The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B)
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On April 26, 2022, Plaintiff served the summons and complaint on the Chief Financial Officer of the State of Florida (the “Florida CFO”), who serves as the statutory agent for service of process for all insurers in the state. (Doc. 10-1); Fla. Stat. § 48.151(3) (Florida CFO is the statutorily appointed “agent for service of process on all insurers applying for authority to transact insurance in this state....”; Fla. Stat. § 624.422(3) (“Service of process submitted through the department's secure online portal upon the Chief Financial Officer... shall be the sole method of service of process upon an authorized domestic, foreign, or alien insurer in this state.”). The Florida CFO forwarded the summons and complaint via electronic delivery on April 28, 2022 to Unum's designated agent. (Doc. 10-1). To date, Unum has not responded to the Complaint.Timeliness of removal is governed by 28 U.S.C. § 1446. The relevant provision states that “[t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b)(1) (emphasis supplied). When the defendant is an insurance company, Florida law requires the plaintiff to serve the Florida CFO, who is the statutorily appointed “agent for service of process on all insurers applying for authority to transact insurance in this state….” Fla. Stat. § 48.151(3); see also Fla. Stat. § 624.422(3) (“Service of process upon the ChiefThe former, general summons form is to be used for all other service by summons, including service under sections 48.061 (service on partnership), 48.071 (service on agents of nonresidents doing business in the state), 48.081 (service on corporation), 48.101 (service on dissolved corporations), 48.111 (service on public agencies or officers), 48.121 (service on the state), 48.131 (service on alien property custodian), 48.141 (service on labor unions), 48.151 (service on statutory agents for certain purposes), Florida Statutes, and all statutes providing for substituted service on the secretary of state.In Centex–Rodgers Construction Company v. Hensel Phelps Construction Com pany , 591 So.2d 1117, 1117 (Fla. 1st DCA 1992), we discussed "whether service on a foreign corporation and its surety is perfected through service on the Insurance Commissioner's office, as agent of the surety." At the time, the Insurance Commissioner was the statutory agent under sections 48.151, 624.422, and 624.423, but the statutes were otherwise almost identical to the 2014 versions. Although Centex–Rodgers involved the question of which circuit court had jurisdiction when competing lawsuits were brought in different circuits, our holding there was broader. We stated:Section 48.151(1) provides that the Secretary shall “promptly send the copy served, by registered or certified mail, to the person to be served as shown by his or her or its records.” It must also issue a notice accepting the process and file it in the court issuing the process. Plaintiff did not comply with this section either. By its express terms, section 48.161(3) provides that it does not apply to persons on whom service is authorized under section 48.151. Section 48.151(2) provides that it does not apply to substituted service on nonresidents. Subsection (5) provides that the “Secretary of State” is an agent for service of process for any retailer, dealer, or vendor who has failed to designate an agent for service of process as required under section 212.151 for violations of chapter 212. However, it does not speak to LLCs.Service of process is a jurisdiction requirement and therefore a court lacks jurisdiction over a defendant when that defendant has not been served properly. Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990); see also Bank of Am., N.A. v. Bornstein, 29 So.3d 500, 502 (Fla. 4th DCA 2010) (same). Pursuant to Rule 12(b)(5), when service of process is insufficient, courts have discretion to dismiss the action without prejudice or to quash service. Pursuant to Rule 4(h)(1)(A) of the Federal Rules of Civil Procedure, a corporation must be served in the manner prescribed by Rule 4(e)(1) for serving an individual, or alternatively, by delivering a copy of summons and complaint to an officer, managing or general agent, or any other agent authorized by appointment or law. Pinero v. Yam Margate, L.L.C., 825 F.Supp.2d 1264, 1266 (S.D. Fla. 2011); see also Smith v. Conner, No. 8:12-CV-52-T-30AEP, 2013 WL 268685, at *1 (M.D. Fla. Jan. 24, 2013) (citing Fla. Stat. §§ 48.031, 48.151; Lomax v. City of Miami Police Dep't, Case No. 12-23836-CIV-LENARD/O'SULLIVAN, 2012 U.S. Dist. LEXIS 171131, at *2 (S.D. Fla. Dec. 3, 2012)).Appellee claims it properly served process by following the procedures outlined in sections 48.181 and 48.151, Florida Statutes (2012). It claims that Appellant was served when a process server delivered the summons and complaint to Florida's Secretary of State. Appellant claims that service should have been perfected pursuant to sections 48.181 and 48.161, Florida Statutes (2012), and because it was not, Appellant received nothing from either Appellee or the Secretary of State. It is undisputed that Appellant is a nonresident bank engaged in business in this state. As such, pursuant to section 48.181(1), Florida Statutes, Florida's Secretary of State is the agent “on whom all process in any action or proceeding against [Appellant] ... may be served.” Section 48.161(1), Florida Statutes, provides that substituted service on a nonresident shall be made, among other methods, by leaving a copy of the process with a fee, with the Secretary of State's Office or by mailing the copies and fee by certified mail to the Secretary of State's Office. Notice of the service and a copy of the process must then be sent by registered or certified mail by the plaintiff to the defendant… With regard to service of process, Plaintiff served Defendant by serving the Chief Financial Officer of