Supreme Court of Florida
____________
No. SC22-1715
____________
IN RE: AMENDMENTS TO FLORIDA RULES OF CIVIL
PROCEDURE 1.070 AND 1.650.
January 19, 2023
PER CURIAM.
In response to recent legislation, the Florida Bar’s Civil
Procedure Rules Committee (Committee) has filed a “fast-track”
report proposing amendments to Florida Rules of Civil Procedure
1.070 (Process) and 1.650 (Medical Malpractice Presuit Screening
Rule).1 The amendments implement changes to chapters 48 and
766, Florida Statutes, made by chapter 2022-190, Laws of Florida,
which took effect on January 2, 2023. See ch. 2022-190, §§ 8, 17,
Laws of Fla.
The Board of Governors of The Florida Bar unanimously
approved the Committee’s proposal. The Committee did not publish
1. We have jurisdiction. See art. V, § 2(a), Fla. Const.; see
also Fla. R. Gen. Prac. & Jud. Admin. 2.140(e).
its proposal before filing it with the Court. After considering the
Committee’s proposal and the relevant legislation, we amend the
Florida Rules of Civil Procedure as proposed by the Committee.
In rule 1.070, the title of subdivision (d) is changed from
“Service by Publication” to “Service by Publication or Any Other
Means,” and “or any other means” is added after “[s]ervice of
process by publication” within subdivision (d).
Throughout rule 1.650, references to “notice” are amended to
“service of a notice.” Subdivisions (b)(1) and (d)(1) are amended to
reflect that a claimant may serve a notice of intent to initiate
litigation by any of the means provided in section 766.106(2)(a),
Florida Statutes (2022), as opposed to only by certified mail. Also,
subdivision (b)(3) is amended to provide that if service is challenged
in the first response to the complaint, the court must conduct an
evidentiary hearing as provided by section 766.106(2)(b)(2).
Accordingly, the Florida Rules of Civil Procedure are amended
as reflected in the appendix to this opinion. New language is
indicated by underscoring; deletions are indicated by struck-
through type. The amendments shall take effect immediately upon
the release of this opinion. Because the amendments were not
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published for comment prior to their adoption, interested persons
shall have seventy-five days from the date of this opinion in which
to file comments with the Court.2
It is so ordered.
MUÑIZ, C.J., and CANADY, POLSTON, LABARGA, COURIEL,
GROSSHANS, and FRANCIS, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Florida Rules of Civil Procedure
2. All comments must be filed with the Court on or before
April 4, 2023, with a certificate of service verifying that a copy has
been served on the Committee Chair, Lance V. Curry III, Paul Knopf
Bigger, 511 West Bay Street, Suite 450, Tampa, Florida 33606,
lance@pkblawfirm.com, and on the Bar Staff Liaison to the
Committee, Heather Telfer, 651 East Jefferson Street, Tallahassee,
Florida 32399-2300, htelfer@floridabar.org, as well as a separate
request for oral argument if the person filing the comment wishes to
participate in oral argument, which may be scheduled in this case.
The Committee Chair has until April 25, 2023, to file a response to
any comments filed with the Court. If filed by an attorney in good
standing with The Florida Bar, the comment must be electronically
filed via the Florida Courts E-Filing Portal (Portal) in accordance
with In re Electronic Filing in the Supreme Court of Florida via the
Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7
(Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to
practice in Florida, the comment may be, but is not required to be,
filed via the Portal. Any person unable to submit a comment
electronically must mail or hand-deliver the originally signed
comment to the Florida Supreme Court, Office of the Clerk, 500
South Duval Street, Tallahassee, Florida 32399-1927.
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Landis V. Curry III, Chair, Civil Procedure Rules Committee,
Tampa, Florida, Joshua E. Doyle, Executive Director, The Florida
Bar, Tallahassee, Florida, and Heather Savage Telfer, Bar Liaison,
The Florida Bar, Tallahassee, Florida,
for Petitioner
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APPENDIX
RULE 1.070. PROCESS
(a) Summons; Issuance. UponOn the commencement of the
action, summons or other process authorized by law shallmust be
issued forthwith by the clerk or judge under the clerk’s or the
judge’s signature and the seal of the court and delivered for service
without praecipe.
