
    MARINE TRANSPORT LINES, INC., a corporation, Appellant, v. Perry L. GREEN, Appellee.
    No. B-35.
    District Court of Appeal of Florida. First District.
    Oct. 6, 1959.
    
      Ragland, Kurz & Toole, Jacksonville, for appellant.
    Evans & Stewart, Jacksonville, for ap-pellee.
   CARROLL, DONALD, Judge.

The appellee, plaintiff below, on June 18, 1957, filed an action in the Circuit Court for Duval County against the appellant, Marine Transport Lines, Inc., a Delaware corporation, under the “Jones Act” (46 U.S.C.A. § 688) for injuries sustained by him on September 8, 1954. A summons at law, addressed to appellant, was issued on the day the complaint was filed, but was not attempted to be served until September 2, 1958, when the summons was served on D. F. Pierce, master of the vessel S. S. Marine Courier, then in the harbor of Jacksonville, Duval County. Appellant then filed a motion to dismiss the complaint on the grounds of lack of jurisdiction over the person and subject matter and insufficiency of service of process and other grounds mentioned in Rule 1.11(b) of the Florida Rules of Civil Procedure, 30 F.S.A. together with affidavits of an officer of appellant and the said Pierce, the substance of which affidavits was that Pierce and the vessel had no connection with appellant. After notice and hearing the court granted the motion because of the lack of service of process upon appellant, and granted leave to appellee to have alias summons issued for proper service upon appellant. In accordance therewith, alias summons was issued and served on Captain R. H. Pierce, master of the S. S. Marine Pioneer on August 28, 1958, a vessel then in Duval County. Again, appellant filed a motion to dismiss the complaint on the same grounds as in the earlier motion, together with affidavits of 'one of its officers and Captain R. H. Pierce, which were in substance similar to the earlier affidavits, to the effect that this master and his vessel were not connected with appellant. Again, the court granted the motion for lack of service of process on appellant and gave leave to appellee to have another alias summons issued. From this order appellant has taken this interlocutory appeal.

Appellant’s points on appeal are that the Circuit Court erred in the last-named order in failing to grant appellant’s motion to dismiss for lack of jurisdiction over appellant and in giving appellee leave to have alias summons issued.

To understand the tactical positions of the parties, it may be pointed out that at the time this appeal was filed, the statute of limitations had run against appellee’s claim, so that he would be foreclosed from filing any new action upon the claim.

The order appealed from comes to rts with the presumption of validity, and the principal question before us is whether the circuit judge abused his discretion in granting leave to appellee to have a second alias summons issued, after two previous attempts at serving process upon appellant had been unsuccessful. We are not prepared to say that he abused his discretion in this regard.

Every court has the prerogative and duty to see that its processes are not abused. If a suit is filed obviously and solely for the purpose of avoiding the bar of a statute of limitations, in a jurisdiction distant from the place of residence and operations of the defendant, and repeated efforts at service of process have failed, with no hope or likelihood of ever effecting service in the jurisdiction, a situation might develop in which the court could, in the exercise of a sound discretion, dismiss the suit and decline to order the issuance of additional alias summonses. In this case there was no evidence in affidavit form or otherwise before the court showing that there was no or little likelihood that appellant could be served with process either in the near or distant future. For aught that the affidavits show, numerous officers and agents of appellant could daily be in the State of Florida and many of its vessels could regularly be in the ports of the state.

Upon whom should the burden rest to submit proof on the question of the likelihood of successful service of process in a case of this kind? To us it seems more reasonable to impose this burden upon the defendant, which normally would be in an infinitely better position than a plaintiff to have knowledge as to the likelihood of successful service of process upon the defendant, because of the latter’s usually exclusive knowledge of its present and future operations.

Judges WIGGINTON and CARROLL, constituting the majority of this Court, hold that this Court has jurisdiction of this appeal, and Judge STURGIS is of the contrary opinion. In the light of the majority holding on that proposition, Judge STURGIS concurs with Judge CARROLL in holding that the circuit court has not abused its discretion in entering the order appealed from, and it is

Affirmed.

STURGIS, J., concurring specially.

WIGGINTON, Chief Judge, dissents.

STURGIS, Judge

(concurring specially) .

