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The misinterpretation of the dismissal for failure to prosecute rule.

About three years ago, not long after graduating from law school and being admitted to The Florida Bar, I received a frantic call from an attorney, a friend, who was facing a motion to dismiss for failure to prosecute and needed some help with research. After he explained the factual scenario to me while I was reading the applicable Florida Rule of Civil Procedure (Rule 1.420(e)), I noted that he should not worry much about the motion. In essence, I said: "You just told me that there have been two orders of court entered into the record in the year preceding the motion to dismiss, and the language of the rule clearly indicates that an `order of court' is an indication of record activity. Anyway, I will look into it."

After I reviewed the defendants' motion and researched the issue, I began to worry as well. It turned out that despite the clear language in Rule 1.420(e), the term "order of court," as used in the rule, does not encompass all orders of court. Orders of court that are "passive" in nature, I found out, do not preclude dismissal for failure to prosecute. A few weeks later, my friend informed me that his wrongful death case was dismissed for failure to prosecute.

Since then, I have been bothered by the interpretation that our courts have given to Rule 1.420(e) of the Florida Rules of Civil Procedure. After all, rules of procedure must be perfectly clear, as it is in our best interest that all disputes in our courts be resolved on the merits. The rules serve to guide both attorneys and pro se parties through our legal system. Thus, it is essential that procedural rules give proper notice regarding what action(s) must be taken to avoid the negative consequences of noncompliance. The purpose of this article is to critique the current interpretation of Rule 1.420(e), the rule regarding dismissal for failure to prosecute, and to call for the repeal of the rule or, alternatively, to offer some suggestions on how the rule should be interpreted.

The Florida Constitution provides to every person the right to access our courts for redress of any injury.(1) That access is not unrestricted, however, and Florida civil litigants must comply with the Florida Rules of Civil Procedure and Rules of Judicial Administration in order to protect their right to access the courts. At the same time, Fla. R. Civ. P. 1.010 provides that the Florida Rules of Civil Procedure "shall be construed to secure just, speedy, and inexpensive determination of every action."(2) Thus, the rules are supposed to provide the means for the parties to achieve a just, speedy, and inexpensive determination of their dispute. They exist to facilitate the pursuit of justice in our courts. Any restrictions on the access to our courts imposed by the Florida Rules of Civil Procedure must be liberally construed in favor of the constitutional right to access our courts. See G.B.B. Investments, Inc. v. Hinterkopf, 343 So. 2d 899, 901 (Fla. 3d DCA 1977). The Florida Supreme Court noted recently in Tortura & Company, Inc. v. Williams, 754 So. 2d 671, 677-78 (Fla. 2000):

[A]ll too often rules and technicalities consume the very substance for which our system of justice exists. Rules just seem to spawn more-rules to coordinate the original and subsequent rules.... [courts should have] a greater latitude to deal with cases ... where technical defenses become the centerpieces of the litigation and the merits are obscured, if not totally overshadowed. As our courts have consistently admonished, that is not the purpose of the rules of civil procedure (citation omitted) as they have been contemplated by this Court and other appellate courts.

The Florida Supreme Court called the above a "bedrock principle." However, our courts seem to have set aside this bedrock principle when interpreting and applying Rule 1.420(e) (regarding dismissal for failure to prosecute). Decisions under the current interpretation of the rule have been criticized as unjust and bizarre.(3) The continuous misinterpretation of Rule 1.420(e) has lead to the unjust dismissal of numerous cases that were being actively pursued. Recently, the Florida Supreme Court has taken some steps toward reducing the injustice caused by the rule.(4) However, our courts have not gone far enough in this effort.(5) There remain several problems with Rule 1.420(e) as it presently stands: 1) that under the plain language of the rule any order of court should be deemed record activity; 2) that Rule 2.085 of the Rules of Judicial Administration and Rule 1.420(e) are inconsistent in that the former requires the trial court to take control of the progress of litigation while the latter punishes only the plaintiff for stagnant litigation; and 3) that consistent with Florida's constitutional right to access our courts and other justice considerations require that our courts reinterpret Rule 1.420(e) as noted above, or that the Florida Supreme Court repeal the rule.