(b) Service; By Whom Made. Service of process may be
made by an officer authorized by law to serve process, but the court
may appoint any competent person not interested in the action to
serve the process. When so appointed, the person serving process
shallmust make proof of service by affidavit promptly and in any
event within the time during which the person served must respond
to the process. Failure to make proof of service shallwill not affect
the validity of the service. When any process is returned not
executed or returned improperly executed for any defendant, the
party causing its issuance shallmust be entitled to such additional
process against the unserved party as is required to effect service.
(c) Service; Numerous Defendants. If there is more than 1
defendant, the clerk or judge shallmust issue as many writs of
process against the several defendants as may be directed by the
plaintiff or the plaintiff’s attorney.
(d) Service by Publication or Any Other Means. Service of
process by publication or any other means may be made as
provided by statute.
(e) Copies of Initial Pleading for Persons Served. At the
time of personal service of process a copy of the initial pleading
shallmust be delivered to the party upon whom service is made. The
date and hour of service shallmust be endorsed on the original
process and all copies of it by the person making the service. The
party seeking to effect personal service shallmust furnish the
person making service with the necessary copies. When the service
is made by publication, copies of the initial pleadings shallmust be
furnished to the clerk and mailed by the clerk with the notice of
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action to all parties whose addresses are stated in the initial
pleading or sworn statement.
(f) Service of Orders. If personal service of a court order is
to be made, the original order shallmust be filed with the clerk, who
shallmust certify or verify a copy of it without charge. The person
making service shallmust use the certified copy instead of the
original order in the same manner as original process in making
service.
(g) Fees; Service of Pleadings. The statutory compensation
for making service shallwill not be increased by the simultaneous
delivery or mailing of the copy of the initial pleading in conformity
with this rule.
(h) [No Change]
(i) Service of Process by Mail. A defendant may accept
service of process by mail.
(1) [No Change]
(2) A plaintiff may notify any defendant of the
commencement of the action and request that the defendant waive
service of a summons. The notice and request shallmust:
(A)-(B) [No Change]
(C) be accompanied by a copy of the complaint
and shallmust identify the court in which it has been filed;
(D)-(G) [No Change]
(3) If a defendant fails to comply with a request for
waiver within the time provided herein, the court shallmust impose
the costs subsequently incurred in effecting service on the
defendant unless good cause for the failure is shown.
(4) A defendant who, before being served with process,
timely returns a waiver so requested is not required to respond to
the complaint until 60 days after the date the defendant received
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the request for waiver of service. For purposes of computing any
time prescribed or allowed by these rules, service of process
shallwill be deemed effected 20 days before the time required to
respond to the complaint.
(5) When the plaintiff files a waiver of service with the
court, the action shallmust proceed, except as provided in
subdivision (i)(4) above, as if a summons and complaint had been
served at the time of filing the waiver, and no further proof of
service shall beis required.
(j) Summons; Time Limit. If service of the initial process
and initial pleading is not made upon a defendant within 120 days
after filing of the initial pleading directed to that defendant the
court, on its own initiative after notice or on motion, shallmust
direct that service be effected within a specified time or shallmust
dismiss the action without prejudice or drop that defendant as a
party; provided that if the plaintiff shows good cause or excusable
neglect for the failure, the court shallmust extend the time for
service for an appropriate period. When a motion for leave to amend
with the attached proposed amended complaint is filed, the 120-day
period for service of amended complaints on the new party or
parties shallwill begin upon the entry of an order granting leave to
amend. A dismissal under this subdivision shallwill not be
considered a voluntary dismissal or operate as an adjudication on
the merits under rule 1.420(a)(1).
Committee Notes
1971 Amendment-2003 Amendment. [No Change]
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RULE 1.650. MEDICAL MALPRACTICE PRESUIT SCREENING
RULE
(a) [No Change]
(b) Service of Notice of Intent to Initiate Litigation.
