According to the 4th DCA in today’s McCoy v. RJ Reynolds case, the strict e-mail service requirements of Rule 2.516 do not apply to the service of a proposal for settlement. Instead, the transmission of the proposals via certified mail was sufficient. The Court’s reasoning is that a PFS is not initially “filed” and therefore need not comply with the Rule 2.516(b)(1). As a result, the appellee tobacco companies had to pay attorneys’ fees as a sanction for failing to accept a PFS under section 768.79 from a plaintiff.
Today’s McCoy decision is logically in conflict with Estimable v. Prophete, in which a different panel of the the 4th DCA (but each including Judge Ciklin) held that the initial service of a 57.105 motion must comply with Rule 2.516 or it is invalid. Like a PFS, a 57.105 motion is initially served, but not filed. A 57.105 motion may not be filed for at least 21 days, at which point it would also have to be served in accordance with Rule 2.516.
In Estimable, the Court explained in a 57.105 case that it has previously “held that strict compliance with Rule 2.516 is mandatory.” It also cited to the 2014 decision in Matte v. Caplan, 140 So.3d 686, 689–90 (Fla. 4th DCA 2014) (“Litigants should not be left guessing at what a court will deem is ‘substantial compliance’ with the rules and statutes for the imposition of attorney’s fees as a sanction.”).”
This looks like an example of hard cases making bad law. When a tobacco victim was asking for fees from tobacco companies, the initial service of the PFS by e-mail under Rule 2.516 was not mandatory. But a few months ago when 57.105 were sought from an individual litigant, Rule 2.516 strictly applied in Estimable to the initial service of the motion. Both 57.105 and section 768.79 are sanctions statutes.
Either the rules apply strictly to service of these sanctions-related documents, or they don’t. It would be better for all litigants and lawyers to know what the ground rules are. Because Rule 2.516 provides for a uniform and accepted method of service, it should be construed to apply to any situation in which notice to an opposing party is required to be given, especially notice of potential exposure for sanctions.
The most troubling portion of the opinion is its apparent holding that Rule 2.516(b)(1) does not require the electronic service of documents that are not necessarily going to be filed. Both 57.105 motions and 768.79 PFSs are documents that are not necessarily ever going to be filed with the court. Because it reasoned that Rule 2.516(a) (explaining when service is required) does not apply to a PFS, the Court held that Rule 2.516(b)(1) also does not apply to a PFS, even though Rule 2.516(b)(1) clearly and independently states that “all documents required or permitted by be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides.” This reasoning is logically contrary to the reasoning of Matte and Estimable, which also related to service of documents that are not permitted to be filed for at least 21 days.