Tuesday, November 17, 2009

More Than Just A Filing Required To Prevent Dismissal For Lack Of Prosecution

In Chemrock Corporation v. Tampa Electric Company (1D08-4895), the First District affirmed the trial court's dismissal for lack of prosecution under Florida Rule of Civil Procedure 1.420(e).  "The question presented is whether any filing served during the 60-day grace period is sufficient to avoid dismissal under the amended version of Rule 1.420(e). We find the grace period requires more than just a filing, and affirm."
the Supreme Court amended Rule 1.420(e) to its current version, incorporating two significant changes. First, it shortened the period of time that must elapse before the moving party can take action from twelve months to ten months. Second, it created a sixty-day grace period during which the nonmoving party had various options to avoid dismissal. These changes widened the scope of the Rule, permitting a trial court to consider more than just the passage of time before dismissing a case for lack of prosecution.
Under the amended version of the Rule, the nonmoving party may avert dismissal during the grace period in one of three ways: (1) move for and obtain a stay; (2) show “good cause” as to why the action should remain pending; or (3) recommence prosecution by taking action to move the case toward conclusion.
In their filing during the grace period, Chemrock did not indicate it was attempting to re-commence prosecution. Nor did it request a stay. The filing simply acknowledged that Tampa Electric was correct in claiming the record had been inactive for ten months, but argued Chemrock was not at fault.6 Should Chemrock prevail, it will be able to continue the litigation perpetually by filing similar acknowledgments (“Yes – we still have not done anything”) whenever a notice of lack of prosecution is filed.
If the current version of Rule 1.420(e) is to have any role in civil litigation, Chemrock’s filing during the grace period cannot be found sufficient to avoid dismissal. Accordingly, the trial court properly dismissed the case for lack of prosecution. We find the Wilson definition of “record activity” applicable to the ten months before the notice of lack of prosecution may be filed, but inapplicable to the sixty-day grace period following service of the notice. To the extent that Pagan, Padron, and Edwards hold differently, we certify conflict.
The cases the court certified conflict with are: Pagan v. Facilicorp, Inc., 989 So. 2d 21, 23 (Fla. 2d DCA 2008); Padron v. Alonso, 970 So. 2d 399, 401 (Fla. 3d DCA 2007); Edwards, 961 So. 2d 1048, 1049-50 (Fla. 2d DCA 2007).


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