ANA ARTIGAS MANTEIGA, APPELLANT,
v.
CITY OF MIAMI, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, AND CITY OF MIAMI DEPARTMENT OF WATER AND SEWERS, APPELLEES

Fla. 3d DCA | 1972-11-07
No. 72-431
Before BARKDULL, C. J., and CHARLES CARROLL and HAVER-FIELD, JJ.
268 So. 2d 537 Florida District Court of Appeal, Third District (1972) Caution
Cited by 6 cases

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Synopsis

The appellate court reviewed an order dismissing the plaintiff's complaint for want of prosecution, finding that the plaintiff's actions were sufficient to prevent dismissal under RCP 1.420(e).


Holding

The court held that the plaintiff's complaint should not have been dismissed for want of prosecution, as the actions taken, including discovery and the defendant's notice of trial, demonstrated ongoing prosecution.


Headnotes

[1] An action may be dismissed for failure to prosecute if no action has been taken by filing of pleadings, order of court, or otherwise for a period of one year, unless good…

[2] Affirmative action taken by either a plaintiff or defendant can satisfy the requirement to hasten a suit to judgment under rules governing dismissal for failure to prosec…

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Facts & Procedural History

The plaintiff filed a complaint alleging negligence in 1970. After initial discovery actions, there was a period of inactivity until the defendant fil…

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Opinion of the Court
HAVERFIELD, Judge.

HAVERFIELD, Judge.

Plaintiff-appellant, Ana Artigas Mantei-ga, seeks review of the lower court’s order dismissing her complaint for want of prosecution.

Plaintiff filed her complaint on October 28, 1970, in which she alleged that injuries she received were proximately caused by defendant City of Miami’s negligence in maintaining a public thoroughfare. On November 23, 1970 the city filed a motion to dismiss the complaint and its answer. Plaintiff thereafter filed interrogatories to defendant on December 2, 1970 and a notice of taking deposition on December 10, 1970. The matter proceeded without any further action by either party until defendant filed a notice of trial on February 18, 1972. Ten days later the court, on its own motion and pursuant to RCP 1.420(e), 30 F.S.A, gave notice that an order of dismissal for want of prosecution would be entered after a hearing on March 9, 1972 unless a party was able to show good cause in writing at least five days before said hearing why the action should remain pending. Plaintiff did not respond to this notice and the order of dismissal was entered on the appointed date. On March 16, 1972 plaintiff filed a petition for rehearing which was denied.

Public policy demands the prompt dispatch of a court’s business, requires that the course of litigation be expedited and that court dockets be as nearly current as possible. Yelvington and Son, Inc. v. Sheridan, Fla. 1953, 65 So.2d 44; Gulf Appliance Distributors, Inc. v. Long, Fla.1951, 53 So.2d 706; Young v. Pyle, Fla.App. 1967, 193 So.2d 659. Accordingly, an action may be dismissed for failure to prosecute under RCP 1.420(e):

“(e) Failure to Prosecute. All actions in which it affirmatively appears that no action has been taken by filing of pleadings, order of court or otherwise for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a *538party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing why the action should remain pending at least five days before the hearing on the motion.”

In the instant case defendant contends that the prosecution of a suit under these circumstances contemplates something more than a mere passive effort to keep the suit on the docket. An active measure taken by plaintiff is seen by defendant to be the requisite action needed to hasten the suit to judgment. Defendant reasons that because the notice of trial filed on February 18, 1972 was a motion made by defendant, it does not constitute the necessary action taken by plaintiff to keep the suit from being dismissed.

Two recent Florida Supreme Court decisions have interpreted RCP 1.420(e) contrary to appellee’s position. The first case, Eastern Elevator, Inc. v. Page, Fla.1972, 263 So.2d 218, dealt directly with the question of the necessity for affirmative action in a cause by either the plaintiff or the defendant. The Supreme Court found that the alleged need for a plaintiff to take the sufficient affirmative action to justify a denial of a motion to dismiss for lack of prosecution was based upon a mere inferential reference within a quote from a Louisiana case, Augusta Sugar Co., Ltd. v. Haley, 163 La. 814, 112 So. 731, 732 used in Gulf Appliance Distributors, Inc. v. Long, supra at 707 of 53 So.2d, as follows :

“We think that a step in the prosecution of a suit means something more than a mere passive effort to keep the suit on the docket of the court; it means some active measure taken by plaintiff, intended and calculated to hasten the suit to judgment . . .”

The Florida Supreme Court, in Eastern Elevator, did not place the same significance on the word “plaintiff” in the quote as does appellee in the case sub judice. The court clarified the effect of RCP 1.-420(e) by stating that any affirmative action taken by either a plaintiff or defendant, depending upon the facts in each individual case, will be appropriate under the rule to keep the action from being dismissed if the ultimate purpose of such act is to hasten the suit to judgment.

Musselman Steel Fabricators, Inc. v. Radziwon, Fla.1972, 263 So.2d 221, is the second Florida Supreme Court decision which is contra to appellee’s position. Under Musselman, the Supreme Court states that the necessary affirmative action sufficient to justify the denial of a motion to dismiss for failure of prosecution is not confined to acts within the record if such an act is intended and calculated to hasten the suit to judgment. For example, in Musselman, the court reporter’s filing of depositions of witnesses within one year immediately prior to the filing of the motion was seen to be sufficient.

Other issues raised by appellee were without merit. We, therefore, reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Harris v. Winn-Dixie Stores, Inc., 378 So. 2d 90 (Fla. 1st DCA 1979)
    …act directed toward disposition of the cause, ■is sufficient to avoid dismissal for failure to prosecute.” The cases of Musselman Steel Fabricators, Inc. v. Radziwon, Fla.Sup.Ct.1972, 263 So. 2d 221 and Manteiga v. City of Miami, Fla. 3rd DCA 1972, 268 So. 2d 537 are in accord with the concept that record activity of any party intended or calculated to move a case toward a judgment precludes dismissal for lack of prosecution if filed within the year prior to a motion to dismiss for that reason. Examining th…
  • ST. Anne Airways Corp. v. Larotonda, 308 So. 2d 129 (Fla. 3d DCA 1975)
    …a. 1972, 263 So. 2d 218; Musselman Steel Fabricators, Inc. v. Radziwon, Fla.1972, 263 So. 2d 221; Leverenz v. Schmieder, Fla.App.1974, 294 So. 2d 690; Dukes v. Chemicals, Inc., Fla.App. 1973, 277 So. 2d 298; Mantiega v. City of Miami, Fla.App. 1972, 268 So. 2d 537; and, Rosenfeld v. Glickstein, Fla. App.1967, 200 So. 2d 242. We have studied each of these cases, and find them distinguishable from this case. The proposition of law for which these cases stand, however, is relevant to the instant case. That poi…
  • Rapport v. Weisberg, 316 So. 2d 73 (Fla. 3d DCA 1975)
    …premature and erroneous and, therefore, the trial judge erred in denying plaintiff-appellant’s motion to vacate order of dismissal. Cf. Musselman Steel Fabricators, Inc. v. Radziwon, Fla.1972, 263 So. 2d 221; Manteiga v. City of Miami, Fla.App.1972, 268 So. 2d 537; Dukes v. [*75] Chemicals, Inc., Fla.App.1973, 277 So. 2d 298. Accordingly, we hereby reverse the order denying the motion to vacate and remand the cause to the trial court with directions to vacate its order of dismissal and to reinstate plaintiff…

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