the State of Florida, as Defendant's agent, pursuant to Fla. Stat. §§ 48.151(4), 624.307(9), 624.422, and 624.423. The Notice of Service of Process (Doc. #9-1) reflects that the CFO of Florida received the service of process on December 4, 2012, and forwarded a copy of the process "by Electronic Delivery" to the designated agent for Defendant on December 10, 2012. Defendant's designated agent is listed as Donna Moch, CT Corporation System, 1200 South Pine Island Road, Plantation, FL 33324. An email address for Ms. Moch is not listed on the Notice.The returns for service for both Conner and Wellhausen indicate that service was effectuated upon Conner and Wellhausen by leaving a copy of the summons and amended complaint with Shirley Johnson, as administrative assistant of the Department of Corrections, 501 S. Calhoun St., on October 29, 2012. As previously noted, Conner and Wellhausen assert that Shirley Johnson is not authorized to accept service of process on their behalf. Plaintiff does not refute this assertion. Moreover, Florida law allows service on an individual by delivering a copy of the summons and complaint: (1) to the person named; (2) to the individual's usual place of abode with any person residing therein who is age 15 or older and informing that person of the contents; (3) by substitute service to the person's spouse; (4) by substitute service to the person in charge of the individual's business at the time of service, if two or more attempts to serve the owner have been made at the place of business, and if the individual is doing business as a sole proprietorship; or (5) on an authorized agent. Fla. Stat. §§ 48.031, 48.151. See Lomax v. City of Miami Police Dep't, 2012 U.S. Dist. LEXIS 171131, *2… Under Florida law, service of process on an individual may be accomplished by delivering a copy of the summons and complaint: (1) to the person named; (2) to the individual's usual place of abode with any person residing therein who is age 15 or older and informing that person of the contents; (3) by substitute service to the person's spouse; (4) by substitute service to the person in charge of the individual's business at the time of service, if two or more attempts to serve the owner have been made at the place of business, and if the individual is doing business as a sole proprietorship; or (5) on an authorized agent. Fla. Stat. §§ 48.031, 48.151.. . . See §§ 48.151, 624.422, 624.423, Fla. Stat. (2014). . . . At the time, the Insurance Commissioner was the statutory agent under sections 48.151, 624.422, and 624.423 . . . Our holding is also based on section 48.151(1), which states that “[w]hen any law designates a public . . .
. . . upon serving the Secretary of State, the plaintiff failed to comply with either sections 48.161 or 48.151 . . . complaint failed to allege substitute service, and that the plaintiff failed to follow either sections-48.151 . . . Cf. § 48.151, Fla. . . . Section 48.151(1) provides that the Secretary shall "promptly send the copy served, by registered or . . . Section 48.151(2) provides that it does not apply to substituted service on nonresidents. . . .
. . . Appellee claims it properly served process by following the procedures outlined in sections 48.181 and 48.151 . . . Section 48.151, Florida Statutes, delineates another method of service of process. . . . . § 48.151(2), Fla. Stat. (2012). . . .
. . . service on the state), 48.131 (service on alien property custodian), 48.141 (service on labor unions), 48.151 . . .
. . . State of Florida on August 30, 2004, and mailed to United on September 1, 2004, pursuant to Section 48.151 . . .
. . . service on the state), 48.131 (service on alien property custodian), 48.141 (service on labor unions), 48.151 . . .
. . . The Department of Insurance, pursuant to section 48.151(1), Florida Statutes (2000), forwarded the complaint . . .
. . . service on the state), 48.131 (service on alien property custodian), 48.141 (service on labor unions), 48.151 . . .
. . . . § 48.151(1) (West 1996); Georgia (Ga.Code Ann. § 33-4-4(b) (Michie 1996)); Kentucky (Ky.Rev.Stat.Ann . . .
. . . service on the state), 48.131 (service on alien property custodian), 48.141 (service on labor unions), 48.151 . . .
. . . Florida Statute § 48.151(3) provides the statutory authority for service of process on the Insurance . . . In addition, Florida Statute § 48.151(1) defines proof of service on the Insurance Commissioner and Treasurer . . . Florida Statute § 48.151(1) defines the time for pleading as running from the date upon which the copy . . . FLStat. § 48.151(3). . . . Fla.Stat. § 48.151(3)(2). . . .
. . . on the state), §-48.131 (service on alien property custodian), §-48.141 (service on labor unions), §-48.151 . . .
. . . December 4, 1990, Hensel Phelps served the Florida Insurance Commissioner’s office, pursuant to section 48.151 . . .
. . . . § 48.151(5) (1989). . . . . § 48.151(1) (1989) (emphasis added). . . .
. . . on the state), § 48.131 (service on alien property custodian), § 48.141 (service on labor unions), § 48.151 . . .
. . . Additionally, service was properly perfected pursuant to section 48.151(3), Florida Statutes (1985). . . .
. . . amend under Florida Rule of Civil Procedure 1.190(a) and substituted service under Sections 48.171 and 48.151 . . .
. . . The plaintiffs attempted to obtain in per-sonam jurisdiction over GDM pursuant to sections 48.181 and 48.151 . . .
. . . C. and Randall Barnes were served by con- . structive service (§§ 48.151, 48.161, 48.171, Fla.Stat.) . . .
. . . Chapter 48.151, Florida Statutes [F.S.A.], provides for service on nonresident insurance companies by . . . The matter is not controlled by Florida Statutes § 48.151, F.S.A., dealing with service on non-resident . . .
. . . eliminate service by mail in the service of process on nonresidents is made even more explicit by §48.151 . . . , which permits service by mail upon a public officer in some instances, but expressly exempts, in §48.151 . . .