General Principles Regarding Rule 1.420(e)

Motions to dismiss for failure to prosecute are controlled by Fla. R. Civ. P. 1.420(e), which provides in pertinent part as follows:

* 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 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, ... unless ... a party shows good cause ... why the action should remain pending. (Emphasis added).... Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

In Del Duca v. Anthony, 587 So. 2d 1306, 1308-9 (Fla. 1991), the Florida Supreme Court explained that application of Rule 1.420(e) is a two-step process:

First, the defendant is required to show there has been no record activity for the year preceding the motion. Second, if there has been no record activity, the plaintiff has an opportunity to establish good cause why the action should not be dismissed.

The one-year period in Rule 1.420(e) should be measured backwards from the time preceding the filing of the motion to dismiss for lack of prosecution. See Chrysler Leasing Corp. v. Passacantilli, 259 So. 2d 1, 3-4 (Fla. 1972). Our courts have defined "record activity" as any act reflected in the court file that is designed to move the case forward toward a conclusion on the merits. See, e.g., Barnett Bank of East Polk County v. Fleming, 508 So. 2d 718, 720 (Fla. 1987); Toney v. Freeman, 600 So. 2d 1099, 1100 (Fla. 1992).

Thus, pursuant to the current definition of record activity, and despite the plain language of the rule, not every order of court, pleading, or other paper has been found to constitute record activity precluding dismissal for failure to prosecute. The following is a nonexhaustive list of activity that our courts have found to be "passive" in nature and, therefore, not to constitute record activity for purposes of Rule 1.420(e): sua sponte status order,(6) sua sponte order setting a case management conference,(7) order allowing the substitution of counsel,(8) motion for substitution of counsel,(9) and motion for mediation conference that was not set for hearing.(10)

Defining Record Activity: Plain Language Argument

As the Florida Supreme Court pointed out in Metropolitan Dade County v. Hall, 26 Fla. L. Weekly S267 (Fla. April 26, 2001), Rule 1.420(e) "plainly states that actions `shall' be dismissed if it appears on the face of the record that there was no activity within the past year." Rule 1.420(e) partially defines what "activity" is required to preclude dismissal. The rule provides, in part, as follows: "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 one year shall be dismissed..."

According to the plain language of the rule, therefore, an "order of the court" constitutes record activity. Nothing in the plain language of Rule 1.420(e) indicates that an order of court or other pleading in the record must hasten the cause to resolution in order to preclude dismissal for failure to prosecute. Nonetheless, not all orders of court or pleadings are treated equally in Florida for purposes of the above rule. Our courts have excluded from "record activity" orders, pleadings, or papers which are "passive" in nature (i.e., order granting motion to withdraw, or order granting motion for substitution of counsel). E.g., Gulf Appliance Distributors, Inc. v. Fritz, 220 So. 2d 908 (Fla. 1951); Modellista de Europa (Co.) v. Redpath Inv. Co., 714 So. 2d 1098 (Fla. 4th DCA 1998), rehearing denied, review denied, 728 So. 2d 203.

To date, however, Florida courts interpreting the record activity requirement of Rule 1.420(e) have apparently overlooked the principle that rules of procedure that are in derogation of a previously existing right must be strictly (literally rather than broadly) construed. See Crump v. Gold House Restaurants, Inc., 96 So. 2d 215, 219 (Fla. 1957) (strictly interpreting the language of the two-dismissal rule, currently Rule 1.420(a), under the above principle). Rule 1.420(e), like 1.420(a), is in derogation of a previously existing right, such as the right to access to our courts.(11) Under a strict interpretation of the language of Rule 1.420(e), therefore, the filing of any order of court or pleading within the year preceding the motion to dismiss for failure to prosecute is sufficient to preclude dismissal under the rule. The terms "order of court" and "pleading" (i.e., complaint, answer, and reply) are not vague, and should be read according to their ordinary meaning. While the term "otherwise" is vague, the term should be interpreted to mean "in any other manner." Thus, the filing of anything other than an order of court or pleading in the year preceding the motion to dismiss for failure to prosecute should preclude dismissal under the rule because it demonstrates that the case is being actively pursued.(12)

The above-proposed interpretation of the record activity requirement in Rule 1.420(e) would also be consistent with the important principle that restrictions on the constitutional right to access our courts must be interpreted liberally in favor of protecting that right. See G.B.B. Investments, Inc. v. Hinterkopf, 343 So. 2d 899, 901 (Fla. 3d DCA 1977). Thus, a liberal interpretation of the rule in favor of the right to access the courts would include a literal interpretation of the language of the rule, including the term order of court. This would ensure that plaintiffs, including pro se parties, are not mislead into having their case dismissed for failure to prosecute because they miscalculated (i.e., counted a "passive" order of court as record activity) the time they had to engage in active prosecution to avoid dismissal under Rule 1.420(e).

