Archive for July 15th, 2011

Lack of Prosecution in Foreclosure Cases

About a month ago, I had an interesting hearing on a Motion to Dismiss for Lack of Prosecution.  Ten months had passed with no record activity (nothing at all in the court file), so I filed a Notice of Intent to Dismiss for Lack of Prosecution, as contemplated by Fla.R.Civ.P. 1.420(e).  In the ensuing sixty days, the only document that appeared in the court file was a Notice of Appearance (by a new attorney for Plaintiff).  That sure sounds to me like a “lack of prosecution,” huh?  One year and the only thing the Plaintiff did was hire a lawyer. 

I filed a Motion to Dismiss for lack of prosecution, citing Chemrock Corp. v. Tampa Electric Co., 23 So. 3d 759 (Fla. 1st DCA 2009).  Chemrock held that a document filed within the 60-day window after a notice of intent to dismiss would not preclude dismissal unless it was designed to advance the case towards judgment.  Under a littany of cases (interpreting the old version of the rule, which Chemrock deemed to apply to the 60-day window), a Notice of Appearance did not qualify. 

Opposing counsel cited Pagan v. Facilicorp, Inc., 989 So. 2d 21 (Fla. 2d DCA 2008) and Edwards v. City of St. Petersburg, 961 So. 2d 1048 (Fla. 2d DCA 2007).  These cases are in direct conflict wiht Pagan, as they hold that any paper filed in that 60-day window precludes dismissal for lack of prosecution, regardless of whether it advances the case towards judgment. 

So here we have two different appellate courts, and they disagree about how the rule should be applied.  Personally, I think the analysis and rationale in Chamrock is the far better way to apply the rule.  As the First District explains, if the law is not as it held, a plaintiff “will be able to continue the litigation perpetually by filing similar acknowledgements (“Yes — we have still not done anything”) whenever a notice of lack of prosecution is filed.”  23 So. 3d at 673. 

In other words, if Chemrock is not the law, then a plaintiff can do nothing to advance a case towards judgment but can nonetheless prevent dismissal of the case merely by filing any innocuous paper (Notice of Unavailability of Counsel, Notice of Change of Address, etc.).  Such a rule would have no “teeth” whatsoever, as it would be virtually impossible to dismiss a case for lack of prosecution, even where the plaintiff is doing nothing. 

Under my example, above, a plaintiff could do nothing for 10 months, but then right before the 60-day window passes, file the Notice of Appearance and avoid dismissal. 

With what is transpiring in foreclosure cases today, our court system desperately needs Rule 1.420(e) to be applied as the First District held in Chemrock.  Rightly or wrongly, trial court judges are desperately trying to find ways to adjudicate/dispose of cases.  Allowing Rule 1.420(e) to have some “teeth,” as it did for many years prior to the amendment of the rule in 2006, would enable judges to appropriately dismiss cases, ease the burden of clogged dockets, and ensure a revenue stream to the courts via additional filings.  After all, more dismissals for lack of prosecution (without prejudice) means more filings and more filing fees.  This would be an incredibly pragmatic way to deal with a huge, state-wide problem.

So what does the Florida Supreme Court do?  Disapproves the First District’s decision in Chemrock and approves Pagan and Edwards.  What does this mean?  A plaintiff can file any piece of paper in the sixty-day period after 10 months of no activity and prevent dismissal.  In other words, unless the plaintiff’s lawyer is totally unconscious for a year, a dismissal for lack of prosecution is basically impossible. 

With all due respect, this is the absolute wrong time for such a rigid rule.  It’s totally impractical.  Our courts are flooded with an unprecedented number of foreclosures – many of which have had little or no activity for long periods of time – and now is when the Florida Supreme Court makes it harder to dismiss cases? 

I find the last paragraph of Justice Pariente’s concurring opinion quite telling:

Unfortunately, the significantly diminished resources available to the trial courts, including lost case managers and the flood of mortgage foreclosure cases, have taxed our trial courts to the limit, making active case management more difficult in all cases.  Regardless, the bottom line is that these problems cannot be solved by using Rule 1.420(e) to dismiss cases where the litigants intend to continue to prosecute the case to a conclusion.

Justice Pariente acknowledges the problem, but she refuses to create a rule to help fix it.  With all due respect, Justice Pariente (and every other justice except for Justice Quince, who appropriately dissented), you missed this boat here. 

