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Filing # 176439670 E-Filed 06/29/2023 12:50:07 PM
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
MARVIN OWENS, JR.,
Plaintiff,
Vv.
ZOFIA ZAK RHODES, CIVIL DIVISION
Defendant. CASE NO.: 23000608CA.
MOTION FOR EXTENSION OF TIME TO SERVE THE COMPLAINT
The Plaintiff, MARVIN OWENS, JR, by and through the undersigned counsel and pursuant
to Rule 1.070(j), Florida Rules of Civil Procedure, hereby moves for entry of an order extending
the time to effectuate service of process by ninety (90) days, and states:
1 The Complaint was filed on March 20, 2023, and attempted service of process on
Defendant, ZOFIA ZAK RHODES.
Unfortunately, to date Plaintiff has been unable to complete service on Defendant ZOFIA
ZAK RHODES.
The Plaintiff has attempted service to wit:
05/30/2023 2:40 pm No Answer at the door. Charlotte County Utilities water disconnection
notice was on the door.
05/24/2023 8:30 pm No Answer at the door.
5/23/2023 9:37 am Attempted service at the given address server advise she is not at the
address. The neighbor said she has been gone since before Hurricane Ian. The home has
some exterior damage and the permit for repairs has expired. He thinks she is North
Carolina renting cabins.
23000608CA
d. 05/19/2023 12:30 pm No answer at 18146 Petoskey Circle, Port Charlotte, FL 33948,
building permit expired 05/17/2023 lights and AC were in UPS Box outside spoke with
neighbor @15154 who said Sofia was in North Carolina friend picks up the mail.(See
attached Return of Non-Service as “Exhibit A”’).
4. Despite these efforts, plaintiff has been unable to effectuate service, and the 120-day
deadline is approaching.
5. This Honorable Court has the discretion to grant an extension, with or without the showing
of good cause or excusable neglect for not effectuating service within 120 days. Here, there is good
cause, but even if not, this Court should exercise its discretion and extend the deadline.
Memorandum of Law
Rule 1.070()) states that “ifa plaintiff shows good cause or excusable neglect for the failure,
the court shall extend the time for service for an appropriate period.” This provision requires the
trial court to grant an extension when it is justified by a showing of good cause or excusable
neglect. In determining the issue of good cause, the trial court should consider: (1) whether the
untimely service was willful or deliberate, rather than an act of neglect and inexperience, (2)
whether the attorney had been previously sanctioned, (3) whether the client was directly involved
in the error, (4) whether the delay prejudiced the opposing party through undue expense or a loss
of evidence, (5) whether the attorney offered a reasonable justification for failure to make timely
service, and (6) whether the delay created significant problems of judicial administration. Shands
Teaching Hosp. and Clinics, Inc. v. Warren, 748 So. 2d 1002 (Fla. 1999). The trial court must
extend the time for service if the plaintiff shows good cause or excusable neglect for the delay.
Amaran v. Marath, 34 So. 3d 88 (Fla. 3d DCA 2010); Carlos v. Carlos, 322 So. 3d 1176 (Fla. 4"
DCA 2021); Capitalsource International, LLC v. Pitsoulakis, 264 So. 3d 302 (Fla 5" DCA 2019).
23000608CA
Additionally, appellate courts have concluded that even if there is not good cause (which
there is here), the trial court has the discretion to extend the time for service of process, even if the
plaintiff has not shown good cause or excusable neglect. Thomas v. Silvers, 748 So. 2d 263 (Fla.
1999); Green v. Lingle, 166 So. 3d 221 (Fla. 1‘ DCA 2015); Chaffin v. Jacobson, 793 So. 2d 102
(Fla. 2d DCA 2001); Mitschke-Collande v. Skipworth Properties, Ltd., 201 So. 3d 660 (Fla. 3d
DCA 2016). Of course, the trial court may extend the time for service before it expires. Khambaty
v. Lepine, 734 So. 2d 1183 (Fla. 2d DCA 1999).
This case was one of approximately 100,000 filed in Florida in March in order to protect
the rights of the plaintiff prior to HB837 (the new tort reform bill) becoming law. A dismissal for
failure to serve the complaint within 120 days, albeit one entered without prejudice, would
adversely impact the plaintiff's rights upon refiling, as the new law applies to all cases filed after
March 25, 2023. In contrast, an extension of time to effectuate service will not prejudice the
defendant.
