Sanctions Are Now All About Service of the Safe Harbor Notice and Motion
Strict compliance with Florida Rule of Judicial Administration 2.516, which controls service of pleadings and papers is essential to service of the “safe harbor” notice and motion before filing the §57.105 Motion. Failure to comply precisely with the e-mail service rule, will defeat entitlement to the sanctions award on procedural grounds.
In Matte v. Caplan, 39 Fla. L. Weekly D1237 (Fla. 4th DCA 2014), at the hearing on the attorney’s fees motion for pursuit of a meritless claim, appellee objected to the section 57.105 sanction, because appellant had failed to serve the motion in accordance with Florida Rule of Judicial Administration 2.516. The trial court denied the motion for fees, and the appellate court affirmed because strict compliance with the rules on e-service on counsel is required. There, in response to a complaint for tortious interference, appellant’s counsel e-mailed appellee’s counsel a copy of a motion for sanctions under section 57.105, Florida Statutes. The subject line of the e-mail stated: “6277 Caplan, Stacey vs. Quepasa Corporation, Inc.: Defendants’ Motion for 57.105 Sanctions.doc.” The body of the e-mail stated: “See attached motion.” Attached was a Word document entitled “Defendants’ Motion for 57.105 Sanctions.doc.”
Over twenty-one days later, appellant filed a motion to dismiss the complaint’s claims against him. Two days later, he filed a motion for sanctions under section 57.105, Florida Statutes, against appellee and her counsel. The motion’s certificate of service stated it had been served on appellee’s counsel via e-mail on February 22, 2013. Appellee filed an amended complaint that removed appellant as a defendant. The court thereafter denied appellant’s motion to dismiss as moot, but reserved jurisdiction to hear appellant’s motion for sanctions. Appellee responded to the sanctions motion, arguing that the motion was never properly served on her.
At the hearing, appellee argued that the motion for sanctions was not enforceable because appellant’s February 22nd e-mail did not comply with the requirements for service by e-mail in Florida Rule of Judicial Administration 2.516. Specifically, the e-mail did not: (1) provide a PDF of the motion or a link to the motion on a website maintained by the clerk; (2) contain, in the subject line in all capital letters, the words “SERVICE OF COURT DOCUMENT,” followed by the case number; (3) contain, in the body of the e-mail, the case number, name of the initial party of each side, title of each document served with that e-mail, and the sender’s name and telephone number. Appellee argued these defects were fatal, because
section 57.105 is strictly construed as it is in derogation of the common law.
The appellate court agreed and refused to award §57.105 sanctions. Strict compliance with the procedural rule is essential to sanctions under the penal statute. Verify PROPER SERVICE all of your submissions. If necessary, re-serve in compliance with Rule of Judicial Administration 2.516. E-portal filing is compliant with Rule 2.516 in and of itself. Note that Fla.R.Jud.Admin. 2.516(b)(2), Service by Other Means, states: “In addition to, and not in lieu of service by email, service may also be made by . . . .” Service by email must comply with Rule 2.516 to be correct.