I am persuaded that this court is without jurisdiction to entertain this appeal. The majority having held to the contrary, and thus established the law of the case on that proposition, in that light I am in accord with the other views expressed in the opinion written by Judge CARROLL.

In addition to the general proposition that the trial court did not abuse its discretion in entering the order appealed, I am of the opinion that on the motion made and under the rules of procedure the trial court would have abused its discretion had it entered a contrary order.

The order in question had the effect of rejecting jurisdiction over the person of the defendant and of retaining jurisdiction over the subject matter of the cause. The so-called motion to dismiss the complaint assigned the following specific grounds: “(1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a cause of action,” but all except ground numbered five (5) were abandoned. By reference to Rule 1.11(b), F.R.C.P., as amended, it will be seen that these grounds of the motion to dismiss the complaint are in the exact language of the “defenses” which, at the option of the pleader, may be made by “motion”.

The affidavits supporting ground numbered five (5) of the motion were to no purpose or effect other than that the defendant is a foreign corporation and that service of process was undertaken on a person not qualified to bind the defendant. The “defense” thus presented is a prototype of what was formerly known as a motion to quash the sheriff’s return to the summons ad respondendum. Being dilatory in nature, it is not of the type favored in the law.

The fact, standing alone, that service of process is made upon one not qualified to bind the party upon whom it was intended to be served should not operate to destroy the following provision of Rule 1.3(d), 1954 Florida Rules of Civil Procedure:

“When any summons shall be returned not executed or returned improperly executed as to any defendant, the plaintiff shall be entitled to such additional summons against such defendant or defendants, as may be required to effect service.”

Turning to the question of our jurisdiction to review the order appealed, it is axiomatic that where jurisdiction to review is in doubt and the parties to the appeal have not raised the question, the appellate court should do so of its own motion. While dismissal of this appeal for lack of jurisdiction has the same practical effect on the parties as results from our affirmance of the order in question, I think the former procedure should have been followed and that the contrary disposition vitally affects Florida procedure and practice.

In keeping with Section 4 of the Declaration of Rights, F.S.A., Constitution of Florida, the trial courts, and inferentially the appellate courts, are enjoined to construe the rules of procedure in such manner as to “secure the just, speedy and inexpensive determination of every action.” Rule A, 1954 Florida Rules of Civil Procedure. Appeal to this court from interlocutory decrees and orders depends entirely on Florida Appellate Rule 4.2(a), 31 F.S.A., promulgated pursuant to Article V, Section 5, paragraph 3, Constitution of Florida, F.S.A., which vests in the Supreme Court exclusive authority to provide for or deny such review. F.A.R. 4.2(a) limits appeals from interlocutory orders in actions at law to those “relating to venue or jurisdiction over the person.” The limitation was obviously designed to avoid the expense, inconvenience and futility of a full-dress trial in those instances where the court lacks jurisdiction over the person or action. Venue is not in question on this appeal. Hence our power to review the subject order depends on whether it relates to jurisdiction over defendant’s person. It is here that we come to the critical fact that the order accords with defendant’s insistence that its person has not been subjected to the jurisdiction of the trial court. It is unlikely that the framers of Rule 4.2(a) intended to provide for review in this type of action of orders favorable to a defendant’s challenge to jurisdiction over his person. Such would operate to provide an evasive defendant with a more effective dilatory maneuver than any he now enjoys — that by which the defendant-appellant has thus far shown nothing more definite than that the process server hasn’t “tagged” it up to now. This strategy, however legitimate, has nothing to do with the merits of the action.

Comparison of the grounds for dismissal of the complaint, supra, with the enumerated defenses set out in amended Rule 1.11(b), 1954 F.R.C.P., indicates that in seeking to dismiss the complaint defendant was relying on the original draft of the rule, wherein the words “the complaint” followed the clause enabling the enumerated defenses to “be made by motion” at the option of the pleader. Even so, as originally framed the rule was not intended, in its relation to the so-called “defense” of “insufficiency of service of process,” to have the effect of immediate dismissal of the action. The confusion resulting from the unfortunate use of the words “the complaint” activated the amendment eliminating them.

