The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Judiciary
BILL: CS/SB 1062
INTRODUCER: Judiciary Committee and Senator Bradley
SUBJECT: Service of Process
DATE: January 11, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Bond Cibula JU Fav/CS
2. CM
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1062 amends laws governing service of process. The term “service of process” refers to
the manner of delivery of legal notice to an individual or entity which provides notice of a
pending legal action. The bill:
Details and standardizes the manner and priority of forms of service of process as related to
different forms of business entities as appropriate to the form and structure of the entities.
Prioritizes service of process on the registered agent of an entity.
Clarifies procedures for substituted service of process by delivery to the Secretary of State.
Creates the authority of a trial court to allow any effective alternative means of service of
process where an entity cannot be served with process by conventional means.
Creates a framework for service of process on an individual or entity in a foreign country, to
include any form of process recognized under that country’s laws.
Creates procedures for service of process for removal of unknown party in possession of
rented real property.
Provides that service of a medical negligence pre-suit notice starts to toll the statute of
limitations from the date of mailing rather than the date of receipt, and broadens the forms of
such delivery to allow commercial delivery services or use of a certified process server.
Broadens statutes on service of process by registered or certified mail to also allow delivery
by a commercial delivery service.
Allows the Department of State to accept substituted service of process by electronic means.
REVISED: BILL: CS/SB 1062 Page 2
This bill does not appear to have a fiscal impact on state or local governments.
The section of the bill regarding notice before filing an action for medical malpractice takes
effect upon becoming law, the remainder of the bill takes effect January 2, 2023.
II. Present Situation:
A fundamental concept of due process is that a person must be given fair notice of the initiation
of an action against the person. Delivery of that notice is referred to as “service of process.”
Adequate service of process is also required to summon a witness for testimony or for production
of evidence. Centuries ago, service of process was only trusted to the county sheriff. Modern
concepts of due process required for adequate service of process recognize that there are
numerous means by which a person or entity may be fairly appraised of a lawsuit or a
requirement to produce evidence.
The traditional and best form of service of process on a competent adult is by personal delivery
to that individual, but that is not always possible. Individuals may be difficult to find, whether
intentionally or not. Individuals may be incompetent, whether medically or by youth. Procedures
need to be established for determining how to serve process on an entity in a manner likely to
have it noticed by management for a timely response. A large body of law has been devoted to
the allowable methods for service of process.
The Secretary of State is involved in many aspects of service of process. The Secretary is head of
the Department of State, which handles the administrative duties of the Secretary. The Division
of Corporations, under the Department of State, accepts business entity registrations and
renewals, and maintains a publicly-accessible record of every entity, listing a registered agent
and the names of the related top-level individuals in the entity. Every current entity must appoint
a registered agent, a person within the state who is authorized by the entity to accept service of
process directed to the entity. In some instances, substituted service of process may be made on
the Secretary of State.
III. Effect of Proposed Changes:
Service of Process on a General Partnership (Section 2)
A general partnership is a form of business where two or more individuals jointly engage in an
enterprise. The assets of the partnership are subject to creditor claims, and every partner is jointly
and severally liable for the debts of the partnership. Currently, service on any partner, or on a
registered agent if one is named, is deemed service on the partnership, making the assets of the
partnership available to the plaintiff. Individual partners are personally liable for partnership
debts if partnership assets are exhausted, but must be served with process as an individual in
order for his or her non-partnership assets to be subject to creditor claims.
1
A general partnership
may, but is not required to, register with the Department of State and name a registered agent for
1
Sections 48.061(1), 620.8306, and 620.8307, F.S. BILL: CS/SB 1062 Page 3
service of process.
2
A general partnership may designate an employee to accept service of
process during regular business hours.
3
The bill provides that, after one attempt at service of process on any partner, registered agent, or
designated employee, a partnership may be served by delivery of the process to a person in
charge of the partnership during regular business hours.
Service of Process on a Limited Liability Partnership (Section 2)
A partnership may elect to be a limited liability partnership by registration with the Secretary of
State. The assets of the partnership are subject to creditor claims, but the non-partnership assets
of all of the individual partners are not subject to creditor claims.
4
Current statutes do not
specifically address service of process on a limited liability partnership, current law on general
partnerships therefore applies.
