24 Fla. L. Weekly Supp. 711b
Online Reference: FLWSUPP 2409ELVIInsurance — Dismissal — Lack of prosecution — Pleadings filed more than 60 days after notice of lack of prosecution do not amount to record activity that would prevent dismissal — Notice of good cause that was not sworn and that alleged only that provider had overlooked pleading deadline does not establish good cause to avoid dismissal — Supplemental notice of good cause that was not filed five days before either original hearing date or date on which parties agreed to reset hearing was not timely filed and need not be considered — Case dismissed without prejudice
PROGRESSIVE HEALTH SERVICES, INC., a/a/o Blanca A. Elvir, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 15-01988 SP 26 (04). September 28, 2016. Lawrence D. King, Judge. Counsel: Stacy Reade and Stuart L. Koenigsberg, A Able Advocates, Miami, for Plaintiff. Manuel I. Negrón, and Robert Strickland, 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 September 14, 2016, on the Court’s Notice of Dismissal for Lack of Prosecution. Based on arguments of counsel and being otherwise fully advised in the premises, the Court finds as follows:
1. Based on the parties’ stipulation, on June 1, 2015, the Court invoked the Florida Rules of Civil Procedure, including Fla. R. Civ. P. 1.420(e), governing dismissal for lack of prosecution. Following Plaintiff’s failure to prosecute this case for ten (10) months, the Court noticed this case for dismissal for lack of prosecution on April 15, 2016. More than sixty (60) days elapsed without Plaintiff creating any record activity. Plaintiff filed things more than sixty (60) days after the Notice of Lack of Prosecution. This does not amount to record activity to prevent dismissal for lack of prosecution. A-1 Presto Roofing Corp. v. Espinosa, 51 So.3d 566, 568 (Fla. 3d DCA 2010) [36 Fla. L. Weekly D4a] (holding that to count as record activity a notice filed more than 60 days after the Notice of Lack of Prosecution would be to rewrite Rule 1.420(e)); Shalabey v. Memorial Hospital of the South Broward Hospital District, 253 So.2d 712, 714 (Fla. 4th DCA 1971)(holding that a notice filed after one year of record inactivity had elapsed “was of no legal effect insofar as the tolling of the one year period is concerned”).1
2. There being no record activity for a period of one (1) year, it became incumbent on the Plaintiff to file good cause in writing five (5) days before the August 4, 2016 hearing if it sought to avoid dismissal for lack of prosecution. See Fla. R. Civ. P. 1.420(e); Sebree v. Schantz, Schatzmann, Aaronson & Perlman, 963 So.2d 842, 845 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D1878a] (quoting Del Duca v. Anthony, 587 So.2d 1306, 1308-09 (Fla. 1991)).
3. On July 28, 2016, Plaintiff filed a Response to Court’s Motion for Dismissal and Notice of Good Cause (“Good Cause”). Therein, Plaintiff alleged that it inadvertently overlooked the deadline to respond to the complaint. This does not amount to good cause. See Edgecumbe v. Amer. General Corp., 613 So.2d 123, 125 (Fla. 1st DCA 1993) (holding that “ ‘good cause’ must include. . . ‘some form of excusable conduct, which arises other than by negligence or inattention to pleading deadlines‘ ”) (emphasis added) (quoting Norflor Constr. Corp. v. City of Gainesville, 512 So.2d 266 (Fla. 1st DCA 1987), rev. denied 520 So.2d 585 (Fla. 1988)). Moreover, the Good Cause was not sworn. Sebree, 963 So.2d at 846 (holding that the burden on the party opposing dismissal during the good cause analysis is “indisputably high” and good cause must therefore be sworn) (citing Wilson v. Salamon, 923 So.2d 363, 367 n. 2 (Fla. 2005) [30 Fla. L. Weekly S701c]).
4. The dismissal for lack of prosecution came up for hearing on August 4, 2016. The parties agreed to reset the hearing to September 14, 2016.
5. On September 13, 2016, Plaintiff filed a Supplemental Verified Better Response to Court’s Motion for Dismissal and Notice of Good Cause and Motion for Extension of Time to Respond or Comply with Fla. R. Civ. P. 1.420 and to Deem Record Activity Timely Filed (“Supplemental Good Cause”).
6. The Court need not consider whether the Supplemental Good Cause set forth sufficient good cause because it was not timely filed five (5) days before either the August 4, 2016 or September 14, 2016 hearings on dismissal for lack of prosecution. See Fla. R. Civ. P. 1.420(e) (“the action shall be dismissed by the court. . . . unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending”) emphasis added).2
7. While an order dismissing a case for lack of prosecution may not be disturbed absent an abuse of discretion,3 where the party opposing dismissal fails to create sufficient record activity and to file sufficient good cause, the Court has no discretion not to dismiss. Havens v. Chambliss, 906 So.2d 318 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1518a] (emphasis added) (quoting CPI Mfg. Co. v. Industrias St. Jack’s, 870 So.2d 89, 91 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D2673b]); Burdeshaw v. Bank of New York Mellon, 148 So.3d 819, 826-827 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D2145a]; Richards v. Sheriff of Palm Beach Cty., 925 So.2d 1166, 1167-1168 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1153b]. Because the Plaintiff failed to prosecute this case for one (1) year and failed to show good cause, the Court must dismiss this case.
For the foregoing reasons, it is ORDERED and ADJUDGED that the above case is hereby dismissed without prejudice.
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1The 2006 amendments to Fla. R. Civ. P. 1.420(e) do not preclude the Court from relying on all cases predating this amendment. See Chemrock v. Tampa Electric Co., 71 So.3d 786, 792 (Fla. 2011) [36 Fla. L. Weekly S318a] (holding that “[o]ur plain meaning interpretation of the rule in Wilson remains applicable to the current rule. Less than two months after issuance of our decision in Wilson, we amended rule 1.420(e) to shorten the twelve-month period of record inactivity. . . . The other provisions in the rule remained virtually the same.”)
2Even if had been timely filed, the Supplemental Good Cause failed to allege good cause. See Edgecumbe, 613 So.2d at 125 (“inattention to pleadings deadlines” is not good cause); id. (settlement negotiations during the one (1) year period of inactivity is not good cause) (citing Norflor, 512 So.2d 255 and Weaver v. The Center Business, 578 So.2d 427, 430 (Fla. 5th DCA 1991), rev. dismissed, 582 So.2d 624 (Fla. 1991). The Supplemental Good Cause also asks for an extension of the 60 day period within which to create record activity. The Court respectfully declines to extend the time period. See Three Lions Const. v. NAMM Group, Inc., 183 So.3d 1119 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D1703a] (motion for extension of statutory period within which to accept proposal for settlement ineffective to extend time period where no hearing was had on extension prior to expiration of time period). Lastly, the Supplemental Good Cause was not sworn before a notary but merely signed by Plaintiff’s counsel.
3Patton v. Kera Technology, Inc., 946 So.2d 983, 986 (Fla. 2006) [31 Fla. L. Weekly S700a] (citations omitted); Edgecumbe, 613 So.2d at 124; Richards v. Sheriff of Palm Beach Cty., 925 So.2d 1166, 1167-1168 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1153b]