Consistently with the Crump, the Florida Supreme Court should recede from Toney v. Freeman, 600 So. 2d 1099 (Fla. 1992), in which the court held that a status order is not record activity, and should hold that any order of court, including an order permitting substitution of counsel, is record activity under Rule 1.420(e).

Rule 1.420(e) v. Rule 2.085(a)-(b): Two Conflicting Rules

The Florida Supreme Court has indicated that the purpose of the Rule 1.420(e) is "[1] to encourage prompt and efficient prosecution of cases and [2] to clear trial dockets of litigation that essentially has been abandoned." See Barnett Bank of East Polk County v. Fleming, 508 So. 2d 718, 720 (Fla. 1987)(emphasis added). Consistently with the above "purpose" for the rule, the Florida Supreme Court in Toney wrote, in dictum, as follows:

Trial judges should be encouraged to take an active role in keeping themselves informed of the cases assigned to them. We refuse to construe appropriate case management activities in such a way as to give the parties leave to ignore the case for another year before dismissal is possible. Such a construction would thwart the purpose of case management and the purpose of the rule itself--to encourage prompt and efficient prosecution of cases and to clear court dockets of cases that have essentially been abandoned.

The Florida Supreme Court should reconsider the above dictum, and the holding of Toney, because the first "purpose" of Rule 1.420(e) can hardly be said to derive from the express language of the rule, and because the dictum and holding in Toney are inconsistent with the express language and the purpose of Rule 2.085 of the Florida Rules of Judicial Administration.

(*) Rule 1.420(e) does not have the purpose and effect of encouraging prompt and efficient determination of cases.

The rules are to be interpreted to secure the just, speedy, and inexpensive determination (rather than prosecution) of every action.(13) Instead, Rule 1.420(e) encourages slower litigation and avoids the determination of cases on the merits. By punishing plaintiffs, but not defendants, for their inaction, the rule promotes inactivity on the part of defendants (Rather than moving cases forward and setting their cases for trial, defendants are encouraged to wait inactively for one year and then move to dismiss for failure to prosecute just one day after the last recognized record activity took place.). Further, the rule may indirectly encourage trial judges not to engage in case management activities so that cases dismissed under Rule 1.420(e) will help alleviate the trial court's docket.(14) Finally, the rule does nothing to encourage plaintiffs to engage in "prompt" or "efficient" prosecution of their cases. All that the rule does is require plaintiffs to visit their case at least once per year and to file at least one document per year that is recognized as record activity. Thus, any experienced Florida attorney can easily avoid the harsh punishment of the rule and, therefore, will not be encouraged in any manner to move the cause of action forward in an efficient manner. Quite the opposite, plaintiffs may feel justified in moving the case to resolution slowly (with at least one record action per year), since they will be acting in compliance with a rule of procedure. Thus, Rule 1.420(e) does not promote the efficient progress of litigation.

* Trial judges, not the parties, are responsible for the progress of litigation.

The goal of promoting efficient and effective determination of cases is laudable. Nonetheless, the Florida Supreme Court has already determined that this goal would be better achieved by charging trial courts, rather than the parties, with the obligation to actively manage cases from an early stage. See Amendment to Rules of Judicial Adm. Rule 2.050, 493 So. 2d 423, 426 (Fla. 1986) (Overton, J., concurring specially) ("`To enable just and efficient resolution of cases, the court, not the lawyers or litigants, should control the pace of litigation'"). Fla. R. Jud. Adm. 2.085 was enacted in 1986 for that purpose. In his concurring opinion in Amendment to Rules of Judicial Adm. Rule 2.050, 493 So. 2d 423, 426 (Fla. 1986) (Overton, J., concurring specially), Justice Overton stated:

Standard 2.50 of the ABA Standards Relating to Trial Courts, modified in 1984, states in part: To enable just and efficient resolution of cases, the court, not the lawyers or litigants, should control the pace of litigation. A strong judicial commitment is essential to reducing delay.... The commentary to this standard explains: Eradicating delay depends on adherence to this one axiom: The court must take the initiative to eliminate the causes of delay. (Emphasis added.)(15)

See Amendment to Rules of Judicial Adm. Rule 2.050, 493 So. 2d 423, 426 (Fla. 1986) (Overton, J., concurring specially).

