23 Fla. L. Weekly Supp. 963b
Online Reference: FLWSUPP 2309SOTOInsurance — Dismissal — Failure to prosecute — Where medical provider failed to prosecute case for period in excess of one year, failed to submit notice of good cause prior to hearing on motion to dismiss for failure to prosecute and failed to show good cause at hearing, case is dismissed
MIAMI MEDICAL CARE CENTER, INC a/a/o SONIA SOTOLONGO, Plaintiff, v. OMNI INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 10-19516 CC 23 06. February 4, 2016. Spencer Multack, Judge. Counsel: Stuart Yanofsky, Stuart B. Yanofsky, P.A., Plantation, for Plaintiff. Brett T. Conger and Manuel Negron, Conroy Simberg, P.A., Miami, for Defendant.
ORDER ON DEFENDANT’S MOTION TODISMISS FOR LACK OF PROSECUTION
THIS CAUSE came to be heard by the Court on February 3, 2016, on Defendant’s Motion to Dismiss for Lack of Prosecution. Based on arguments of counsel and being otherwise fully advised in the premises, the Court finds as follows:
1. Following Plaintiff’s failure to prosecute this case for a period in excess of one (1) year, Defendant filed a Motion to Dismiss for Failure to Prosecute on September 30, 2014.
2. Defendant’s Motion to Dismiss for Failure to Prosecute placed Plaintiff on notice that its case was at risk of being dismissed for lack of prosecution and that Plaintiff was required to show good cause as to why its case should remain pending. Defendant’s Motion to Dismiss also placed Plaintiff on notice that good cause must be shown in writing at least five (5) days prior to the hearing on Defendant’s Motion to Dismiss for Failure to Prosecute.
3. Pursuant to Florida Rule of Civil Procedure 1.420(e), a party that seeks to avoid dismissal for lack of prosecution who has let a case languish without record activity for a period in excess of one (1) year must show good cause as to why the action should remain pending at least five (5) days before the hearing on the dismissal for lack of prosecution. The good cause must be in writing and sworn. Sebree v. Schantz, Schatzmann, Aaronson & Perlman, 963 So.2d 842, 846 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D1878a].
4. Plaintiff failed to submit any written notice of good cause prior to the hearing on Plaintiff’s Motion to Dismiss for Failure to Prosecute, much less five (5) days in advance of the hearing as required by Fla. R. Civ. P. 1.420(e). Plaintiff also failed to show good cause at the February 3, 2016 hearing.
5. A court’s decision to dismiss a case for lack of prosecution shall not be disturbed absent a showing that the Court abused its discretion. Patton v. Kera Technology, Inc., 946 So.2d 983 (Fla. 2006) [31 Fla. L. Weekly S700a]. However, the Court’s hands are tied and it must dismiss a case where the record reveals no record activity for a period in excess of one (1) year and the party opposing dismissal fails to show sufficient good cause. Havens v. Chambliss, 906 So.2d 318, 319-320 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1518a].
6. For the foregoing reasons, Plaintiff’s case is dismissed for lack of prosecution.
ORDERED and ADJUDGED that the above case is hereby dismissed.
