What if Defendant doesn't get served and can I change the amount I'm suing for?

[trevor15]

What is the name of your state? FL


Hello everyone,

Filed a SCC case against a towing company a few weeks ago. They haven't been served yet. I'm suspecting the Defendant is hiding so he doesn't get served. Can anything be done so I make sure they do get served and what happens if they don't?

Also, can I submit more evidence to the case or change the amount I'm suing for? I thought one of the tows was legal because it was authorized. But after digging deeper into the Tow Ordinance it turns out it was not properly authorized therefore illegal. I confirmed that with the county supervisor.

I was also trying to find out what's the statute of limitation for taking someone to SCC if any but unsuccessfully so far. The clerk didn't know and she gave me a paper to read that was supposed to "answer all my questions" but there is nothing in it about a time limit. Any ideas how can I find out? Nothing on their website, nothing in the paperwork I was given at the courthouse and clerk has no idea about it either?
Thanks for your help

 

[quincy]

The clerk of the court is not allowed to provide you with legal advice.

Here is a link to the Florida Small Claims Rules. See Rule 7.070 for Service. https://www.floridabar.org/wp-content/uploads/2017/04/small-claims.pdf

You can amend your complaint any time prior to service of the complaint.

 

[Zigner]

The clerk CANNOT help you determine the appropriate SOL. If you can't figure it out, you should likely consult with an attorney.

 

[quincy]

As to the statute of limitations, it will depend on the legal action and not on the court where the legal action will be heard.

Attorneys are allowed to represent you in small claims courts in Florida. This is not true for all states. You might want to consider an attorney if the how-to's of pursuing a legal action against the towing company has you flummoxed.

 

[trevor15]

Thank you for your responses. Anything on the first question? How can I make sure the Defendant does get served and what happens if he doesn't?

 

[quincy]

Read Rule 7.070 on service. Your defendant must be served, if not personally then by a means of service permitted by the court. You cannot proceed with your legal action without proof of service.

 

[trevor15]

so the Defendant has been served. According to the court clerk, I can still file a Motion to Amend but I need to "file orders" or "send orders to the judge". How do I do that?

 

[Litigator22]

What is the name of your state? FL


Hello everyone,

Filed a SCC case against a towing company a few weeks ago. They haven't been served yet. I'm suspecting the Defendant is hiding so he doesn't get served. Can anything be done so I make sure they do get served and what happens if they don't?

Also, can I submit more evidence to the case or change the amount I'm suing for? I thought one of the tows was legal because it was authorized. But after digging deeper into the Tow Ordinance it turns out it was not properly authorized therefore illegal. I confirmed that with the county supervisor.

I was also trying to find out what's the statute of limitation for taking someone to SCC if any but unsuccessfully so far. The clerk didn't know and she gave me a paper to read that was supposed to "answer all my questions" but there is nothing in it about a time limit. Any ideas how can I find out? Nothing on their website, nothing in the paperwork I was given at the courthouse and clerk has no idea about it either?
Thanks for your help

1. Can you change the amount you are suing for?

That depends. If the defendant does not appear to contest your claim and you obtain a judgment by default then you're limited to the amount sought in your statement of claim. As it would be a denial of the defendant's right to due process of law to recover more by default than requested in your pleading. This applies to all civil court levels.

2. Can you amend your statement of claim in small claims court to change the amount you are suing for?

Yes, but the means and timing in small claims is bit fuzzy.

By rule you have the prerogative of amending your pleading without leave of court at any time prior to receiving a responsive pleading from the defendant. (Not prior to service of process, but anytime before the defendant files a defensive response.) (See: Florida Rules of Procedure R. 1.190 (a) as made applicable to small claims cases per Rule 7.020 of the Florida Small Claims Rules.)

The haziness is in the fact that the defendant in small claims is not always required to file a defensive pleading. He she or it can just show up at the time and place noticed for the initial appearance for the pretrial conference. (See: Rule 7.090 (c) Florida Small Claims Rules.)

However, considering that procedures in small claims are applied with less rigidity, I think you could get by with filing an amended statement of claim at any reasonable time in advance of the time currently set for the initial appearance; provided, that you arrange with the clerk for a latter time for the defendant's initial appearance - vacating the current time as set; procure a new (another) summons/notice to appear; forego serving copies of the original documents and in lieu thereof effect timely service of the new documents.

You've been correctly instructed that a given statutory period of limitation within which to commences a cause of action operates on the cause of action or legal claim itself and doesn't deviate from one court level to another.