Can a Complaint Filed by a Non-Attorney on Behalf of a Corporation Be Amended by Getting It Signed by An Attorney ?
In Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So. 2d 247 (Fla. 3d DCA 1985), the Third District addressed the question of "whether a complaint filed by a non-attorney on behalf of a corporation may be amended to cure this deficiency." Szteinbaum, 476 So. 2d at 247.
The plaintiff in Szteinbaum, a corporation, filed and served a complaint without the signature of an attorney. the defendant moved to dismiss the complaint and the trial court granted the motion with leave to amend. Thereafter, the corporate plaintiff filed an amended complaint signed by an attorney and served it by mail on the defendant's attorney.
The defendant moved to dismiss the complaint contending that because the original complaint filed by a non-attorney was a nullity, personal service of the amended complaint was required.
The trial court denied the motion.
On appeal, the Third District, citing the policy favoring the resolution of cases on the merits and the liberal rules governing the amendment of pleadings, held the complaint defective but not a nullity and therefore correctable by amendment.
Nevertheless, the Third District qualified this right to amend by borrowing from the excusable neglect approach pertinent to motions to set aside defaults:
As in the default cases, the decision of whether to dismiss a complaint without leave to amend should be controlled by considerations of the fault and diligence of the plaintiff corporation and the prejudice to the defendant as they appear in the individual case.
In the present case, there is no indication that the errant complaint prejudiced the defendant in any way or that the plaintiff corporation acted with knowledge that it was improper for it, without counsel, to prepare and file the initial complaint.
On the other hand, there is a strong indication that the plaintiff corporation acted with diligence in immediately obtaining counsel after being given leave to do so. Szteinbaum, 476 So. 2d at 252.