STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs.

MEGAN SOUTH, INC.,

Respondent.

)

)

)

)

) Case No. 03-4258F

)

)

)

)

)

FINAL ORDER OF DISMISSAL

This cause is before the undersigned based upon Petitioner's Response to the Order to Show Cause (Response) filed December 1, 2003, and Respondent's reply thereto filed December 12, 2003. Upon due consideration of those filings and for the reasons set forth below, it is determined that the undersigned lacks jurisdiction to consider Petitioner's Motion for Award of Attorney's Fees (Motion) and/or that the relief requested by Petitioner in the Motion is unavailable as a matter of law because Petitioner did not comply with the mandatory pre- filing service requirements in Section 57.105(4), Florida Statutes (2003).1

The Motion seeks an award of attorney's fees against Respondent under Section 57.105(5), Florida Statutes (2003), based upon the allegedly unsubstantiated claims initiated and/or maintained by Respondent in DOAH Case No. 03-3304BID.2 That

statute provides that reasonable attorney's fees may be awarded to the prevailing party in an administrative proceeding "in the same manner and upon the same basis as provided in subsections (1)-(4) [of Section 57.105]." See § 57.105(5), Fla. Stat. (2003); Sellers, 2003 Amendments to the Florida APA, Fla. Bar Journal, Oct. 2003, at 76. The Division of Administrative Hearings (Division) has final order authority in such cases.

Id.

Section 57.105(4), Florida Statutes, was enacted in 2002, and is patterned after Federal Rule of Civil Procedure 11(c)(1)(A). See Ch. 2002-77, §77, Laws of Fla. (effective July 1, 2002); Fenner, New § 57.105 Lawyer Sanctions, Our Ethics, and the Florida Constitution, Fla. Bar Journal, May 2003, at 30; Gaffney & Mager, Section 57.105's New Look: The

Florida Legislature Encourages Courts to Sanction Unsupported Claims and Dilatory Actions, Fla. Bar Journal, April 2002, at 8,

18 n.1. The Commentary to Federal Rule of Civil Procedure 11(c)(1)(A) explains that the rule is:

intended to provide a type of "safe harbor" against motions under Rule 11 in that a party will not be subject to sanctions on the basis of another party's motion unless, after receiving the motion, it refuses to withdraw that position or to acknowledge candidly that it does not currently have evidence to support a specified allegation.

See also Amendments to Federal Rules of Civil Procedure, 146

1. 401, 507-08 (1993) (Scalia, J., dissenting) (criticizing the addition of the "safe harbor" provision in Federal Rule of Civil Procedure 11(c)(1)(A) because "if the party accused of a frivolous filing withdraws the filing, he is entitled to escape with no sanction at all").

   Although there is a growing body of case law construing the scope of the new, post-1999 version of Section 57.105, Florida Statutes,3 there are no cases construing Section 57.105(4), Florida Statutes (2003), or discussing the effect of a party's failure to comply with that subsection on the authority of the court (or administrative law judge) to consider the motion for attorney's fees. However, almost all of the federal appellate courts which have construed the similar provision in Federal Rule of Civil Procedure 11(c)(1)(A) have held that compliance with the pre-filing service requirement in that rule is mandatory and that the failure to comply with the rule results in the denial of the motion as a matter of law. See, e.g., Radcliffe v. Rainbow Construction Co., 254 F. 3d 772, 788-89 (9th Cir. 2001), cert. denied, 534 U.S. 1020 (2001); Barber v.

   Miller, 146 F.3d 707, 710-11 (9th Cir. 1998); AeroTech, Inc. v.

   
   

   Estes, 110 F.3d 1523, 1528-29 (10th Cir. 1997); Ridder v. City

   
   

   of Springfield, 109 F.3d 288, 296-97 (6th Cir. 1997), cert.

   
   

   denied, 522 U.S. 1046 (1998); Elliot v. Tilton, 64 F.3d 213, 216

   (5th Cir. 1995); Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1328 (2d Cir. 1995). See also Rector v. Approved Federal Sav.