WHEREFORE, Plaintiff, MARVIN OWENS, JR.,, respectfully requests that this court
extend the time deadline for service of the complaint by ninety (90) days, or such other time period
as the court deems proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically
submitted on this 29th day of June, 2023 to.
RUBENSTEIN LAW, P.A.
Attorneys for Plaintiff
9130 S Dadeland Blvd
Miami, Florida 33156
Tel: (305) 661-6000
Fax: (305) 670-7555
Email: tim@rubensteinlaw.com
23000608CA
eservice@rubensteinlaw.com
By: _/s/R. Timothy Vannatta
R. TIMOTHY VANNATTA
Florida Bar No.: 0055890
EXHIBIT “A”
RETURN OF NON-SERVICE
State of Florida County of CHARLOTTE CIVIL Court
Case Number: 23000608CA
Plaintiff
MARVIN OWENS. JR
vs
Defendant
ZOFIA ZAK RHODES
For:
R. TIMOTHY VANNATTA, ESQ.
RUBENSTEIN LAW P.A
250 SOUTH AUSTRALIAN AVE
SUITE 1000
WEST PALM BEACH. FL 33401
Received by Certified Process Servers on the 23rd day of May. 2023 al 3:01 pm to be served on ZOFIA
ZAK RHODES, 18146 PETOSKEY CIRCLE, PORT CHARLOTTE, FL 33948
|, DANIEL B. PLATT, do hereby affirm that on the 30th day of May, 2023 at 2:40 pm, |:
NON-SERVED the SUMMONS, COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL for the
reason that | failed to find ZOFIA ZAK RHODES or any information to allow further search. Read the
comments below for further details
Additional Information pertaining to this Service:
5/19/2023 12:10 pm NO ANSWER AT 18146 PETOSKEY CIRCLE. PORT CHARLOTTE. FL 33948
BUILDING PERMIT EXPIRED 5/17/23 LIGHTS AND AC WERE ON. UPS BOX OUTSIDE. SPOKE WITH
NEIGHBOR @ 18154 WHO SAID ZOFIA WAS IN NC. FRIEND PICKS UP THE MAIL
5/24/2023 8:30 pm NO ANSWER AT THE DOOR.
5/30/2023 2:40 pn NO ANSWER AT THE DOOR. CHARLOTTE COUNTY UTILITIES WATER
DISCONNECTION NOTICE WAS ON THE DOOR
| certify that | am over the age of 18, have no interest in the above action, and am a Certified Process
Server, in good standing, in the judicial circuit in which the process was served.
—\)\. Ge
DANIEL B. PLATT
208064
Certified Process Servers
14880 Tamiami Trail
North Port, FL 34287
(941) 361-9014
Our Job Serial Number: CPD-2023000042
Ref: 23000608CA
soynant 199: 023 Dreamfall Sonware tne Process Setvir's Toolbox V
Filing # 170489877 E-Filed 04/06/2023 02:19:18 PM
IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT IN AND
FOR CHARLOTTE COUNTY, FLORIDA
MARVIN OWENS, JR.,
Plaintiff,
Vv.
ZOFIA ZAK RHODES, CIVIL DIVISION
Defendant. CASE NO.: 23000608CA
/
SUMMONS
THE STATE OF FLORIDA:
To Each Sheriff of Said State:
YOU ARE HEREBY COMMANDED to serve this Summons and a copy of the complaint in this action
on Defendant:
ZOFIA ZAK RHODES
18146 Petoskey Circle
Port Charlotte, FL 33948
Each Defendant is required to serve written defenses to the Complaint on Plaintiff's Attorney, to wit:
R. Timothy Vannatta, Esquire
RUBENSTEIN LAW, P.A
9130 S Dadeland Blvd
Miami, Florida 33156
Tel: (305) 661-6000 / Fax: (305) 670-7555
within 20 days after service of this summons on that Defendant, exclusive of the day of service, and to file
the original of the defenses with the clerk of this court either before service on Plaintiffs’ attorney or
immediately thereafter. If a defendant fails to do so, a default will be entered against that defendant for
the relief demanded in the complaint or petition.
