F. M. C. CORPORATION, PETITIONER,
v.
JOE WILLIE CHATMAN, RESPONDENT
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F.M.C. Corporation appealed a trial court's denial of its motion to dismiss an action for lack of prosecution under Florida Rule 1.420(e). The Fourth District Court of Appeal reversed, holding that while good cause can excuse inaction, mere non-record activity (phone calls, conferences, letters) without contact with the opposing party does not constitute good cause, nor does the running of a statute of limitations.
Good cause requires more than mere non-record activity such as phone calls, conferences, and letters between counsel, client, and witnesses. Good cause must include contact with the opposing party and excusable conduct arising from circumstances other than negligence or inattention to pleading deadlines. The running of a statute of limitations does not constitute good cause contemplated by the rule.
[1] A court rule requiring dismissal for lack of prosecution after one year of record inactivity allows for dismissal unless a party shows good cause in writing why the actio…
[2] Non-record activity alone is insufficient to toll the one-year period for dismissal for lack of prosecution.
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Join FLexlaw to unlock all legal intelligence“unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending”
The operative language of Rule 1.420(e) that preserves a good cause exception to mandatory dismissal after one year of inactivity
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Join FLexlaw to unlock all legal intelligenceThe case had been inactive for over 16 months when F.M.C. Corporation filed a motion to dismiss for lack of prosecution. The respondent Chatman's affi…
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LETTS, Judge.
This petition for certiorari which we treat as an appeal from a non-final order, results from a holding by the trial judge that the appellee “had shown good cause in writing why the action should not be dismissed.” We reverse.
In the case at bar there had been no record activity for over 16 months when the appellant filed its motion to dismiss for lack of prosecution pursuant to Rule 1.420(e) which states:
(e) Failure to Prosecute. 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 by the court on its own motion or on 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 five days before the hearing on the motion, why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.
Committee Note: 1976 Amendment. Subdivision (e) has been amended to prevent the dismissal of an action for inactivity alone unless one year has elapsed since the occurrence of activity of record. Non-record activity will not toll the one year time period.
The appellant first maintains that this Rule, as amended on January 1, 1977, mandates dismissal after one year, with no exceptions. To this end it cites Sainer Constructors v. Pasco County School Board, 349 So. 2d 1212 (Fla.2d DCA 1977). We cannot deny that the Second District apparently so held, however, we must stop short of complete agreement, for to do so would render the excerpt from the rule “. . . unless a party shows good cause . . . .” mere surplusage. Accordingly while we agree that activity not of record is insufficient by itself, good cause may still be available if there exists other explanations amounting to something more than mere contacts between the litigant and potential witnesses. See Shields v. Moore, 352 So. 2d 139 (Fla.4th DCA 1977).
Adapting this rationale to the case at bar we find that the affidavit detailing the non-record activity merely reflects telephone calls, conférences and letters between the plaintiff’s attorney, his client and potential witnesses, without any contact with the opposing party such as we required in Daurelle v. Beech Aircraft Corp., 341 So. 2d 204 (Fla.4th DCA 1977), cert. den. 354 So. 2d 980 (Fla.1977).
Admittedly there was one very compelling reason brought out in the affidavit, namely that the statute of limitations had run in the interim. We have every sympathy for such a dire happening, but are convinced that this is not the kind of good cause the rule envisages. Dade County v. Moreno, 227 So. 2d 548 (Fla.3d DCA 1969). To us, good cause must include contact with the opposing party and some form of excusable conduct or happening which arises other than by negligence or inattention to pleading deadlines. In the case before us there may have been extensive non-record conferences with a “. . . necessary and vital expert witness,” but such do not prevent, or hinder, compliance with the rules. All this being so, while recognizing that the result is harsh, we must reverse the trial judge and direct him to enter a judgment in accordance herewith.
REVERSED AND REMANDED.
CROSS and MOORE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (26 total)
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Am. E. Corp. v. Henry Blanton, Inc., 382 So. 2d 863 (Fla. 2d DCA 1980)…fined in the decisional law construing the former rule can no longer be good cause to avoid dismissal for lack of prosecution.” 349 So. 2d at 1214. The Fourth District Court of Appeal chose not to follow this statement in F. M. C. Corp. v. Chatman, 368 So. 2d 1307 (Fla. 4th DCA 1979). There the court said that “to do so would render the excerpt from the rule ‘. . . unless a party shows good cause . . . .’ mere surplusage.” Id. at 1308. We agree with our sister court and now recede from our dicta in Sainer. N…
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Norflor Constr. Corp. v. City OF Gainesville & CH2M Hill Se., Inc., 512 So. 2d 266 (Fla. 1st DCA 1987)…“good cause” so as to avoid dismissal. “Good cause must include contact with the opposing party and some form of excusable conduct or happening which arises other than by negligence or inattention to pleading deadlines.” FMC Corporation v. Chatman, 368 So. 2d 1307, 1308 (Fla. 4th DCA 1979), cert. denied, 379 So. 2d 203 (Fla.1979). For a party to establish good cause, it must show a compelling reason to. avoid dismissal where there has been no record activity. American Eastern Corporation v. Henry Blanton, Inc…
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Barnes v. Dr. Patricia Ross & the Ladies Ctr. of S. Fla., Inc., 386 So. 2d 812 (Fla. 3d DCA 1980)…reclude a dismissal for failure to prosecute. Non-record activity may, however, constitute good cause to avoid such a dismissal. American Eastern Corporation v. Henry Blanton, Inc., 382 So. 2d 863 (Fla. 2d DCA 1980); F. M. C. Corporation v. Chatham, 368 So. 2d 1307 (Fla. 4th DCA 1979). While it is doubtful that the non-record activity in the present case would constitute a compelling reason to avoid dismissal, we do not decide that issue. .Neither the length nor severity of the illness is stated in Einbinder.…
Previewing 3 of 26 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Madeira Beach v. Hogan, 227 So. 2d 548 (Fla. 2d DCA 1969)
- Jones v. State, 341 So. 2d 204 (Fla. 4th DCA 1976)
- Shields v. Moore, 352 So. 2d 139 (Fla. 4th DCA 1977)
- Sainer Constructors, Inc. v. Pasco Cnty. Sch. Bd., 349 So. 2d 1212 (Fla. 2d DCA 1977)