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Little known “Early Bird Rule” enables LlopizWizel attorneys to overturn a case in default

A default had been entered months before Llopiz Wizel partners were enlisted to represent a corporate client. According to the plaintiff—who by now was focused on proving damages against the defaulted entity in an upcoming arbitration—the corporation was adequately served by hand-delivery of the summons and complaint to an employee of the company’s registered agent. 


Florida Statute 48.081 delineates the requirements for accomplishing service of process on the registered agent of a corporation. It states (in the section relevant here) that process may be served on the agent designated by the corporation, and, if service cannot be made on a registered agent because of failure to comply with other requirements, service of process is also permitted on any employee of the registered agent. The “other requirements” (stated in Florida Statute 48.091) include an obligation of the registered agent to be present at his or her office from 10 a.m. to 12 noon each day except Saturdays, Sundays, and legal holidays, to accept service of documents during those “early-bird” hours. 


To the plaintiff’s woe in our case, the affidavit certifying the service on the registered agent of the client corporation showed that service was attempted at 2:40 p.m.—a few hours too late to rely on the portion of the statute that permits service on any employee of the registered agent. As a result, attorney Joan Carlos Wizel successfully argued that service of process was ineffective, rendering the default judgment void as a matter of law.

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