DATED ON: on this on this day of
04/06/2023
Clerk of Said Court
BY: Obighy
As Deputy Clerk
(Court Seal)
IMPORTANT
Preview
Filing # 176439670 E-Filed 06/29/2023 12:50:07 PM IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA MARVIN OWENS, JR., Plaintiff, Vv. ZOFIA ZAK RHODES, CIVIL DIVISION Defendant. CASE NO.: 23000608CA. MOTION FOR EXTENSION OF TIME TO SERVE THE COMPLAINT The Plaintiff, MARVIN OWENS, JR, by and through the undersigned counsel and pursuant to Rule 1.070(j), Florida Rules of Civil Procedure, hereby moves for entry of an order extending the time to effectuate service of process by ninety (90) days, and states: 1 The Complaint was filed on March 20, 2023, and attempted service of process on Defendant, ZOFIA ZAK RHODES. Unfortunately, to date Plaintiff has been unable to complete service on Defendant ZOFIA ZAK RHODES. The Plaintiff has attempted service to wit: 05/30/2023 2:40 pm No Answer at the door. Charlotte County Utilities water disconnection notice was on the door. 05/24/2023 8:30 pm No Answer at the door. 5/23/2023 9:37 am Attempted service at the given address server advise she is not at the address. The neighbor said she has been gone since before Hurricane Ian. The home has some exterior damage and the permit for repairs has expired. He thinks she is North Carolina renting cabins. 23000608CA d. 05/19/2023 12:30 pm No answer at 18146 Petoskey Circle, Port Charlotte, FL 33948, building permit expired 05/17/2023 lights and AC were in UPS Box outside spoke with neighbor @15154 who said Sofia was in North Carolina friend picks up the mail.(See attached Return of Non-Service as “Exhibit A”’). 4. Despite these efforts, plaintiff has been unable to effectuate service, and the 120-day deadline is approaching. 5. This Honorable Court has the discretion to grant an extension, with or without the showing of good cause or excusable neglect for not effectuating service within 120 days. Here, there is good cause, but even if not, this Court should exercise its discretion and extend the deadline. Memorandum of Law Rule 1.070()) states that “ifa plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period.” This provision requires the trial court to grant an extension when it is justified by a showing of good cause or excusable neglect. In determining the issue of good cause, the trial court should consider: (1) whether the untimely service was willful or deliberate, rather than an act of neglect and inexperience, (2) whether the attorney had been previously sanctioned, (3) whether the client was directly involved in the error, (4) whether the delay prejudiced the opposing party through undue expense or a loss of evidence, (5) whether the attorney offered a reasonable justification for failure to make timely service, and (6) whether the delay created significant problems of judicial administration. Shands Teaching Hosp. and Clinics, Inc. v. Warren, 748 So. 2d 1002 (Fla. 1999). The trial court must extend the time for service if the plaintiff shows good cause or excusable neglect for the delay. Amaran v. Marath, 34 So. 3d 88 (Fla. 3d DCA 2010); Carlos v. Carlos, 322 So. 3d 1176 (Fla. 4" DCA 2021); Capitalsource International, LLC v. Pitsoulakis, 264 So. 3d 302 (Fla 5" DCA 2019). 23000608CA Additionally, appellate courts have concluded that even if there is not good cause (which there is here), the trial court has the discretion to extend the time for service of process, even if the plaintiff has not shown good cause or excusable neglect. Thomas v. Silvers, 748 So. 2d 263 (Fla. 1999); Green v. Lingle, 166 So. 3d 221 (Fla. 1‘ DCA 2015); Chaffin v. Jacobson, 793 So. 2d 102 (Fla. 2d DCA 2001); Mitschke-Collande v. Skipworth Properties, Ltd., 201 So. 3d 660 (Fla. 3d DCA 2016). Of course, the trial court may extend the time for service before it expires. Khambaty v. Lepine, 734 