Opinion
CASE NO. 07-60889-CIV-ZLOCH.
April 11, 2008
ORDER
THIS MATTER is before the Court upon Defendant National Action Financial Services, Inc.'s Motion To Dismiss (DE 13). The Court has carefully reviewed said Motion and the entire court file and is otherwise fully advised in the premises.
The instant Motion alleges that dismissal of the above-styled cause is required because Plaintiff failed to accept Defendant's Rule 68 Offer Of Judgment. The Court notes that Federal Rule Of Civil Procedure 5 requires service of an offer of judgment. Fed.R.Civ.P. 5(a)(1)(E). Furthermore, Rule 5(b)(1) requires service upon a party's attorney if said party is represented by counsel, and service may be made by electronic means or other alternate means only if written consent is given. Fed.R.Civ.P. 5(b)(1), (2)(E) (F). Defendant served its Offer Of Judgment by facsimile to Plaintiff's Counsel Donald Yarbrough, Esquire. DE 13, Ex. B. Plaintiff' Counsel contests that he never consented to service by facsimile. Therefore, Defendant has failed to properly effect service of its Offer Of Judgment.
Accordingly, after due consideration, it is
ORDERED AND ADJUDGED that Defendant National Action Financial Services, Inc.'s Motion To Dismiss (DE 13) be and the same is hereby DENIED. DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida.