A guide to the 1997 amendments to the Florida Rules of Civil Procedure.

• Author: Fierro, Eugene J.

The method in which civil litigation in Florida is conducted has been changed by the Florida Supreme Court.[1] Of the numerous rule changes, civil trial practitioners must be aware of certain technical and substantial changes to eight of the rules. This article examines these important changes.

Rule 1.061. Choice of Forum

(Formerly Forum Non Conveniens)

The rule was adopted as a result of Kinney System, Inc. v. Continental Ins. Co., 674 So. 2d 86,(Fla. 1996), and should be interpreted in light of that opinion. Kinney extends Florida forum non conveniens jurisprudence to the limits of its federal analogue. The rule provides for dismissal of a cause of action on the theory that a satisfactory remedy may be more conveniently found in a jurisdiction other than Florida.

Subsection (a) establishes the criteria that the court must apply in its analysis. As a prerequisite to dismissal, the court must determine: 1) that an adequate alternate forum exists; 2) that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs' initial forum choice; 3) if the balance of private interests is at or near equipoise, whether factors of public interest tip the balance in favor of trial in the alternate forum; and 4) that the trial judge will ensure that the plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.

The rule also provides that dismissal shall be in the sound discretion of the trial court and reviewed under an abuse of discretion standard. Under Kinney, the grounds for dismissal criteria may be satisfied if service of process on the defendant is available in the alternate forum. Alternate forums are inadequate only if the "remedy available there clearly amounts to no remedy at all."[2] In Ciba-Geigy Ltd. v. The Fish Peddler, Inc., 691 So. 2d 1111 (Fla. 4th DCA 1997), the appellate court bifurcated the analysis into availability[3] of the forum and the adequacy[4] of the remedy in the alternate forum.

The "private interests" referred to in the amendment are not to be broadly interpreted. They include all practical considerations that make trial of a case easy, expeditious, and inexpensive. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). It also includes the enforceability of a judgment, and the relative obstacles to a fair trial. Id. Moreover, the court must consider a strong presumption favoring the plaintiff's choice of forum.[5] However, "Private interests" do not include the availability or unavailability of advantageous legal theories, a history of stingy awards, or procedures that may affect outcomes but do not deprive the plaintiff of any remedy.[6]

The trial court determines the balance of private interests where the private interests are "at or near equipoise." "Equipoise" means that the advantages and disadvantages of the alternative forum will not undermine or favor the private interests of any particular party, as compared with the forum in which suit was filed.[7] The court has authority to weigh the public interest of the community to promote a more efficient utilization of judicial resources. Public interests are: 1) the ability of the courts to protect their dockets from causes that lack significant connection to the jurisdiction; 2) the ability of courts to encourage trial of controversies in the localities where they arise; 3) the ability of courts to consider their familiarity with governing law when deciding whether to retain jurisdiction over a case; and 4) the possibility of undue burden on the community or that there is little or no public interest in the dispute.[8]

Rule 1.061 provides a method to maintain the status quo until the case is refiled in the more convenient jurisdiction. The rule also provides for stipulations to dismiss subject to approval by the trial court.[9] In moving for forum non conveniens, the defendant waives a statute of limitations defense in a subsequently filed case.[10] Absent a waiver, if the plaintiff does not refile the action in the new forum within 120 days, he or she loses the benefits of any and all stipulations.[11] However, subsection (e) allows waiver for special or extraordinary circumstances that may occur in the more convenient forum.[12] Finally, subsection M requires that all stipulations be reduced to writing and signed by the parties.

Rule 1.070. Service of Process

FLA. R. Civ. P. 1.070(i) formalizes the conditions for a defendant's waiver of service of process. Only the manner of service is waived. The defendant does not waive any objection to venue, jurisdiction over the person, or admit to the sufficiency of the pleadings or to allegations regarding jurisdiction.

The plaintiff may notify any defendant of the commencement of the action and request that the defendant waive service of the summons. The...