Error to Dismiss for Lack of Prosecution at Case Management Conference

After Plaintiff failed to attend a case management conference, the trial court issued an order which stated in its entirety:

Neither plaintiff nor defendant appeared at duly set status conference. Whereas this court hereby dismisses without prejudice the above styled case for lack of prosecution.

Florida Rule of Civil Procedure 1.420(e) allows the court to dismiss a suit for lack of prosecution, but the required procedures for dismissal for lack of prosecution were not met, i.e.: “no record activity for ten months followed by a notice to the parties and a sixty-day opportunity to take action.”

The 4th DCA noted that the trial court could have dismissed the suit under Florida Rule of Civil Procedure 1.200(c), which provides that the court may “dismiss the action” if a party fails to attend a case management or pretrial conference. However, the court would have had to made a finding of fact that the failure to attend the case management hearing was “willful and contumacious.”

Since the court’s order merely stated that Appellant failed to attend the conference and did not set forth any findings establishing that Appellant engaged in “willful and contumacious” behavior, the 4th DCA overturned the trial court’s dismissal.

PETERSEN & HAWTHORNE, P.A. v. EMI ENTERPRISES, INC., et. al.,  Case No. 4D11-3609 (4th DCA June 12, 2013).

Schaffer et al. v. First Bank et al., 36 Fla. L. Wkly D2363a (Fla. 4th DCA Oct. 26, 2011) – re-opening dismissed case after dismissal for failure to prosecute

In this foreclosure case, the trial court sent a notice of dismissal for failure to prosecute to bank counsel’s old address even though he had notified the court of a new address. Upon motion after over a month had passed, the court re-opened the case. The borrowers appealed, claiming that a motion to re-open must occur within one month of the dismissal. The appellate court disagreed and affirmed, holding that the supposed one-month restriction appeared only in an older version of the rule that had long since been amended.

Schaffer et al. v. First Bank et al., 36 Fla. L. Wkly D2363a (Fla. 4th DCA Oct. 26, 2011)