WILLIAM BOWMAN, JR., APPELLANT,
v.
C. ALLEN PEELE, APPELLEE
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Bowman appeals the dismissal of his complaint against Peele for failure to prosecute under Florida Rule of Civil Procedure 1.420(e). The court reverses, holding that the rule applies to causes of action, not individual parties, and cannot be used to dismiss a defendant when the court has jurisdiction over all parties and some claims are stayed due to bankruptcy.
The rule applies to causes of action rather than individual parties, and a motion to dismiss for failure to prosecute will not lie against a single party when the court has acquired jurisdiction over all parties. When an action is stayed as to one or more parties by court order or automatic bankruptcy stay, it cannot be dismissed for failure to prosecute as to other parties.
[1] A complaint may not be dismissed for failure to prosecute under Florida Rule of Civil Procedure 1.420(e) when the action is stayed as to one or more parties.
[2] Florida Rule of Civil Procedure 1.420(e) applies to the dismissal of causes of action, not to individual parties within an action.
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Join FLexlaw to unlock all legal intelligence“the rule is directed towards dismissal of causes of action rather than particular parties to an action”
Establishes the fundamental principle that Rule 1.420(e) applies to entire causes of action, not individual defendants
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Join FLexlaw to unlock all legal intelligenceBowman filed a complaint in 1976 against Peele, John M. Dickey, and St. Petersburg Beach Motor Inn, Inc. Bankruptcy proceedings were filed by Dickey a…
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SCHOONOVER, Judge.
This is an appeal from a final judgment dismissing the appellant’s complaint against the appellee, C. Allen Peele, for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). We reverse.
In 1976, the appellant filed a complaint against the appellee, John M. Dickey, and the St. Petersburg Beach Motor Inn, Inc. Bankruptcy proceedings were subsequently filed by John M. Dickey and the St. Peters-burg Beach Motor Inn, Inc. The proceeding was accordingly stayed as to those two defendants, but not as to the appellee. After the appellant conducted no record activity for more than one year, the appellee filed a motion to dismiss for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). The lower court granted the motion and dismissed the appellant’s complaint.
The appellant contends that the rule applies to actions, and not to parties, and therefore the trial court erred in dismissing the appellee. The Third District Court of Appeal in the case of Phillips Petroleum Co. v. Heimer, 339 So. 2d 284 (Fla. 3d DCA 1976), held that the rule is directed towards dismissal of causes of action rather than particular parties to an action, and based upon that decision, we agree with the appellant’s contention.
The appellee’s reliance on the supreme court’s holding in the case of Koppers Co., Inc. v. Victoire Development Corp., 284 So. 2d 193 (Fla.1973), is misplaced. A review of that case indicates the court had not acquired jurisdiction over the party who filed the motion to dismiss for failure to prosecute. In the case sub judiee, jurisdiction had been obtained over all of the parties.
Where the court has acquired jurisdiction over all of the parties, a motion to dismiss for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e) will not lie as to an individual party. Accordingly, if an action is stayed as to one or more of the parties either by court order or by an automatic stay invoked because of the federal bankruptcy act, it will not be dismissed for failure to prosecute. To hold otherwise would frustrate the purpose of the rule which is to expedite and simplify litigation, not to cause additional litigation through no fault of the one moved against. It is true that the appellant could have proceeded against the appellee individually, but to do so, without severing the cause of action, would not have expedited the litigation. Action against the appellee would not have affected the other defendants and accordingly would not have advanced the entire case toward its ultimate disposition.
We accordingly reverse and remand for proceedings consistent herewith.
GRIMES, A. C. J., and OTT, J., concur.
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Personalized AIR Conditioning, Inc. v. C.M. Sys. OF Pinellas Cnty., Inc., 522 So. 2d 465 (Fla. 4th DCA 1988)…in dismissing it was void. Furthermore, under Florida Rule of Civil Procedure 1.420(e) a motion to dismiss for failure to prosecute may not be granted as to some of the defendants in a case and not as to others. As the court said in Bowman v. Peele, 413 So. 2d 90, 91 (Fla. 2d DCA 1982): Where the court has acquired jurisdiction over all of the parties, a motion to dismiss for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e) will not lie as to an individual party. Accordingly, if an…
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Berenyi v. Halifax Hosp. Med. Ctr., 498 So. 2d 655 (Fla. 5th DCA 1986)…ss a stipulation staying the action is approved by the court or a stay order has been filed ...” precludes dismissal because here, a stay order was entered. Certainly dismissal is improper while the stay order is in effect. See e.g. Bowman v. Peele, 413 So. 2d 90 (Fla. 2d DCA), dismissed, 419 So. 2d 1199 (Fla.1982). But where the stay order has expired, as it had here, dismissal [*657] is appropriate after one year has elapsed without record activity. AFFIRMED. DAUKSCH and COBB, JJ., concur. . Florida Rul…
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Togo's Eatery OF Fla., Inc. v. Frohlich, 526 So. 2d 999 (Fla. 1st DCA 1988)…in a bankruptcy proceeding. Personalized Air Conditioning, Inc. v. C.M. Systems of Pinellas County, Inc., 522 So. 2d 465 (Fla. 4th DCA 1988); Rudolf v. Chase, 468 So. 2d 494 (Fla. 4th DCA), review denied, 479 So. 2d 117 (Fla.1985); Bowman v. Peele, 413 So. 2d 90 (Fla.2d DCA 1982); DeLuca v. Harriman, 402 So. 2d 1205 (Fla. 2d DCA 1981), review denied, 412 So. 2d 465 (Fla.1982); Lowen Air Conditioning, Inc. v. Small, 397 So. 2d 414 (Fla. 4th DCA 1981). In language similar to the language in the dismissal ord…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Koppers Co., Inc. v. Victoire Dev. Corp., 284 So. 2d 193 (Fla. 1973)
- Phillips Petroleum Co. v. Art Heimer, 339 So. 2d 284 (Fla. 3d DCA 1976)