The 120-day rule: what you need to know.

• Author: Schackow, Gerald D.
• Position: Florida statute of limitations

The purpose of the rule is to prevent a plaintiff from filing a suit and then taking no action whatsoever to proceed on the claim.

Florida Rule of Civil Procedure 1.070 (j) states that a complaint must be served upon the defendant within 120 days after the complaint is filed. If it is not served within this time frame, a motion to dismiss is appropriate and the case is dismissed without prejudice. The complaint can be refiled so long as the statute of limitations has not run. A problem arises, however, if the complaint is not served within the statutory time period and the statute of limitations subsequently runs. In this scenario, any such dismissal is very prejudicial to both the attorney and his or her client and the lawyer is subject to a malpractice action.

There is a saving clause in the rule, however, which states that if the plaintiff can show "good cause" why the complaint was not served within the 120-day time flame, the time flame shall be expanded to accommodate appropriate service. This article will discuss how the courts view the various "good cause" arguments raised by plaintiffs.

Historically

For many years, plaintiffs would simply file a complaint to toll the statute of limitations and then go about their business of investigating and negotiating the case. In the 1980s, in an effort to improve judicial efficiency, the Florida Supreme Court mandated that cases on dockets needed to be expeditiously handled and moved forward. The one-year failure to prosecute statute assisted in this regard and the various circuits implemented case management conferences and other devices to move cases forward. In 1989, Fla. R. Civ. P. 1.070(j) was adopted as another measure to move cases forward. Rule 1.070(j) requires that all lawsuits have to be served within 120 days of the filing of the initial pleading.

Plaintiffs' lawyers were not accustomed to this idea and many of the early cases in which the complaints were dismissed for a failure to timely serve involved plaintiffs' attorneys who simply forgot to serve the complaint after filing. The Third District in Berdeaux v. Eagle Pitcher, 575 So. 2d 1295 (Fla. 3d DCA 1990), faced such a situation. In that case, the plaintiffs lawyer perfected service prior to the hearing on the motion to dismiss. The Berdeaux court said that this situation should be treated much like a default, when, if an answer is filed before the default is entered, the default is cured.

About that same time, the Fourth District Court in Morales v. Sperry Rand, 578 So. 2d 1143 (Fla. 4th DCA 1991), faced the same issue of service not being...