The bill specifies the manner of service of process on a limited liability partnership. Process must
first be attempted on the registered agent. If service on the registered agent fails, process may be
made on any partner. If no partner is available during regular business hours, any partner may
designate an employee to accept service of process. If service on a partner or designated
employee fails, process may be served on the person in charge of the partnership during regular
business hours. If all of these fail, process may be served upon the Secretary of State or by any
other method approved by court order.
Service of Process on a Limited Partnership (Sections 2, 28, 29, 30, 31, 32, 33)
A limited partnership has two classes of partners, limited partners and general partners. The
limited partnership must have at least one of each. A limited partnership formed in the state or
doing business in the state must register with the Secretary of State. The assets of the limited
partnership are subject to creditor claims, as are the assets of a general partner, but the non-
partnership assets of any limited partner are not subject to creditor claims.
5
Service of process on
a limited partnership is by service on the registered agent. If service cannot be made against the
registered agent, substituted service may be made on the Secretary of State.
6
The bill provides that service of process on a domestic limited partnership must first be
attempted by delivery to the registered agent. If that service fails, service may be on any general
partner of the limited partnership. If that fails, service may be made on the Secretary of State or
by any other method approved by court order.
The bill also provides that a notice or demand required to be delivered to the limited partnership
which is not service of process may be delivered to any general partner, the registered agent, or
to any other address that is the principal place of business in this state.
2
Section 620.8105, F.S.
3
Section 48.061(1), F.S. This designation is internal to the partnership.
4
Section 620.8306(3), F.S.
5
Section 620.1404(1), F.S.
6
Section 620.1117, F.S. BILL: CS/SB 1062 Page 4
Service of Process on a Limited Liability Company (Sections 3, 17, 19 and 20)
A limited liability company is a form of business entity that is formed by enactment of an
operating agreement and registration with the Secretary of State. Like a corporation, individual
investors are not liable for entity debts. Service of process on a limited liability company may be
on the registered agent. If service on the registered agent fails, process may be served on any
member of a member-managed limited liability company or any manager of a manager-managed
limited liability company. If these fail, substituted service may be on the Secretary of State.
7
The bill keeps the registered agent first and the Secretary of State as a last resort, and adds that
any other person listed publicly in the company’s latest annual report, as most recently amended,
as an additional alternative to any manager of a manager-managed limited liability company or
any member of a member-managed limited liability company. The bill also adds any other
method approved by court order as an alternative to service on the Secretary of State as a last
resort.
To cancel its certificate of authority to transact business in the state, a foreign limited liability
company must in part furnish the Secretary of State with an address that can be used should the
company be served with substitute process through the Secretary of State,
8
and must commit to
keeping the address on file current.
9
The bill adds a requirement to furnish and update, as
necessary, an e-mail address.
Business entities may have authority to convert from one form of entity to another. Where the
converting entity is a registered limited liability company and the converted entity is any form of
foreign entity that is not registered in Florida, the entity must give the Secretary of State a
mailing address that can be used should the entity be served with substitute process through the
Secretary of State.
10
The bill adds a requirement to furnish an e-mail address with the mailing
address.
Service of Process on a Corporation (Sections 5, 21, 22, 23, 24, 25, 26, and 27)
A corporation is a form of business entity in which investors purchase shares of stock in the
corporation and vote for a board of directors to manage the entity. Shareholders are generally not
liable for the debts of the corporation. Service of process on a corporation is by delivery to the
president, vice president, or any other head of the corporation. In the absence of a president or
other head of the corporation, service may be made on the cashier, treasurer, secretary, or general
manager. In the absence of any of the foregoing, service may be made on any director of the
corporation. In the absence of any of the foregoing, service may be made on any officer or
business agent residing in the state. If a foreign corporation has none of the foregoing officers or
agents in this state, service may be made on any agent transacting business for it in this state. As
an alternative to all of the foregoing, process may be served on the registered agent.
11
Also as an
7
Section 605.0117, F.S.
8
Section 605.0910(1)(f), F.S.
9
Section 605.0910(1)(g), F.S.
10
Section 605.1045(2)(f), F.S.
11
Section 48.081, F.S. Note that this section does not apply to a corporation that is an insurance company. Service on an
insurance company is not affected by this bill. BILL: CS/SB 1062 Page 5
alternative, should all of the foregoing fail, service may be by delivery to any employee of the
corporation at the principal place of business or any employee of the registered agent.