So. 2d 1183 (Fla. 2d DCA 1999). This case was one of approximately 100,000 filed in Florida in March in order to protect the rights of the plaintiff prior to HB837 (the new tort reform bill) becoming law. A dismissal for failure to serve the complaint within 120 days, albeit one entered without prejudice, would adversely impact the plaintiff's rights upon refiling, as the new law applies to all cases filed after March 25, 2023. In contrast, an extension of time to effectuate service will not prejudice the defendant. WHEREFORE, Plaintiff, MARVIN OWENS, JR.,, respectfully requests that this court extend the time deadline for service of the complaint by ninety (90) days, or such other time period as the court deems proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically submitted on this 29th day of June, 2023 to. RUBENSTEIN LAW, P.A. Attorneys for Plaintiff 9130 S Dadeland Blvd Miami, Florida 33156 Tel: (305) 661-6000 Fax: (305) 670-7555 Email: tim@rubensteinlaw.com 23000608CA eservice@rubensteinlaw.com By: _/s/R. Timothy Vannatta R. TIMOTHY VANNATTA Florida Bar No.: 0055890 EXHIBIT “A” RETURN OF NON-SERVICE State of Florida County of CHARLOTTE CIVIL Court Case Number: 23000608CA Plaintiff MARVIN OWENS. JR vs Defendant ZOFIA ZAK RHODES For: R. TIMOTHY VANNATTA, ESQ. RUBENSTEIN LAW P.A 250 SOUTH AUSTRALIAN AVE SUITE 1000 WEST PALM BEACH. FL 33401 Received by Certified Process Servers on the 23rd day of May. 2023 al 3:01 pm to be served on ZOFIA ZAK RHODES, 18146 PETOSKEY CIRCLE, PORT CHARLOTTE, FL 33948 |, DANIEL B. PLATT, do hereby affirm that on the 30th day of May, 2023 at 2:40 pm, |: NON-SERVED the SUMMONS, COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL for the reason that | failed to find ZOFIA ZAK RHODES or any information to allow further search. Read the comments below for further details Additional Information pertaining to this Service: 5/19/2023 12:10 pm NO ANSWER AT 18146 PETOSKEY CIRCLE. PORT CHARLOTTE. FL 33948 BUILDING PERMIT EXPIRED 5/17/23 LIGHTS AND AC WERE ON. UPS BOX OUTSIDE. SPOKE WITH NEIGHBOR @ 18154 WHO SAID ZOFIA WAS IN NC. FRIEND PICKS UP THE MAIL 5/24/2023 8:30 pm NO ANSWER AT THE DOOR. 5/30/2023 2:40 pn NO ANSWER AT THE DOOR. CHARLOTTE COUNTY UTILITIES WATER DISCONNECTION NOTICE WAS ON THE DOOR | certify that | am over the age of 18, have no interest in the above action, and am a Certified Process Server, in good standing, in the judicial circuit in which the process was served. —\)\. Ge DANIEL B. PLATT 208064 Certified Process Servers 14880 Tamiami Trail North Port, FL 34287 (941) 361-9014 Our Job Serial Number: CPD-2023000042 Ref: 23000608CA soynant 199: 023 Dreamfall Sonware tne Process Setvir's Toolbox V Filing # 170489877 E-Filed 04/06/2023 02:19:18 PM IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA MARVIN OWENS, JR., Plaintiff, Vv. ZOFIA ZAK RHODES, CIVIL DIVISION Defendant. CASE NO.: 23000608CA / SUMMONS THE STATE OF FLORIDA: To Each Sheriff of Said State: YOU ARE HEREBY COMMANDED to serve this Summons and a copy of the complaint in this action on Defendant: ZOFIA ZAK RHODES 18146 Petoskey Circle Port Charlotte, FL 33948 Each Defendant is required to serve written defenses to the Complaint on Plaintiff's Attorney, to wit: R. Timothy Vannatta, Esquire RUBENSTEIN LAW, P.A 9130 S Dadeland Blvd Miami, Florida 33156 Tel: (305) 661-6000 / Fax: (305) 670-7555 within 20 days after service of this summons on that Defendant, exclusive of the day of service, and to file the original of the defenses with the clerk of this court either before service on Plaintiffs’ attorney or immediately thereafter. If a defendant fails to do so, a default will be entered against that defendant for the relief demanded in the complaint or petition. DATED ON: on this on this day of 04/06/2023 Clerk of Said Court BY: Obighy As Deputy Clerk (Court Seal) IMPORTANT