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VOLUME 6 Winter 2004 | ||||||
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PLAINTIFFS BEWARE: NOT EVERY PAPER OF RECORD WILL PRECLUDE DISMISSAL FOR LACK OF PROSECUTION IN FLORIDA Lisa R. Harris, Esq.
In a medical malpractice action handled by our firm, the plaintiff filed her complaint against our client, a pediatrician, for an incident which allegedly occurred in 1996. After years of litigation and a period of no activity, we filed a motion to dismiss for failure to prosecute pursuant to Rule 1.420(e), Florida Rules of Civil Procedure, on April 14, 2003. In Florida, if there is a lack of record activity in a case for an unbroken period of one year, the case may be dismissed, without prejudice. Just one week shy of the one year mark, the plaintiff filed a notice of taking the deposition of a co-defendant who had not yet been deposed. Our motion to dismiss for lack of prosecution was filed after the plaintiff filed her notice of taking deposition. The deposition never took place. Following two hearings before the trial court, our motion to dismiss for failure to prosecute was granted on November 25, 2003. The plaintiff appealed. See Rime Abu-Hamdeh v. Ileana Romero-Bolumen, M.D., 2004 WL ____, ____Fla.L.Weekly ____, Fla. 3d DCA, Dec.1, 2004. Rule 1.420(e), Fla.R.Civ.P. Rule 1.420(e), Florida Rules of Civil Procedure provides, in part: [a]ll 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 1 year shall be dismissed by the court on . . . the motion of any interested person, unless . . . a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Although there is no qualifying language in the rule establishing exactly what constitutes record activity, the Supreme Court of Florida has explained on a number of occasions that mere passive efforts to maintain a case on the docket will not qualify as record activity. Toney v. Freeman. As we prepared our Answer Brief for the appellate court, a survey of the decisions rendered by Florida appellate courts revealed that often times, the courts have struggled with the application of the rule. The Third District Court of Appeal even opined that the rule never accomplished its intended purpose of expediting litigation. This sentiment has made it exceedingly difficult for defendants to obtain dismissals under the rule for lack of prosecution. As explained by the Florida Supreme Court in Del Duca v. Anthony, the determination of whether a case should be dismissed for lack of prosecution is a two-step process. First, the defendant must show a lack of record activity for a period of one year preceding the motion to dismiss. Second, in the event there has been no record activity, the plaintiff must demonstrate good cause as to why the action should not be dismissed. For purposes of our appeal, only the first step in this two-step process was at issue since the plaintiff contended there had been record activity. One major pitfall for many plaintiffs is that not every bit of record activity will prevent dismissal under Rule 1.420(e). Also deriving from Del Duca, the Supreme Court of Florida adopted a test crafted by the Second District Court of Appeal, which allowed the trial court to dismiss a case for failure to prosecute in the event record activity was filed: (1) in bad faith, and (2) without intent to move the case to its conclusion. In the medical malpractice action handled by our firm, and now finally resolved by the Third District Court of Appeal in Florida, appellant argued that her notice of taking deposition of a party filed within the year preceding the motion to dismiss for lack of prosecution was sufficient to preclude the lower court from ultimately granting our motion to dismiss. We argued that the lower court did not abuse its discretion in granting our motion to dismiss for lack of prosecution, notwithstanding the filing of plaintiff’s notice of taking deposition. It was our position that the notice of taking deposition was filed only in an attempt to create valid record activity. We further argued that the plaintiff’s mere filing of a notice of taking deposition was neither a good faith filing, nor was it filed for the actual purpose of hastening the case toward judgment. Indeed, the notice of taking deposition did nothing to move the case toward a disposition on the merits. Sometimes, it is best to let a sleeping dog lie for as long as it will. |
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