Dismissal with Prejudice Not an Option for Failure to Serve Process Within 120 Days

In this breach of contract case, the trial court sua sponte dismissed a complaint “with prejudice” for failure to serve it within 120 days, after the court entered an order requiring service within 120 days.  The appellate court reversed for two reasons: the trial court should have provided notice and an opportunity to be heard before dismissal, and should not have dismissed the complaint with prejudice, reasoning that “Rule 1.070(j) states that a trial court may act on its own initiative; however, the court may only act “on its own initiative after notice.”   Further, “the trial court also erred in dismissing Carter’s complaint with prejudice. That action was not one of the options available to it under rule 1.070(j). See Fla. R. Civ. P. 1.070(j) (emphasis added) (“[T]he court . . . shall dismiss the action without prejudice or drop that defendant.”).”

Carter v. Mendez, 39 Fla. L. Weekly D1229a (Fla. 4th DCA June 11, 2014)