Rule 4(m) Dismissal Without Prejudice Does Not Create a “Prevailing Party” for Fla. Stat. § 57.105(7) Fee Reciprocity

Case: U.S. Bank National Association v. Fernando V. Rivabem (11th Cir. Apr. 27, 2026) (per curiam) (not for publication)

1. Introduction

This Eleventh Circuit decision addresses when a defendant in a Florida contract-based foreclosure case may recover attorneys’ fees under Florida’s reciprocity statute, Fla. Stat. § 57.105(7), after the plaintiff’s federal action is dismissed for untimely service of process. U.S. Bank National Association (“U.S. Bank”), as trustee, filed a two-count federal complaint seeking (i) foreclosure of mortgage and (ii) breach of promissory note against Fernando and Liset Rivabem (the “Rivabems”). The district court dismissed the case without prejudice under Federal Rule of Civil Procedure 4(m) because U.S. Bank did not serve the defendants within 90 days and did not timely seek an extension.

After dismissal, the Rivabems sought fees and costs, arguing that the loan documents contained a unilateral fee clause for the lender and that § 57.105(7) makes such provisions reciprocal when the borrower “prevails.” The central issue on appeal was narrow: does a Rule 4(m) dismissal without prejudice for untimely service render the defendants “prevailing parties” under Florida law?

2. Summary of the Opinion

The Eleventh Circuit affirmed the denial of fees and costs. Applying Florida’s prevailing-party standard from Moritz v. Hoyt En- ters., Inc., the court held that the Rivabems were not prevailing parties because the dismissal resolved no significant issue in the litigation and did not adjudicate disputed facts or law bearing on the merits (or even the contested adequacy of service). The district court relied only on the undisputed procedural failure: service was not timely and no timely extension request was filed.

3. Analysis

A. Precedents Cited

• Loggerhead Turtle v. Cnty. Council of Volusia Cnty., Fla., 307 F.3d 1318 (11th Cir. 2002) and Barnes v. Broward Cnty. Sheriff's Office, 190 F.3d 1274 (11th Cir. 1999)
  Cited for the appellate standard of review: fee awards are generally reviewed for abuse of discretion. The citation frames the court’s review posture but does not supply the substantive Florida rule.
• Jones v. United Space All., L.L.C., 494 F.3d 1306 (11th Cir. 2007)
  Used to clarify that when entitlement to fees turns on interpretation of state law (here, § 57.105(7)), review is de novo.
• Royal Palm Props., LLC v. Pink Palm Props., LLC, 38 F.4th 1372 (11th Cir. 2022) and Beach Blitz Co. v. City of Miami Beach, 13 F.4th 1289 (11th Cir. 2021)
  Provide the mixed standard for “prevailing party” determinations: underlying fact findings are reviewed for clear error, while the legal conclusion of prevailing-party status is reviewed de novo.
• Trans Coastal Roofing Co. v. David Boland, Inc., 309 F.3d 758 (11th Cir. 2002), Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), and McMahan v. Toto, 256 F.3d 1120 (11th Cir. 2001)
  Establish the governing choice-of-law principle: in diversity cases, state substantive law controls entitlement to attorneys’ fees. This is the bridge that makes Florida’s prevailing-party doctrine dispositive in federal court.
• Moritz v. Hoyt En- ters., Inc., 604 So. 2d 807 (Fla. 1992)
  The core Florida authority: a prevailing party is the party that prevailed on any significant issue in the litigation. The Eleventh Circuit treated Moritz as controlling “final authority” on Florida law for this question.
• Smalbein ex rel. Est. of Smalbein v. City of Daytona Beach, 353 F.3d 901 (11th Cir. 2003) and Hewitt v. Helms, 482 U.S. 755 (1987)
  Cited for the prevailing-party concept requiring (i) some relief on the merits or (ii) a court-ordered change in the parties’ legal relationship (a “judicial imprimatur”). Although developed in other fee contexts, the court used these concepts to reinforce why a purely procedural, non-merits dismissal does not confer prevailing-party status.
• Fid. Union Tr. Co. v. Field, 311 U.S. 169 (1940) and Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330 (11th Cir. 2011)
  Support the proposition that state supreme court decisions are the ultimate authority on state law. This undergirded the court’s insistence on applying Moritz.
• Page v. Deutsche Bank Trust Co. Americas, 308 So. 3d 953 (Fla. 2020)
  The defendants relied on Page, but the court distinguished it as addressing a different question—reciprocity and standing timing in foreclosure litigation—rather than supplying a governing prevailing-party standard for a Rule 4(m) dismissal. The court noted that Page assumed the “prevails” requirement was satisfied there and did not elaborate a test applicable here.

