Substitute Service on Nonresident Through the Secretary of State

By: James D. Stone, III, Esq.

When an individual or other entity or association is engaging in business in Florida and who is a resident of the state who subsequently becomes a nonresident or conceals his or her whereabouts, then substitute service of process upon the Secretary of State is valid if the statutory procedures are strictly followed.  Fla. Stat. § 48.181(1).  Section 48.181 provides that Nonresidents including foreign corporations and partnerships, former residents, and persons who conceal their whereabouts are deemed to have appointed the Secretary of State as their agent for service of process.  The debtor however, must either operate, conduct, engage in, or carry on a business or business venture in Florida or have an office or agency in Florida.  However, the mere inability to serve process on a defendant does not allow for substitute service on the Secretary of State.  The person who is seeking to use the benefit of substitute service bears the burden of producing evidence that the defendant is concealing his whereabouts.  Bird v. International Graphics, Inc., 362 So 2d 316, 317 (Fla. 3d DCA 1978).  In order to accomplish this, the plaintiff may plead either the requisite language directly from the statute or, in the alternative, plead sufficient jurisdictional facts from which it can be determined that the long-arm statute applies.  Venetian Salami Co. v. Parthenais, 554 So 2d 499 (Fla. 1989).

Florida courts require strict compliance with the procedure laid out in by statute when attempting to effectuate substitute service through the Secretary of State.  Wise v. Warner, 932 So 2d 591, 592 (Fla. 5th DCA 2006).  The first step that must be followed is that a copy of the process must be sent via certified mail to the Secretary of State along the fee of $8.75.  Fla. Stat. § 48.161(1).  After mailing the process to the Secretary of State, the plaintiff must send notice of the service and a copy of the process to the defendant by either registered or certified mail and file the defendant’s return receipt along with an affidavit of compliance.  Id.  In the affidavit of compliance the plaintiff is alleging that the defendant has concealed his or her whereabouts or has subsequently left the state by alleging the failed attempts at service.  It is important to remember that the plaintiff has an obligation to use due diligence to discover the address of the defendant served by substitute service.   Hanna v. Millbyer, 570 So 2d 1087 (Fla. 3d DCA 1990).

While getting the defendant served is just one step in many to obtaining a judgment it is the one that gets the ball rolling.  Substitute service can be a powerful tool in serving concealed defendants who are doing business in the Florida when an action arises out of that transaction or an operation connected with that business.  However, it is important to remember that strict compliance with the statute must be followed and the use of an experienced attorney can often come in handy.

Practice area: Creditors Rights and Commercial Collections  (http://jimersoncobb.com/html/creditorsrights.html)

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