Failure to Prosecute – There Are No Do-Overs

I’m a bit frustrated at an Order I just received in the mail, entered sua sponte, without notice, and without hearing, which purported to grant a Motion to Dismiss for Lack of Prosecution but gave Plaintiff leave to amend and directed my clients to file an Answer.  (Obviously, that’s not a dismissal of the case). 

Florida’s rules on lack of prosecution have changed recently, see Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786 (Fla. 2011), but, frankly, it’s not that complicated.  If there is no record activity in the 10 months preceding a Notice of Intent to Dismiss for Lack of Prosecution or the 60 days thereafter, and a defendant files a Motion to Dismiss for Lack of Prosecution, then a plaintiff can avoid dismissal only by a showing of “good cause” for the inactivity.  In other words, any activity which occurs after the motion to dismiss is irrelevant in determining the propriety of dismissal, and the Court has no discretion to keep the case pending simply because the plaintiff has woken up and says “I’m ready to proceed now.” 

In layman’s terms, there are no do-overs for a plaintiff’s failure to prosecute – if a year passes with no activity, the defendant follows the procedures in Rule 1.420(e), and the plaintiff fails to show good cause, then the case is over, dismissed, kaput, finito. 

Here is a Motion I just drafted which lays out some of these principles of law.

Mark Stopa

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4 Responses to Failure to Prosecute – There Are No Do-Overs

  1. JamesM says:

    Mark, you will find some useful perspective and argument with regard to Rule 1.420(e)in Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786, 790 (Fla. 2011).

    • Mark Stopa says:

      Yeah, I know, thanks, James.
      FWIW, circuit court judges HATE that opinion.
      At a time when Florida courts should be most able to dismiss cases that aren’t being prosecuted, the Florida Supreme Court created a new law making it harder than ever to do so.
      This case would be reversed if the Florida Supreme Court justices listened to the state court judges. But, alas, what do I know?

  2. When I first started practicing, 16 years ago dismissal for lack of prosecution was a Gotcha. If a Plaintiff let a Civil case sit idle for 365 days, after the year expired the Defendant could file a motion to dismiss and the case would be over. If the statute of limitations had expired the plaintiff could not even refile. Imagine how devastating that would be do somebody who sustained a serious injury and hired a lawyer who fell asleep on the job.

    The rule was changed to make things much easier on plaintiffs and much harder for Defendants to obtain dismissals for inactivity. Now, the Defendant or the Court must send a notice after ten months of inactivity and the Plaintiff gets 60 days to cure the problem by filing any pleading with the Court. If the Plaintiff merely files a notice of unavailability, something that does not move the case toward conclusion, such action is sufficient to preclude dismissal.

    It is shocking that any plaintiff could ignore their file for ten months and in such time not file a single pleading with the Court, then receive a WAKE UP CALL from your notice of inactivity, continue to ignore the case for 60 more days and not have their case dismissed. What this judge did is to say that the rule will not be followed in his or her Ocala courtroom. This is shameful.

    It seems there are two judicial schools of thought when it comes to foreclosure. The good judges treat foreclosure cases like every other circuit case and apply the rules and law equally to all. The “other” judges think foreclosure is different. There are some judges who feel sorry for banks when their inexperienced lawyers handling far to many cases drop the ball and feel a need to save the lawyer, foreclosure mill, or bank form their lawyer’s incompetence. The order you received is a perfect example of such judicial activism. If this judge let the chips fall where they may, it might hurt the bank in this particular case but coddling the bank does them no favors. Better the bank should get the dismissal see that their lawyer did not touch the file for a year and move their files to more diligent counsel.

    It takes courage to call our bad orders and diligence to correct them. Awareness of such order helps other lawyers argue against such ruling in future cases. Thanks for posting.

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