Rule 2.085 provides in pertinent part as follows (emphasis added):

(a) Purpose. Judges and lawyers have a professional obligation to conclude litigation as soon as it is reasonably and justly possible to do so....

(b) Case Control. The trial judge shall take charge of all cases at an early stage in the litigation and shall control the progress of the case thereafter until the case is determined. The trial judge shall take specific steps to monitor and control the pace of litigation, including the following:

(1) assuming early and continuous control of the court calendar;

(2) identifying cases subject to alternative dispute resolution processes;

(d) Time Standards. The following time standards are established as a presumptively reasonable time period for the completion of cases in trial and appellate courts of this state.

(1) Trial Court Time Standards.

(B) Civil.

Jury Cases--18 months (filing to final disposition).

According to Fla. R. Jud. Adm. 2.085, therefore, the trial judge is charged with the obligation to ensure that cases progress to resolution on the merits in a just and efficient manner. Also, the attorneys for all parties, not just the plaintiffs, are required to bring cases toward resolution in an expeditious manner.(16) Rule 2.085 and Rule 1.010 (regarding just and speedy determination of cases), thus, are in contradiction with the purpose and effect of Rule 1.420(e): to primarily place on plaintiffs the responsibility to timely prosecute their cases or face dismissal.(17)

To comply with Rule 2.085, shortly after a case is filed or at least after the pleadings close, a trial judge should either issue a sua sponte uniform order setting the calendar for the case (i.e., discovery deadline, pretrial conference, trial date, etc.), or the court should issue a sua sponte order setting a case management conference to achieve the same purpose.(18) Of course, parties should then be given an opportunity to modify the court-imposed schedule, if good cause is shown. See Fla. R. Jud. Adm. 2.085(c). If the attorneys representing the parties do not comply with the court-ordered schedule, the court can appropriately sanction such attorneys. This system would encourage attorney diligence in litigation, would protect litigants' constitutional right to access to our courts, and would encourage effective representation of clients and cooperation between counsel for all parties. This proposed system, pursuant to Rule 2.085 and Rule 1.200(a), would also achieve the purported goal and spirit of Rule 1.420(e), but more effectively and more fairly.

If trial courts comply with the mandates of Rule 2.085 and take active control of cases early on, dismissals under Rule 1.420(e) would not take place, and Rule 1.420(e) would become futile. Further, Rule 2.085 is undermined by the continuing existence and enforcement of Rule 1.420(e). Without Rule 1.420(e) available, trial judges who want to keep their dockets manageable will be encouraged to take active control of the progress of every case at an early stage. This, in turn, will result in a more efficient and fair judicial system in this state.

Dismissals for failure to prosecute pursuant to Rule 1.420(e) are in contradiction with the express language, the purpose, and the spirit of Rule 2.085 of the Rules of Judicial Administration: to ensure that courts, rather than lawyers or parties, take control of the progress of litigation. See also Fla. R. Civ. P. 1.010 and Fla. R. Jud. Adm. 2.010. Because Rule 1.420(e) (punishing only plaintiffs for their lack of record activity) is in direct conflict with Rule 2.085 (requiring all attorneys to move causes of action efficiently toward resolution and requiring trial judges to take control of the progress of litigation at an early stage), our courts must choose one rule over the other. That choice, however, is clear, as Fla. R.Jud.Adm. Rule 2.010 provides, in part: "These rules shall supersede all conflicting rules and statutes."

Thus, Rule 1.420(e) was superseded by Rule 2.085(a)-(b). The effect of eliminating Rule 1.420(e) will be clear: Trial judges will be encouraged to comply with the mandate of Rule 2.085 and will take an active role in requiring (not just encouraging) both plaintiffs and defendants to move causes of action to resolution efficiently.

