Challenge to Personal Jurisdiction: Service of Process

By Michael P. Sampson (part 2 of 8)

Green fish trapped

Service of Process –

A corporation or trust a spouse names in a Florida family law action may first consider challenging service of process. Through effective service of process, the spouse notifies the business entity or trust of the spouse’s legal claims against it. When the spouse accomplishes effective service, a court may exercise its authority over the entity or trust if the court has jurisdiction to resolve the claims.

Caution:

If the entity seeks affirmative relief, it may waive challenges to the Florida court’s jurisdiction!

Hand with bouquet of colorful flowers

Service of Process: Can It Be Challenged?

An entity sued in a family law lawsuit may consider challenging service of process. Proper service of the family law papers on the entity must happen before the Florida court can acquire personal jurisdiction over the entity. See Fla. Rule of Judicial Administration 2.516Fla. Family Law Rules of Civ. P. 12.080(a) and 12.180

See also Thompson v. State/Dept. Revenue, 867 So. 2d 603, 605 (Fla. 1st DCA 2004) (the court lacks jurisdiction without proper service of process, and the burden to prove proper service is upon the person who seeks to invoke the court’s jurisdiction). Entry of an order adjudicating rights of a party not properly served is reversible error. See Deluca v. King, 197 So. 3d 74, 76 (Fla. 2d DCA 2016) (default judgment entered against party not served with process is void); Varveris v. Alberto M. Carbonell, P.A., 773 So. 2d 1275, 1276 (Fla. 3d DCA 2000) (judgment debtor’s wife was not properly brought before the court to set aside allegedly fraudulent transfers).

Was the summons properly issued and served?

A summons, properly issued and served, is how a court acquires jurisdiction over an entity. See Seymour v. Panchita Inv., Inc., 28 So. 3d 194, 196 (Fla. 3d DCA 2010). Defects in the summons may make service void. Id. (attempt to serve corporation with summons naming person individually was void to effect service on the corporation of which he was registered agent); Ineniera v. Freytech, 210 So. 3d 211, 213 (Fla. 3d DCA 2016). An entity, through sufficient affidavits, may challenge service and obtain a hearing to present evidence on the effectiveness of services. See Panama City Gen. P’ship v. Godfrey Panama City Inv., LLC, 109 So. 3d 291, 293 (Fla. 1st DCA 2013) (affidavits supported partnership’s assertion that managing partner identified in process server’s affidavit as having been served moved from his home to assisted living nursing facility two days before alleged service).  

There are strict requirements for good service on the correct person.

A party who attempts to serve a foreign corporation not qualified to do business in Florida must show that the requirements for service have been met and that process has been served upon a person qualified to accept such process. Courts strictly construe statutory requirements and require strict compliance with them for effective service. See Grange Insurance v. Walton Transport, 2014 WL 1917987 *3, Case No. 3:13-cv-977-J-34MCR (M.D. Fla. May 13, 2014); Estela v. Cavalcanti, 76 So. 3d 1054, 1055 (Fla. 3d DCA 2011);Mecca Multimedia, Inc. v. Kurzbard, 954 So. 2d 1179, 1181 (Fla. 3d DCA 2007)S.T.R. Indus., Inc. v. Hidalgo Corp., 832 So. 2d 262, 263 (Fla. 3d DCA 2002).  

Failure to comply with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters articles 2-6, November 15, 1965, 20 U.S.T. 361 (Hague Convention), may invalidate service of process. See SDS-IC v. Florida Concentrates International, LLC, 157 So. 3d 389 (Fla. 2d DCA 2015) (service of process quashed because it did not comply with Florida law or China’s Central Authority under the Hague Convention). But note Article 10(a) of the Hague Convention permits service of process by mail. See Portalp International SAS v. Zuloaga, 198 So. 3d 669, 675 (Fla. 2d DCA 2015).

Business Man on Cell Phone

Has the spouse validly served the right person under Florida law?

A corporation can’t make it impossible for a spouse to comply strictly with the statutory requirements by listing a private mailbox or “virtual office,” where no directors, officers, corporate employees, or registered agent can be found. Further, the entity can’t evade service by pretending to maintain a registered agent that section 48.091, Florida Statutes requires.

The party seeking service may serve such corporation under section 48.081(3)(b) at another physical address for the corporation, its officers, directors, or registered agent discoverable through public records, under the general service of process statute (section 48.031). See Diaz v. Winn-Dixie Stores, Inc., Case No. 14-cv-21045 (S.D. Fla. January 9, 2015) (setting aside a clerk’s default because attempted service at a local Winn-Dixie deli counter was not the corporation’s principal place of business, where its high level officers directed, controlled, and coordinated its activities); Natures Way Marine, LLC v. Everclear of Ohio, Ltd., No. 12-0316-CG-M (S.D. Ala. January 18, 2013) (applying Florida law); TID Services, Inc. v. Dass, 65 So. 3d 1 (Fla. 2d DCA 2010) (reversing order denying motion to vacate for lack of jurisdiction a default judgment, where summons was left at UPS store where defendant maintained a private mailbox).

Seek to quash service if the spouse fails to serve an unauthorized person.

