THE CROUSE-HINDS COMPANY, APPELLANT,
v.
ELMER L. CAPELLIA, JR., APPELLEE
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Crouse-Hinds Company, a foreign corporation not authorized to do business in Florida, appealed the denial of its motion to dismiss for lack of prosecution. The Fourth District Court of Appeal reversed, holding that the defendant was entitled to dismissal under Rule 1.420(e) because the plaintiff had failed to serve it or obtain jurisdiction for nearly two years despite repeated attempts.
The court held that Crouse-Hinds was entitled to dismissal for lack of prosecution. Although the plaintiff was actively prosecuting the case against General Electric during the two-year period, this activity did not constitute affirmative action to hasten suit against Crouse-Hinds specifically, where jurisdiction had yet to be obtained.
[1] A case may be dismissed for lack of prosecution when no record activity has occurred for a period of time, even if the plaintiff has actively prosecuted the action agains…
[2] Jurisdiction over a defendant must be obtained before actions taken by that defendant can be considered in determining whether the case has been actively prosecuted.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is our opinion that appellant was entitled to be dismissed under the provisions of Rule 1.420(e), RCP.”
The court's holding that the defendant was entitled to dismissal for lack of prosecution.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff filed his original complaint on April 21, 1971, against Crouse-Hinds Company, a foreign corporation not authorized to transact business …
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OWEN, Chief Judge.
On interlocutory appeal, one of the defendants seeks review of an order denying its motion to dismiss for lack of prosecution.
The plaintiff’s original complaint was filed on April 21, 1971. Appellant is a foreign corporation not authorized to transact business in the State of Florida. Plaintiff apparently attempted several times to obtain service upon appellant and twice amended his complaint in an effort to plead matters which would permit substituted service of process under either Section 48.181, F.S. or 48.193, F.S., apparently to no avail. The last such effort in this respect occurred on May 30, 1972 and appellant’s motion to dismiss for lack of prosecution was filed January 4, 1974. It is the order denying this latter motion which is appealed.
It is our opinion that appellant was entitled to be dismissed under the provisions of Rule 1.420(e), RCP. Plaintiff-appellee points to the fact that between May 30, 1972 and January 4, 1974, it actively prosecuted this cause of action against another defendant (General Electric Corporation) in contending that this case is within the rationale of Eastern Elevator, Inc. v. Page, Fla.App.1971, 250 So. 2d 326, cert. disch., Fla., 263 So. 2d 218. However, the Eastern Elevator case is readily distinguishable upon the fact that in that case the court had acquired jurisdication over the parties so that the “action” taken by one of the defendants in filing written interrogatories addressed to the plaintiff was a positive step “calculated to hasten suit to judgment” as to all defendants. Such is not the case here as to the defendant-appellant over whom jurisdiction has yet to be obtained. The present case would be governed by Koppers Company, Inc. v. Victoire Development Corp., Fla.1973, 284 So. 2d 193.
The order appealed is reversed and this cause remanded for entry of an order consistent herewith.
Reversed and remanded.
CROSS and MAGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Overseas Dev., Inc. v. Amerifirst Fed. Sav. & Loan Ass'n, 433 So. 2d 587 (Fla. 3d DCA 1983)…ase activity to preclude such a dismissal.3 ” “1 [footnote omitted] 2. Koppers Co. v. Victoire Development Corp., 284 So. 2d 193 (Fla.1973); Metropolitan Transit Authority v. Porter, 328 So. 2d 573 (Fla. 3d DCA 1976); Crouse-Hinds Co. v. Capellia, 302 So. 2d 800 (Fla. 4th DCA 1974); Karkeet v. Snyder, 275 So. 2d 302 (Fla. 3d DCA 1973); Shalabey v. Memorial Hospital of the South Broward Hospital District, 253 So. 2d 712, 715 (Fla. 4th DCA 1971). See also Little v. Sullivan, 173 So. 2d 135 (Fla.1965); Equity…
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Smith v. ST. George Island Gulf Beaches, Inc., 343 So. 2d 847 (Fla. 1st DCA 1976)…ch consider as separate and unique the interests of nominal defendants not served with process or otherwise brought within the court’s jurisdiction. Koppers Co., Inc. v. Victoire Devel. Corp., 284 So. 2d 193 (Fla.1973); Crouse-Hinds Co. v. Capellia, 302 So. 2d 800 (Fla.App. 4th, 1974). To the extent that the order appealed dismisses Smith’s action, it is REVERSED, otherwise AFFIRMED. MILLS, Acting C. J., and MeCRARY, ROBERT L., Jr., Associate Judge, concur.…
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Utset v. Campos, 548 So. 2d 834 (Fla. 3d DCA 1989)…him for over a year, even though there has been record activity as to other defendants in the cause. No such point of law was at issue, discussed, or decided in Kop-pers. We recognize that the Fourth District Court in Crouse-Hinds Co. v. Capellia, 302 So. 2d 800 (Fla. 4th DCA 1974), has, in effect, interpreted Koppers to adopt such an “exception,” and that Sandini v. Florida East Coast Properties, Inc., 454 So. 2d 578 (Fla. 4th DCA 1984), follows Crouse-Hinds; we do not, however, agree with these decisions…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- E. Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972)
- Koppers Co., Inc. v. Victoire Dev. Corp., 284 So. 2d 193 (Fla. 1973)
- E. Elevator, Inc. v. Page, 250 So. 2d 326 (Fla. 4th DCA 1971)