FRED KONSTAND, VASILA KONSTAND AND BIVENS GARDENS OFFICE BUILDING, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
BIVENS CENTER, INC., A FLORIDA CORPORATION, ET AL., APPELLEES
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Appellants' action filed in 1975 was dismissed for failure to prosecute under Florida Rule 1.420(e) when no record activity occurred for over one year. The court affirmed dismissal, holding that only record activity (filings, court orders, or similar documented acts) satisfies the rule, not service of notices on opposing counsel.
Service of a notice of taking depositions on opposing counsel does not constitute record activity under Rule 1.420(e). Only filings with the court, court orders, or similar documented record activity satisfy the rule's requirement. Non-record activity cannot preclude dismissal.
[1] A court may dismiss an action for failure to prosecute if no record activity has occurred for one year.
[2] "Or otherwise" record activity contemplated by Rule 1.420(e), Florida Rules of Civil Procedure, does not include non-record activity.
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Join FLexlaw to unlock all legal intelligence“Rule 1.420(e) provides that 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 the motion of any interested party.”
States the operative rule requiring dismissal when no record activity occurs for one year.
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Join FLexlaw to unlock all legal intelligenceAppellants filed this action in 1975. After approximately thirteen months without record activity, defendants filed motions to dismiss for failure to …
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SMITH, Chief Judge.
This action was begun by appellants in 1975 and has progressed spasmodically since then. On September 19, 1986, after approximately thirteen months without record activity, several defendants (appel- lees) filed motions to dismiss for failure to prosecute. On September 22, 1986, appellants filed a notice of taking depositions. In an affidavit filed in opposition to the motion to dismiss, the secretary for appellants’ counsel explained that she prepared the notice of taking depositions on September 17, 1986, and the notices to opposing counsel were placed in the mail that day. However, the original, which was to be sent to the Clerk’s office, was inadvertently placed on the wrong stack of papers, was not mailed until a later date, and consequently arrived in the Clerk’s office three days after the filing of appellees’ motion to dismiss.
Appellants’ contention that the service of their notice of taking depositions to opposing counsel prior to the filing of defendants’ motions to dismiss satisfies rule 1.420(e), Florida Rules of Civil Procedure, was rejected in the factually similar case of Ace Delivery Service, Inc. v. Pickett, 274 So. 2d 15 (Fla. 2d DCA 1973) (computation of time set forth in rule 1.420(e) is to be determined by calculating the time between the date of filing of the last affirmative act and the date of filing of the proceedings to abate). There, the plaintiff had served interrogatories by mail on the same day that defendants filed their motion to dismiss for want of prosecution. Plaintiff’s interrogatories were filed with the clerk the day after the defendant’s motion to dismiss was filed. Accordingly, no good cause having been shown, the action was dismissed for want of prosecution.
Rule 1.420(e) provides that 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 the motion of any interested party. We agree that the “or otherwise” provision of the present rule contemplates unenumerated record activity, and that non-record activity will not preclude dismissal under the rule. This factor alone distinguishes earlier cases relied upon by appellants which were decided prior to amendment of the rule effective January 1, 1977. Since appellants have otherwise failed to demonstrate good cause, see Norflor Construction Corporation v. City of Gainesville, 512 So. 2d 266 (Fla. 1st DCA 1987), the order dismissing this action for failure to prosecute should be AFFIRMED.
WENTWORTH and JOANOS, JJ., concur.
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L.R. Caldwell, Jr. v. Mantei, 544 So. 2d 252 (Fla. 2d DCA 1989)…uted “record activity” was error. These responses which were filed after the motion to dismiss are deemed to be nonrecord activity which require dismissal absent a showing of good cause for the delay in prosecution.* Konstand v. Bivens Center, Inc., 512 So. 2d 1148 (Fla. 1st DCA 1987) (citing Ace Delivery Service, Inc. v. Pickett, 274 So. 2d 15 (Fla. 2d DCA 1973)). Under circumstances such as these where there is only nonrecord activity, the Manteis must show a compelling reason to avoid dismissal. American E…
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Togo's Eatery OF Fla., Inc. v. Frohlich, 526 So. 2d 999 (Fla. 1st DCA 1988)…g.” Fla.R.Civ.P. 1.420(e). The one-year period specified in the rule is to be determined by calculating the time between the date of filing of the last affirmative act and the date of filing of the motion to dismiss. Konstand v. Bivens Center, Inc., 512 So. 2d 1148 (Fla. 1st DCA 1987); Ace Delivery Service, Inc. v. Pickett, 274 So. 2d 15 (Fla. 2d DCA 1973); Shalabey v. Memorial Hospital of South Broward Hospital District, 253 So. 2d 712 (Fla. 4th DCA 1971), cert. denied, 257 So. 2d 562 (Fla.1972). Dismissal f…
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Sima Kahati and Abraham Kahati v. MT. Sinai Med. Ctr., 537 So. 2d 676 (Fla. 3d DCA 1989)…PER CURIAM. Affirmed. See Public Health Trust of Dade County v. Diaz, 529 So. 2d 682 (Fla.1988); Konstand v. Bivens Center, Inc., 512 So. 2d 1148 (Fla. 1st DCA 1987); Ace Delivery Service, Inc. v. Pickett, 21A So. 2d 15 (Fla. 2d DCA 1978).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Norflor Constr. Corp. v. City OF Gainesville & CH2M Hill Se., Inc., 512 So. 2d 266 (Fla. 1st DCA 1987)
- ACE Delivery Serv., Inc. v. Pickett, 274 So. 2d 15 (Fla. 2d DCA 1973)