Mandatory E-Mail Service: Not so Fast!

/0 Comments/in , , , , , , /by

I think the Florida Supreme Court’s ears must have been burning — the Court today issued a corrected opinion [.pdf available here] accompanied by a correction notice [.pdf] changing the implementation date of the state’s new e-mail service rules from July 1, 2012 to September 1, 2012.

The implementation date is the only change — the rest of the new Florida Rule of Judicial Administration 2.516 will operate as I previously reported.

The Florida Bar announced on its main page:

The Florida Bar will provide complimentary education on the mandatory email service requirements prior to the effective date.

Moving the implementation date was a good call — folks who are used to a Federal Court practice probably have systems in place to deal with e-mail service, but those whose practice is solely in state court probably need more than a weeks’ notice to figure out office protocols to avoid e-mailed documents falling through the cracks. The July 1 date wasn’t even enough time to get the news into the Florida Bar News. And for some attorneys, the promised CLE from the Florida Bar will be very helpful.

Thank you, Florida Supreme Court!

E-Mail Service for All Documents in Florida Cases

/8 Comments/in , /by

In the middle of the Florida Bar’s annual meeting, the Florida Supreme Court released an order requiring e-mail service of all documents in almost all Florida cases starting July 1, 2012. [Update: The Florida Supreme Court has entered a corrected opinion changing start date to September 1, 2012]. Nothing like giving us a little notice to put systems in place!

The June 21, 2012 order [available here in .pdf], basically deletes Florida Rule of Civil Procedure 1.080, and replaces it with a reference to new Florida Rule of Judicial Administration 2.516.  The Court’s order explains:

e-mail service will be mandatory for attorneys practicing in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases, when the rule amendments take effect on July 1, 2012.

There are specific rules about how e-mail service must be labeled. The order explains:

e-mail service is made by attaching a copy of the document to be served in PDF format to an e-mail. The e-mail must contain the subject line ―SERVICE OF COURT DOCUMENT in all capital letters, followed by the case number of the relevant proceeding. The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the sender’s name and telephone number. The e-mail and attachments together may not exceed 5 megabytes in size; e-mails that exceed the size requirement must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line.

Notably, service by e-mail is treated as service by mail for purposes of calculating time, so everyone will be getting five extra days for service by e-mail added to their response times (under Rule 1.090 for civil cases, and Rule 9.420(e), which was not amended, under the Appellate rules). However, be aware of the following gotcha:

When, in addition to service by e-mail, the sender also utilizes another means of service provided for in subdivision (b)(2), any differing time limits and other provisions applicable to that other means of service control.

RULE 2.516(b)(1) (emphasis added). So, while you must send an e-mail either way, if the person serving the document faxes before 5 pm or hand delivers the document in addition to e-mail, the five “mailing” days disappear.

The New Rule of Judicial Administration also applies to appellate cases, and the Court amended Rule 9.420 to require service by e-mail of all documents except “initiating” documents, which must be filed by BOTH e-mail and U.S. Mail. The relevant new part of Rule 9.420(c) reads:

Service of every document filed in a proceeding governed by these rules (including any briefs, motions, notices, responses, petitions, and appendices) shall be made in conformity with the requirements of Florida Rule of Judicial Administration 2.516, except that the initial document filed in a proceeding governed by these rules (including any notice to invoke jurisdiction, notice of appeal, or petition for an original writ) shall be served both by e-mail pursuant to rule 2.516(b)(1) and in paper form pursuant to rule 2.516(b)(2).

All practitioners should set up e-mail filters accordingly. I suggest a rule that picks out “SERVICE OF COURT DOCUMENT” from e-mail subject lines and forwards them appropriately. Note, too, that you can designate up to three e-mail addresses for service.

This is but a prelude to the mandatory e-filing that is on tap for later this year, if the Court system can get its act together. The only way to get out of it, if you are an attorney, is to certify that you do not have an e-mail address and lack access to the Internet at your office. Not likely for most attorneys in this day and age. Welcome to the future, folks.

Update: In answer to a question in the comments, see my recent entry entitled Service on and by Pro Se Litigants.

Rehearing: A Comparison of 9.330 and 1.530

/0 Comments/in , , , , , /by

The First District Court of Appeal recently explained the different standards for rehearing at the appellate level versus the trial level under the Florida rules, and it’s an important distinction for both trial and appellate practitioners to keep in mind. The take home lesson: Your last chance at issue preservation is a motion for rehearing, particularly for cases decided at early stages.

The case is Fitchner v. Lifesouth Community Blood Centers, Inc., ___ So.3d ___, No. 1D10–2019 (Fla. 1st DCA April 13, 2012) [.pdf]. Against the background of a complicated procedural history, the Court sets out a terrific discussion of the rehearing standards. The Fitchners sought to amend their complaint after an appellate remand dismissing their complaint, and the trial court denied their motion. With new counsel, they moved the trial court for rehearing, making a new and (as the trial court admitted) “meritorious” argument as to why the amended complaint should be allowed. The trial court nonetheless denied the motion because the argument was being raised for the first time, and had not been “overlooked” or “misapprehended.”

The First DCA ruled the Fitchners had not waived their argument. The Court started its analysis, as we all should, with the text of the rules, in this case a comparison of the text of the appellate rehearing rule, Rule 9.330(a), with the trial-level rule, Rule 1.530(a). The Appellate Rule requires that the movant:

“state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding .”

The Civil Procedure rule, by contrast, states:

“[o]n a motion for rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.”

Reading these rules side-by-side, the Court concluded:

“It is clear from a comparison of the text of these two rules that the standard to be applied in trial courts is much broader than the one that applies on appeal. Rule 1.530 is not limited to a mistake the court has made. To the contrary, rehearing may be granted in an appropriate case to prevent an injustice that would be caused by an error or omission by one of the lawyers.”

Trial practitioners should beware, however: Just because the trial court has the power to consider a newly raised issue on a motion for rehearing made pursuant to Rule 1.530, does not mean it is required to do so. It is still best to raise every issue in your original motion. But the trial court did have the power to consider the new argument raised, and as a result the new issue was preserved for appellate review. The Court went on to reverse the dismissal based upon the legal argument raised and rejected in the Fitchners’ motion for rehearing.

As an aside, the decision also contains helpful analysis of the law of the case doctrine. More on law of the case in a future post.