By Kelly A. Karstaedt, Esq.
A new rule set forth by the Florida Supreme Court last year altered the manner in which attorneys have been serving court papers by requiring service by electronic mail, or “e-mail.” Although the rule is fairly straight forward, this attorney has noticed that the majority of e-served documents received do not fully comply with the rule’s stringent requirements. So, let us review this new rule and see if we cannot clear up some of the most common mistakes in e-mail service.
On June 21, 2012, the Florida Supreme Court issued an opinion which announced the new requirement for service by e-mail to be implemented in the coming months. Multiple later opinions revised the requirements for e-mail service to allow additional time for some parties to come into compliance without excessive expense or difficulty. The most current opinion, dated October 18, 2012, lays out the who and when aspects of compliance with the new rule as well as the current language.
All attorneys practicing in the civil, probate, small claims and family law divisions of the trial courts, and all appellate cases, must begin e-serving all court papers required to be served beginning on September 1, 2012. In re: Amendments to the Florida Rules of Judicial Administration, the Florida Rules of Civil Procedure, the Florida Rules of Criminal Procedure, the Florida Probate Rules, the Florida Rules of Traffic Court, the Florida Small Claims Rules, the Florida Rules of Juvenile Procedure, the Florida Rules of Appellate Procedure, and the Florida Family Law Rules of Procedure – E-mail Service Rule, 2012 WL 4936305, 3 (Fla.). The most recent change to the rule is that attorneys practicing in the criminal, traffic and juvenile divisions of the trial courts may elect to begin e-service on September 1, 2012, but are not required to do so until October 1, 2013 when electronic filing becomes mandatory. Id. So, for any civil litigation attorneys out there, you are absolutely required to e-mail serve all court papers that require service, with a few exceptions of course. Failure to comply with this rule could result in the opposing party contesting proper service or moving to strike filings that were not properly served by e-mail.
On the note of proper e-mail service, it has come to my attention over the last few months that more often than not the e-mails I receive serving documents do not completely follow the requirements set forth in the rule. I believe it is important to ensure that every aspect of the rule is followed, to the letter, or else risk improper service. To that end, we will review each section of the rule in detail to ensure proper compliance every time. First, take a look at the rule in its entirety as listed below:
RULE 2.516 – SERVICE OF PLEADINGS AND DOCUMENTS
(a) Service; When Required. Unless the court otherwise orders, or a statute or supreme court administrative order specifies a different means of service, every pleading subsequent to the initial pleading and every other document filed in any court proceeding, except applications for witness subpoenas and documents served by formal notice or required to be served in the manner provided for service of formal notice, must be served in accordance with this rule on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them must be served in the manner provided for service of summons.
(b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service must be made upon the attorney unless service upon the party is ordered by the court.
(1) Service by Electronic Mail (“e-mail”). All documents required or permitted to be served on another party must be served by e-mail, unless this rule otherwise provides. When, in addition to service by e-mail, the sender also utilizes another means of service provided for in subdivision (b)(2), any differing time limits and other provisions applicable to that other means of service control.
(A) Service on Attorneys. Upon appearing in a proceeding, an attorney must serve a designation of a primary e-mail address and may designate no more than two secondary e-mail addresses. Thereafter, service must be directed to all designated e-mail addresses in that proceeding. Every document filed by an attorney thereafter must include the primary e-mail address of that attorney and any secondary e-mail addresses. If an attorney does not designate any e-mail address for service, documents may be served on that attorney at the e-mail address on record with The Florida Bar.
(B) Exception to E-mail Service on Attorneys. Service by an attorney on another attorney must be made by e-mail unless excused by the court. Upon motion by an attorney demonstrating that the attorney has no e-mail account and lacks access to the Internet at the attorney’s office, the court may excuse the attorney from the requirements of e-mail service. Service on and by an attorney excused by the court from e-mail service must be by the means provided in subdivision (b)(2) of this rule.
(C) Service on and by Parties Not Represented by an Attorney. Any party not represented by an attorney may serve a designation of a primary e-mail address and also may designate no more than two secondary e-mail addresses to which service must be directed in that proceeding by the means provided in subdivision (b)(1) of this rule. If a party not represented by an attorney does not designate an e-mail address for service in a proceeding, service on and by that party must be by the means provided in subdivision (b)(2) of this rule.
(D) Time of Service. Service by e-mail is complete when it is sent.
(i) An e-mail is deemed served on the date it is sent.
(ii) If the sender learns that the e-mail did not reach the address of the person to be served, the sender must immediately send another copy by e-mail, or by a means authorized by subdivision (b)(2) of this rule.
(iii) E-mail service is treated as service by mail for the computation of time.
(E) Format of E-mail for Service. Service of a document by e-mail is made by attaching a copy of the document in PDF format to an e-mail sent to all addresses designated by the attorney or party.
(i) All documents served by e-mail must be attached to an e-mail message containing a subject line beginning with the words “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number of the proceeding in which the documents are being served.
(ii) The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the sender’s name and telephone number.
(iii) Any document served by e-mail may be signed by the “/s/” format, as long as the filed original is signed in accordance with the applicable rule of procedure.
(iv) Any e-mail which, together with its attached documents, exceeds five megabytes (5MB) in size, must be divided and sent as separate e-mails, no one of which may exceed 5MB in size and each of which must be sequentially numbered in the subject line.
