Prods. N. Am., Inc. v. Dagra,

236 F.R.D. 270, 271 (E.D. Va. 2006) (“The Hague Convention does not apply in

cases where the address of the foreign party to be served is unknown.”).

4

Colombia was not a party to the Hague Convention during the time in

question. Although Colombia acceded to the Hague Convention and

became a signatory to it on April 10, 2013, it did not enter into force until

November 1, 2013,9 following the events of this case.

The IASC

The IASC was signed on January 30, 1975, and amended by the

Additional Protocol thereto on May 8, 1979.10 Both the United States and

Colombia are signatories to the Convention.11

The IASC sets forth procedures for obtaining service of process over

individuals in the signatory nations, stating that:

This Convention shall apply to letters rogatory, issued in

conjunction with proceedings in civil and commercial matters

held before the appropriate judicial or other adjudicatory

authority of one of the States Parties to this Convention, that

have as their purpose:

a. The performance of procedural acts of a merely formal

nature, such as service of process, summonses or

subpoenas abroad;

Section II, article 2, at 1.12 The IASC provides that each party state

designate a Central Authority to perform the functions assigned to it in the

treaty, similar to the provision contained in the Hague Convention. Id. at

16. The IASC further provides that “[l]etters rogatory shall be executed in

accordance with the laws and procedural rules of the State of destination.”

9Hague Convention on Private International Law,

http://www.hcch.net/index_en.php?act=conventions.status&cid=17

10 S. TREATY DOC. No. 27, 98th Cong., 2d Sess. (1984).

11 A Convention has the status of a treaty. See, e.g., Dr. Ing. H.C.F. Porsche A.G.

v. Superior Court, 177 Cal. Rptr. 3d 155, 156 n.1 (Cal. Ct. App. 1981).

12A letter rogatory or letter of request is a formal request from a court to a foreign

court for some type of judicial assistance. See, e.g., Florida Rule of Civil

Procedure 1.300(b) relating to foreign country depositions.

5

Application of the IASC to Florida courts

Florida courts may accept any particular method of service, so long as

it does not contradict any self-executing international agreement or

implementing statutes, or as long as such method is not expressly

prohibited by the law of the foreign state. See TracFone Wireless, Inc. v.

Distelec Distribuciones Electronicas, S.A. de DV, 268 F.R.D. 687, 690-91

(S.D. Fla. 2010) (holding that alternative methods for service in Honduras

were available because such methods were not expressly prohibited by the

foreign state’s law, even if not expressly authorized under it); Prewitt

Enters., Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916, 923-

24 (11th Cir. 2003) (service of process on defendant improper if served in

a manner expressly prohibited by foreign state’s law).

While compliance with the provisions of the Hague Convention may be

mandatory, parties are not required to use all of the alternatives set forth

in the IASC to the exclusion of any others. Several U.S. courts have held

that the IASC is neither the exclusive nor mandatory channel for

transmission of service of process between signatories. See Paiz v.

Castellanos, No. 06-Civ-22046, 2006 WL 2578807, at *1 (S.D. Fla. Aug.

28, 2006) (collecting cases applying the IASC). As such, the IASC does not

foreclose service by means outside the scope of its terms. Thus it is

permissible to serve a defendant utilizing methods other than strict

compliance with the IASC. Kreimerman v. Casa Veerkamp, S.A., 22 F.3d

634, 647 (5th Cir. 1994) (noting that nothing in the language of the IASC

expressly reflects an intention to supplant all alternative methods of

service; “We simply hold that the Inter-American Convention on Letters

Rogatory does not foreclose other methods of service among parties

residing in different signatory nations, if otherwise proper and

efficacious.”), cert. denied, 513 U.S. 1016, 115 S. Ct. 577 (1994); Jon D.

Derrevere, P.A. v. Mirabella Found., No. 6:10–cv–925–Orl–28DAB, 2011 WL

1983352, at *2 (M.D. Fla. Apr. 26, 2011) (“Other courts have found that

the Inter-American Convention’s provisions regarding service of process

are neither mandatory nor exclusive.”); Paiz, 2006 WL 2578807, at *1 (“As

have other courts which have considered the issue, this Court finds that

the Inter-American Convention’s provisions regarding service of process

are neither mandatory nor exclusive.” (citing cases)); Hein v. Cuprum, S.A.

de CV, 136 F. Supp. 2d 63, 70 (N.D.N.Y. 2001) (“The Inter-American

Convention on Letters Rogatory is not the exclusive means to serve process

on defendant . . . .”); Pizzabiocche v. Vinelli, 772 F.Supp. 1245, 1249 (M.D.

