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It’s well settled that Florida’s offer of judgment statute (section 768.79, Florida Statutes) is substantive law that is applicable to Florida law claims in federal diversity actions. [1] But what about rule 1.442 of the Florida Rules of Civil Procedure. Surely a state court procedural rule doesn’t apply in federal court, right? Not so fast, my friends.
The Eleventh Circuit has held that certain portions of rule 1.442 are substantive and applicable to proposals for settlement (“PFS”) served in federal diversity actions. [2] Here are the portions that the Eleventh Circuit has held to be substantive:
- rule 1.442(b)’s requirement that a PFS “to a plaintiff shall be served no earlier than 90 days after the action has been commenced”; [3] and
- rule 1.442(c)(2)(F)’s requirement that a PFS “state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim.” [4]
The court has also stated, in dicta, that rule 1.442(c)(2)(B), which requires a PFS to state that it “resolves all damages that would otherwise be awarded” in the action, is “likely substantive.” [5] In contrast, the court has concluded that rule 1.442(c)(2)(G), requiring a PFS to include a certificate of service in a specific format, is procedural and not applicable.[6]
So if you’re serving a PFS in a federal diversity action, be sure to follow the requirements of both section 768.79 and rule 1.442 (to the extent that the requirements do not conflict with the Federal Rules). If you’ve already served a PFS in federal court that failed to follow rule 1.442, there is still hope. In Kuhajda v. Borden Dairy Co., 202 So. 3d 391, 395-96 (Fla. 2016), the Florida Supreme Court declined to invalidate a party’s PFS “solely for violating a requirement in rule 1.442 that section 768.79 does not require.” Thus, an argument can be made that even if portions of rule 1.442 are substantive and applicable, the failure to follow requirements “that section 768.79 does not require” should not invalidate a PFS under Florida law.
[1] Jones v. United Space Alliance, L.L.C., 494 F.3d 1306, 1309 (11th Cir. 2007).
[2] Horowitch v. Diamond Aircraft Indus., Inc., 645 F.3d 1254, 1258 (11th Cir. 2011).
[3] Divine Motel Group, LLC v. Rockhill Ins. Co., 722 F. App’x 887, 899-90 (11th Cir. 2018)
[4] Horowitch, 645 F.3d at 1258.
[5] Primo v. State Farm Mut. Auto. Ins. Co., 661 F. App’x 661, 664 n.1 (11th Cir. 2016).
[6] Horowitch, 645 F.3d at 1258-59 (finding that because the rule conflicted with the federal service rule, it did not apply in federal court).
