DANIEL RAY ERICKSON, APPELLANT,
v.
TOMMY GAIL BREEDLOVE, ET AL., APPELLEE
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A pro se plaintiff appealed the dismissal of his complaint alleging false arrest, negligence, perjury, and other causes of action arising from his wrongful arrest and prosecution. The trial court dismissed the case for failure to prosecute after over sixteen months of inactivity, and the appellate court affirmed, holding that the plaintiff failed to establish good cause for the delay.
The trial court properly dismissed the case for failure to prosecute because the plaintiff failed to establish good cause. An unfiled or unheard motion for reconsideration does not constitute record activity or good cause, and litigants have an affirmative obligation to bring their motions to the court's attention.
[1] An action is subject to dismissal for failure to prosecute if no record activity has occurred in the past year and the plaintiff has not established good cause for the ac…
[2] A pending motion for reconsideration does not, by itself, constitute good cause to prevent dismissal for failure to prosecute if the trial court was not made aware of the…
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Join FLexlaw to unlock all legal intelligence“The first step is to determine whether any record activity occurred in the past year. If any record activity exists, regardless of whether 'passive' or not, the action is not subject to dismissal for lack of prosecution.”
Establishes the two-part test for dismissal for failure to prosecute under Rule 1.420(e)
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Join FLexlaw to unlock all legal intelligenceAppellant filed a 38-page complaint against various government agencies and employees alleging wrongful arrest and prosecution for failure to register…
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EVANDER, J.
Appellant, a pro se plaintiff below, filed a rambling thirty-eight page complaint against various government agencies and government employees purporting to allege causes of action for false arrest, negligence, perjury, obstruction of justice, malpractice, invasion of privacy, malicious prosecution, and conspiracy. Plaintiffs purported causes of action appear to be related to his claim that he was wrongly arrested and prosecuted for failure to register as a sexual offender. Not surprisingly, the various defendants filed motions to dismiss the complaint. A hearing was held on the motions on March 31, 2004.
Pursuant to an order dated April 23, 2004, the court granted the motions to dismiss, but gave plaintiff twenty days in which to file an amended complaint. Between the date of the hearing and the issuance of the written order, plaintiff filed a motion for reconsideration. Nine of the defendants filed a response to the motion for reconsideration on May 17, 2004. The next record activity in the case occurred over sixteen months later when several of the defendants filed a motion to dismiss for failure to prosecute. After a hearing, the trial court granted the motion to dismiss for failure to prosecute. Our analysis is governed by the application of Florida Rule of Civil Procedure 1.420(e) (2005).1
In Wilson v. Salamon, 923 So. 2d 363 (Fla.2005), the Florida Supreme Court ex plained that a determination of whether an action should be dismissed for failure to prosecute under rule 1.420(e) involves a two-part test. The first step is to determine whether any record activity occurred in the past year. If any record activity exists, regardless of whether “passive” or not, the action is not subject to dismissal for lack of prosecution. If there has not been any record activity, the second step is to determine whether the plaintiff has established good cause why the action should remain pending.
In the present case, no record activity occurred for over a year.
Therefore, the issue is whether the existence of the motion for reconsideration constituted “good cause” so as to prevent a dismissal for failure to prosecute.
We affirm the trial court’s decision that plaintiff did not meet his burden of establishing good cause.
The record is devoid of any evidence that the trial court was even made aware of the existence of the motion for reconsideration. Trial judges should not be expected to unilaterally review the hundreds of files assigned to them in search of motions which have been filed but have not been set for hearing or otherwise brought to the court’s attention. Litigants have an affirmative obligation to move their cases to resolution. See Sewell Masonry Co. v. DCC Const., Inc., 862 So. 2d 893, 899 (Fla. 5th DGA 2003), rev. dismissed, 870 So. 2d 823 (Fla.2004); Patton v. Kera Technology, Inc., 895 So. 2d 1175 (Fla. 5th DCA), rev. granted, 912 So. 2d 318 (Fla.2005).
We certify conflict with Dye v. Security Pacific Financial Services, Inc., 828 So. 2d 1089 (Fla. 1st DCA 2002).
AFFIRMED; Conflict CERTIFIED.
GRIFFIN and SAWAYA, JJ„ concur. . This rule was amended effective January 1, 2006. Because all of the relevant events at the trial court level occurred prior to the effective date of the amendment, this case is governed by the prior rule. See Cabrera v. Pazos, Larrinaga & Taylor, P.A., 922 So. 2d 422, 424 n. 2 (Fla. 2d DCA 2006).
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Swait v. Swait, 958 So. 2d 552 (Fla. 4th DCA 2007)…420.5[3] (2007 ed.). Appellee’s motion to dismiss, the hearing on that motion, and the trial court’s order all occurred in 2006, after the effective date of the amended rule. The amended rule applies in the present case. See Erickson v. Breedlove, 937 So. 2d 805, 806 n. 1 (Fla. 5th DCA 2006)(applying pre amendment version of the statute where all relevant events at the trial court level took place prior to effective date of the amendment); Cabrera v. Pazos, Larrinaga & Taylor, P.A., 922 So. 2d 422, 424 n. 2…
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Schwanda v. Woodbine Indus., Inc., 946 So. 2d 38 (Fla. 5th DCA 2006)…PER CURIAM. AFFIRMED. See Erickson v. Breedlove, 937 So. 2d 805 (Fla. 5th DCA 2006). THOMPSON, LAWSON and EVANDER, JJ., concur.…
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Fuzzell v. E.I. DuPONT DE Nemours & Co., Inc., 987 So. 2d 1271 (Fla. 5th DCA 2008)…istrict reversed: [The mother’s] motion to dismiss, the hearing on that motion, and the trial court’s order all occurred in 2006, after the effective date of the amended rule. The amended rule applies in the present case. See Erickson v. Breedlove, 937 So. 2d 805, 806 n. 1 (Fla. 5th DCA 2006)(applying pre-amendment version of the statute where all relevant events at the trial court level took place prior to effective date of the amendment); Cabrera v. Pazos, Lamnaga & Taylor, P.A., 922 So. 2d 422, 424 n. 2 (…
Authorities Cited
- Gloriann Wilson v. Eva J. Salamon, M.D., 923 So. 2d 363 (Fla. 2005)
- Sewell Masonry Co. v. DCC Constr., Inc., 862 So. 2d 893 (Fla. 5th DCA 2003)
- Cabrera v. Pazos, Larrinaga & Taylor, P.A., 922 So. 2d 422 (Fla. 2d DCA 2006)
- Ferman G. DYE v. Sec. Pac. Fin. Servs., Inc., 828 So. 2d 1089 (Fla. 1st DCA 2002)
- Patton v. Kera Tech., Inc., 895 So. 2d 1175 (Fla. 5th DCA 2005)