DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JAFARI ALEX CARLOS,
Appellant,
v.
YOLIE CARLOS,
Appellee.
No. 4D20-2236
[August 18, 2021]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; James W. McCann, Judge; L.T. Case No.
562020DR001292AXXXHC.
Jafari Alex Carlos, Port St. Lucie, pro se.
No appearance for appellee.
KUNTZ, J.
The husband appeals the circuit court’s order dismissing his petition
for dissolution of marriage. We reverse the court’s dismissal and remand
for further proceedings.
Fifty-five days after the husband filed his petition, the circuit court
entered a sua sponte order requiring him to file documents showing
service of process. The court required the documents to be filed by
October 8, 2020—the 120th day after the husband filed his initial
pleading. Because nothing appeared on the docket on October 12, 2020,
the court dismissed the petition. The court’s “order of dismissal” stated
that the petition was dismissed “[d]ue to the parties’ failure to comply
with a previous court order.”
We appreciate the difficult task of managing a crowded docket, but
the rules of procedure do not yield to that task. Florida Rule of Civil
Procedure 1.070(j) offers a remedy if service of process is not effectuated
within 120 days after filing the initial pleading: “[T]he court, on its own
initiative after notice or on motion, shall direct that service be effected
within a specified time or shall dismiss the action without prejudice or
drop that defendant as a party . . . .” Id. But even the authorization to
dismiss without prejudice has limits because “if the plaintiff shows good
cause or excusable neglect for the failure, the court shall extend the time
for service for an appropriate period.” Id.
Here, the court issued the order fifty-five days after the initial pleading
was filed. On day 122, the court dismissed the case without allowing the
husband an opportunity to show “good cause or excusable neglect.”
The rule requires more. See Connelly v. Crown Cruise Line, Inc. S.A.,
636 So. 2d 886, 887 (Fla. 4th DCA 1994). We reverse and remand for
further proceedings to allow the husband an opportunity to show “good
cause or excusable neglect” for the failure to serve the respondent within
the time allowed.
Reversed and Remanded.
DAMOORGIAN, J., and FAHNESTOCK, FABIENNE E., Associate Judge, concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2