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Matte v. Stacey Caplan, et al., Case No. 4D13-1903 (4th DCA)

In Matte, the Fourth DCA provided instruction on the requirements of e-mail service in Florida pursuant to Rule of Judicial Administration 2.516. In the case, the appellant sought attorney’s fees under Fla. Stat. 57.105. The appellant served a motion to dismiss on the plaintiff appellee’s counsel twenty-one days prior to filing his motion to dismiss the complaint and motion for attorney’s fees. The appellee did not dismiss the complaint until after that time. At the hearing on the motion for attorney’s fees, the appellee objected to the section 57.105 sanction because the appellant had failed to serve the motion in accordance with Rule 2.516. The trial court denied the motion for fees, and the Fourth DCA agreed, ruling that strict compliance with Rule 2.516 is required.

Appellant sent appellee the motion for sanctions by e-mail. The subject line of the e-mail listed the case name and the name of the motion, and the body of the e-mail simply stated “See attached motion.” The attached document was in Word format. Appellee later argued that service was improper under Rule 2.516 because (1) it failed to provide a PDF copy of the motion; (2) it failed to contain, in the subject line in all capital letters, the words “SERVICE OF COURT DOCUMENT,” followed by the case number; and (3) it failed to contain, in the body of the e-mail, the case number, name of the initial party of each side, title of each document served with that e-mail, and the sender’s name and telephone number. Appellant argued substantial compliance with Rule 2.516 was required, and pointed out that appellee’s counsel acknowledged receiving the e-mail and read the attached Word document.

The Fourth DCA explained that Fla. Stat. 57.105 provides a safe harbor provision to avoid sanctions, by requiring a motion for fees to be “served” twenty-one days prior to filing, in which time the opposing party may withdraw or correct the challenged paper, claim, defense, contention, allegation or denial. The Fourth DCA further explained that with the advent of electronic filing and the use of e-mail for service, the Rules of Civil Procedure and Judicial Administration have been amended to provide the requirements for e-mail service, which is mandatory between attorneys. Florida Rule of Civil Procedure 1.080 requires that every pleading following the initial pleading and every other document filed in the action must be served in conformity with the requirements of Florida Rule of Judicial Administration 2.516. Rule 2.516 requires that all documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate of the rule otherwise provides.

The Fourth DCA noted that “section 57.105 authorizes an award of attorney’s fees in derogation of common law,” and therefore, “must be strictly construed.” The Fourth DCA further noted that actual notice does not allow a party to evade strict compliance with the rules. “Litigants should not be left guessing at what a court will deem is ‘substantial compliance’ with the rules and statutes for the imposition of attorney’s fees as a sanction. Just as is the case with Rule 1.442 regarding proposals for settlement, a bright line rule requiring service in conformity with the mandatory provisions of the rule provides certainty to both parties as to whether attorney’s fees may be assessed if the court finds that the action or defense is frivolous.” The Fourth DCA therefore held that strict compliance with Rule 2.516 regarding e-mail service of pleadings is required before a court may assess attorney’s fees pursuant to section 57.105, Florida Statutes.

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