Archive for February 17th, 2012

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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