Further, if courts comply with their Rule 2.085 obligations, cases that are truly abandoned will still be dismissed pursuant to Rule 1.200(c), which provides that on "failure of a party to attend a conference, the court may dismiss the action," or Rule 1.420(b), which provides that any party may move to dismiss an action for failure to comply with the rules of procedure or with any court order.

This author agrees with Justice Wells that defendants, in general, should be free from "hanging" litigation. See Fuster-Escalona v. Wisotsky, 25 Fla. L. Weekly S1080 (Fla. 2000) (Wells, dissenting) ("not only a person who files an action has rights and interests affected by [Rule] 1.420(e). Parties who are sued also have the right to be free of litigation which is dormant and only hanging over them like the proverbial `black cloud.'"). But the present Florida Rules of Civil Procedure and Rules of Judicial Administration, even excluding Rule 1.420(e), provide numerous remedies to defendants seeking to avoid "hanging" litigation. See Miranda v. Volvo North America Corp., 763 So. 2d 536 (Fla. 3d DCA 2000). The Miranda court noted:

We are not unmindful that the defendants also have not done anything to move this case forward. If [plaintiff]'s counsel chose not set the case for trial, nothing prevented defendants' counsel from taking appropriate depositions, from setting the case for trial, and moving the case forward to conclusion.... We respectfully suggest that the trial court manage this case by immediately setting a status conference to determine how long the parties will need to complete discovery and when the case will be ready for trial.

First of all, once the pleadings are closed, a defendant may set the action for trial, at which time the court will usually set discovery and trial-related deadlines, etc. See Fla. R. Civ. P. 1.440(a); see also Fla. R. Jud. Adm. 2.085. Further, defendants may move for a case management conference pursuant to Rule 1.200(a) and Rule 2.085 if they feel that the case is not moving along as it should. Defendants can also set for hearing any plaintiffs motion that has not been set for hearing. On the other hand, Rule 1.420(e) actually encourages defendants to let litigation "hang" in the hope that plaintiffs will do nothing on the record for one year, thereby avoiding resolution on the merits by filing a motion to dismiss for failure to prosecute.

Case management activities should not be taken solely to clear court dockets of abandoned cases, but primarily "shall" be used, according to Rule 2.085, to control the progress of litigation from an early stage. Thus, case management activities should be encouraged, and should be construed as attempts to effectuate the spirit and purpose of Fla. R. Jud. Adm. 2.085. It should also be noted that finding that case management activities, if considered "record activity," would not "give the parties leave to ignore the case for another year before dismissal is appropriate." Toney v. Freeman, 600 So. 2d 1099 (Fla. 1992). Instead, case management activities warn the parties that the trial court is paying attention to the progress of the case, according to Rule 2.085, and the parties better move the case toward resolution.

Carefully Enacted Rules to Avoid Appearance of Pro-defendant Bias

The appearance of impartiality of our judiciary is of utmost importance to our courts. The Florida Rules of Civil Procedure are, essentially, judge-made laws. It is important that those rules are perceived as fair and equitable to

all parties in our courts. If the rules have a tendency to favor the government and corporations (more likely to be defendants) and disfavor plaintiffs (more likely to be individuals), the credibility of our judiciary will suffer. As Chief Judge Schwartz recently pointed out, Rule 1.420(e) is very harsh toward plaintiffs while, at the same time, other rules of procedure regarding the timeliness of record activity by defendants are very lenient toward defendants.(19) Under Rule 1.420(e), for example, not every paper filed in the record is deemed record activity and filings after a motion to dismiss but before dismissal do not preclude dismissal for failure to prosecute. On the other hand, under Fla. R. Civ. P. 1.500, a default by the clerk can only be obtained if the defendant has "failed to file or serve any paper" in the action (emphasis added); and, if any paper (such as a letter accepting waiver of service of process) was served to opposing counsel but the answer was not filed timely, the plaintiff must seek a court order of default with notice of the motion to the defendant. At any time while the motion is pending, or even after the motion is granted but before the order is recorded, the defendant may file an answer and avoid dismissal.(20) When comparing the above rules, it becomes clear that the rules of procedure treat untimely and inefficient defense of actions more leniently than it treats inefficient and untimely prosecution of actions. By correcting this disparity, the Florida Supreme Court will improve the notion that all parties are treated equally before our courts.

