Florida’s civil defense attorneys have long used Florida Rule of Civil Procedure 1.420(e) to have languishing plaintiffs' cases dismissed. This valuable defense tool was recently sharpened by a Florida Supreme Court decision that further clarified the type of activity that would be deemed insufficient to preclude a dismissal of a case for failure to prosecute.
On June 20, 2002, the question of whether a trial court’s order setting a case management conference constitutes sufficient activity to preclude a dismissal under Fla. R.C.P. 1.420(e) was heard by the Florida Supreme Court in Moossun v. Orlando Regional Health Care, 2002 Fla. LEXIS 1341, *1 (Fla. 2002). The matter was appealed after the Fifth District Court of Appeals affirmed the circuit court’s decision to dismiss the case for lack of prosecution.
Florida Rule of Civil Procedure 1.420(e), entitled “Failure to Prosecute,” essentially provides that the court on its own motion or on that of any interested person, shall dismiss an action that has no record activity "by filing of pleadings, order of court, or otherwise" for a period of one year. In Moossun, Dr. M. Hassen Moossun’s daughter, Ameena, died from pneumonia at Sand Lake Hospital in Orlando, Florida. Id., *2. Dr. Moossun filed suit in his capacity as the personal representative of Ameena’s estate against Orlando Regional Health Care. Id. at *2. An amended complaint was filed on November 3, 1997 and then no further action was taken in the case until January 27, 1998, when Orlando Regional Health filed a request to produce. Id. at *3. On January 26, 1999, the trial court issued an order directing the parties to submit a written status report on the case and to attend a case management hearing on March 19, 1999. On January 28, 1999, the defendant moved to dismiss the case for lack of prosecution. Id. The Florida Supreme Court affirmed the Fifth District Court of Appeal’s upholding of the circuit court’s dismissal of the suit for lack of prosecution.
The Florida Supreme Court recognized that the purpose of Rule 1.420(e) was to ensure that suits filed in Florida’s courts are diligently pursued. Id. at *8. The Court held that a court order setting a case management conference does not constitute sufficient “record activity” to preclude dismissal of the case for lack of prosecution. Id. at *17. The Court found that Rule 1.420(e) required this interpretation. Id., at * 10. If the rule were interpreted differently, judges might be discouraged from inquiring about the status of a case because any such judicial inquiry would give a party a basis for sufficient “record activity,” thus allowing that party the opportunity to ignore the case for one more year without any risk of dismissal for lack of prosecution. Id. at *10. In keeping with the spirit of 1.420(e), judges should be encouraged to stay informed of the status of cases before them through judicial inquiry. Id. at *9-10.
In an earlier case factually similar to Moossun, the Florida Supreme Court dealt with Rule 1.420(e) in a similar manner. In Toney v. Freeman, 600 So.2d 1099 (Fla. 1992), Freeman sued Toney and Toney’s employer over injuries suffered in a traffic accident. The suit was inactive from November 3, 1988 until February 9, 1990, when a trial judge entered an order for a written status request to be provided by both parties to the court. Id. at 1099. The Florida Supreme Court held that this status order did not constitute sufficient record activity to preclude dismissing the case. Id. at 1100-1101.
In Moossun, the Court reiterated its holding in Toney and emphasized that Plaintiff Moossun’s attempt to distinguish between the status conference being requested in his case and the written status report in Toney was unpersuasive. Id. at *15. The Court stated that its reference to “ ‘case management activities’ clearly contemplated more than just a status report and would reasonably be construed to include status conferences.” Id.
Thus, the Florida Supreme Court has made clear that “record activity” under Florida Rule of Civil Procedure 1.420(e) will have to be something initiated by the plaintiff and can not simply be a response to case management inquiries coming from the court.