Fla. 1991) (noting that the Inter-American Convention “states that it shall

apply to letters rogatory . . . [but] it does not state that letters rogatory are

the only means of serving process in the signatory countries”); Mayatextil,

S.A. v. Liztex U.S.A., Inc., No. 92 CIV. 4528(SS), 1994 WL 198696, at *5

6

(S.D.N.Y. May 19, 1994) (Sotomayor, D.J.) (“The [IASC] Convention merely

provides one possible method of service, however. It is neither mandatory

nor exclusive.”; service of process that did not comply with Inter-American

Convention was not a basis for repudiating alternative method of service

authorized by court order); In re Romero v. Ramirez, 100 A.D.3d 909, 910,

955 N.Y.S.2d 353, 354 (N.Y. App. Div. 2012) (“‘[T]he Inter-American

Convention permits alternate methods of service and . . . its procedures

are not the exclusive means of service of process on defendants residing

in a signatory nation.’”); Laino v. Cuprum S.A. de C.V., 235 A.D.2d 25, 31,

663 N.Y.S.2d 275, 279 (N.Y. App. Div. 1997) (“[T]he methods described in

the Inter-American Convention are not the exclusive means of effecting

service, the rule permits alternative means of service.”); 1 V. Nanda & D.

Pansius, Litigation of International Disputes in U.S. Courts §§ 2:10, 2:15

(2013).

Therefore, it is clear that the IASC (unlike the Hague Convention) is not

a self-executing treaty, and without the aid of any enacting legislative

provisions, is not the equivalent to an act of the legislature, does not have

the status of supreme Law of the Land, and is without controlling force.

As a result, strict compliance with the provisions of the IASC, to the

exclusion of utilizing any other methods, is not required.

In contrast, when the Hague Convention entered force between

Colombia and the United States on November 1, 2013, it became the

mandatory channel for effecting service of process between the two

countries in all cases where the Hague Convention applies. In those cases

where no binding international treaty governs service of process, a party

must look instead to Florida’s service of process rules.

For proper service on Defendant in Colombia prior to November 1, 2013,

the trial court was permitted to accept compliance with either: (1) the

IASC, since Colombia was not a signatory to the Hague Convention during

the relevant time period; (2) the law of Colombia providing for appropriate

methods of serving process upon its citizens; or (3) any method provided

for by either the Florida Statutes or Florida Rules of Procedure. See

Ackermann v. Levine, 788 F.2d 830, 840 (2d Cir. 1986) (courts may look

to the forum’s law for guidance on service issues that are not addressed

by either the Hague Convention or the IASC).

Florida law generally requires personal service to confer in personam

jurisdiction in actions for personal money judgments. See Bedford

Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225, 1227 (Fla. 1986);

see also Zieman v. Cosio, 578 So. 2d 332, 333 (Fla. 3d DCA 1991). Section

48.193(3), Florida Statutes (2013), states that persons outside of Florida

7

who are subject to the jurisdiction of Florida’s courts may be served “as

provided in s. 48.194.” The relevant provision of section 48.194, Florida

Statutes (2013), is subsection (1), which reads, in pertinent part, as

follows: “Service of process on persons outside the United States may be

required to conform to the provisions of the Hague Convention . . . .”

Therefore, even if the Hague Convention were not a self-executing treaty,

section 48.194(1) serves as the legislative pronouncement sufficient for its

implementation as the law in Florida.

Plaintiff’s service of process upon Defendant was valid if it was perfected

prior to November 1, 2013, in accordance with one of the three options

indicated. This would include service according to sections 48.161 and

48.181, Florida Statutes, because the Hague Convention did not yet apply

between the U.S. and Colombia, and strict compliance with the IASC was

not required.

Substitute service under sections 48.161, 48.171 and 48.181

In certain circumstances, substitute service of process may be effected

upon either a nonresident or a party who conceals his or her whereabouts.

The method for effecting substitute process on parties is outlined in

sections 48.161, 48.171 and 48.181.

Section 48.161 requires substituted service be evidenced by:

(1) registered or certified mailing to the nonresident of (a) a notice of such

substituted service and (b) a copy of the process, which must be evidenced

by (c) the filing of the nonresident’s return receipt and (d) an affidavit of

compliance by plaintiff or his or her attorney; or (2) an appropriate officer’s

return showing service on the nonresident within or without the state of

Florida. § 48.161, Fla. Stat. (2013); Conde v. Prof'l Mediquip of Fla., Inc.,

436 So. 2d 322, 323 (Fla. 4th DCA 1983) (citing P.S.R. Assocs. v. Artcraft-

Heath, 364 So. 2d 855, 857-58 (Fla. 2d DCA 1978)).

Section 48.181 sets forth the jurisdictional requirements for substituted

service of process. These requirements are that “the defendant conducts

business in Florida and is either a (1) non-resident, (2) resident of Florida

who subsequently became a non-resident, or (3) resident of Florida

concealing his or her whereabouts.” Pinero v. Yam Margate, L.L.C., 825

F. Supp. 2d 1264, 1265 (S.D. Fla. 2011) (citing § 48.181, Fla. Stat. (2011)).

Under Section 48.171, the Secretary of State is the designated agent for

a non-resident defendant who has caused injury by the operation of a

motor vehicle within the state. See Chapman v. Sheffield, 750 So. 2d 140,

142 (Fla. 1st DCA 2000).

8

Non-resident motorists have a duty to make their whereabouts known

in the event of an accident, and a defendant’s attempt to conceal their

whereabouts will not preclude the courts from obtaining jurisdiction over

them. As the Second District Court of Appeal has held:

With a society as mobile as ours, when a non-resident motor

vehicle owner or operator, or a resident owner or operator who

subsequently becomes a non-resident or conceals his

whereabouts, accepts the privilege of the public highways of

the state and is involved in an accident, he has a duty not to

conceal his whereabouts and to let his whereabouts be known

so that any one involved in such accident and sustaining

injury or damage may come into court and seek redress. If

such an owner or operator conceals his whereabouts and

makes it impossible for an aggrieved party to serve him with

notice by registered mail as provided by the statute and such

aggrieved party shows that he has used due diligence in

endeavoring to make service, this will not prevent the Court

from obtaining jurisdiction over such owner or operator.

Fernandez v. Chamberlin, 201 So. 2d 781, 785 (Fla. 2d DCA 1967).

Before using the substitute service statutes, a plaintiff must

“demonstrate the exercise of due diligence in attempting to locate the

defendant.” Wiggam v. Bamford, 562 So. 2d 389, 391 (Fla. 4th DCA 1990).

In Wiggam, this court indicated how this due diligence requirement could

be satisfied:

The test [for determining the sufficiency of constructive or

substitute service] is not whether it was in fact possible to

effect personal service in a given case, but whether the

[plaintiff] reasonably employed knowledge at [her] command,

made diligent inquiry, and exerted an honest and

conscientious effort appropriate to the circumstances, to

acquire the information necessary to enable [her] to effect

personal service on the defendant.

Id. (internal citations omitted).

Defendant contends that Plaintiff failed to comply with these statutes

by not filing a postal receipt with the court. While sections 48.161 and

48.171 create an exception to the general rule that the defendant must be

personally served, see Wyatt v. Haese, 649 So. 2d 905 (Fla. 4th DCA 1995),

and each statute must be strictly construed, see id.; Linn v. Kidd, 714 So.

9

2d 1185 (Fla. 1st DCA 1998); Gloucester Eng’g, Inc. v. Mendoza, 489 So.

2d 141 (Fla. 3d DCA 1986), the court may dispense with the filing of a

postal receipt if the substituted service statute is invoked on the ground

that the defendant is evading service. See Robb v. Picarelli, 319 So. 2d

645, 646 (Fla. 3d DCA 1975); Fernandez, 201 So. 2d at 785.

Due diligence

Plaintiff contends that he diligently complied with the statutes on

substituted service and was still unable to locate and confirm proper

service on Defendant. As a result, Defendant never received the process

mailed to her, depriving Plaintiff of the ability to file a return receipt.

Unfortunately, the trial court failed to make findings of fact on the issue

of whether Plaintiff’s efforts at compliance were diligent. Although in most

cases we would consider remanding these matters back to the trial court

to make such findings, the standard of review of a trial court’s denial of

both a motion to dismiss for lack of personal jurisdiction and ineffective

service of process is de novo. Robles-Martinez v. Diaz, Reus & Targ, LLP,

88 So. 3d 177, 179 (Fla. 3d DCA 2011); Am. Express Ins. Servs. Europe

Ltd. v. Duvall, 972 So. 2d 1035, 1038 (Fla. 3d DCA 2008).

Here, there are sufficient facts that appear from a consideration of the

entire record to justify the applicability of sections 48.161 and 48.171.

Robb, 319 So. 2d at 646. The record reflects that Plaintiff persistently

searched for Defendant in Colombia, and first attempted to serve her when

he filed his complaint in 2009. However, the address and driver’s license

number Defendant supplied to the rental car company and to the police

for the accident report were incorrect, and there was no other information

to establish where she was located. Plaintiff sought information from

Alamo, scheduled five separate hearings and prevailed upon the trial judge

at each hearing to compel discovery from them regarding this information.

