MANUEL J. RIVERA, APPELLANT,
v.
A. M. I. F., INC., APPELLEE
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Florida appellate court reversed dismissal for want of prosecution where service of process on defendant occurred within one year of the dismissal order, as Rule 1.420(e) prohibits dismissal when record activity exists within that period.
A trial court cannot dismiss for want of prosecution under its inherent power when there is record activity within one year prior to the dismissal order, as amended Florida Rule of Civil Procedure 1.420(e) precludes such dismissal.
[1] Service of process constitutes record activity within the meaning of Florida Rule of Civil Procedure 1.420(e), preventing dismissal for want of prosecution when service o…
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Join FLexlaw to unlock all legal intelligence“the trial court from exercising its inherent power to dismiss a cause for failure to prosecute where there is activity of record within one year prior to the order of dismissal”
Explanation of how Rule 1.420(e) amendment abrogated prior case law allowing dismissal for want of prosecution
Plaintiff filed suit on September 29, 1978, against three defendants. Two defendants were promptly served, but A.M.I.F., Inc. was not served until Jun…
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NESBITT, Judge.
On September 29,1978, the plaintiff commenced an action against three co-defendants, two of which were promptly served. Service of process was not accomplished on one defendant, A.M.I.F., Inc., until June 5, 1981. On July 9,1981, A.M.I.F., Inc. moved to dismiss for want of prosecution because of the two-and-one-half-year delay between filing of the complaint and service of process. The motion was granted, apparently in reliance upon Gonzalez v. Ryder Systems, Inc., 327 So. 2d 826 (Fla. 3d DCA 1976). We need only observe that our holding in Gonzalez v. Ryder, supra, has been abrogated by amendment to Florida Rule of Civil Procedure 1.420(e), effective January 1, 1977, precluding the trial court from exercising its inherent power to dismiss a cause for failure to prosecute where there is activity of record within one year prior to the order of dismissal. See American Salvage and Jobbing Company v. Salomon, 367 So. 2d 716 (Fla. 3d DCA 1979). In the present case, of course, the service of process upon A.M.I.F. constituted record activity. Since a year had not elapsed without activity, under the plain terms of the amended rule, the order of dismissal was error.1
Reversed and remanded.
. Even if the court had properly exercised its inherent power, we would be compelled to reverse for the trial court’s failure to find in the order that the plaintiff was willfully delaying prosecution. Greenwell v. Cuiffo, 415 So. 2d 901 (Fla. 3d DCA) (1982).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Parker v. Gordon, 442 So. 2d 273 (Fla. 4th DCA 1983)…4th DCA 1981), “The one year period prescribed by Rule 1.420(e) is to be measured by calculating the time between the date of the last record activity and the date of the filing of the motion to dismiss.” Id. at 951. Accord Rivera v. A.M.I.F., Inc., 417 So. 2d 304 (Fla. 3d DCA 1982). Since in the instant case only twenty-two days elapsed between the filing of appellant’s amended complaint and appellees’ motion for dismissal, it is clear the court was in error. However, “[e]ven when based on erroneous reasoni…
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Glassalum Eng'g Corp. v. 392208 Ontario Ltd., 487 So. 2d 87 (Fla. 3d DCA 1986)…course, the dismissal. Because we have so clearly held that service of process upon a defendant before the filing of a motion to dismiss for failure to prosecute constitutes sufficient record activity to preclude dismissal, Rivera v. A.M.I.F., Inc., 417 So. 2d 304 (Fla. 3d DCA 1982); see also Fields v. Florida Farm Bureau Casualty Insurance Co., 449 So. 2d 972 (Fla. 5th DCA 1984), and because, with the advent of the 1977 amendment to Florida Rule of Civil Procedure 1.420(e), a trial court no longer has “inher…1 / 4
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Fields v. Fla. Farm Bureau Cas. Ins. Co., 449 So. 2d 972 (Fla. 5th DCA 1984)…prior to the motion to dismiss. Within the one year period before the motion to dismiss was filed, Fields perfected service of process on Florida Farm Bureau. Service of process upon a defendant constitutes record activity. Rivera v. A.M.I.F., Inc., 417 So. 2d 304 (Fla. 3d DCA 1982). REVERSED and REMANDED. ORFINGER, C.J., and COBB, J., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Am. Salvage & Jobbing Co., Inc. v. Jacque Salomon, 367 So. 2d 716 (Fla. 3d DCA 1979)
- Gonzalez v. Ryder Sys., Inc., 327 So. 2d 826 (Fla. 3d DCA 1976)
- Greenwell v. Cuiffo, 415 So. 2d 901 (Fla. 3d DCA 1982)
- Collado v. C & C Cattle Co., Inc., 415 So. 2d 901 (Fla. 3d DCA 1982)