Under amended Rule 1.11(b) the enumerated defenses may be made by “motion”, but the nature of the motion is not defined. It follows that an appropriate motion is intended. Notwithstanding the pleader’s designation of the motion in suit as a “motion to dismiss the complaint,” it is in essence a motion to quash the return. Upon granting such motion the rule providing for alias summons (1.39, F.R.C.P.) came into play, and the trial court was properly governed thereby.

It may be argued that by the expedient of having alias summons repeatedly issued at intervals less than the period provided by Section 45.19, Florida Statutes, F.S.A., for a suit to become subject to dismissal for lack of affirmative action, a designing plaintiff may attempt to keep his suit alive indefinitely and to thus subvert the statute of limitations. That argument presupposes that the mere act of procuring the issuance of an alias summons is in itself “affirmative action” of the character contemplated by the statute. Our courts have not so held, and it is safe to assume that Rule 1.3(d), F.R.C.P., will not be interpreted so as to permit it to be used as a vehicle for the accomplishment of an unlawful purpose.

Construing Florida Appellate Rule 4.2 (a) and Rule 1.3(d), 1954 F.R.C.P., in a manner calculated to secure the just, speedy and inexpensive determination of every cause, I am of the opinion that since this is a law action in which the appellant seeks to appeal from an interlocutory order sustaining its position upon an attack directed exclusively to the sufficiency of service of process, this court does not have jurisdiction to entertain it.

For the reasons stated, I would have dismissed the appeal rather than affirm the order, and it is only by compulsion of the majority view that I accept the latter disposition and concur in the controlling opinion.

WIGGINTON, Chief Judge

(dissenting).

For the reasons outlined at the conclusion of this opinion, I regretfully find myself in disagreement with my respected colleagues on the holdings expressed in each of their opinions.

Defendant seeks review by interlocutory appeal of an order sustaining its motion to dismiss the complaint for lack of jurisdiction over defendant’s person, but granting plaintiff leave to have alias summons issued for proper service on defendant. The error assigned is that portion of the order granting plaintiff leave to have alias summons issued, and refusing to dismiss the cause.

On June 18, 1957, appellee filed his complaint alleging a cause of action under the Jones Act. It is noted that under the cited Act plaintiff had the election of instituting his suit either in the Federal Court of the district in which defendant resides, or in which its principal office is located, or in any state court of proper jurisdiction and venue as provided by the laws of such state. Damages were sought for injuries allegedly sustained on September 8, 1954, while in defendant’s employ.

Plaintiff made two successive futile attempts over a period of fourteen months to effect personal service on defendant. Such failure resulted from plaintiff’s inability to locate anyone in this state on whom service of process would bind defendant.

If in fact defendant was or had been doing business in Florida as speculated in Judge Carroll’s opinion, service of process on the Secretary of State pursuant to Section 47.16, F.S., F.S.A., would have effectively ' bound defendant. The absence from the record of any showing that an attempt was made to serve defendant in this manner would seem to foreclose that speculative possibility. At neither of the hearings before the court on defendant’s motion to dismiss the complaint did plaintiff make any showing whatever that a likelihood or probability existed that he could ever serve defendant with process within the court’s jurisdiction, either in the near or distant future.

Rule 1.11(b), F.R.C.P., authorizes certain defenses to be interposed by motion, including lack of jurisdiction over the person of defendant. The cited rule is patterned after Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Decisions of courts in the federal jurisdiction interpreting Rule 12(b) are persuasive in our interpretation of comparable Rule 1.11(b) in effect in this jurisdiction, and should be accorded great weight.

Rule 1.11(b) does not in terms refer to any particular type of motion, but the' usual method of raising the defenses enumerated therein is by motion to dismiss. There appears to be a distinct difference of opinion among various courts as to whether this motion is to be treated essentially the same as a demurrer, or whether it should not be so considered. It is agreed, however, that the trial court has a wide range of discretion in passing upon motions to dismiss, but ordinarily will not dismiss the complaint except where every opportunity has been afforded the plaintiff, either by amendment or otherwise, to cure the insufficiencies raised by any of the defenses enumerated in the rule.