(1) Before filing a complaint for medical negligence, a
claimant must serve a nNotice of intent to initiate litigation on each
prospective defendant by any of the verifiable means provided by
section 766.106(2)(a), Florida Statutes.sent by certified mail to and
received by A notice served on any prospective defendant shallmust
operate as notice to the personthat prospective defendant and any
other prospective defendant who bears a legal relationship to the
prospective defendant receivingserved with the notice. The notice
shallmust make the recipientserved prospective defendant a party
to the proceeding under this rule.
(2) The notice shallmust include the names and
addresses of all other parties and shallmust be sent to each party.
(3) The court shall decide the issue of receipt of notice
when raised in a motion to dismiss or to abate an action for medical
malpracticeIf, during subsequent litigation, service is challenged in
the first response to the complaint, the court must conduct an
evidentiary hearing as provided by section 766.106(2)(b)(2), Florida
Statutes.
(c) Discovery.
(1) Types. Upon receipt byAfter a prospective defendant
ofhas been served with a notice of intent to initiate litigation, the
parties may obtain presuit screening discovery by one1 or more of
the following methods: unsworn statements upon oral examination;
production of documents or things; physical examinations; written
questions; and unsworn statements of treating health care
providers. Unless otherwise provided in this rule, the parties
shallmust make discoverable information available without formal
discovery. Evidence of failure to comply with this rule may be
grounds for dismissal of claims or defenses ultimately asserted.
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(2) Procedures for Conducting.
(A) Unsworn Statements. Any party may require
other parties to appear for the taking of an unsworn statement. The
statements shallmust only be used for the purpose of presuit
screening and are not discoverable or admissible in any civil action
for any purpose by any party. A party desiring to take the unsworn
statement of any party shallmust give reasonable notice in writing
to all parties. The notice shallmust state the time and place for
taking the statement and the name and address of the party to be
examined. Unless otherwise impractical, the examination of any
party shallmust be done at the same time by all other parties. Any
party may be represented by an attorney at the taking of an
unsworn statement. Statements may be transcribed or
electronically recorded, or audiovisually recorded. The taking of
unsworn statements of minors is subject to the provisions of rule
1.310(b)(8). The taking of unsworn statements is subject to the
provisions of rule 1.310(d) and may be terminated for abuses. If
abuses occur, the abuses shallmust be evidence of failure of that
party to comply with the good faith requirements of section
766.106, Florida Statutes.
(B) Documents or Things. At any time after receipt
by a partyservice of a notice of intent to initiate litigation on a
prospective defendant, a party may request discoverable documents
or things. The documents or things shallmust be produced at the
expense of the requesting party within 20 days of the date of
receiptserving of the request. A party is required to produce
discoverable documents or things within that party’s possession or
control. Copies of documents produced in response to the request of
any party shallmust be served on all other parties. The party
serving the documents shallmust list the name and address of the
parties upon whom the documents were served, the date of service,
the manner of service, and the identity of the document served in
the certificate of service. Failure of a party to comply with the above
time limits shallmust not relieve that party of its obligation under
the statute but shallmust be evidence of failure of that party to
comply with the good faith requirements of section 766.106, Florida
Statutes.
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(C) Physical Examinations. Upon receipt byAfter a
party ofprospective defendant has been served with a notice of
intent to initiate litigation and within the presuit screening period, a
party may require a claimant to submit to a physical examination.
The party shallmust give reasonable notice in writing to all parties
of the time and place of the examination. Unless otherwise
impractical, a claimant shallmust be required to submit to only one
examination on behalf of all parties. The practicality of a single
examination shallmust be determined by the nature of the
claimant’s condition as it relates to the potential liability of each
party. The report of examination shallmust be made available to all
parties upon payment of the reasonable cost of reproduction. The
report shallmust not be provided to any person not a party at any
time. The report shallmust only be used for the purpose of presuit
screening and the examining physician may not testify concerning
the examination in any subsequent civil action. All requests for
physical examinations or notices of unsworn statements shallmust
be in writing and a copy served upon all parties. The requests or
notices shallmust bear a certificate of service identifying the name
and address of the person upon whom the request or notice is
served, the date of the request or notice, and the manner of service.
Any minor required to submit to examination pursuant tounder this
rule shallmust have the right to be accompanied by a parent or
guardian at all times during the examination, except upon a
showing that the presence of a parent or guardian is likely to have a
material, negative impact on the minor’s examination.
(D) Written Questions. Any party may request
answers to written questions, the number of which may not exceed
30, including subparts. The party to whom the written questions
are directed shallmust respond within 20 days of receiptservice of
the questions. Copies of the answers to the written questions
shallmust be served on all other parties. The party serving the
answer to the written questions shall list the name and address of
the parties upon whom the answers to the written questions were
served, the date of service, and the manner of service in the
certificate of service. Failure of a party to comply with the above
time limits shallwill not relieve that party of its obligation under the
statute, but shallwill be evidence of failure of that party to comply
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with the good faith requirements of section 766.106, Florida
Statutes.
(E) Unsworn Statements of Treating Healthcare
Providers. A prospective defendant or his or her legal representative
may also take unsworn statements of the claimant’s treating
healthcare providers. The statements must be limited to those areas
that are potentially relevant to the claim of personal injury or
wrongful death. Subject to the procedural requirements of
paragraphsubdivision (c)(2)(A), a prospective defendant may take
unsworn statements from claimant’s treating health care providers.
The statements shallmust only be used for the purpose of presuit
screening and are not discoverable or admissible in any civil action
for any purpose by any party. A party desiring to take the unsworn
statement of treating healthcare providers shallmust give
reasonable notice in writing to all parties. The notice shallmust
state the time and place for taking the statement and the name and
address of the treating healthcare provider to be examined. Unless
otherwise impractical, the examination of any treating healthcare
provider shallmust be done at the same time by all other parties.
Any party may be represented by an attorney at the taking of an
unsworn statement of treating healthcare providers. Statements
may be transcribed or electronically recorded, or audiovisually
recorded. The taking of unsworn statements of a treating healthcare
provider is subject to the provisions of rule 1.310(d) and may be
terminated for abuses. If abuses occur, the abuses shallwill be
evidence of failure of that party to comply with the good faith
requirements of section 766.106, Florida Statutes.
(3) Work Product. Work product generated by the
presuit screening process that is subject to exclusion in a
subsequent proceeding is limited to verbal or written
communications that originate pursuant tounder the presuit
screening process.
(d) Time Requirements.
(1) Before the expiration of any applicable statute of
limitations or statute of repose, tThe notice of intent to initiate
litigation shallmust be served by certified mailed to the prospective
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defendant as provided in sections 766.106(2)(a)1.–3., Florida
Statutes, or an attempt to serve the prospective defendant must be
made in accordance with section 766.106(2)(a)4., Florida Statutes,
return receipt requested, prior to the expiration of any applicable
statute of limitations or statute of repose. If an extension has been
granted under section 766.104(2), Florida Statutes, or by agreement
of the parties, the notice shall be servedmust be mailed or service
first attempted within the extended period.
(2) The actionA suit may not be filed against any
prospective defendant untilfor a period of 90 days after the notice of
intent to initiate litigation was maileddelivered to that party. The
actionA suit may be filed against any party at any time after the
notice of intent to initiate litigation has been mailedserved and after
the claimant has received a written rejection of the claim from that
party.
(3) To avoid being barred by the applicable statute of
limitations, an action must be filed within 60 days or within the
remainder of the time of the statute of limitations after the notice of
intent to initiate litigation was receivedserved, whichever is longer,
after the earliest of the following:
(A) The expiration of 90 days after the date of
receiptservice of the notice of intent to initiate litigation.
(B) The expiration of 180 days after mailingservice
of the notice of intent to initiate litigation if the claim is controlled
by section 768.28(6)(a), Florida Statutes.
(C)-(D) [No Change]
Committee Notes
[No Change]
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