Supreme Court holds that a Proposal for Settlement need not be served via e-mail in compliance with Fla. R. Jud. Admin. 2.516
by Robert Hauser, esq.
Until January 4, 2019, courts around Florida were in disagreement about whether proposals for settlement [served under Rule 1.442 and section 768.79, Florida Statutes] and motions for sanctions transmitted under section 57.105(4), Florida Statutes were required to be initially served via e-mail in accordance with the requirements of Rule of Judicial Administration 2.516.
In the Fourth District, the law was especially confusing. The Fourth District had held in Matte v. Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014) that a motion for sanctions under section 57.105, Fla. Stat. had to be initially served in conformity with the e-mail service requirements of Rule 2.516, even though such motions may not be filed in the court file for at least 21 days. In contrast, Rule 1.442/ 768.79 proposals for settlement did not need to be served in compliance with Rule 2.516, even though proposals for settlement are also not filed at the time they are initially served. McCoy v. R.J. Reynolds Tobacco Co., 229 So. 3d 827 (Fla. 4th DCA 2017).
I blogged about the McCoy case on October 25, 2017. At the time, I pointed out that McCoy was conceptually in conflict with other Fourth District cases which had required initial e-service under Rule 2.516 of a motion for sanctions pursuant to section 57.105(4). At the time, I expressed concern that “Rule 2.516(b)(1) provides for a uniform and accepted method of electronic service of papers upon counsel, “ and that “it should be construed to apply to any situation in which proper notice to an opposing party is required to be given, especially notice of potential exposure for sanctions.” The supreme court disagrees.
In Wheaton v. Wheaton, No. SC17-716 (Fla. Jan. 4, 2019) the Supreme Court of Florida resolved the confusion. The Supreme Court decided that the e-mail service requirements found in Rule 2.516 do not apply to a proposal for settlement served under Rule 1.442/section 768.79, Fla. Stat. The court reasoned that section 768.79 requires a proposal for settlement to be “served,” but does not make any reference to Rule 2.516. Nor does Rule 1.442 require service via-e-mail. Even though rule 1.442 refers to rule 1.080, and rule 1.080 requires “every pleading subsequent to the initial pleading, all orders, and every other document filed in the action” to be served in conformity with Rule 2.516, a PFS is not such a document. Rather, “a settlement offer is neither a pleading subsequent to the initial pleading, an order, or a document filed with the court.”
The Supreme Court went even further. It explained that the Fourth District had also erred in Matte v. Caplan by applying Rule 2.516 to the initial service of 57.105 motions under subsection 57.105(4). “[M]otions for sanctions are similar to proposals for settlement in that they are forbidden from being initially filed.” The supreme court agreed that this constituted a “fatal flaw” in the Fourth District’s Matte reasoning. Based on the foregoing, it is all but clear that Matte is no longer good law, and the initial service of a sanctions motion under section 57.105(4) need not be made in compliance with Rule 2.516 via e-mail.
As a practical matter, the Wheaton decision may unwisely open a Pandora’s Box of potential disagreements about whether the initial service of a 57.105 motion or 768.79 proposal for settlement is complete and effective when attempted by other means. Because e-mail service is nearly instantaneous, provable, and reliable, disputes over the actual service and receipt of motions via e-mail are few and far between. Now that other methods of service are permitted, a door is now open to a new world of litigation over the proper and effective service of such documents.