DAVID S. KENET AND PAY & GUEST CO., APPELLANTS,
v.
CHARLES H. STEIN, APPELLEE
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The court held that noticing a hearing on a third-party defendant's motion to dismiss constitutes taking action to progress the cause, preventing dismissal for failure to prosecute.
[1] A cause of action is not subject to dismissal for failure to prosecute under Rule 1.420(e) if the plaintiff takes action reasonably intended to progress the cause within…
[2] A plaintiff's action in noticing a hearing on a third-party defendant's motion to dismiss the third-party complaint constitutes reasonable action to progress the cause fo…
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Join FLexlaw to unlock all legal intelligencePlaintiff filed a complaint, and the defendant filed an answer and a third-party complaint. After several procedural steps, the defendant moved to dis…
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PEARSON, Judge.
This is an appeal from an order dismissing plaintiff-appellants’ cause “. for failure to prosecute pursuant to said er of court.” The relevant dates appear to Rule 1.420(e), and under the inherent pow-be as follows: October 1, 1973 Complaint filed November 16, 1973 Defendant petitions for removal to U.S. District Court November 26, 1973 Defendant’s answer; third party complaint against Banque de Financement November 30, 1973 Remand to State Court January 11, 1974 Plaintiffs’ motion to strike defendant’s answer denied February 14, 1974 Banque de Financement S.A. motion to dismiss third party complaint January 31, 1975 Plaintiffs’ notice of hearing on Banque’s motion February 28, 1975 Hearing on Banque’s motion March 3, 1975 Order dismissing third party complaint March 4, 1975 Defendant’s motion to dismiss for plaintiff’s failure to prosecute The record affirmatively demonstrates that within the period of one year prior to defendant’s motion to dismiss pursuant to the rule, the plaintiff took action reasonably intended to progress the cause between himself and the defendant through securing an order of court by noticing a hearing on the third party defendant’s motion to dismiss the third party complaint. See City of Miami v. Railway Express Agency, Inc., Fla.App.1962, 141 So. 2d 285; and Milu, Inc. v. Duke, Fla.App.1971, 256 So. 2d 83. Defendant’s position that because the action affected only the third party complaint, it could not reasonably be interpreted as progressing the cause is not well taken. Until there was some deposition of the third party defendant’s motion to dismiss the complaint against it, the cause could not be brought to issue as defined by RCP 1.440. And finally, we do not think that the addition to the order, making reference to the court’s inherent power to clear its dockets of cases that are not being progressed, takes the case from the applicable rule. This ground should be reserved for those cases in which the court finds that an offending plaintiff is purposely dragging its feet. Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Harris v. Winn-Dixie Stores, Inc., 378 So. 2d 90 (Fla. 1st DCA 1979)…dismissed for failure to prosecute notwithstanding that Rule 1.420(e) is inapplicable.” There was a vigorous dissent which stated the view that the trial court should have been upheld under its inherent powers. In Kenet v. Stein, Fla. 3rd DCA 1976, 326 So. 2d 36, the existence of inherent power of a court to clear its docket of cases not being diligently prosecuted was noted, but it was stated: “This ground should be reserved for those cases in which the court finds that [the] offending plaintiff is purpose…
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Nelson v. Stonewall Ins. Co., 440 So. 2d 664 (Fla. 1st DCA 1983)…terrogatories); Strader v. Morrill, 360 So. 2d 1137 (Fla. 1st DCA 1978) (motion for summary judgment); O’Neal v. Midgette, 356 So. 2d 1261 (Fla. 2d DCA 1978) (motion and order to substitute personal representative of deceased party); Kenet v. Stein, 326 So. 2d 36 (Fla. 3d DCA 1976) (plaintiff’s notice of hearing on motion to dismiss third-party complaint); Milu, Inc. v. Duke, 256 So. 2d 83 (Fla. 3d DCA 1971) (plaintiff’s notice of hearing); Cypress Corp. of Florida v. Smith, 218 So. 2d 481 (Fla. 2d DCA 1969)…
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Phillips Petroleum Co. v. Art Heimer, 339 So. 2d 284 (Fla. 3d DCA 1976)…more than a mere passive effort, i.e., an affirmative act directed toward disposition of the cause, is sufficient to avoid dismissal for failure to prosecute. Compare Eastern Elevator, Inc. v. Page, 263 So. 2d 218 (Fla.1972), and see Kenet v. Stein, 326 So. 2d 36 (Fla.3rd DCA 1976). The Florida Rules of Civil Procedure provide for third party practice in order to avoid multiplicity of actions and to allow the entire subject arising from one set of facts to be disposed of in one action. Mims Crane Service, I…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anderson v. State, 141 So. 2d 285 (Fla. 1st DCA 1962)
- Milu, Inc. v. Duke, 256 So. 2d 83 (Fla. 3d DCA 1971)