Florida Rules of Civil Procedure (Fla.R.Civ.P.) are the rules of litigation in Florida courts. They tell the litigants everything from how to file a case, how to serve a complaint, how to obtain a judgment, and so on. Rule 1.420, Fla.R.Civ.P., pertains to dismissal of actions. The first parts of the rule detail how a case can be either voluntarily or involuntarily dismissed. Subsection (e) of the rule pertains to dismissal of an action for failure to prosecute. This can be kind of a tricky issue, depending on which side of the case you are – plaintiff or defendant.
The rule states, in part, as follows:
In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months . . . any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no record activity occurs within the 60 days immediately following the service of such notice, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.
It is the plaintiff’s responsibility to keep his or her case moving along: after all, the plaintiff filed the lawsuit. It is not the court’s responsibility to tell the plaintiff how to manage the case. All the court wants is to decide cases on their merits and move on to the next one. It certainly isn’t the defendant’s responsibility to make sure the plaintiff keeps the case moving. So, Rule 1.420(e) lets the plaintiff know that, if the case isn’t prosecuted, it will be dismissed by the court.
Prior to the current amendment to the rule, litigants fought over the meaning of “record activity”. A plaintiff would argue that the filing of a change of address constituted “record activity”, while a defendant would argue that “record activity” means the filing of something that will move the case to its conclusion. Under the current amendment of the rule, any record activity is sufficient to “resurrect” a case that has been lying dormant for several months. Unfortunately, this is problematic for all but the plaintiff. As stated Justice Damoorgian in his specially concurring opinion in Weston TC, LLLP v. CNDP Marketing, Inc., et al., No. 4D10-1063, 4th DCA 2011, “cases that languish in our system of justice have an institutional cost. For example, case counts have long been a significant factor in structuring court budgets. The longer a case is pending the more it costs the taxpayers.”
The Florida Rules of Civil Procedure are vast and have different interpretations, depending on the court interpreting them. I have vast experience in legal research and representing clients in Florida courts. If you are interested in retaining my services in Jupiter, Palm Beach Gardens or throughout Florida, please feel free to contact me at (561) 602-4447 or liz@elizabethmontgomerylaw.com or visit my website at www.elizabethmontgomerylaw.com or www.jupitercollectionsattorney.com.
The rule states, in part, as follows:
In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months . . . any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no record activity occurs within the 60 days immediately following the service of such notice, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.
It is the plaintiff’s responsibility to keep his or her case moving along: after all, the plaintiff filed the lawsuit. It is not the court’s responsibility to tell the plaintiff how to manage the case. All the court wants is to decide cases on their merits and move on to the next one. It certainly isn’t the defendant’s responsibility to make sure the plaintiff keeps the case moving. So, Rule 1.420(e) lets the plaintiff know that, if the case isn’t prosecuted, it will be dismissed by the court.
Prior to the current amendment to the rule, litigants fought over the meaning of “record activity”. A plaintiff would argue that the filing of a change of address constituted “record activity”, while a defendant would argue that “record activity” means the filing of something that will move the case to its conclusion. Under the current amendment of the rule, any record activity is sufficient to “resurrect” a case that has been lying dormant for several months. Unfortunately, this is problematic for all but the plaintiff. As stated Justice Damoorgian in his specially concurring opinion in Weston TC, LLLP v. CNDP Marketing, Inc., et al., No. 4D10-1063, 4th DCA 2011, “cases that languish in our system of justice have an institutional cost. For example, case counts have long been a significant factor in structuring court budgets. The longer a case is pending the more it costs the taxpayers.”
The Florida Rules of Civil Procedure are vast and have different interpretations, depending on the court interpreting them. I have vast experience in legal research and representing clients in Florida courts. If you are interested in retaining my services in Jupiter, Palm Beach Gardens or throughout Florida, please feel free to contact me at (561) 602-4447 or liz@elizabethmontgomerylaw.com or visit my website at www.elizabethmontgomerylaw.com or www.jupitercollectionsattorney.com.
RSS Feed