ELIZABETH R. EISEN, AS TRUSTEE OF THE WILLIAM EISEN AND ELIZABETH EISEN TRUST DATED MAY 9, 1980, AND ELIZABETH R. EISEN, GOTFRIED FRED STERN, HELEN F. VAUGHAN AND CHARLOTTE MATHIASEN, AS BENEFICIARIES OF SAID TRUST, AND ELIZABETH R. EISEN, INDIVIDUALLY, APPELLANTS,
v.
EDITH E. FINK, A/K/A EDITH LILLIAN FINK, APPELLEE
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Edith Fink sued the Eisens for an accounting and other claims, but the case stagnated for over a year without record activity. The trial court dismissed Fink's amended complaint with prejudice for failure to prosecute, then set aside that dismissal. The appellate court reversed, holding that Fink's nonrecord activity and excuses did not constitute good cause to overcome the extended period of inactivity.
The court held that Fink's failure to actively prosecute her claims for 1⅛ years warranted dismissal with prejudice absent a showing of good cause, and that nonrecord activity offered as justification must meet a standard equating with a compelling reason for failure to prosecute. The excuses provided—settlement negotiations, scheduled depositions, and Eisen's delays—do not constitute good cause and do not satisfy the compelling reason standard necessary to overcome the extended period of stagnation.
[1] Failure to actively prosecute an action for a period of 18 months warrants dismissal with prejudice absent a showing of good cause.
[2] Non-record activity offered as good cause for failure to prosecute must meet a standard equating with a compelling reason for the delay.
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Join FLexlaw to unlock all legal intelligence“Fink's failure actively to prosecute her claims for a period of 1⅛ years prior to the filing of Eisen's rule 1.420(e) motion warranted dismissal with prejudice absent a showing of good cause.”
Establishes the core legal principle that extended inactivity warrants dismissal unless good cause is shown
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Join FLexlaw to unlock all legal intelligenceEdith Fink initiated an action against the Eisens seeking an accounting and subsequently amended her complaint to include additional claims. In August…
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FRANK, Judge.
The appellee, Edith Fink, began her action seeking an accounting from the appellants, collectively referred to as Eisen, but subsequently she amended the complaint to include additional claims. On August 3, 1984, Eisen moved the trial court for the entry of an order striking the exemplary damages aspect of Fink's amended complaint. The next activity appearing in the record is the trial court’s order dated February 11, 1986, requesting the parties to report the status of the case. Eisen complied with that order on February 20, 1986, but Fink did not file a response until March 5, 1986.
Eisen moved on May 23, 1986, pursuant to rule 1.420(e) of the Florida Rules of Civil Procedure, to dismiss Fink’s amended complaint with prejudice for failure to prosecute the action. Fink reacted to that motion on August 5, 1986, asserting “non-record” activity in the 1⅝ years preceding the entry of the order requiring Eisen and Fink to inform the court of the litigation’s status.* The trial court entered an order of dismissal with prejudice, nunc pro tunc, effective June 17, 1986. It issued an order on December 2, 1986, setting aside the dismissal. Eisen appealed.
Fink’s failure actively to prosecute her claims for a period of 1⅛ years prior to the filing of Eisen’s rule 1.420(e) motion warranted dismissal with prejudice absent a showing of good cause. Carter v. DeCarion, 400 So. 2d 521 (Fla. 3d DCA 1981). Where only nonrecord activity was offered to the trial court as the basis for good cause, as occurred here, such activity must meet a standard equating with a compelling reason for failure to prosecute. Tosar v. Sladek, 393 So. 2d 61 (Fla. 3d DCA 1981); cf. American Eastern Corp. v. Henry Blanton, Inc., 382 So. 2d 863 (Fla. 2d DCA 1980). In responding to Eisen’s motion, Fink tendered as the reasons for her inertness Eisen’s representation that Fink would be scheduled for a deposition, settlement negotiations between the parties, Eisen’s delays in filing answers to Fink’s first set of interrogatories, and a variety of insubstantial excuses.
Neither settlement negotiations, Carter, nor the delays attributed to Eisen constitute good cause. Industrial Trucks of Florida, Inc. v. Gonzalez, 351 So. 2d 744 (Fla. 3d DCA 1977). In short, the explanations, grounds or reasons offered by Fink are not compelling and do not satisfy the good cause standard necessary to overcome the extended period of stagnation. Tosar. We reverse, vacate the trial court’s order setting aside the order of dismissal, and remand for the entry of an order in accordance with this opinion.
SCHEB, A.C.J., and HALL, J., concur. *
Fink did not participate in our review of the trial court’s order. We have not been presented with and we do not pass upon the question of whether the trial court’s status order and the responses to it are record activity of the kind that would foreclose dismissal under Rule 1.420(e). We do note in passing, however, that a sua sponte order to show cause why an action should not be dismissed for the want of prosecution has been deemed not to preclude dismissal. Nelson v. Stonewall Insurance Company, 440 So. 2d 664 (Fla. 1st DCA 1983).
Cases With Similar Vibessemantic neighbors from the corpus
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L.R. Caldwell, Jr. v. Mantei, 544 So. 2d 252 (Fla. 2d DCA 1989)…, like those here, are insufficient to establish good cause for failure to prosecute, see Togo’s Eatery of Florida v. Frohlich, 526 So. 2d 999 (Fla. 1st DCA 1988), much less, compelling cause, as required in American Eastern. See also Eisen v. Fink, 511 So. 2d 1092 (Fla. 2d DCA 1987). In summary, there was no record activity during the crucial period in the case, and the trial court’s finding of estoppel as a basis for preventing dismissal is not supported by the record. No compelling reason for the Manteis’…
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Edgecumbe v. Am. Gen. Corp., 613 So. 2d 123 (Fla. 1st DCA 1993)…osecution was warranted where the non-record activity involved contact between counsel for both parties and an agreement to cancel a previously noticed hearing on the defendant’s motion to strike certain allegations of the complaint); Eisen v. Fink, 511 So. 2d 1092 (Fla. 2d DCA 1987) (dismissal for lack of prosecution was warranted where the reasons offered were not compelling and did not satisfy the good cause standard; the plaintiff alleged that the defendant represented that the plaintiff would be scheduled…
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Weaver v. THE Ctr. Bus., 578 So. 2d 427 (Fla. 5th DCA 1991)…exchange of proposed exhibits, verbal or letter requests for discovery, if that is all, will not suffice to preclude dismissal under the amended rule. Weitzel v. Hargrove, 543 So. 2d 392 (Fla. 3d DCA 1989); Norflor Construction Corp.; Eisen v. Fink, 511 So. 2d 1092 (Fla. 2d DCA 1987); American Eastern Corp.; F.M.C. Corp. There must be established some compelling reason which prevented or excused the prosecuting party from actively pursuing the case in court. F.M.C. Corp. Physical injury and disability of a par…1 / 2
Authorities Cited
- Am. E. Corp. v. Henry Blanton, Inc., 382 So. 2d 863 (Fla. 2d DCA 1980)
- State v. Brannon, 351 So. 2d 744 (Fla. 3d DCA 1977)
- Aurora Pacheco and Ubaldo Pacheco v. Ramos, 351 So. 2d 744 (Fla. 3d DCA 1977)
- Moore v. Moore, 393 So. 2d 61 (Fla. 3d DCA 1981)
- Carter v. DeCARION, 400 So. 2d 521 (Fla. 3d DCA 1981)
- Nelson v. Stonewall Ins. Co., 440 So. 2d 664 (Fla. 1st DCA 1983)