HARRIET L. NESBITT, APPELLANT,
v.
COMMUNITY HEALTH OF SOUTH DADE, INC., ANDREW M. PERFILIO, M.D., AND METROPOLITAN DADE COUNTY, FLORIDA, APPELLEES
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Harriet L. Nesbitt appealed the dismissal of her wrongful death actions for failure to prosecute under Florida Rule of Civil Procedure 1.420(e). The court affirmed the dismissals, holding that attorney withdrawal and substitution documents, administrative judge reassignments, and reentered obsolete discovery orders constitute insufficient record activity to defeat a failure to prosecute dismissal.
The court held that attorney withdrawal and substitution documents are insufficient record activity because they are passive in nature and not calculated to advance the cause. Administrative orders reassigning judges that are not part of the case file do not advance the cause to resolution. Reentering an obsolete discovery order with expired deadlines is insufficient record activity because it does not advance the cause and is duplicative and a nullity.
[1] Notices, pleadings, or orders related to the withdrawal and substitution of counsel constitute insufficient record activity to defeat a motion to dismiss for failure to p…
[2] An administrative order transferring a judge into a court division does not constitute record activity that advances a cause to resolution for purposes of a motion to dis…
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Join FLexlaw to unlock all legal intelligence“notices, pleadings, or orders related to the withdrawal and substitution of counsel, as here, constitute insufficient record activity to defeat a motion to dismiss for failure to prosecute under Fla.R.Civ.P. 1.410(e) because the subject activity is passive in nature and is not calculated to advance the cause”
Establishes the controlling legal principle that attorney withdrawal documents do not constitute record activity sufficient to defeat failure to prosecute dismissals
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Join FLexlaw to unlock all legal intelligenceNesbitt filed wrongful death actions against Community Health of South Dade, Inc., Dr. Andrew M. Perfilio, and Metropolitan Dade County. In the action…
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PER CURIAM.
This is a consolidated appeal from two orders dismissing the plaintiff Harriet L. Nesbitt’s wrongful death actions against, respectively, (a) the defendants Community Health of South Dade, Inc. and Andrew M. Perfilio, M.D., and (b) the defendant Metropolitan Dade County for failure to prosecute under Fla.R.Civ.P. 1.420(e). We affirm based on the following briefly stated legal analysis.
First, there was no record activity which advanced the cause for a period of over one year prior to the filing of a motion to dismiss in the plaintiff’s action against the defendants Community Health of South Florida, Inc. The only documents filed in the record during this one-year period all pertained to the withdrawal of plaintiff’s counsel from the case, to wit: an amended motion by plaintiff’s counsel to withdraw, a notice of hearing on this motion, an order granting this motion, a notice of appearance of new counsel, and a notice of attorney’s lien. It is well settled that notices, pleadings, or orders related to the withdrawal and substitution of counsel, as here, constitute insufficient record activity to defeat a motion to dismiss for failure to prosecute under Fla.R.Civ.P. 1.410(e) because the subject activity is passive in nature and is not calculated to advance the cause; notwithstanding the argument of the plaintiff, we see no basis for receding from this body of law. Eastern Elevator, Inc. v. Page, 263 So. 2d 218, 219-20 (Fla.1972); Gulf Appliance Distribs., Inc. v. Long, 53 So. 2d 706 (Fla.1951); Industrial Trucks of Fla., Inc. v. Gonzalez, 351 So. 2d 744 (Fla. 3d DCA 1977); Latimore v. Matthews, 340 So. 2d 1261, 1262 (Fla. 3d DCA 1976); St. Anne Airways Corp. v. Larotonda, 308 So. 2d 129 (Fla. 3d DCA), cert. denied, 316 So. 2d 295 (Fla.1975).
Moreover, the sua sponte administrative order of the chief judge of the circuit court transferring a new circuit judge into the division of the court where this action was pending cannot, as urged, defeat the dismissal below for failure to prosecute because the order in no way advanced the cause to resolution, and, indeed, was not even a part of the case file below. See Nelson v. Stonewall Ins. Co., 440 So. 2d 664, 665 (Fla. 1st DCA 1983).
