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.