The bill requires that the first attempt at service of process be delivery to the registered agent. If
service on the registered agent fails, service may be by delivery to the chair of the board of
directors, the president, any vice president, the secretary, the treasurer, or any other person listed
on the most recent corporate filing with the Secretary of State. If service on these fail, service
may be by substituted service on the Secretary of State or any by other method approved by
court order. The bill repeals the duty to go down the hierarchy of officers and repeals the “any
employee” option.
To cancel its certificate of authority to transact business in the state, a foreign corporation must
in part furnish the Secretary of State with an address that can be used should the corporation be
served with substitute process through the Secretary of State,
12
and must commit to update the
mailing address in the future.
13
The bill adds a requirement to furnish an e-mail address as a part
of the withdrawal, and requires a corporation to also commit to future updates to the e-mail
address.
Alternative Use of Commercial Delivery Services (Sections 4, 10, and 15)
Various forms of service of process require that a copy of the papers served also be furnished to
the person affected by mailing through the United States Postal Service. In the following statutes,
the bill adds that delivery by a commercial firm regularly engaged in the business of document or
package delivery is an alternative to U.S. postal delivery:
Service of process on agents of nonresidents (natural persons or partnerships) doing business
in the state.
14
Substituted service of process by service on the Secretary of State.
15
Pre-suit service of a notice of intent to file a medical negligence action.
16
Offices of Registered Agents (Section 6)
A registered agent for a corporation is required to be open daily from 10 a.m. to noon, except for
weekends and holidays, and must post a sign listing the corporations that the registered agent
serves.
17
No statute governs operating hours or signs of a registered agent for other forms of
business entity.
The bill adds all forms of a business entity to the statute governing registered agents, allows a
registered agent to be open at times in addition to the 10 a.m. to noon requirement, repeals the
sign requirement, specifies that service on a registered agent may be by delivery to any employee
of the registered agent, and codifies the commonly understood duty of a registered agent to
12
Section 607.1520(1)(f), F.S. (for-profit corporations); s. 617.1520(2)(d), F.S. (not-for-profit corporations).
13
Section 607.1520(1)(g), F.S. (for-profit corporations); s. 617.1520(2)(e), F.S. (not-for-profit corporations).
14
Section 48.071, F.S.
15
Section 48.161, F.S.
16
Section 766.106(2)(a), F.S.
17
Section 48.091, F.S. BILL: CS/SB 1062 Page 6
promptly forward the process and any related papers to the responsible person in the business
entity.
Service on a Dissolved Entity (Section 7)
Service of process on a dissolved corporation is the same as service of process on an active
corporation.
18
The statutes do not address service of process on other forms of a business entity
after dissolution of the entity.
The bill confirms that service on a dissolved corporation is the same as an active corporation as
such is amended by the bill; adds that service on a dissolved corporation may also be delivered to
an existing court-appointed trustee, custodian, or receiver; and adds that the court may appoint a
trustee, custodian or receiver to receive process on behalf of a dissolved domestic for-profit
corporation. The bill also provides that service on a dissolved limited liability company is the
same as an active limited liability company, the process may be delivered to a court-appointed
liquidator, trustee, or receiver of a dissolved limited liability company, and the court may appoint
a trustee, custodian or receiver to receive process on behalf of a dissolved domestic limited
liability company. Finally, the bill adds that service on a dissolved limited partnership is the
same as service on an active limited partnership.
Court-Ordered Alternative Means of Service of Process (Section 8)
Current law on service of process specifies the manner of service of process for various entities
and situations, but gives no flexibility for unique circumstances. The bill provides flexibility
where, despite due diligence, the party has been unable to personally serve process on any of the
following forms of business entity:
A domestic or foreign corporation;
A domestic or foreign general partnership, including a limited liability partnership;
A domestic or foreign limited partnership, including a limited liability limited partnership; or
A domestic or foreign limited liability company.
In situations where the entity cannot otherwise be served, the court, upon motion and a showing
of such inability, may authorize service in any other manner that the party seeking to effectuate
service shows will be reasonably effective to give the entity actual notice of the suit. Such other
manners of service may include service electronically by e-mail or other technology.
Procedures for Substituted Service through the Secretary of State (Sections 1 and 10)
Several statutes on service of process refer to substituted service of process by service on the
Secretary of State. This is generally only available where attempts at personal service have
failed. Substituted service on the Secretary of State is effectuated by either hand delivery or by
certified mail addressed to the Secretary of State, together with a fee of $8.75. A copy of the
process must be sent to the individual or entity at the last known address by certified or
registered mail.
19
Case law interpreting the statute requires that a party using substituted service
18
Section 48.101, F.S.
