20 Fla. L. Weekly Supp. 1241a
Online Reference: FLWSUPP 2012JEANInsurance — Personal injury protection — Dismissal — Failure to prosecute — Filing of designation of electronic mail addresses is sufficient record activity to preclude dismissal for lack of prosecution — Filing of medical provider’s notice for trial precludes dismissal for lack of prosecution
GLENN D. BERGER, D.C., P.A. d/b/a BERGER CHIROPRACTIC & REHAB CENTER a/a/o Marie Jean, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO 07-005261(71). August 23, 2013. Honorable Louis H. Schiff, Judge. Counsel: Travis L. Stock, Weinstein Law Firm, Coral Springs, for Plaintiff. Eric G. Belsky, Leiter & Belsky, P.A., Fort Lauderdale, for Defendant.
ORDER DENYING DEFENDANTS MOTIONTO DISMISS FOR LACK OF PROSECUTION.
THIS CAUSE having come before the undersigned upon the Defendant’s Motion to Dismiss for Lack of Prosecution, and the Court having reviewed the Court file and having been otherwise fully advised in the premise, it is hereupon:
ORDERED AND ADJUDGED that said motion is hereby Denied.
1. This case arises out of a claim for unpaid personal injury protection benefits in the amount of $5,540.00.
2. On July 06, 2010, Plaintiff’s counsel filed its “Notice for Non-Jury Trial and Request for Referral to Arbitration.”
3. On November 16, 2012, Defendant’s counsel filed its Designation of Electronic Mail Addresses pursuant to Rule 2.516 of the Florida Rules of Judicial Administration.
4. On November 16, 2012, Defendant’s counsel also filed its Notice of Lack of Prosecution pursuant to Florida Rules of Civil Procedure 1.420(e).
The November 16, 2012, filing of Defendant’s Designation of Electronic Mail Addresses is sufficient record activity to preclude dismissal under Rule 1.420(e) of the Florida Rules of Civil Procedure.
1. Florida Rules of Civil Procedure 1.420(e) provides as follows:
(e) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.
2. In Chemrock Corp. v. Tampa Electric Co., 71 So. 3d 786 (Fla. 2011) [36 Fla. L. Weekly S318a], the Florida Supreme Court reasoned that “any filing of record during the applicable time frame is sufficient to preclude dismissal — without regard to a finding that the filing is intended to affirmatively move the case toward resolution on the merits.”
3. In Weston TC LLLP v. CNDP Marketing Inc., 66 So. 3d 370 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1610a], the Fourth District Court of Appeal, following Chemrock, reversed an order of dismissal and reasoned that the filing of a notice of unavailability was sufficient record activity to avoid dismissal for lack of prosecution.
4. Based on the binding precedent set forth in both the Chemrock and Weston cases, the November 16, 2012, filing of Defendant’s Designation of Electronic Mail Addresses is sufficient record activity to preclude dismissal under Rule 1.420(e) of the Florida Rules of Civil Procedure.
The July 06, 2010 filing of Plaintiff’s Notice for Non-Jury Trial and Request for Referral to Arbitration precludes dismissal under Rule 1.420(e) of the Florida Rules of Civil Procedure.
1. In Mikos v. Sarasota Cattle Company, 453 So. 2d 402 (Fla. 1984), the Defendant noticed the case for trial on November 16, 1979. The Plaintiff noticed the case for trial on February 10, 1981. Neither party took any further action. On August 11, 1982 — 18 months after the case was noticed for trial — Defendant filed its motion to dismiss for lack of prosecution, which the trial court granted.
2. The Florida Supreme Court agreed with the District Court of Appeals reversal of the trial court and also agreed with the District Court’s reasoning that once a notice for trial is filed, the filing party has no obligation to take any further action and “the filing of the notice bars the trial court from dismissing the action for lack of prosecution.” Id. at 403.
3. In Fox v. Playa Del Sol Association, Inc., 446 So. 2d 126 (Fla. 4DCA 1983), Plaintiff noticed the case for trial. After 1 year of no record activity, the Defendant filed a motion to dismiss for lack of prosecution, which the trial court granted.
4. The Fourth District Court of Appeals reversed the trial court and reasoned that Plaintiff’s filing of the notice for trial barred dismissal for failure to prosecute and the filing of the notice of trial “was all he had to do no matter how long a period elapsed thereafter.” Id. at 127.
5. Based on the well-settled, binding precedent set forth in both the Mikos and Fox cases, the July 06, 2010, filing of Plaintiff’s Notice for Trial precludes dismissal for lack of prosecution under Rule 1.420(e) of the Florida Rules of Civil Procedure.
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