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Florida Fifth DCA reverses trial court's summary judgment for defendant, holds litigation privilege did not provide absolute immunity for statements made by process server

On August 11, 2017, in Pace v. Bank of New York Mellon Trust Co., No. 5D16-748, the Florida Fifth DCA reversed a trial court’s summary judgment for defendant, holding that the litigation privilege did not provide absolute immunity for allegedly tortious statements made by the defendant’s process server. The plaintiff alleged in the first count of the complaint that the bank’s process server, while serving the plaintiff’s tenants with notice of a foreclosure complaint regarding the plaintiff’s property, had tortuously interfered with the plaintiff’s in various ways, including by encouraging them not to pay rent. The trial court had granted the defendant summary judgment on all of the counts of the complaint on the basis of the absolute litigation privilege, which applies to statements or acts which were (1) made or committed in the course of judicial or quasi-judicial proceedings and (2) are connected with, or relevant or material to, the cause in hand or subject of inquiry. See DelMonico v. Traynor, 116 So. 3d 1205, 1212 (Fla. 2013). While the Fifth DCA affirmed the summary judgment regarding the other counts of the complaint alleging that the defendant’s filing of the foreclosure action was itself tortious, the Court concluded that the statements allegedly made by the process server were not entitled to absolute immunity under the litigation privilege because they were unnecessary to effectuate service of process.

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