In the United States, and most jurisdictions, a lawsuit against a particular defendant does not begin until that defendant has been “served with process.” Usually called “service of process,” “service”, “process,” or “personal service,” this is the official procedure used to notify a defendant of a lawsuit.
“The general rule in Florida is that a defendant must be personally served.” Societe Hellin, S.A. v. Valley Commer. Cap., LLC, 254 So. 3d 1018, 1020 (Fla. 4th DCA 2018). When courts speak of “personal service,” it generally means that the lawsuit has to physically be placed in your hands. In fact, “[p]roper service of process is indispensable for the court to obtain personal jurisdiction over a defendant.” Modway, Inc. v. OJ Com., LLC, 331 So. 3d 723, 726 (Fla. 4th DCA 2021).
The rules regarding service of process are generally strict. Courts, “[a]bsent strict compliance with the statutes governing service of process, . . . lack personal jurisdiction over [a] defendant.” Anthony v. Gary J. Rotella & Assocs., P.A., 906 So. 2d 1205, 1207 (Fla. 4th DCA 2005).
But what happens when you sue a corporation that isn’t located in Florida and has already been dissolved? Does dissolution exempt corporations from liability for their wrongdoing? Well, not so fast!
In the state of Florida, any corporation dissolved after July 1, 1990, must have process served upon them in accordance with § 48.081, Fla. Stat. See § 48.101, Fla. Stat. (2022). Pursuant to § 48.081, Fla. Stat., “[p]rocess against any private corporation, domestic or foreign, may be served.”
“[O]n the agent designated by the corporation under § 48.091. However, if service cannot be made on a registered agent because of failure to comply with § 48.091, service of process shall be permitted on any employee at the corporation’s principal place of business, or on any employee of the registered agent. A person attempting to serve process pursuant to this paragraph may serve the process on any employee of the registered agent during the first attempt at service, even if the registered agent is temporarily absent from his or her office”.
- 48.081(3)(a),Fla. Stat. (2022). At the time of service in this action, the language of § 48.081 did not distinguish, and applied to all foreign corporations, therefore § 48.081 governs Plaintiff’s November 18, 2022 service of process upon Defendant.
Additionally, under Florida law, a foreign corporation that previously conducted business in Florida is subject to the same service statutory provisions as a domestic corporation upon dissolution. See Advance Mach. Co. v. Berry, 378 So. 2d 26 (Fla. 3d DCA 1979) (holding that when a foreign corporation voluntarily dissolves itself, such voluntary acts shall not diminish Florida statutory provisions because “a foreign corporation [who] decides to take benefits of doing business in Florida…should be subject to the same limitations as applicable to a domestic corporation upon dissolution”). Therefore, proper service of process on the Defendant is determined by adherence to § 48.081, Fla. Stat. and chapter 48.
Furthermore, under Florida law, service of process may be effectuated in a foreign country “[b]y 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 Civil or Commercial Matters [the “Hague Service Convention”]. § 48.197, Fla. Stat.
“[C]ourts have found the Hague Service Convention applicable when a plaintiff in the United States serves a defendant located for example in the British Virgin Islands, because the United States and the United Kingdom are both signatories to the Hague Convention, and the British Virgin Islands is an Overseas Territory of the United Kingdom.” Atlantis Marine Towing & Salvage Services, Inc. v. Escapade Marine Ventures, 2020 WL 7426827, at *2 (S.D. Fla. Oct. 27, 2020).
In accordance with the Hague Service Convention, service in the British Virgin Islands can be effectuated by “leaving the process at the registered agent’s office . . . and such service is deemed effective under British Virgin Islands law.” Interlink Metals v. Kazdan, 644 N.Y.S.2d 704, 706 (App. Div. 1996).
Moreover, retaining a process server to serve a defendant in BVI is sufficient to comply with the Hague Convention. See Richardson v. AG of the British V.I., 2010 WL 2949438, at *1 (D.V.I. July 23, 2010) (holding that a plaintiffs’ service of process was sufficient under the Hague Convention where plaintiffs “retained a process server in the British Virgin Islands who personally served both [d]efendants”).
For more information on litigation involving a British Virgin Islands entity or any other foreign corporation, contact one of our experienced litigation attorneys at 305-570-2208. You can also email our lead attorney Eduardo directly at firstname.lastname@example.org.
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