MAGDALENA, FLOREZ, APPELLANT,
v.
THE CITY OF MIAMI, APPELLEE
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Magdalena Florez appealed the denial of her motion to reinstate a premises liability case that was dismissed for failure to prosecute. The Florida appellate court affirmed the dismissal, holding that the plaintiff's repeated attempts to set the case for trial while ignoring a court order striking the case from the calendar did not constitute affirmative record activity sufficient to defeat the failure-to-prosecute dismissal.
The court affirmed the dismissal, holding that the trial court did not abuse its discretion. Plaintiff's actions, which violated the court's order, did not constitute affirmative record activity reasonably calculated to advance the case toward resolution, and therefore did not defeat the failure-to-prosecute dismissal.
[1] A trial court acts within its discretion in dismissing a claim for failure to prosecute when the plaintiff's actions since the case was struck from the trial calendar wer…
[2] To defeat a motion to dismiss for failure to prosecute, affirmative record activity reasonably calculated to advance the case toward resolution must be shown.
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“it must be shown that there was affirmative record activity during this time by pleading or order which was reasonably calculated to advance the case toward resolution”
The standard for defeating a failure-to-prosecute dismissal motion
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Join FLexlaw to unlock all legal intelligencePlaintiff filed a premises liability complaint in November 1996. The City of Miami moved for summary judgment in August 1999 based on failure to provi…
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PER CURIAM.
We have for review an Order Denying Plaintiffs Motion to Reinstate. For the following reasons, we affirm.
Plaintiffs initial premises liability complaint was filed in November of 1996. On August 11, 1999, defendant City of Miami filed a motion for summary judgment, motion to dismiss, or in the alternative, motion for judgment on the pleadings, on the basis that plaintiff failed to provide the city with proper written notice pursuant to section 768.28, Florida Statutes (1995).
The trial court granted the motion, with leave for plaintiff to amend her complaint to allege estoppel and/or waiver of notice. Plaintiff filed a fourth amended complaint, to which defendant moved to dismiss. Before that motion could be heard, plaintiff filed a fifth amended complaint, which was likewise met with a motion to dismiss.
On April 27, 2000, the trial court entered an order striking the case from the trial calendar because defendant’s motion to dismiss had not been heard and the case was not at issue. In that order, the court stated that the case could only be re-noticed “after the case is at issue and in conformance with the Rules of Civil Procedure.”
The only record activity over the next two years arose from plaintiff setting the case for trial on multiple occasions, even though the motion to dismiss remained pending and the case was still not at issue. See Fla. R. Civ. P. 1.440(a). On August 6, 2002, the court, sua sponte, entered a motion, notice, and judgment of dismissal pursuant to Florida Rule of Civil Procedure Rule 1.420(e). Plaintiff filed a motion to reinstate the case. Plaintiff appeals from the denial of that motion.
As every action taken by plaintiff since April 27, 2000, was in violation of the court’s order striking the case, the trial court acted within its discretion in dismissing plaintiffs claim for failure to prosecute under Florida Rule of Civil Procedure Rule 1.420(e).
To defeat a motion to dismiss for failure to prosecute, “it must be shown that there was affirmative record activity during this time by pleading or order which was reasonably calculated to advance the case toward resolution”. Kearney v. Ross, 743 So. 2d 578, 580 (Fla. 4th DCA 1999) A trial court “has discretion to dismiss an action when the only record activity for the previous year was bad faith activity, which means activity that is ‘frivolous or clearly useless’ to further prosecute the case.” Ezell v. Century 21 of the Southeast, 615 So. 2d 273, 274 (Fla. 5th DCA 1993) (quoting Anthony v. Schmitt, 557 So. 2d 656, 662 (Fla. 2d DCA 1990)).
Under these facts, the trial court did not abuse its discretion in finding that plaintiffs actions, which were in violation of a court order, did not constitute affirmative record activity that were reasonably calculated to advance the case toward resolution.
Affirmed.
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Dollar Sys., Inc. v. O'Connor & Meyers, P.A., 883 So. 2d 295 (Fla. 3d DCA 2004)…is “any act reflected in the court file ... designed to move the case forward toward a conclusion on the merits or to hasten the suit to judgment.” Barnett Bank of East Polk County v. Fleming, 508 So. 2d 718, 720 (Fla.1987); Florez v. City of Miami, 858 So. 2d 378, 379 (Fla. 3d DCA 2003) (observing that to defeat a motion to dismiss for failure to prosecute, “it must be shown that there was affirmative record activity during this time by pleading or order which was reasonably calculated to advance the case to…
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Rime Abu-Hamdeh v. Ileana Romero-Bolumen, M.D., 889 So. 2d 879 (Fla. 3d DCA 2004)…Fleming, 508 So. 2d 718, 720 (Fla.1987) (dismissal appropriate where proffered activity was not “[an] act ... designed to move the case forward toward a conclusion on the merits or to hasten the suit to judgment”); See also Florez v. City of Miami, 858 So. 2d 378, 379 (Fla. 3d DCA 2003) (in order to defeat a motion to dismiss for failure to prosecute, “it must be shown that there was affirmative record activity ... by pleading or order which was reasonably calculated to advance the case toward resolution”) (…
Authorities Cited
- Anthony v. Schmitt, 557 So. 2d 656 (Fla. 2d DCA 1990)
- Kearney v. Ross, 743 So. 2d 578 (Fla. 4th DCA 1999)
- Ezell v. Century 21 OF THE Se., Inc., 615 So. 2d 273 (Fla. 5th DCA 1993)