It has been generally held that even though a motion to dismiss because of lack of jurisdiction over the person of defendant is granted by the court, it does not follow as a matter of course that the complaint itself must be dismissed. If evidence submitted by plaintiff indicates a probability that jurisdiction over defendants may be obtained by issuance and service of an alias summons, the complaint will not be dismissed. The refusal of the trial court to dismiss a complaint under these circumstances will not be disturbed absent a showing of abuse of discretion.

The rule is equally well established, however, that if upon the hearing on defendant’s motion to dismiss, it appears-without substantial contradiction that the court, does not have jurisdiction of defendant, and no showing is made by plaintiff that there exists a likelihood that process can be lawfully served on defendant, the motion to dismiss should be granted and the complaint dismissed. The dismissal of a complaint in such a situation, however, results solely from the lack of jurisdiction of the court, and is therefore not an adjudication of the merits of the cause of action. Consequently such a dismissal does not prejudice the right of the plaintiff to file another complaint when and if it appears that the court may obtain jurisdiction of the person of the defendant.

The opinion by Judge Carroll appears to agree generally with the foregoing interpretations placed upon the rule in question by other courts. The fallacy of his reasoning lies in his conclusion that the burden rests on the defendant to convince the court that there is no probability or likelihood that defendant can be properly served with process within the court’s jurisdiction either in the near or distant future. Such conclusion not only does violence to the traditional concept that the burden always rests on the plaintiff to select a forum for the institution of his suit in which jurisdiction over the defendant can be lawfully acquired, but is contrary to the express holdings of the federal courts in their interpretation of this precise issue. No authority to the contrary is cited in either of the two affirming opinions as support for the positions taken therein.

When service of process was twice attempted and in each instance failed because of plaintiff’s inability to locate any one upon whom service of process would bind defendant, the burden rested squarely on plaintiff, as a condition for non-dismissal of his action, to convince the court that a reasonable probability or likelihood for effecting valid service on defendant existed. Failure of plaintiff to so assure the court left no alternative to dismissal of the action.

Retention of a case on the court’s docket for an indefinite period of time without a clear showing of reasonable likelihood that service of process can be effected not only imposes an unjustified penalty on the party named as defendant therein but defeats the salutary purpose intended to be served by the statutes of limitation. A proper administration of justice contemplates protection of the rights of defendants, as well as those of plaintiffs. The mere pendency of an action for damages against a person, firm or corporation named as defendant therein impairs such defendant’s credit and to that extent adversely interferes with its ability to conduct its business in a normal fashion. Unless the plaintiff can show a legal right and present ability to progress his cause of action to a final conclusion in accordance with lawful procedures, the defendant named therein should not be required to suffer the disadvantage inherent in the continuing threat to its resources which the pending action poses.

The record before us clearly reveals the trial court’s lack of jurisdiction over the person of defendant, and the order granting defendant’s motion to dismiss on that ground was proper. The record is devoid of any evidence indicating a probability or likelihood that plaintiff will be able to obtain service of process on defendant within the jurisdiction of the court in any manner provided by the laws of this State. There was no evidence before the trial court on which it could validly exercise its discretion in refusing to dismiss the complaint. That portion of the order appealed from granting leave to plaintiff to issue alias summons for proper service on defendant is therefore erroneous. To the extent mentioned, the order appealed from should be reversed and the cause remanded with directions to enter an order dismissing the complaint without prejudice.

That portion of the opinion authored by Judge STURGIS which in effect holds that the trial judge has unbridled authority (as distinguished from judicial discretion), despite an acknowledged lack of jurisdiction over defendant’s person, to retain the cause on the docket for an indeterminate period of years is predicated entirely upon an erroneous interpretation of Rule 1.3(d), F.R.C.P. It requires but a cursory examination of the cited rule to appreciate its inapplicability to the question now before us. In the first place, Rule 1.3(d) applies only to those cases involving multiple defendants, whereas the case on review involves only a single defendant. Secondly, the cited rule authorizes issuance by the clerk of additional summons as directed by plaintiff’s attorney only when the officer’s return shows that one or more of the named defendants were not served at all, or where one or more defendants were actually served but in an improper manner. In the case on review neither of the grounds for issuing additional summons is present. The officer’s return in this case does not recite that the defendant herein was not served, nor does it recite facts showing that service was effected on this defendant, but in an improper manner. The return actually recites that the defendant was served with process in a proper • manner as required by law. However, the proof showed, and the court agreed, that despite the recitals in the officer’s return the defendant was not bound by the service effected on the person named in the return, and the court therefore lacked jurisdiction over defendant’s person. It then became a matter for the court to determine on the showing made by plaintiff whether there existed a probability or likelihood that lawful service could be effected on defendant if additional process was allowed. Upon the failure or inability of plaintiff to make such showing before the court, the defense of lack of jurisdiction should have been sustained and the cause dismissed.

