DEWEY DUKES, APPELLANT,
v.
CHEMICALS, INC., APPELLEE
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The court held that non-record activity, such as verbal requests for documents, can satisfy the prosecution requirement under FRCP 1.420(e).
[1] A lawsuit may be dismissed for failure to prosecute if no action is taken for a statutorily defined period.
[2] Non-record activity, such as informal requests for discovery, can constitute sufficient action to avoid dismissal for failure to prosecute.
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Join FLexlaw to unlock all legal intelligenceAppellant's personal injury lawsuit was dismissed for failure to prosecute after a period of inactivity. Appellant argued that non-record activity, sp…
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In 1967 appellant filed a complaint against appellee for personal injuries resulting from the alleged negligence of the appellee (defendant below). From May 18, 1971 to May 31, 1972 the record reflects that no action was taken in the law suit. Appellee filed a motion to dismiss pursuant to FRCP 1.420(e), 30 F.S.A., and the cause was dismissed for failure to prosecute. In opposition to appellee’s motion to dismiss, appellant filed an affidavit setting forth that there had been activity during the period, though it was non-record activity. There had been a verbal request by appellant’s counsel for appellee’s counsel to produce certain logs and records without the necessity of a formal filing of a motion to produce.
At the hearing upon appellant’s motion to reinstate, it was brought out that appel-lee’s counsel had sought the documents without results and there appeared in the record the following:
“Mr. Heyck: I agree with Mr. Brown that he and I discussed this, and I inquired about such documents and got no response from the client. ... I did what I told Mr. Brown I would do. I tried to get these documents. . . .”
It therefore appears that the trial judge erred in failing to reinstate the cause for the reason that there was activity, even though it was not of record, and the activity was in lieu of a motion to produce which could have been filed by the appellant. This complies with the activity discussed by this court in Whitney v. Whitney, 241 So.2d 436 (Fla.App.1970), cert. den. 245 So.2d 88 (Fla.1971), and by the Florida Supreme Court in Musselman Steel Fabricators, Inc. v. Radziwon, 263 So.2d 221 (Fla.1972), holding that non-record activity is sufficient under the “or otherwise” provision of FRCP 1.420(e). See also, Fleming v. Florida Power Corp., 254 So.2d 546 (2d D.C.A.Fla.1971).
Based on Whitney and Musselman, supra, the order denying reinstatement is *299hereby reversed and the cause remanded for proceedings consistent with this opinion.
MANN, C. J., and BOARDMAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Am. E. Corp. v. Henry Blanton, Inc., 382 So. 2d 863 (Fla. 2d DCA 1980)…ing of a medical report by plaintiffs in accordance with defendants’ specific directions, Eddings v. Davidson, 302 So. 2d 155 (Fla. 1st DCA 1974); a verbal request by plaintiff’s counsel to produce certain logs and records, Dukes v. Chemicals, Inc., 277 So. 2d 298 (Fla. 2d DCA), cert. denied, 283 So. 2d 560 (Fla. 1973); and correspondence between the attorneys requesting cancelled checks and check stubs, Whitney v. Whitney, 241 So. 2d 436 (Fla. 2d DCA 1970), cert, denied, 245 So. 2d 88 (Fla. 1971). . Prior t…
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ST. Anne Airways Corp. v. Larotonda, 308 So. 2d 129 (Fla. 3d DCA 1975)…nt action within the rule. See, Eastern Elevator, Inc., Fla. 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…
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Leverenz v. Schmieder, 294 So. 2d 690 (Fla. 3d DCA 1974)…activity and, therefore, the trial judge erred in failing to reinstate the cause for the reason that there was activity, even though it was not of record. Cf. Whitney v. Whitney, Fla.App.1970, 241 So. 2d 436, Dukes v. Chemicals, Inc., Fla.App.1973, 277 So. 2d 298. Accordingly, the order of dismissal is hereby reversed and the cause remanded with directions to reinstate the instant action. Reversed and remanded.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Musselman Steel Fabricators, Inc. v. Radziwon, 263 So. 2d 221 (Fla. 1972)
- Whitney v. Whitney, 241 So. 2d 436 (Fla. 2d DCA 1970)
- Fleming v. Fla. Power Corp., 254 So. 2d 546 (Fla. 2d DCA 1971)
- Videon v. Cowart, 245 So. 2d 88 (Fla. 1971)