A court may quash improper service of process on someone not authorized to be served. See Seymour v. Panchita Inv., Inc., 28 So. 3d 194, 198 (Fla. 3d DCA 2010) (affirming order vacating final judgment after default because attempted service on a corporate officer in his individual capacity was void); S.T.R. Industries, Inc., 832 So. 2d at 264 (quashing service on a foreign corporation not qualified to do business in Florida because a party failed to show a diligent search for superior officers or the necessity for substitute service, and the process server’s affidavit failed to indicate the foreign corporation’s business agent was served because superior officers were absent); Lisa, S.A. v. Gutierrez, 806 So. 2d 557, 559 (Fla. 3d DCA 2002) (affirming order quashing service on a receptionist or on a law clerk); Washington Capital Corp. v. Milandco, Ltd., Inc., 665 So. 2d 375, 376 (Fla. 4th DCA 1996) (quashing service on a secretary/receptionist of a foreign corporation not in strict compliance with section 48.081, Florida Statutes). 

Compare the above cases with Kalb v. Sail Condominium Ass’n, Inc., 112 So. 3d 674, 675 (Fla. 3d DCA 2013) (judgment against a corporation qualified to do business in Florida was not void where service had been validly accomplished on an employee of a condo association’s registered agent).

Is the affidavit or return of service deficient?

The corporation or trust should inspect the process server’s affidavit or return of service. Does it specifically identify whom the process server served?

An affidavit of service merely alleging the plaintiff complied with the service of process statute may fail to meet the burden of establishing proper service.

Multiple Florida cases illustrate this deficiency. For example, in Diaz v. Winn-Dixie Stores, Inc., Case No. 14-cv-21045 (S.D. Fla. January 9, 2015), a bare allegation of failing to keep a sign posted designating the name of the registered agent on whom process may be served could not justify service on a corporation’s employee or an employee of its registered agent. Likewise, in Johnston v. Halliday, 516 So. 2d 84, 85 (Fla. 3d DCA 1987), a return of service merely stating that substituted service was effected on the defendant’s son who was “of suitable age and discretion” was insufficient absent facts establishing that the process server complied with the requirements for substituted service.

See also Mattress One, Inc. v. Sunshop Properties, LLC, 282 So. 3d 1024 (Fla. 3d DCA 2019) (quashing service on an unidentified, random  employee of corporation, where return of service did not show all officers of a superior class were absent before resorting to serving an officer or agent of an inferior class or the registered agent was absent); York Communications, Inc. v. Furst Group, Inc., 724 So. 2d 678, 679 (Fla. 4th DCA 1999) (a process server’s statement that service was made on John Doe corporate employee, without including a statement supporting the necessity for substituted service, was “patently tainted” where the process server alleged neither that he first attempted to serve the registered agent nor that the agent was absent).

The entity or trust must be specific, too, in challenging service.

Just as a spouse who alleges valid service on a corporate entity or trust must specify whom the process server served and how, the entity or trust must specify defects in service. Generally denying service was valid won’t be enough. To overcome the presumption that the service a facially sufficient affidavit describes was effective, the entity must specifically present clear and convincing facts, typically through sworn affidavits, that service was deficient.

Compare Panama City Gen. P’ship v. Godfrey Panama City Inv., LLC, 109 So. 3d 291, 293 (Fla. 1st DCA 2013) (partnership’s mere denial of validity of service insufficient, but its later motion for reconsideration with attached affidavits from managing partner and son, plus a moving company’s receipt and letter from director of retirement community to which managing partner moved, established prima facie case to challenge service, entitling the partnership to an evidentiary hearing) with Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So. 3d 177, 181 (Fla. 3d DCA 2011) (returns of service contained all information required to show plaintiff complied with the statute, plus corroborating testimony, entitled plaintiff to the presumption that valid service was effectuated, and affidavits defendants offered that failed to challenge the facial regularity of the return of service failed to overcome by clear and convincing evidence the presumption).

Checklist for challenges to service of process:

  • Was process (summons and the papers being served) properly issued and sufficient under Florida law?
  • Was service of process validly accomplished?
  • Was the hierarchy for service of process followed, if required?
    • Was service made on the registered agent?
    • Was service made on the president, vice president, the cashier, treasurer, secretary, general manager, any director, any officer, or business agent residing in the state?
    • Can service be made at an address discoverable in the public records on an employee at the corporation’s principal place of business or employee of the registered agent, because the foreign corporation failed to comply with the requirements regarding a registered agent?
  • Was the proper party served? This can be tricky in corporate families.

Caution:

If the entity seeks affirmative relief in the Florida family law action, it may waive otherwise valid challenges to the court’s exercise of jurisdiction, such to defective service of process.


Read More:

Part 1: Florida Family Law 2021: Corporate and Trust Challenges to Service of Process and Jurisdiction

Part 3: Family Law Pleadings Must Allege Basis for Personal Jurisdiction Over the Entity

Part 4: Personal Jurisdiction – Long-Arm Statute or Alter-Ego Theory?

Part 5: Long-Arm Jurisdiction: Specific or General?

Part 6: Alter Ego Basis for Jurisdiction in Florida Family Law Action

Part 7: Jurisdiction Over Property At Issue in Florida Divorce

Part 8: Challenges to Jurisdiction in Florida Family Law Action: Affidavits

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