Albo v. Martell
After the plaintiff failed to serve certain defendants within a court-granted 120-day window, the trial court sua sponte dismissed the entire action without notice or a hearing, including claims against a defendant already served and litigating. The Third DCA held the dismissal order was void as a due process violation because rule 1.070(j) permits dismissal on the court's own initiative only 'after notice,' and the plaintiff was never given a chance to show good cause or excusable neglect; the trial court therefore had no discretion to deny the rule 1.540(b)(4) motion to vacate.
Key facts
- Plaintiff Albo filed an action against multiple defendants; the trial court granted a 120-day period to effect service on certain defendants but then sua sponte dismissed the entire action without notice or hearing when service was not completed within that window.
- At the time of dismissal, some defendants had already been properly served, had answered the complaint, and were actively engaged in discovery proceedings.
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Why it matters
Practitioners facing sua sponte dismissals for failure to serve under rule 1.070(j) can use this opinion to argue the order is void—not merely erroneous—which bypasses the one-year limit of rule 1.540(b) and eliminates… — full analysis with a trial
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