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).

In re Amendments to Florida Rule of Civil Procedure 1.720 Mediation Procedures

Following the recommendation of the Florida Bar Committee on Alternative Dispute Resolution Rules and Policy, the Florida Supreme Court has amended Rule 1.720 to strengthen the requirement that the party attending mediation have actual authority to settle the lawsuit.

The new Rule 1.720:

–  Provides a more detailed description of what it means for a party representative to have “full authority” to settle.  The party representative must be “the final decision maker” and have the “legal capacity to execute a binding settlement agreement.”

– Requires each party to file with the court, ten days in advance of mediation, written notice of the party representative(s) appearing at the scheduled mediation and confirming those representatives have full authority.

– Provides that sanctions shall be imposed for failure to appear at mediation.  Failure to properly identify the party representative, or sending a different party representative to mediation than designated, shall create a “rebuttable presumption” that the violating party has “failed to appear” at mediation.

The amended rule goes into effect beginning January 1, 20112.

In re Amendments to Florida Rule of Civil Procedure 1.720, Case No. 10-2329 (Fla. Nov. 3, 2011).