In the recent case, McCoy v. R.J. Reynolds, 4D16-1378 (Fla. 4th DCA Oct 25, 2017), the Fourth District held that since a PFS is not a “pleading” which is “filed” with the court, Rule 2.516 does not require the e-service of the document in order for it to be enforceable. All that is necessary is “notice” or actual knowledge of the PFS by the offeree. In so holding, the Fourth District disagreed with the Third District in Wheaton v. Wheaton, 217 So. 2d 125 (Fla. 3d DCA 2017), which came to the opposite conclusion — that Rule 2.516 does require the e-service of a PFS.

To complicate matters, McCoy relied on the First District in Boatright v. Philip Morris USA Inc., 218 So. 3d 962 (Fla. 2d DCA 2017) (holding that Rule 2.516 does not require e-service of a PFS), whereas Wheaton relied on the Second District in Floyd v. Smith, 160 So. 3d 567 (Fla. 1st DCA 2015) (implying that all service requirements of Rule 2.516 apply to the service of a PFS). Accordingly, for the time being, within the jurisdiction of the First and Third Districts, a PFS must be e-served in accordance with Rule 2.516. But within the jurisdiction of the Second and Fourth Districts, a PFS does not have to be e-served as long as there is notice of its service.

Take note too that the First District, in Boatright, has certified conflict with the Third District’s Wheaton opinion on this issue, and review is pending in the Florida Supreme Court. Since the conflict could ultimately be resolved either way, it might be a good idea to play it safe by e-serving proposals for settlement in all cases no matter the jurisdiction. Also be sure to comply with all other service requirements in Rule 2.516 until the Florida Supreme Court says otherwise.