Although Plaintiff discontinued his search efforts for a little over two years

while the case was in federal court and on appeal, Plaintiff’s search

resumed when the case returned to the trial court.

The record also reflects that Plaintiff hired two separate attorneys to try

and find Defendant in Colombia. Plaintiff provided these attorneys with

Defendant’s driver’s license number from the police report, her date of

birth and her supposed address, yet neither attorney was able to locate

her. When one of the retained attorneys found someone through social

media who he believed was Defendant, Plaintiff sent a copy of the

summons and complaint to this person’s work address by registered mail,

10

but did not receive a return receipt and was not able to track the mailing

outside the United States.

We believe that Plaintiff’s efforts were duly diligent where efforts were

made to hire two separate attorneys to investigate Defendant’s

whereabouts, multiple requests for further information from the rental car

company were made, and the use of social media was employed when all

else failed. Other attempts to contact Defendant at the address she

provided both to Alamo and to the police at the scene of the accident were

unsuccessful. Further, Defendant’s location outside the United States, in

Colombia, South America, also greatly impeded the logistics of the search

efforts as well as attempts at personal service. Under the facts of this case,

it is clear that Plaintiff made conscientious efforts appropriate to the

circumstances to obtain service on a defendant who could be deemed to

be actively avoiding personal service. Wiggam, 562 So. 2d at 391. As

such, the requirement that Plaintiff file a return receipt is excusable. See

Robb, 319 So. 2d at 646; Fernandez, 201 So. 2d at 785.

Late filed affidavit of compliance

Defendant asserts that the affidavit of compliance was filed after the

court-imposed deadline and should have been stricken. Here, Plaintiff’s

counsel explained to the court that his legal assistant accidentally

misplaced the affidavit and failed to serve it, or have it timely filed. Upon

realizing the error, the affidavit was served and filed six days after it was

due. Plaintiff later moved for the court to accept the late filing, or in the

alternative for an extension of time. The motion also requested that the

trial court consider Plaintiff’s affidavit of compliance to be timely filed,

based on affidavits filed by Plaintiff’s counsel and his legal assistant that

explained the mistake.

Pursuant to section 48.161, “the affidavit of the plaintiff or his or her

attorney of compliance shall be filed on or before the return day of the

process or within such time as the court allows . . . .” § 48.161 (emphasis

added). Also, under Florida Rule of Civil Procedure 1.090, a trial court

may accept a late filing if good cause is shown. In denying Defendant’s

motion to dismiss, the trial court in this case acted properly in exercising

its discretion by accepting Plaintiff’s untimely affidavit.

Rule 1.070(j)

Defendant contends that the trial court erred by denying her motion to

dismiss this case pursuant to Florida Rule of Civil Procedure 1.070(j). “The

purpose of Rule 1.070(j) is to prevent a plaintiff from filing a lawsuit but

11

taking no action to move forward on the claim.” Gardina v. Aronowitz, 899

So. 2d 1248, 1250 (Fla. 4th DCA 2005) (citing Nationsbank, N.A. v. Ziner,

726 So. 2d 364, 366 (Fla. 4th DCA 1999)). We reiterate, as we have stated

in the past, that rule 1.070(j) “‘is not intended to be a trap for the unwary,

nor a rule to impose a secondary statute of limitations based on time of

service. . . . We instead understand the rule to be an administrative tool to

efficiently move cases through the courts.’” Gary J. Rotella & Assoc., P.A.

v. Andrews, 821 So. 2d 468, 469 (Fla. 4th DCA 2002) (quoting Sneed v.

H.B. Daniel Constr. Co., 678 So. 2d 158, 159 (Fla. 5th DCA 1996)).

We have also held that the extraordinary effort of a defendant’s

evasiveness can provide good cause to extend the time for service under

rule 1.070(j). Moore v. McCluskey, 875 So. 2d 760, 762 (Fla. 4th DCA

2004). Although Defendant correctly points out that six years have passed

since the subject accident, the time has been filled with continuous efforts

by Plaintiff and his attorney to comply with Florida law and to serve

Defendant. Also, this case has been removed to federal court and

remanded, and has come to this court once before on appeal. The

information needed to litigate the claim never got “stale,” because Alamo

fully deposed Plaintiff, and conducted discovery to which Plaintiff

responded.

Based on the extraordinary circumstances in this case, the trial court

acted within its discretion when it granted Plaintiff several extensions of

time to search for Defendant, and did not err by denying Defendant’s

motion to dismiss.

Affirmed.

WARNER and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

12