Rule 1.070. PROCESS

RULE 1.070. PROCESS

(a)

Summons; Issuance. On the commencement of the

action, summons or other process authorized by law must be

promptly issued by the clerk or judge under the clerk’s or the

judge’s signature and the seal of the court and delivered for service.

(b)

Service; By Whom Made. Service of process may be

made by an officer authorized by law to serve process, but the court

may appoint any competent person not interested in the action to

serve the process. The person serving process must make proof of

service by affidavit promptly and in any event within the time

during which the person served must respond to the process.

Failure to make proof of service will not affect the validity of the

service. When any process is returned not executed or returned

improperly executed for any defendant, the party causing its

issuance is entitled to any additional process against the unserved

party as is required to effect service.

(c)

Service; Numerous Defendants. If more than 1

defendant is named, the clerk or judge must issue as many writs of

process against the several defendants as may be directed by the

plaintiff or the plaintiff’s attorney.

(d)

Service by Publication or Any Other Means. Service of

process by publication or any other means may be made as

provided by statute.

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(e)

Copies of Initial Pleading for Persons Served. At the

time of personal service of process, a copy of the initial pleading

must be delivered to the party on whom service is made. The date

and hour of service must be endorsed on the original process and

all copies of it by the person making the service. The party seeking

to effect personal service must provide the person making service

with the necessary copies. When the service is made by publication,

copies of the initial pleadings must be provided to the clerk and

mailed by the clerk with the notice of action to all parties whose

addresses are stated in the initial pleading or sworn statement.

all copies of it by the person making the service. The party seeking

to effect personal service must provide the person making service

with the necessary copies. When the service is made by publication,

copies of the initial pleadings must be provided to the clerk and

mailed by the clerk with the notice of action to all parties whose

addresses are stated in the initial pleading or sworn statement.

(f)

Service of Orders. If personal service of a court order is

to be made, the original order must be filed with the clerk, who

must certify or verify a copy of it without charge. The person

making service must use the certified copy instead of the original

order in the same manner as original process in making service.

(g)

Fees; Service of Pleadings. The statutory compensation

for making service will not be increased by the simultaneous

delivery or mailing of the copy of the initial pleading in conformity

with this rule.

(h)

Pleading Basis. When service of process is to be made

under statutes authorizing service on nonresidents of Florida, it is

sufficient to plead the basis for service in the language of the

statute without pleading the facts supporting service.

(i)

Service of Process by Mail. A defendant may accept

service of process by mail.

(1)

Accepting service of a complaint by mail does not

waive any objection to the venue or to the jurisdiction of the court

over the defendant.

(2)

A plaintiff may notify any defendant of the

commencement of the action and request that the defendant waive

service of a summons. The notice and request must:

(A)

be in writing and be addressed directly to the

defendant, if an individual, or to an officer or managing or general

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agent of the defendant or other agent authorized by appointment or

law to receive service of process;

(B)

be dispatched by U.S

t of the action and request that the defendant waive

service of a summons. The notice and request must:

(A)

be in writing and be addressed directly to the

defendant, if an individual, or to an officer or managing or general

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agent of the defendant or other agent authorized by appointment or

law to receive service of process;

(B)

be dispatched by U.S. certified mail, return

receipt requested, or by registered mail as defined by section 1.01,

Florida Statutes;

(C)

be accompanied by a copy of the complaint

and identify the court in which it has been filed;

(D)

inform the defendant of the consequences of

compliance and of failure to comply with the request;

(E)

state the date on which the request is sent;

(F)

allow the defendant 20 days from the date on

which the request is received to return the waiver, or, if the address

of the defendant is outside of the United States, 30 days from the

date on which it is received to return the waiver; and

(G)

provide the defendant with an extra copy of the

notice and request, including the waiver, and a prepaid means of

compliance in writing.

(3)

If a defendant fails to comply with a request for

waiver within the time provided, the court must impose the costs

subsequently incurred in effecting service on the defendant unless

good cause for the failure is shown.

(4)

A defendant who, before being served with process,

timely returns a waiver is not required to respond to the complaint

until 60 days after the date the defendant received the request for

waiver of service. For purposes of computing any time prescribed or

allowed by these rules, service of process will be deemed effected 20

days before the time required to respond to the complaint.

(5)

When the plaintiff files a waiver of service with the

court, the action must proceed, except as provided in subdivision

e complaint

until 60 days after the date the defendant received the request for

waiver of service. For purposes of computing any time prescribed or

allowed by these rules, service of process will be deemed effected 20

days before the time required to respond to the complaint.

(5)

When the plaintiff files a waiver of service with the

court, the action must proceed, except as provided in subdivision

(i)(4) above, as if a summons and complaint had been served at the

time of filing the waiver, and no further proof of service is required.

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(j)

Summons; Time Limit. If service of the initial process

and initial pleading is not made on 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, must direct

that service be effected within a specified time or must 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 must 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 will

begin on the entry of an order granting leave to amend. A dismissal

under this subdivision will not be considered a voluntary dismissal

or operate as an adjudication on the merits under rule 1.420(a)(1).