(2) Service by Other Means. In addition to, and not in lieu of, service by e-mail, service may also be made upon attorneys by any of the means specified in this subdivision (b)(2). Service on and by all parties who are not represented by an attorney and who do not designate an e-mail address, and on and by all attorneys excused from e-mail service, must be made by delivering a copy of the document or by mailing it to the party or attorney at their last known address or, if no address is known, by leaving it with the clerk of the court. Service by mail is complete upon mailing. Delivery of a copy within this rule is complete upon:
(A) handing it to the attorney or to the party,
(B) leaving it at the attorney’s or party’s office with a clerk or other person in charge thereof,
(C) if there is no one in charge, leaving it in a conspicuous place therein,
(D) if the office is closed or the person to be served has no office, leaving it at the person’s usual place of abode with some person of his or her family above 15 years of age and informing such person of the contents, or
(E) transmitting it by facsimile to the attorney’s or party’s office with a cover sheet containing the sender’s name, firm, address, telephone number, and facsimile number, and the number of pages transmitted. When service is made by facsimile, a copy must also be served by any other method permitted by this rule. Facsimile service occurs when transmission is complete.
(F) Service by delivery after 5:00 p.m. must be deemed to have been made by mailing on the date of delivery.
(c) Service; Numerous Defendants. In actions when the parties are unusually numerous, the court may regulate the service contemplated by these rules on motion or on its own initiative in such manner as may be found to be just and reasonable.
(d) Filing. All original documents must be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules. If the original of any bond or other document is not placed in the court file, a certified copy must be so placed by the clerk.
(e) Filing Defined. The filing of documents with the court as required by these rules must be made by filing them with the clerk, except that the judge may permit documents to be filed with the judge, in which event the judge must note the filing date before him or her on the documents and transmit them to the clerk. The date of filing is that shown on the face of the document by the judge’s notation or the clerk’s time stamp, whichever is earlier.
(f) Certificate of Service. When any attorney certifies in substance:
“I certify that a copy hereof has been furnished to (here insert name or names and addresses used for service) by (e-mail) (delivery) (mail) (fax) on ….. (date) …..
the certificate is taken as prima facie proof of such service in compliance with this rule.
(g) Service by Clerk. Service of notices and other documents required to be made by the clerk must also be done as provided in subdivision (b).
(h) Service of Orders.
(1) A copy of all orders or judgments must be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment. No service need be made on parties against whom a default has been entered except orders setting an action for trial and final judgments that must be prepared and served as provided in subdivision (h)(2). The court may require that orders or judgments be prepared by a party, may require the party to furnish the court with stamped, addressed envelopes for service of the order or judgment, and may require that proposed orders and judgments be furnished to all parties before entry by the court of the order or judgment. The court may serve any order or judgment by e-mail to all attorneys who have not been excused from e-mail service and to all parties not represented by an attorney who have designated an e-mail address for service.
(2) When a final judgment is entered against a party in default, the court must mail a conformed copy of it to the party. The party in whose favor the judgment is entered must furnish the court with a copy of the judgment, unless it is prepared by the court, with the address of the party to be served. If the address is unknown, the copy need not be furnished.
(3) This subdivision is directory and a failure to comply with it does not affect the order or judgment, its finality, or any proceedings arising in the action.
Now, let’s break it down and flesh out each new service duty imposed on litigants. It is important to understand when it applies, who it applies to and how it should be applied in practice.
- When: E-mail service is required for “every pleading subsequent to the initial pleading and every other document filed in any court proceeding…” Basically, every document filed in an action that has a certificate of service on it must be served by e-mail. This does not eliminate the ability to use other methods of service as well, such as facsimile or mail. This rule only requires the use of e-mail service in addition to any other methods you choose to employ as a backup to e-mail.
- Who: All attorneys must participate in e-mail service. Pro se litigants are not required to use e-mail service, and therefore attorneys are not required to e-serve them, but may elect to provide and e-mail address to court and utilize this method. An attorney may motion to court to be excused from e-mail service if one lacks an e-mail address and access to the Internet. If excused, any other method of service may be utilized.
Attorneys must designate a primary e-mail address with the court and may elect to designate up to two (2) additional e-mail addresses for service. The same rule applies to pro se litigants if they choose to participate in e-mail service.
- How: Formatting the service e-mail is extremely important for proper compliance. The rule requires that the document being served be attached to the e-mail as a PDF and be no larger than 5MB. If the document is larger than 5MB, it must be split into separate documents and sent via separate consecutively numbered e-mails. The subject line must read “SERVICE OF COURT DOCUMENT” and include the case number of the matter. The body of the e-mail must include the following information: (a) the name of the court, (b) the case number, (c) the first named party on each side of the proceeding, (d) the title of the document being served, (e) the sender’s name, and (f) the sender’s telephone number.
A document is deemed served as of the time the e-mail is sent. If the e-mail is returned for any reason as undeliverable, the sender must either re-send the e-mail or send the filing by some other means of service. If the second e-mail is returned, you must send it by another means of service to ensure the other party receives the filing. Time is computed the same as it would be for service by mail.
By now, everyone should have a better understanding of the requirements set forth in the new service of process rule. Even though it has been a requirement for all civil litigation attorneys for more than four months, mistakes are still being made by either failure to e-mail serve at all or not properly formatting the service e-mail. I hope this article is of some assistance to anyone still struggling with the new rule, or to any individuals new to document service in general. E-mail service of pleadings and other court papers is a great tool in this new electronic age for timely and quick service, so long as we all learn to use it properly.