Second, there was also insufficient record activity for a period of over one year prior to the filing of a motion to dismiss in the plaintiffs action against the defendant Metropolitan Dade County. Besides insufficient withdrawal and substitution of counsel activity which appears of record below, we conclude that the inexplicable reentry of an agreed order on discovery, which was originally entered well over one year prior to the subject motion to dismiss and which set discovery deadlines which had long since expired, was insufficient record activity to defeat a dismissal for failure to prosecute under Fla.R.Civ.P. 1.420(e); the reentry of the order in no way advanced the cause to resolution as it was obsolete, du-plicative, and clearly a nullity. See Harris v. Winn-Dixie Stores, 378 So. 2d 90 (Fla. 1st DCA 1979).
Moreover, for reasons already stated, the chief judge’s administrative order discussed above can not defeat the instant dismissal for failure to prosecute.
Finally, no good cause was shown below for the lack of proper record activity, notwithstanding the plaintiffs contrary argument, and, accordingly, the trial court had no alternative but to dismiss both actions for failure to prosecute under Fla.R.Civ.P. 1.420(e).
Affirmed.
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Gloriann Wilson v. Eva J. Salamon, M.D., 923 So. 2d 363 (Fla. 2005)…then has the opportunity under the second step to present the trial court with good cause in writing to avoid dismissal. In the absence of good cause, the trial court is bound to dismiss the case. See Nesbitt v. Community Health of South Dade, Inc., 566 So. 2d 1, 2 (Fla. 3d DCA 1989); Martinez v. Fuenmayor, 533 So. 2d 935 (Fla. 3d DCA 1988). Sheen relies on Metropolitan Dade County v. Hall, for the proposition that the trial court lacked jurisdiction to move to dismiss the action because there had been rec…
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Nat'l Enters., Inc. v. Foodtech Hialeah, Inc., 777 So. 2d 1191 (Fla. 3d DCA 2001)…sel are insufficient record activity to defeat a motion to dismiss for failure to prosecute under rule 1.420 because the subject activity is passive in nature and not calculated to advance the cause. See Nesbitt v. Community Health of S. Dade, Inc., 566 So. 2d 1 (Fla. 3d DCA 1989) (citations omitted). .Although the record is silent as to the precise date of the NEI’s substitution of counsel, a review of the pleadings in this case reveals that it must have occurred prior to August 31, 1997, because Mr. Lieb…
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CPI Mfg. Co., Inc. v. Industrias ST. Jack's, 870 So. 2d 89 (Fla. 3d DCA 2003)…ain pending. As such, the trial court did not abuse its discretion in entering the two orders under review. Accordingly, where no good cause is shown, the trial court is bound to dismiss the case. See Nesbitt v. Community Health of South Dade, Inc., 566 So. 2d 1, 2 (Fla. 3d DCA 1989), Heinz v. Watson, 615 So. 2d 750, 753-4 (Fla. 5th DCA 1993) and Golden Triad Carriers, Inc. v. Paco American Corp., 553 So. 2d 247 (Fla. 3d DCA 1989). Affirmed. . In addition, we note that CPI's "good cause” showing was quest…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- E. Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972)
- Harris v. Winn-Dixie Stores, Inc., 378 So. 2d 90 (Fla. 1st DCA 1979)
- 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)
- Nelson v. Stonewall Ins. Co., 440 So. 2d 664 (Fla. 1st DCA 1983)
- ST. Anne Airways Corp. v. Larotonda, 308 So. 2d 129 (Fla. 3d DCA 1975)
- Latimore v. Matthews, 340 So. 2d 1261 (Fla. 3d DCA 1976)
- Roman Holiday Club, Inc. v. State, 316 So. 2d 295 (Fla. 1975)
- ST. Anne Airways Corp. v. Larotonda, 316 So. 2d 295 (Fla. 1975)