19
Section 48.161, F.S. BILL: CS/SB 1062 Page 7
on the Secretary of State make an honest and conscientious effort, in addition to the mailing, to
provide the defendant with actual notice of the lawsuit,
20
which may be notice through a known
email.
21
When using substituted service on the Secretary of State, the bill:
Allows the Secretary of State to agree to receive service of process electronically.
Repeals the $8.75 fee payable to the Secretary of State.
Expands the options for delivery by adding the option to use a commercial firm regularly
engaged in the business of document or package delivery as an alternative to mailing.
Requires that the party send a copy by e-mail or other electronic means if the parties have
recently and regularly used any of those means of communication.
Requires that the party send a copy by mail or commercial delivery of the process to the last
known address of the party being served.
Requires the party to file with the court proof of delivery from the post office or commercial
service, unless the party being served is actively refusing or rejecting delivery.
Requires the party to file an affidavit showing due diligence in the search for the party being
served and the need for substituted service, together with any return receipt or other proof of
mailing or delivery, within 40 days after delivery to the Secretary of State. The court may
extend the 40 days.
Establishes that the date of service of substituted process is the date of delivery to the
Secretary of State. The Secretary of State must maintain a record of each process delivered.
The bill also defines the due diligence necessary before resorting to substituted service on a
natural person as:
Diligent inquiry and an honest and conscientious effort appropriate to the circumstances to
acquire the information necessary to effectuate personal service;
Reasonable use of the knowledge at the party’s command, including knowledge obtained by
the diligent inquiry; and
An appropriate number of attempts to serve the party, taking into account the particular
circumstances.
In making the determination as to whether the party effectuating service on a natural person used
due diligence, the bill creates a rebuttable presumption that the serving party exercised due
diligence by making three good faith attempts to serve the other party at each location where and
during the hours when such party is likely to be found, using reasonably available resources to
the party seeking to secure service of process.
Authorization for Substituted Service on Nonresidents and Foreign Business Entities Doing
Business in the State or Who Are Concealing Their Whereabouts (Section 11)
Current law provides that a nonresident individual or entity doing business in the state is
presumed to have appointed the Secretary of State to accept service of process. This also applies
20
All Mobile Video v. Whitener, 773 So. 2d 587, 589-90 (Fla. 1st DCA 2000) (plaintiff knew telephone and fax number of
defendant company but did not call or fax for new address when mailed copy of process was returned).
21
Crystal Springs Partners, Ltd. v. Michael R. Band, P.A., 132 So. 3d 1230 (Fla 3rd DCA 2014) (law firm plaintiff knew
former client’s email address and should have emailed copy of process in addition to mailing). BILL: CS/SB 1062 Page 8
to any person who was a resident of the state but who has left the state and to a person who is
concealing his or her whereabouts.
22
The bill repeals the application of this section to former residents, as service on them is provided
in statutes allowing for service outside of the state. If a nonresident business entity has properly
registered with the Department of State, the bill requires that service of process first be attempted
by delivery to the registered agent, then to the entity officials as appropriate to the form of entity,
and only after failing in all such attempts, by substituted service on the Secretary of State.
Service on Unknown Parties in Possession of Rental Property (Section 12)
Landlord-tenant eviction requires two attempts at personal service on a tenant at least six hours
apart. If the tenant is not found after the second attempt, the process must be conspicuously
posted on the rental property and a copy mailed to the tenant by the clerk.
23
It is unclear whether
this procedure applies where an unknown person is discovered to be living in the rental unit.
The bill creates a new section of law limited to service of process on an unknown person in
possession of real property. The clerk of court is required to issue a summons in the name of
“Unknown Party in Possession.” The property owner must make three attempts at service, one
during business hours, one during nonbusiness hours, and one on a weekend.
24
On each attempt
the process server must inquire as to the name of the unknown occupant. The property owner
must have a copy of the process mailed by the clerk of court to the unknown party in possession
at the property address and must post a copy of the process conspicuously on the property. The
date of service for purposes of calculating the 5 days for a defendant to file an answer is the later
of the date of personal service, the date of posting on the property, or the date the clerk mails the
process. If the inquiry discovers the name of the unknown person in possession, the person must
be named in the pleadings. If the name is not known and the legal requirements of eviction are
met, the clerk may issue a writ of possession against an unknown person and the sheriff may
remove any person in the property.
