The trial court dismissed Plaintiff’s claims after the Plaintiff (1) failed to serve one of the parties and (2) failed to submit a joint status report. The trial court claimed the authority to dismiss the case based on Florida Rule of Civil Procedure 1.070, stating:
THIS CAUSE came before the court pursuant to Rule 1.070(j), Florida Rules of Civil Procedure. The record of this action does not show service of initial process and initial pleading upon defendant(s) Sunday A. Stefaniw within 120 days after filing of the initial pleading, and the record does not reflect any order extending the time for service. Notice of the absence of timely service was previously given in the action February 12, 2013, and no good cause has been shown why service was not made within the required 120 days. The court also notes the failure to respond to the court’s order requiring submission of status report dated February 12, 2013. The Court must assume Plaintiff has no interest in pursuing this action. Whereupon, IT IS ADJUDGED that this action is dismissed.
Plaintiff argued that it had been actively attempting to serve the Defendant and that it had never received the order requiring submission of a joint status report. On the issue of whether the parties had been served with the order requiring submission of a joint status report, the trial court found that its assistant always efficiently handled the mail and that the attorneys could have monitored the case online.
In overturning the trail court’s order, the Fifth DCA ruled that the action could not be dismissed simply because the Defendant had not been served. The Court further ruled that there was not sufficient evidence to establish that order requiring submission of a joint status report had ever been served and that counsel did not have a duty to monitor the online docket as an alternative effective to service.