JAMES E. TURNER, APPELLANTS,
v.
FIA CARD SERVICES, N.A., ETC., APPELLEE
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James E. Turner appeals the trial court's denial of rehearing on an order finding good cause to keep a case pending despite lack of prosecution. The Third District reverses, holding that the plaintiff's showing of good cause must strictly comply with the five-day notice requirement under Florida Rule of Civil Procedure 1.420(e), and remands with instructions to dismiss.
A plaintiff's showing of good cause must strictly comply with the five-day notice requirement; substantial compliance or 'close enough' filings do not satisfy the rule. The court imposed a bright-line rule requiring no less than five days' notice before the hearing.
[1] A showing of good cause to prevent dismissal for lack of prosecution must be filed at least five days before the hearing on the notice of lack of prosecution.
[2] A filing four days before a hearing on a notice of lack of prosecution is not timely under Florida Rule of Civil Procedure 1.420(e).
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Join FLexlaw to unlock all legal intelligence“The court refused to dismiss the action because FIA Card Services filed on February 1, 2010, a showing of good cause. The hearing on the Notice was set for February 5, 2010. Rule 1.420(e) provides that this showing of good cause must be made 'at least 5 days before the hearing.' The trial court stated that the timeliness was 'close enough.' We conclude that 'close enough' is not 'good enough.'”
Establishes the core issue: the trial court's rejection of strict compliance with the five-day requirement.
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Join FLexlaw to unlock all legal intelligenceThere was no record activity for ten months preceding the trial court's November 24, 2009 Notice of Lack of Prosecution. No record activity occurred d…
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James E. Turner appeals an order denying rehearing on the trial court’s finding of good cause why the cause should remain pending, pursuant to Florida Rule of Civil Procedure 1.420(e). Because the plaintiff, FIA Card Services, N.A., etc., failed to file a timely showing of good cause, we reverse.
It is undisputed that there was no record activity for a period of ten months immediately preceding the trial court’s issuance of a Notice of Lack of Prosecution on November 24, 2009.1 It is also undis*1243puted that no record activity took place during the sixty-day period following the court’s Notice. The court refused to dismiss the action because FIA Card Services filed on February 1, 2010, a showing of good cause. The hearing on the Notice was set for February 5, 2010. Rule 1.420(e) provides that this showing of good cause must be made “at least 5 days before the hearing.” The trial court stated that the timeliness was “close enough.” We conclude that “close enough” is not “good enough.”
The Florida Supreme Court in Wilson v. Salamon, 928 So.2d 363, 368 (Fla.2005), created a bright-line rule that any filing would prevent dismissal pursuant to this rule. Likewise, any filing in the 60-day period following the notice or motion for lack of prosecution would qualify as record activity and would keep the case from being dismissed. The rule likewise specifies a bright line for providing good cause — “at least five days before the hearing.” The rule does not read more or less five days, or around five days. By filing the showing of good cause on February 1, FIA Card Services did so four days before the hearing. If this is close enough, what about February 2, three days before? We believe that, just as the Florida Supreme Court sought to impose a bright line for keeping a case from being dismissed for lack of prosecution, we should impose a bright line for showing good cause, and if the rule states “5 days,” we can require no less.
Reversed and remanded with instructions to dismiss the case without prejudice.
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Deutsche Bank Nat'l Tr. Co. v. Basanta, 88 So. 3d 216 (Fla. 3d DCA 2011)…issal pursuant to ... rule [1.420(e) ]. Likewise, any filing in the 60-day period following the notice or motion for lack of prosecution would qualify as record activity and would keep the case from being dismissed.” Turner v. FIA Card Servs., N.A., 51 So. 3d 1242, 1243 (Fla. 3d DCA 2011). Because the record clearly demonstrates that the Bank made the necessary filings within the 60-day period following the FWOP Notice, the case should not have been dismissed for lack of prosecution. Appellee’s counsel should…
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Held v. U.S. Bank Nat'l Ass'n FOR C-Bass 2007-CB7 Tr., 217 So. 3d 1039 (Fla. 4th DCA 2017)…e bank’s good cause showing was untimely. Therefore, the [*1042] judge who issued the final order of dismissal for lack of prosecution did so properly. Our reasoning is consistent with our sister court’s reasoning in Turner v. FIA Card Svcs., N.A., 51 So. 3d 1242 (Fla. 3d DCA 2011). Given the opinion’s similarity to this case, we cite the opinion virtually in its entirety: It is undisputed that there was no record activity for a period of ten months immediately preceding the trial court’s issuance of a Noti…
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Lesinski v. S. Fla. Water Mgmt. Dist., 226 So. 3d 964 (Fla. 4th DCA 2017)…ain pending. Under rule 1.420(e)’s plain meaning, the plaintiffs counsel’s good cause showing was untimely. Therefore, the circuit court properly issued the dismissal order. We rely on our sister court’s reasoning in Turner v. FIA Card Svcs., N.A., 51 So. 3d 1242 (Fla. 3d DCA 2011): Rule 1.420(e) provides that this showing of good cause must be made “at least 5 days before the hearing.” ... We conclude that “close enough” is not “good enough. ” The Florida Supreme Court in Wilson v. Salamon, 923 So. 2d 363…
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