I must confess complete inability to follow the reasoning of the Sturgis opinion which holds that this court is without jurisdiction to review by interlocutory appeal the order involved in this case. Such holding is in direct conflict with the plain and unmistakable language of Rule 4.2(a), F.A.R., which provides that appeals from interlocutory orders at common law relating to jurisdiction over the. person may be prosecuted in accordance with the rule. The order here reviewed is one entered at common law and relates solely and exclusively to jurisdiction over defendant’s person. Either party who feels himself aggrieved by any provision of this order may have it reviewed in this court by interlocutory appeal. To hold that a trial judge may retain a case on the docket for an indefinite period of time without a showing of justification therefor, and such action is not subject to review, is in direct contradiction to the only portion of the Sturgis opinion with which I am able to agree and in which it is said that: “In keeping with Section 4 of the Declaration of Rights, F.S.A., Constitution of Florida, the trial courts, and inferentially the appellate courts, are enjoined to construe the rules of procedure in such manner as to ‘secure the just, speedy and inexpensive determination of every action.’ ”

For the reasons herein stated I entertain a conscientious difference of opinion on the fundamental principles enunciated in the two opinions of affirmance and must therefore record this my dissent. 
      
      . Rule 1.11(b), 1954 F.R.C.P., as amended, provides:
      “Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim or cross-claim, shall be asserted in the responsive pleading thereto if one is required; except that the following defenses may at the option of the pleader be made by motion : (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, (7) failure to join indispensable parties. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief.”
     
      
      As originally framed, the words “to dismiss” appeared here.
     
      
      . Title 46 U.S.O.A. § 688.
     
      
      . Long v. General Petroleum Corporation of California, 1936, 11 Cal.App.2d 708, 54 P.2d 1147.
     
      
      . State ex rel. Eli Lilly & Co. v. Shields, Fla.1955, 83 So.2d 271, 272.
     
      
      . Barron & Holtzoff, Federal Practice and Procedure, Yol. 1, § 348, p. 602-604.
     
      
      . Murphy v. Campbell Soup Co., D.C.D. Mass.1930, 40 F.2d 671; United States v. Asbestos Corp., Ltd., D.C.S.D.N.Y. 1929, 34 F.2d 182; Anderson v. British Overseas Airways Corp., D.C.S.D.N.Y. 1956, 149 F.Supp. 68.
     
      
      .Thomas v. Furness, 9 Cir., 1948, 171 F.2d 434; Jones v. Motorola, Inc., 2 Cir., 1951, 186 F.2d 707; Orange Theatre Corp. v. Rayherstz Amusement Corp., 3 Cir., 1944, 139 F.2d 871; Sunbeam Corp. v. Payless Drug Stores, D.C.N.D.Cal.1953, 113 F.Supp. 31; Fulton v. Twentieth Century-Fox Film Corp., D.C.W.D.Mo.1953, 111 F.Supp. 874; Olshansky v. Thyer Mfg. Corp., D.C.N.D.III. 1952, 13 F.R.D. 227; State ex rel. Stevens v. Grimm; 192 Wis. 601, 213 N.W. 475; Denton v. Vassiliades, 212 N.C. 513, 193 S.E. 137.
     
      
      . Orange Theatre Corp. v. Rayherstz, supra note 6.
     
      
      . “If there is more than one defendant, the clerk shall issue as many writs of summons against the several defendants as may be directed by the plaintiff or his attorney. When any summons shall be returned not executed or returned improperly executed as to any defendant, the plaintiff shall he entitled to such additional summons against such defendant or defendants, as may be required to effect service.” Rule 1.3(d), F.R.C.P.
     