JOSEPH A. LICAUSI, APPELLANT,
v.
AIRPORT TRANSPORTATION SERVICE, INC., A FLORIDA CORPORATION ET AL., APPELLEES
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Dismissal for want of prosecution was reversed because the plaintiff's filing of a deposition and request for admissions within one year prior to the motion constituted affirmative prosecution, making the motion premature under Rule 1.420(e), FRCP.
A motion to dismiss for want of prosecution under Rule 1.420(e), FRCP is premature when the plaintiff has filed a deposition or request for admissions within one year prior to the motion.
[1] Filing of a deposition or request for admissions within one year prior to a motion to dismiss for want of prosecution constitutes affirmative prosecution rendering the mo…
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Join FLexlaw to unlock all legal intelligencePlaintiff Licausi's deposition was filed by the court reporter within one year before defendants filed a motion to dismiss for want of prosecution, an…
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Appellant-plaintiff, Joseph A. Licausi, appeals an order in favor of appellees-de-fendants, Airport Transportation Service, Inc., et al., dismissing a cause of action for want of prosecution. We reverse.
The record discloses that within a one-year period immediately prior to the filing of the motion to dismiss, the court reporter filed with the clerk the deposition of the plaintiff. Although the deposition had been taken at the instance of defendants at a time more than one year prior to the filing of the motion to dismiss, the filing of the deposition constitutes an affirmative showing of prosecution of the action. The record further reflects that request for admissions was filed by the plaintiff within a one-year period prior to the motion to dismiss, rendering a motion to dismiss filed under Rule 1.420(e), FRCP, 30 F.S.A., premature. Musselman Steel Fabricators, Inc. v. Radziwon, Fla.App.1971, 250 So.2d 327; Eastern Elevator, Inc. v. Page, Fla.App.1971, 250 So.2d 326; Fund Insurance Companies v. Preskitt, Fla.App.1970, 231 So.2d 866; Cypress Corporation of Florida v. Smith, Fla.App.1969, 218 So.2d 481; Rosenfeld v. Glickstein, Fla.App.1967, 200 So.2d 242; Owens v. Ken’s Paint and Body Shop, Fla.App.1967, 196 So.2d 17.
Accordingly, the order dismissing the cause of action for want of prosecution is reversed and the cause remanded for further proceedings consistent with the views herein expressed.
Reversed and remanded.
WALDEN and CROSS, JJ., and ADAMS, ALTO (Ret.), Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Flack v. Kuhn, 277 So. 2d 593 (Fla. 4th DCA 1973)…of the action within the meaning of Fla.R.Civ.P. 1.420(e), 30 F.S.A. Rosenfeld v. Glickstein, 200 So. 2d 242 (Fla.App.1967); Owens v. Ken’s Paint and Body Shop, 196 So. 2d 17 (Fla.App.1967); see also Licausi v. Airport Transportation Service, Inc., 252 So. 2d 835 (Fla.App.1971) ; Musselman Steel Fabricators, Inc. v. Radziwon, 250 So. 2d 327 (Fla.App.1971). Accordingly, the order dismissing the cause of action for want of prosecution is reversed and the cause remanded for further proceedings consistent with…
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Latimore v. Matthews, 340 So. 2d 1261 (Fla. 3d DCA 1976)…a review of the record, granted the motion to dismiss. This appeal ensued. We reverse. It has been held that the filing of a deposition by a court reporter constitutes affirmative action in a cause. Licausi v. Airport Transportation Service, Inc., 252 So. 2d 835 (Fla. 4th D.C.A. 1971); Musselman Steel Fabricators, Inc. v. Radziwon, 263 So. 2d 221 (Fla.1972). If this be so, then the filing of answers to interrogatories should be similarly treated. Therefore, the date from which the one-year period would comm…
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O'Neal v. Midgette, 356 So. 2d 1261 (Fla. 2d DCA 1978)…e than this has been held sufficient to prevent dismissal under Fla.R.Civ.P. 1.420(e). See Eastern Elevator, Inc. v. Page, 263 So. 2d 218 (Fla.1972); Flack v. Kuhn, 277 So. 2d 593 (Fla. 4th DCA 1973); Licausi v. Airport Transportation Service, Inc., 252 So. 2d 835 (Fla. 4th DCA 1971). . See American Employers Insurance Co. v. J. H. Atkins & Associates, Inc., 332 So. 2d 348 (Fla. 4th DCA 1976), in which an answer and counterclaim filed in one suit was held not properly filed in a second suit which had been co…
Authorities Cited
- Owens v. Ken's Paint AND Body Shop, 196 So. 2d 17 (Fla. 3d DCA 1967)
- Carthel James Rushing v. State, 218 So. 2d 481 (Fla. 3d DCA 1969)
- Rosenfeld v. Glickstein, 200 So. 2d 242 (Fla. 1st DCA 1967)
- Fund Ins. Cos. v. Sid Preskitt, 231 So. 2d 866 (Fla. 4th DCA 1970)
- E. Elevator, Inc. v. Page, 250 So. 2d 326 (Fla. 4th DCA 1971)
- Musselman Steel Fabricators, Inc. v. Radziwon, 250 So. 2d 327 (Fla. 4th DCA 1971)