Personal Service Outside of Florida (Sections 13 and 14)
Service on persons outside the state is effective if made in the manner required for in-state
process, except that it must be served by a person authorized under that jurisdiction’s law to
serve process.
25
The statute mentions that service outside of the United States may be subject to
treaty, but does not require compliance. The bill limits application of this section to service
within the other 49 states and within U.S. territories and commonwealths, and creates a new
section governing service of Florida process upon a person or entity in a foreign country.
The bill provides that service of process may be effectuated in a foreign country upon a party,
other than a minor or an incompetent person, by any internationally agreed-upon means of
service reasonably calculated to give actual notice of the proceedings, such as those authorized
by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in
22
Section 48.181, F.S.
23
Section 48.183, F.S.
24
In general, service of process may not be made on a Sunday. Section 48.20, F.S.
25
Section 48.194, F.S. BILL: CS/SB 1062 Page 9
Civil or Commercial Matters. If there is no internationally agreed-upon means of service, or if an
international agreement allows but does not specify other means, service of process may be made
by any method reasonably calculated to give actual notice of the proceedings. Reasonable
methods are those prescribed by the foreign country’s law for service in that country in an action
in its courts of general jurisdiction; those directed by the foreign authority in response to a letter
rogatory or letter of request; or unless prohibited by the foreign country’s law, by delivering a
copy of the summons and of the complaint to the individual personally; or by using any form of
mail which the clerk addresses and sends to the party and which requires a signed receipt.
Pursuant to motion and order by the court, service of process may be by other means, including
electronically by e-mail or other technology, if the party seeking service shows such form of
service is reasonably calculated to give actual notice of the proceedings and is not prohibited by
international agreement.
Presuit Notice in Medical Negligence Action (Section 15)
Before filing a medical negligence action, an injured patient must first deliver to each
prospective defendant a notice of intent to file the action. This notice starts a 90-day pre-suit
investigation period. The notice also tolls the running of the statute of limitations. The notice
must be delivered by certified mail, return receipt requested.
26
While many laws on service of
process by mail provide that the date of service is the day of mailing, this statute has been
interpreted to mean that the date of service is the day that the prospective defendant received the
mailing.
27
The bill expands the methods of service of the presuit notice to allow United States mail service
with a tracking number, use of an interstate commercial mail carrier or delivery service, or
service by a certified process server as if it were from a court. The bill also specifies that delivery
to an address on file with the Department of Health, the Secretary of State, or the Agency for
Health Care Administration creates a rebuttable presumption that service of the presuit notice
was made. If the question of proper service is made, the court must conduct an evidentiary
hearing. The bill also provides that tolling of the statute of limitations begins on the date of
mailing or the date of the first attempt at service by the certified process server, tolling applies to
all defendants, and the 90-day investigation period starts upon delivery of the notice rather than
upon mailing.
Effective Date
The section of the bill regarding notice before filing an action for medical malpractice takes
effect upon becoming law, the remainder of the bill takes effect January 2, 2023.
26
Section 766.106(2), F.S.
27
Boyd v. Becker, 627 So. 2d 481 (Fla.1993); Bove v. Naples, LLC, 196 So. 3d 411 (Fla. 2nd DCA 2016) (case dismissed
where notice was mailed one day before statute of limitations ran and received several days after). BILL: CS/SB 1062 Page 10
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill does not require counties or municipalities to spend funds or limit their authority
to raise revenue or receive state-shared revenues as specified in Article VII, s. 18 of the
Florida Constitution.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 15.16, 48.061,
48.062, 48.071, 48.081, 48.091, 48.101, 48.151, 48.161, 48.181, 48.194, 766.106, 495.145, BILL: CS/SB 1062 Page 11
605.0117, 605.09091, 605.0910, 605.1045, 607.0504, 607.1423, 607.15101, 607.1520, 617.0504,
617.1510, 617.1520, 620.1117, 620.1907, 620.2105, 620.2109, 620.8915, and 620.8919.
This bill creates the following sections of the Florida Statutes: 48.102, 48.184, and 48.197.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Judiciary on January 11, 2022:
The committee substitute removes references to service or notice by social media, limits
the new criteria for due diligence to only apply the criteria to service of process on an
individual, makes technical amendments to section of bill regarding service of process on
an unnamed occupant of a rental property and allows posting on any attempt, and adds a
duty of a foreign corporation to keep its email address on file with the Secretary of State
current to match the same change made by the bill to partnerships and limited liability
companies.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.