Further, according to Fla. R. Civ. P. Rule 1.010, the Florida Rules of Civil Procedure "shall be construed to secure the just, speedy, and inexpensive determination of every action." (Emphasis added.) The current interpretation of Rule 1.420(e) does not accomplish those goals, especially since such a dismissal is not a "determination" of an action on the merits.

Florida courts have long preferred to decide cases on the merits. See Torrey v. Leesburg Regional Med. Center, 25 Fla. L. Weekly S911, S912 (Fla. Oct. 26, 2000) (reiterating "the policy of allowing cases to be decided on the merits whenever possible"); Houston v. Caldwell, 359 So. 2d 858 (Fla. 1978) ("The dismissal of a suit is a drastic remedy which should be ordered only under the most compelling circumstances"). According to Houston, "[t]his state has a fundamental interest in resolving controversies involving its citizens." Houston, 359 So. 2d at 860. By not literally interpreting the term "Order of Court" in Rule 1.420(e), our courts unnecessarily trump this fundamental interest. See Crump v. Gold House Restaurants, Inc., 96 So. 2d 215, 219 (Fla. 1957). In deciding whether an action should be dismissed, there are competing considerations: on the one hand, the litigants' right of access to the courts must be preserved; while on the other hand, a rule or statute must be enforced. See Kukral v. Mekras, 679 So. 2d 278, 284-85 (Fla. 1996) (reversing a dismissal and holding that the medical malpractice statutory scheme must be interpreted liberally so as not to unduly restrict a Florida citizens' constitutionally guaranteed access to the courts).(21)

While the goal of moving causes of action forward in order to have cases resolved expeditiously is well-taken, Rule 1.420(e), in its present form, does not accomplish that goal. Rather, the rule functions to arbitrarily dismiss cases where plaintiffs are unfamiliar with its tricky interpretation.(22)

Rule 1.420(e), as it presently stands, serves to perpetuate mistrust in lawyers, our legal system, and our courts. The rule provides a harsh punishment against plaintiffs for the negligence, misunderstanding, or inexperience of their attorneys, and it rewards the inaction of defendants. The actual litigants are rarely at fault when a cause of action is dismissed for failure to prosecute. Yet, often such plaintiffs are left with no choice other than abandoning their quest for justice in the courts or starting costly and difficult legal malpractice litigation against the attorney who, through inadvertence or inexperience, allowed the dismissal to take place.(23) The Florida Rules of Civil Procedure should be cautiously used to harshly punish bad faith and intentional misconduct in our courts. They should not, however, serve as means to unjustly limit the constitutional right to a remedy by due course of law. See Reddish v. Forlines, 207 So. 2d 703 (Fla. 1st DCA 1968). The ends of justice should not be defeated by an unreasonable application of procedural rules. See Lake Crescent Development Co. v. Flowers, 355 So. 2d 867 (Fla. 1st DCA 1978). Otherwise, the "priorities [have] become reversed and the dog [has been] permitted to swallow his master.(24)

Conclusion

Rule 1.420(e), as it has been interpreted, has become just the type of rule that the Florida Supreme Court was warned us about in Tortura & Company, Inc. v. Williams, 754 So. 2d 671, 677-78 (Fla. 2000), since its plain language meaning has been distorted and numerous confusing rules have been developed to "coordinate" the rule. Our courts have an obligation to remedy the inequities caused by Rule 1.420(e). The continuous existence of Rule 1.420(e) threatens the goal of every attorney in this state: to improve the image of our profession and of our judicial system in the eyes of the public. Allowing cases to be dismissed on technicalities and against the plain language of the rule is inconsistent with that goal and with our courts' interpretation of the constitutional right to access the courts.

(1) FLA. CONST. art. I, [sections]21.

