CONFLICT! First DCA Holds Dismissal for Lack of Prosecution Does Exist in Florida

In a case which openly conflicts with the Second and Third Districts, the First District issued a tough but contemplative ruling holding that dismissal for failure to prosecute under Florida Rule of Civil Procedure 1.420(e) can actually happen under the forgiving “new” rule.

Prior to January 1, 2006, the “abandonment” rule held that twelve months without record activity meant dismissal (upon defendant’s motion).  The passage of time was the only criteria.  For a while there had been some excitement over what constituted “record activity” but that was resolved in a 2005 case, Wilson v. Salamon, where any document was sufficient record activity to keep a case alive.  Shortly thereafter, the Florida Supreme Court revised  its own rule.

Since January 1, 2006, few cases if any have been dismissed since the amended version of Rule 1.420(e) places so many safeguards that a case, according to the First District, can only be dismissed by consent or the acts of an “extremely negligent attorney.”  Indeed.  We thought so too.

Under the current rule, the nonmoving literally party can be inactive for up to ten months and, after the moving party files/serves notice, the nonmovant has a sixty day grace period to (1) obtain a stay, (2) file notice showing good cause or (3) take action to move the case towards conclusion.  If we understand these options correctly, it appears #3 should be the easiest one to accomplish.

In 2007-2008, the Second and Third Districts held that any filing during the sixty day grace period is sufficient.  The First District, in Chemrock Corporation v. Tampa Electric Company d/b/a TECO Peoples Gas Company, holds otherwise (Hawkes, Clark and Wetherell).

In Chemrock, the plaintiff was inactive for 10 months, was served with notice, and during the 60-day grace period filed a “motion in opposition” (which sounded, from the Opinion, like an attempt at  showing good cause for inactivity but it was apparently not called up for hearing).  Trial court dismissed and appellate court upheld.

The intermediate court found that, under the amended rule, filing for a stay (alone) was not enough to avoid dismissal.  You had to have it granted.  Likewise, showing good cause presumed there would be a hearing and then a ruling.  Hence, the court concluded that allowing the non-movant to file “anything” would not give meaning to the “three options in the sixty day grace period” rule.  Discarding a “motion in opposition” as meaningless, the court dismissed and called conflict with the other courts.  Next stop will be the Florida Supreme Court.

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