In the United States, a lawsuit doesn’t begin until the 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 the 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 come into 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).
What is Substitute Service & When is it Necessary?
So, what happens when you can’t find the business you’re suing? Well, that’s when substitute service comes into play. In short, substitute service is service on the Secretary of State after reasonable efforts to serve the entity.
Florida Statutes section 48.062 describes the process for substitute service. Section (2) states that:
[i]f service cannot be made on a registered agent of the limited liability company because of failure to comply with chapter 605, or because the limited liability company does not have a registered agent, or if its registered agent cannot with reasonable diligence be served, process against the limited liability company . . . may be served:
(a) On a member of a member-managed limited liability company
(b) On a manager of a manager-managed limited liability company; or
(c) If a member or manager is not available during regular business hours to accept service on behalf of the limited liability company he, she, or it may designate an employee of the limited liability company to accept such service. After one attempt to serve a member, manager, or designated employee has been made, process may be served on the person in charge of the limited liability company during regular business hours.
(3) If, after reasonable diligence, service of process cannot be completed under subsection (1) [upon the Registered Agent] or subsection (2), service of process may be effected by service upon the Secretary of State as agent of the limited liability company [. . .].
- 48.062(2)-(3), Fla. Stat. (2020) (emphasis added).
Florida Statutes 605.0117
Similarly, Florida Statutes section 605.0117 provides in pertinent part:
(1) A limited liability company or registered foreign limited liability company may be served with process required or authorized by law by serving on its registered agent.
(2) If a limited liability company or registered foreign limited liability company ceases to have a registered agent or if its registered agent cannot with reasonable diligence be served, the process required or permitted by law may instead be served:
(a) On a member of a member-managed limited liability company or registered foreign limited liability company; or
(b) On a manager of a manager-managed limited liability company or registered foreign limited liability company.
(3) If the process cannot be served on a limited liability company or registered foreign limited liability company pursuant to subsection (1) or subsection (2), the process may be served on the secretary of state as an agent of the company.
(4) Service of process on the secretary of state may be made by delivering to and leaving with the department duplicate copies of the process.
Fla. Stat. § 605.0117(1)-(4) (2020) (emphasis added).
Consequences of Not Keeping Information Up-to-Date
As you can see, if you hide from service, or if your entity hasn’t been diligent in naming a registered agent to accept service, you have appointed the Florida Secretary of State as an agent to accept substitute service. This is made possible by you simply owning a company in Florida. The Secretary of State, assuming everything is filed properly, will accept service, and won’t necessarily notify your business by means different to the Plaintiff’s.
Therefore, it’s extremely important to update your address and registered agent information on the Department of State’s website. This is so that in the event of a lawsuit, your company is notified directly. Not knowing of a legal action can quickly generate a default against your company. A default can be difficult to undo, and could have catastrophic financial consequences for your business.
Get in Touch
For more information on business law, contact one of our attorneys at 305-570-2208. You can also email attorney Eduardo directly at firstname.lastname@example.org.
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