(2) See also Rule 2.010 (providing that the Rules of Judicial Administration "shall be construed to secure the speedy and inexpensive determination of every proceeding to which they are applicable."). See National Enterprises, Inc. v. Foodtech Hialeah, Inc., 2001 WL 166657, (*)4 and n.6, 7, and 8 (Fla. 5th D.C.A., Feb. 2001) (on rehearing en banc) (Schwartz, C.J., specially concurring); Levine v. Kaplan, 687 So. 2d 863 (Fla. 5th D.C.A.), review denied, 564 So. 2d 1087 (Fla. 1990) (Griffin, J., dissenting); Hall v. Metropolitan Dade County, 760 So. 2d 1051, n.2 (Fla. 3d D.C.A.), review granted, No. SC00-1647 (Fla. Jan. 9, 2001) ("We agree with Judge Griffin's dissent in Levine v. Kaplan ...").

(4) See Metropolitan Dade County v. Hall (citation not yet available) (Fla. Apr. 26, 2001) (holding that the taking of a deposition within the year preceding the filing of a motion to dismiss for failure to prosecute is good cause precluding dismissal); Fuster-Escalona v. Wisotsky, 25 Fla. L. Weekly S1080 (Fla. 2000) (holding that a trial court cannot dismiss an action for failure to prosecute when a motion to disqualify the judge had been filed and was pending, even though the plaintiff did not set the motion for hearing for more than one year, because the trial court did not comply with requirements set forth in the Rules of Judicial Administration).

(5) In criticizing the interpretation of Rule 1.420(e), this author will limit himself to addressing the "record activity" issue, and will not address the "good cause" issue.

(6) See Toney v. Freeman, 600 So. 2d 1099 (Fla. 1992).

(7) Moossun v. Orlando Regional Health Care, 760 So. 2d 193 (Fla. 5th D.C.A. 2000).

(8) National Enterprises, Inc. v. Foodtech, Inc., 2001 WL 3858 at (*)4 (Fla. 3d D.C.A. 2000).

(9) Id.; Touron v. Metropolitan Dade County, 690 So. 2d 649 (Fla. 3d D.C.A. 1997).

(10) Heinz v. Watson, 615 So. 2d 750 (Fla. 5th D.C.A. 1993).

(11) Zukor v. Hill, 84 So. 2d 554 (Fla. 1956) (regarding common law rule dealing with involuntary dismissal for want of prosecution if no activity occurs in a three-, rather than one-, year period).

(12) See National Enterprises, Inc. v. Foodtech Hialeah, Inc., 2001 WL 166657, (*)4 and n.6 (Fla. 5th D.C.A. Feb. 2001) (on rehearing en banc) (Schwartz, C.J., specially concurring, wrote: "It follows ... that no case should be dismissed for lack of prosecution when the plaintiff shows--by filing any document whatever during the critical period--that he wishes actively to pursue the case ... the filing of `any paper' is all that is required by Fla. R. Civ. P. 1.500(b) for the defendant to signal his intent to defend and thus to avoid a default without notice ... I see no reason for a different standard when the plaintiff is involved)."

(13) Fla. R. Civ. P. 1.010.

(14) See National Enterprises, Inc., 2001 WL 166657, n.7 and n.8 (Fla. 3d D.C.A. Feb. 21, 2001) (C. J. Schwartz, specially concurring).

(15) Some of the articles cited in support of the above statement included: Friesen, Cures for Court Congestion, 23 THE JUDGES' JOURNAL 4 (Winter 1984); Flanders et al., Case Management and Court Management in United States District Courts (1977); Friesen et al., Justice in Felony Courts: A Prescription to Control Delay, 2 WHITTIER L. REV. 7 (1979). Id.

(16) See also "Oath of Admission to The Florida Bar, Creed of Professionalism," 74 FLA. B.J. 763 (September 2000 ("I will conduct myself to assure the just, speedy, and inexpensive determination of every action and resolution of every controversy").

(17) Rule 1.420(e) also discourages the resolution of issues without resorting to the court, and is in conflict with the principles behind the amendments to the Florida Rules of Procedure in 1986, which, for example, eliminated the automatic requirement of filing depositions transcripts with the clerk of court. See Nichols v. Lohr, 26 Fla. L. Weekly D365, D366 (Fla. 5th D.C.A. 2001) (Griffin, J., dissenting) ("The rule of Levine that the taking of discovery will not avoid dismissal for want of prosecution unless the discovery is actually filed within one year of the last record activity is completely inconsistent with the amendments to the discovery rules that were designed to keep discovery out of the court file until it was truly needed for some specific purposes. [citation omitted] Which rule is the prudent lawyer to honor? ... Am I the only one who thinks this is nuts?"); Metropolitan Dade County v. Hall, 26 Fla. L. Weekly S267 (Fla. April 26, 2001).

