Cabrera v. Pazos (Fla. 2d DCA March 2, 2006)

In Cabrera v. Pazosthe Second DCA found that “once a party files a proper rule 1.440(b) notice that a matter is ready for trial, it is the court’s duty to set the cause for trial. See Young, 730 So. 2d at 766 (“[I]t is the trial court’s responsibility to enter an order setting a date for trial, and it is the filing of the notice which bars the court from dismissing the action for lack of prosecution.”). Failure of the trial court to set the case for trial precludes dismissal for failure to prosecute despite the lack of record activity. Reyes, 895 So. 2d at 1274-75; see Pierstorff v. Stroud, 454 So. 2d 564, 565 (Fla. 2d DCA 1983). This matter was never scheduled for trial after Mr. Cabrera filed his notice for jury trial.

The trial court abused its discretion when it dismissed Mr. Cabrera’s complaint for failure to prosecute pursuant to rule 1.420(e). Accordingly, we reverse the final judgment of dismissal and remand for further proceedings.”