B. Legal Reasoning

The opinion proceeds in three steps:

1. Florida law governs entitlement. Because the fee claim arises under § 57.105(7) in a diversity action, the court applied Florida substantive law (via Trans Coastal Roofing Co. v. David Boland, Inc. and Erie R.R. Co. v. Tompkins).
2. Moritz supplies the operative prevailing-party test. The court rejected the Rivabems’ attempt to pivot away from Moritz v. Hoyt En- ters., Inc. by invoking intermediate appellate authority and by relying on Page v. Deutsche Bank Trust Co. Americas. It treated Page as addressing a materially different context and not as displacing Moritz as the controlling statewide standard.
3. No “significant issue” was decided; dismissal was purely procedural and undisputed. Critically, the district court did not resolve contested matters (e.g., it did not adjudicate the sufficiency of the attempted July 13, 2024 service or weigh affidavits). It dismissed because U.S. Bank undisputedly missed the 90-day service window and did not timely request additional time, and the court found no “good cause” to extend service after the fact. Since nothing substantive was decided, the Rivabems did not “prevail on any significant issue” and therefore could not trigger § 57.105(7).

C. Impact

Although labeled “not for publication” (and thus not binding precedent in the same way as a published decision), the opinion is a clear signal of how the Eleventh Circuit expects district courts in Florida to treat § 57.105(7) fee motions following Rule 4(m) dismissals:

• Procedural dismissals for untimely service—without prejudice—will often be insufficient for prevailing-party fees. Defendants who “win” only because a plaintiff missed a service deadline should anticipate an uphill battle unless the dismissal entails resolution of a contested, significant issue that materially changes the parties’ relationship.
• Fee exposure is less likely to attach to a plaintiff’s correctable service failure. A dismissal without prejudice generally leaves the plaintiff free to refile, supporting the court’s view that the litigation has not produced the kind of meaningful success that § 57.105(7) targets.
• Litigation strategy in foreclosure actions: Plaintiffs are reminded to monitor service deadlines and timely seek extensions; defendants, in turn, should calibrate fee motions to whether the dismissal includes a genuine adjudication of a significant issue (as opposed to a non-merits administrative failure).

4. Complex Concepts Simplified

• “Prevailing party” (Florida): Under Moritz v. Hoyt En- ters., Inc., it is not enough to be the beneficiary of a case ending. The party must prevail on a significant issue—something meaningful that advances that party’s position in the dispute.
• Fla. Stat. § 57.105(7) (reciprocity): If a contract gives one side a right to attorneys’ fees when enforcing the contract, the statute can make that right reciprocal—allowing the other side to recover fees if it “prevails” in litigation “with respect to the contract.” Reciprocity does not eliminate the need to prove prevailing-party status.
• Dismissal “without prejudice”: The case is dismissed, but the plaintiff is generally free to bring the claim again. That lack of finality often undermines arguments that the defendant achieved a merits-based victory.
• Rule 4(m): A federal rule requiring service of process within 90 days of filing the complaint, absent good cause (or a discretionary extension). A dismissal under Rule 4(m) is typically procedural rather than a determination of who is right on the underlying contract dispute.
• “Judicial imprimatur”: A court action that meaningfully and authoritatively changes the legal relationship between the parties—more than a temporary or technical procedural event.

5. Conclusion

U.S. Bank National Association v. Fernando V. Rivabem reinforces a practical boundary on Florida’s fee reciprocity statute in federal court: a defendant does not become a § 57.105(7) “prevailing party” merely because a foreclosure action is dismissed without prejudice for the plaintiff’s failure to timely serve process under Rule 4(m). By anchoring the analysis in Moritz v. Hoyt En- ters., Inc. and distinguishing Page v. Deutsche Bank Trust Co. Americas, the Eleventh Circuit emphasized that prevailing-party fees require success on a significant litigated issue—something absent where the dismissal rests solely on an undisputed, correctable service lapse.