ALINA C. YOUNG, APPELLANT,
v.
MOBILE DENTAL HEALTH, INC., APPELLEE
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Florida appellate court reversed dismissal of wage-and-hour claim for lack of prosecution because plaintiff's filing of a notice for trial barred the trial court from dismissing the action.
Once a plaintiff files a notice for trial, the trial court is barred from dismissing the action for lack of prosecution and must instead enter an order setting a trial date.
[1] Filing a notice for trial bars dismissal for lack of prosecution and obligates the trial court to set a trial date.
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Court explaining the legal effect of filing a notice for trial
Alina Young filed a claim for damages under the Fair Labor Standards Act and Florida law against Mobile Dental Health, Inc. The trial court dismissed …
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PER CURIAM.
Alina C. Young appeals the order dismissing her claim for damages filed against Mobile Dental Health, Inc., pursuant to the Fair Labor Standards Act, 29 U.S.C. section 216(b), and section 448.08, Florida Statutes (1993). We reverse.
The trial court dismissed Young’s case pursuant to Florida Rule of Civil Procedure 1.420(e) for failure to prosecute. The record shows, however, that while there had been no record activity for over a year when the court dismissed the case, Young had filed a notice for trial but the court never set the case for trial. Once a plaintiff has filed a notice for trial, it is the trial court’s responsibility to enter an order setting a date for trial, and it is the filing of the notice which bars the court from dismissing the action for lack of prosecution. See Mikos v. Sarasota Cattle Co., 453 So. 2d 402 (Fla.1984); State Dep’t of Environmental Protection v. Crest Products, Inc., 671 So. 2d 211 (Fla. 2d DCA 1996). Therefore, since Young filed a notice for trial and the trial court did not set the cause for trial, the court was barred from dismissing Young’s claim for lack of prosecution.
Accordingly, we reverse the dismissal order and the final judgment, and we remand for further proceedings.
BLUE, AC.J., and WHATLEY and GREEN, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cabrera v. Pazos, Larrinaga & Taylor, P.A., 922 So. 2d 422 (Fla. 2d DCA 2006)…nted out that at the time the motion to dismiss for failure to prosecute was filed, one year had not elapsed from the date he filed the “Motion and Notice for Jury Trial.” Mr. Cabrera also argued that pursuant to Young v. Mobile Dental Health, Inc., 730 So. 2d 766 (Fla. 2d DCA 1999), the trial court should not have dismissed the case for failure to prosecute after the notice for trial had been filed. See also Mikos v. Sarasota Cattle Co., 453 So. 2d 402, 403 (Fla.1984), receded from in part, Fishe & Kleeman,…
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Arleen Hansen Carlson v. Jeflis Prop. Mgmt. Corp., 904 So. 2d 642 (Fla. 2d DCA 2005)…ment is consistent with cases holding that the filing of a proper notice for trial1 bars the court from dismissing the action for lack of prosecution. See, Mikos v. Sarasota Cattle Co., 453 So. 2d 402 (Fla.1984); Young v. Mobile Dental Health, Inc., 730 So. 2d 766 (Fla. 2d DCA 1999); Pierstorff v. Stroud, 454 So. 2d 564 (Fla. 2d DCA 1983); Rodriguez v. Gonzalez Moving & Storage Co., 595 So. 2d 275 (Fla. 3d DCA 1992).2 As the Fourth [*645] District stated in Fox v. Playa Del Sol Ass’n, 446 So. 2d 126 (Fla. 4th…
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Reyes v. Reeves Se. Corp., 895 So. 2d 1274 (Fla. 2d DCA 2005)…e to prosecute. Once a party files a proper notice of trial, it is the court’s duty to set the cause for trial. Failure to do so precludes dismissal for failure to prosecute despite the lack of record activity. Young v. Mobile Dental Health, Inc., 730 So. 2d 766 (Fla. 2d DCA 1999); Balboa Ins. Co. v. Shores of Madeira, Inc., 457 So. 2d 596 (Fla. 2d DCA 1984); Yankee Constr. Corp. v. Jones-Mahoney Corp., 430 So. 2d 973 (Fla. 2d DCA [*1275] 1983). Because there was no record activity in Reyes’ case after he f…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mikos v. Sarasota Cattle Co. & Charles E. Early, 453 So. 2d 402 (Fla. 1984)
- State of Fla. Dep't OF Env't Prot. v. Crest Prods., Inc., 671 So. 2d 211 (Fla. 2d DCA 1996)