Committee Notes

1971 Amendment. Subdivisions (f), (g), and (h) of the existing

rule are combined because they deal with the same subject matter.

The “notice of suit” is changed to “notice of action” to comply with

the statutory change in 1967. Subdivision (g) is new and provides

for substitution of a certified or verified copy of a court order that

must be served. The original is to be filed with the clerk and not

removed. Subdivision (i) is relettered to (h).

1972 Amendment

rule are combined because they deal with the same subject matter.

The “notice of suit” is changed to “notice of action” to comply with

the statutory change in 1967. Subdivision (g) is new and provides

for substitution of a certified or verified copy of a court order that

must be served. The original is to be filed with the clerk and not

removed. Subdivision (i) is relettered to (h).

1972 Amendment. Subdivision (a) is amended to require the

officer issuing the process to sign it and place the court seal on it.

This was required by former section 47.04, Florida Statutes, and is

essential to the validity of process. When the statute was repealed

these procedural requirements were omitted and inadvertently not

included in the rule. Subdivision (b) is changed to eliminate the

predicate for court appointment of a person to make service of

process. This makes the rule more flexible and permits the court to

appoint someone to make service at any appropriate time.

1980 Amendment. Subdivision (i) is added to eliminate

pleading evidentiary facts for “long arm” service of process. It is

based on the long-standing principle in service by publication that

pleading the basis for service is sufficient if it is done in the

language of the statute. See McDaniel v. McElvy, 91 Fla. 770, 108

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So. 820 (1926). Confusion has been generated in the decisions

under the “long arm” statute. See Wm. E. Strasser Construction

Corp. v. Linn, 97 So. 2d 458 (Fla. 1957); Hartman Agency, Inc. v.

Indiana Farmers Mutual Insurance Co., 353 So. 2d 665 (Fla. 2d DCA

1978); and Drake v. Scharlau, 353 So. 2d 961 (Fla. 2d DCA 1978).

The amendment is not intended to change the distinction between

pleading and proof as enunciated in Elmex Corp. v. Atlantic Federal

Savings & Loan Association of Fort Lauderdale, 325 So. 2d 58 (Fla.

4th DCA 1976). It is intended to eliminate the necessity of pleading

evidentiary facts as well as those of pecuniary benefit that were

used in the Elmex case

charlau, 353 So. 2d 961 (Fla. 2d DCA 1978).

The amendment is not intended to change the distinction between

pleading and proof as enunciated in Elmex Corp. v. Atlantic Federal

Savings & Loan Association of Fort Lauderdale, 325 So. 2d 58 (Fla.

4th DCA 1976). It is intended to eliminate the necessity of pleading

evidentiary facts as well as those of pecuniary benefit that were

used in the Elmex case. The amendment is limited to pleading. If

the statutory allegations are attacked by motion, the pleader must

then prove the evidentiary facts to support the statutory

requirements. If denied in a pleading, the allegations must be

proved at trial. Otherwise, the allegations will be admitted under

rule 1.110(e).

1988 Amendment. Subdivision (j) has been added to require

plaintiffs to cause service of original summons within 120 days of

filing the complaint absent good cause for further delay.

1992 Amendment. Subdivision (d) is repealed because the

reason for the rule ceased when process was permitted to run

beyond county boundaries. The amendment to subdivision (j)

(redesignated as (i)) is intended to clarify that a dismissal under this

subdivision is not to be considered as an adjudication on the merits

under rule 1.420(a)(1) of these rules.

1996 Amendment. Subdivision (i) is added to provide some

formality to the practice of requesting waiver of service of process by

a sheriff or person appointed to serve papers or by publication. The

committee intends that only the manner of service will be waived by

this procedure. By accepting service pursuant to this rule, the

defendant will not waive any objection to venue or jurisdiction over

the person or admit to the sufficiency of the pleadings or to

allegations with regard to long-arm or personal jurisdiction. For

example, service of process would be void should a motion to

dismiss be granted because the complaint did not allege the basis

for long-arm jurisdiction over a nonresident defendant. City

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Contract Bus Service, Inc. v

over

the person or admit to the sufficiency of the pleadings or to

allegations with regard to long-arm or personal jurisdiction. For

example, service of process would be void should a motion to

dismiss be granted because the complaint did not allege the basis

for long-arm jurisdiction over a nonresident defendant. City

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Contract Bus Service, Inc. v. H.E. Woody, 515 So. 2d 1354 (Fla. 1st

DCA 1987). Under such circumstances, the defendant must be

served pursuant to law or again waive service pursuant to this rule.

Subdivision (i)(2)(F) allows the defendant 20 days from receipt (or 30

days if the defendant is outside of the United States) to return the

waiver. Accordingly, the committee intends that the waiver be

received by the plaintiff or the plaintiff’s attorney by the twentieth

day (or the thirtieth day if the defendant is outside of the United

States). The former subdivision (i) has been redesignated as

subdivision (j). Form 1.902 may be used to give notice of an action

and request waiver of process pursuant to this rule.

2003 Amendment. Subdivision (j) is amended in accordance

with Totura & Co., Inc. v. Williams, 754 So. 2d 671 (Fla. 2000). See

the amendment to rule 1.190(a).