   Bank, 265 F.3d 248, 255 n. 3 (4th Cir. 2001) (King, J.,

   
   

   dissenting) (citing federal district court decisions which are in accord). But see Rector, 265 F.3d at 253 (holding that compliance with the "safe harbor" provision in Federal Rule of Civil Procedure 11(c)(1)(A) is not jurisdictional).

   The reasoning in those federal cases supports the denial of the Motion filed in this case because Section 57.105(4), Florida Statutes (2003), like the federal rule, expressly prohibits the motion from being "filed with or presented to the court" unless the party against whom fees are sought fails to take appropriate action within 21 days after service of the motion. Indeed, if the motion may not even be filed unless it has been served on the opposing party and the opposing party fails to take timely appropriate action, then the motion certainly cannot be granted in circumstances where those prerequisites have not been met.

   Denial and/or dismissal of Petitioner's fee request is particularly appropriate where, as here, the Motion was filed after the case giving rise to the request had been concluded because as Respondent points out there was nothing at that point for it to withdraw. See Barber, 146 F.3d at 710; Ridder, 109 F.3d at 296-97.

   Petitioner failed to allege in the Motion or in response to the Order to Show Cause that it served the Motion (or any other document stating an intent to seek fees under Section 57.105, Florida Statutes (2003), if the Respondent's protest or specific portions thereof were not withdrawn) on Respondent more than 21 days before the Motion was filed with the Department of Transportation or transferred to the Division. Even if the discovery referred to in the Motion and the Response could somehow be construed to have put Respondent on notice that the claims in its bid protest (or, at least those claims relating to the sufficiency of the "performance bond" issued by Global Bonding, Inc. (Global)4) were without merit and that Petitioner would be seeking fees under Section 57.105(5), Florida Statutes (2003), if the protest was not dismissed, the Motion still would be denied because Respondent did dismiss its protest within 21 days of the date that the discovery was served.

   Accordingly, it is ORDERED that:

   1. Petitioner's Motion for Award of Attorney's Fees is DENIED, and this case is hereby DISMISSED WITH PREJUDICE.

   2. The file of the Division of Administrative Hearings in the above styled case is hereby CLOSED.

DONE AND ORDERED this 17th day of December, 2003, in Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 2003.

ENDNOTES

1/ Section 57.105(4), Florida Statutes (2003), provides:

A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

2/ Although the Response discusses both DOAH Case No. 03- 3304BID and DOAH Case No. 03-3305BID, the case style of the Motion and the allegations therein were limited to DOAH Case No. 03-3304BID. In any event, the analysis in this Order would be the same for both cases.

3/ See, e.g., Wendy's of N.E. Florida, Inc. v. Vandergriff, 2003 WL 22714995, at **2-3 (Fla. 1st DCA Nov. 19, 2003) (citing cases).

4/ Although not pertinent to the dismissal of the motion upon the grounds set forth in this Order, it is difficult to understand Petitioner's focus on the Global bond as the basis

for its Motion since it was determined at the October 21, 2003, motion hearing in DOAH Case No. 03-3304BID that issues related to the sufficiency of that bond as a "performance bond" (see § 337.18(1)(a), Fla. Stat. (2003)) and the timing of its submittal were actually beyond the scope of that case. In this regard, the bases of the Department's decision to reject all bids in DOAH Case No. 03-3304BID were the Department's after-the-fact determination that Respondent's bid was non-responsive because Respondent submitted a "contract bond" (see § 337.17, Fla. Stat. (2003)) without the authority of the surety company on the bond and that the Department did not have the necessary right-of-way for the project. The surety on the "contract bond" was Hartford Fire Insurance Company, not Global.

COPIES FURNISHED:

C. Denise Johnson, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450

Mike Piscitelli, Esquire

Vezina, Lawrence & Piscitelli, P.A.

350 East Las Olas Boulevard, Suite 1130 Fort Lauderdale, Florida 33301

James C. Myers, Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 03-004258F

Orders for Case No: 03-004258F