JAMES PRINGLE, APPELLANT,
v.
JOHN A. BODZIAK, JR., ET AL., APPELLEES
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James Pringle appealed the dismissal of his action against four note guarantors based on lack of prosecution under Florida Rule 1.420(e). The court reversed, holding that a motion to dismiss for failure to prosecute cannot be granted against individual defendants when jurisdiction has been obtained over all parties and some have invoked bankruptcy protection creating an automatic stay.
A motion to dismiss for failure to prosecute under Rule 1.420(e) will not lie as to an individual party where jurisdiction has been obtained over all parties, even when some parties have invoked bankruptcy protection. The court rejected the argument that continuing litigation after bankruptcy filings constitutes a waiver of the stay as a defense to such a motion.
[1] A dismissal for lack of prosecution under rule 1.420(e), Florida Rules of Civil Procedure, will not lie against a party when an automatic stay is invoked due to another p…
[2] A litigant's actions taken after the filing of bankruptcy suggestions, which advance the case as far as possible without violating stay orders, do not constitute a waiver…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“where jurisdiction has been obtained 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”
Establishes the core holding that dismissal for lack of prosecution is improper when jurisdiction exists over all parties despite some invoking bankruptcy
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePringle filed a complaint against four defendants and obtained service. Two defendants filed suggestions of bankruptcy, which triggered an automatic s…
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PETERSON, Judge.
James Pringle appeals a final order dismissing his action against four guarantors of a note. The ground for the dismissal was his lack of prosecution pursuant to rule 1.420(e), Florida Rules of Civil Procedure. We reverse.
After Pringle filed his complaint and obtained service against the four defendants, two of them filed suggestions of bankruptcy. Pleadings continued to be filed after the suggestions of bankruptcy were filed, but, finally, no further activity took place after August 8, 1988, except for the filing of a notice of appearance of additional counsel for Pringle. On November 8,1989, one of the defendants who had not filed a suggestion of bankruptcy moved for dismissal under rule 1.420(e). On March 8, 1990, Pringle replied to the affirmative defenses filed by a defendant on August 8, 1988, and moved to sever so that the case could proceed against the two defendants who had not invoked the jurisdiction of the bankruptcy court. The trial court granted the motion to dismiss and declared moot the motion to sever. The Second District has considered previously the issue whether an action may be dismissed under rule 1.420(e) for failure to prosecute when an automatic stay is invoked because one of the multiple parties in the state court action petitions the bankruptcy court for relief. Bowman v. Peele, 413 So. 2d 90 (Fla. 2d DCA 1982), dismissed, 419 So. 2d 1199 (Fla.1982). In Bowman, the court held that, where jurisdiction has been obtained “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.” 413 So. 2d at 91. We adopt the reasoning of our sister court in Bowman and find that the facts of that case largely are indistinguishable from the instant case.
The appellees urge that, when Pringle moved forward with the litigation after the suggestions of bankruptcy were filed, he impliedly waived the bankruptcy stay as a defense to a motion to dismiss for lack of prosecution by a party who had not obtained the stay. We disagree and do not interpret as a waiver a litigant’s post-stay actions that move the case along as far as possible without violating the stay orders. Eventually, the stay orders will be vacated, and those post-stay actions likely will eliminate further delay following the lifting of the stay orders.
The dismissal is vacated and the case remanded for further proceedings.
VACATED; REMANDED.
COBB and HARRIS, JJ., concur.