I understand the rationale for the Court’s decision.  However, the Court’s refusal to ”use Rule 1.420(e) to dismiss cases” will only cause trial court judges to adjudicate/dispose of cases in other ways.  In other words, if the judges can’t dismiss cases under Rule 1.420(e), then they’re going to dispose of cases in other, less appropriate ways.

To illustrate, I’ve blogged previously about how Florida’s Fifth Judicial Circuit (Hernando, Marion, Lake) was employing a procedure whereby if a Plaintiff was not prosecuting a case, the judges would “administratively close” the file.  There is absolutely zero legal authority for such a procedure – it’s something that the judges are simply not allowed to do.  In fact, a recent decision out of the Fourth District held as much:

the trial court may have considered the case dormant and simply ordered the closing of the file, a procedure not found in the Florida Rules of Civil Procedure or case law.  In doing so, the plaintiff’s case fell into a dark void in the courthouse.  Florida RCP 1.420(e) articulates the correct process to be utilized by litigants and trial courts when a case has been dormant too long.  The trial court erred in directing the clerk to close the file. 

Arzuman v. Budin, 36 FLW D371 (Fla. 4th DCA 2011). 

When I first saw this procedure being employed, I inquired with court personnel in the Fifth Circuit about why this was being done.  Two different personnel admitted to me that the court was employing this procedure because it enabled them to report a case as “closed,” i.e. not active, even though the case was not over.  In other words, the court would look better to the legislature (or whomever else those numbers were reported to). 

Suffice it to say I was not pleased.  After all, these Orders which “administratively close” a case are terribly biased towards plaintiffs, as they enable a case to be “closed,” yet allow the case to be re-opened whenever the plaintiff chooses, even years later (as opposed to dismissed, which requires a new lawsuit and a new filing fee).  Why should the plaintiff, after months/years of inactivity, get to wake up one day and say “OK, I’m ready to prosecute my case now?” 

Months ago, I had a lengthy discussion/argument with the General Counsel for the Fifth Circuit about this procedure.  When the Budin case came out, I thought for sure the Fifth Circuit would change its procedure on an administrative level.  Nope.  This week, I received another Order Administratively Closing Case.  So I wrote the General Counsel another email, reminding her of Budin and asking that this procedure cease. 

After a series of unpleasant emails about it (where she berated me for criticizing the judiciary and said she felt “compelled” to report me to The Florida Bar, yet, ironically, accused me of trying to intimidate the court), she told me she had discussed the matter with the Chief Judge and that he was not going to change the procedure.  My remedy was to bring an appeal, i.e. to handle the issue on a case-by-case basis.  To clarify, I had informed her of Budin, she talked to the Chief Judge, and yet the Court was continuing to employ a procedure that, if we’re being honest, clearly has no legal basis. 

So, Justice Pariente, do you see the point now?  You may think Rule 1.420(e) shouldn’t be “used to dismiss cases.”  But the trial court judges in Florida are so inundated with cases that your refusal to create a rule enabling them to dismiss dormant cases has resulted in trial court judges employing procedures like this … “closing” cases administratively without any legal basis to do so. 

But it’s worse than that.  The backlog of cases (and having their hands tied on dismissals) is causing judges to do other inappropriate things as well.  In Hillsborough, judges have been denying motions without notice and without a hearing.  As I write this, I find myself writing a letter to the judges in Hillsborough trying to convince them that I should get a hearing on my motions to dismiss before the judge denies them.  After all, even the senior judges (who were soundly cricitized by many) were often granting these motions. 

Respectfully, is that what this has come to?  I have to convince judges to give me a hearing (on motions that, in similar cases, have often been granted)? 

Look at it this way … Which is better – adopting a version of Rule 1.420(e) that has some “teeth,” enabling cases to be dismissed where they’ve been dormant, or leaving so many dormant cases active that judges are so overwhelmed they feel compelled to dispose of cases by denying motions without notice and without hearing? 

Which is better – adopting a version of Rule 1.420(e) that has some “teeth,” and enables cases to be dismissed when they’ve been dormant, or having judges arbitrarily, with no procedure/rule in place whatsoever, choose to “administratively close” a case without notice, at their 100% whim/discretion? 

I feel, respectfully, like the Florida Supreme Court is out of touch with what is going on in trial courts throughout the state.  It’s as if they’re parents who are talking to their child about sex/abstinence for the first time and the “child” is 23 and just graduated college. 

Florida’s court system is a mess.  In some senses, it’s a free-for-all, with different judges in different counties employing various “procedures” to dispose of cases.  It’s long past time that the Florida Supreme Court was willing to take stock of the situation and employ rules that can help everyone get through the mess.

Mark Stopa

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