(18) See Fuster-Escalona v. Wisotsky, 25 Fla. L. Weekly S1080 (Fla. 2000) (J. Harding, specially concurring) ("I believe that judges in the year 2000 must be managers as well as adjudicators, especially in light of Florida's crowded trial court dockets. Trial judges have a duty to periodically review their dockets and bring up matters which the attorneys have not set for hearing. Moreover, my experience as a trial judge has convinced me that it is the judge's, not the attorneys', responsibility to ensure that cases move through the system appropriately.").

(19) See National Enterprises, Inc., 2001 WL 166657, n.7 and n.8 (Fla. 3d D.C.A., Feb. 21, 2001) (C.J. Schwartz, specially concurring).

(20) Rule 1.500. Also, a default may be overcome by a showing of excusable neglect, while only good cause (a higher burden) excuses the failure to prosecute a case, on the record, for one year or more under Rule 1.420(e).

(21) Dismissal or striking of defenses only available if the party that complied with the pre-suit requirements was prejudiced. See Kukral, 679 So. 2d at 284; see also De La Torre v. Orta, (Fla. 3d D.C.A., March 21, 2001).

(22) Any recently admitted Florida attorney or out-of-state attorney can easily become a victim of the "incomprehensible" and almost "bizarre" interpretation of Rule 1.420(e). See Levine v. Kaplan, 687 So. 2d 863, 865-66 (Fla. 5th D.C.A.) (J. Griffin, dissenting: "Counsel for Appellant, who like many of the victims of this rule is from out of state, remarked during oral argument that the case law interpreting this rule is incomprehensible and borders on bizarre. I agree.").

(23) Though dismissals for failure to prosecute are without prejudice, they often occur after the statute of limitations for the underlying cause has expired.

(24) See National Enterprises, Inc., 2001 WL 166657, n.7 and n.8 (Fla. 3d D.C.A. Feb. 21, 2001) (C.J. Schwartz, specially concurring), in which C.J. Schwartz wrote as follows: "I cannot see that the mere existence of even completely dormant open files has any effect on judicial workload or harms anyone in any other meaningful way. I believe therefore that the object of reducing their numbers by means such as Rule 1.420(e) (and Rule 1.070(j)) cannot justify the dismissal of cases plaintiffs wish to maintain, on grounds unrelated either to their merits, to prejudice sustained by the defendants, or indeed to any cognizable judicial concern. The familiar argument that courts should not permit `stale' cases to `languish' in the system is fallacious at best.... What is worse, the perceived desirability of `getting rid' of cases which `shouldn't be there' tends to place the courts on the side of one party, the defendant, whose interests alone are served by dismissals and against the other, the plaintiff, who is only disserved by them. Any potential compromise of the judicial disinterestedness which is the bedrock of our system is far too high a price to pay for lowering the number on a sheaf of court statistics.

"[S]ince the very purpose of the rule is supposedly to eliminate cases which are not being prosecuted, any attempt to do so must be held to satisfy it.... Florida law, which is that there is somehow something wrong in the plaintiffs `avoiding' the effect of 1.420(e), has wrongly elevated that rule to one of substance which requires independent enforcement. [C]ompliance with Rule 1.420(e), which should be only a means to promote efficiency in the administration of justice, has `become an end in itself,' as to which missteps which do not prejudice, and in fact bear little or no relation at all to the prosecution or defense of the underlying controversies, nevertheless result in final adverse determination of those cases. Thus have the priorities become reversed and the dog permitted to swallow his master."

James P. Waczewski is an assistant statewide prosecutor with the Office of Statewide Prosecution, Tallahassee. His current areas of practice include criminal law and collections. Mr. Waczewski received his B.A., magna cum laude, from the University of Central Florida in 1993 and a J.D., with honors, from Florida State University College of Law in 1998.
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Author:Waczewski, James P.
Publication:Florida Bar Journal
Geographic Code:1U5FL
Date:Oct 1, 2001
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