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What Does ‘Failure to Prosecute’ Mean and How Can It Affect My South Florida Commercial Litigation Case?

While most people, when they first hear the verb “prosecute,” think of criminal law and criminal trials, that verb also applies to civil cases as well. Merriam-Webster says that to prosecute is “to institute and carry on a legal suit or prosecution.” In a civil case, the law requires a plaintiff to pursue its prosecution in a diligent manner and, if that plaintiff takes no action for an excessive period of time, that inaction can be the basis for dismissal of the case.

As a recent case from Miami-Dade County shows, that tool can be a powerful one for defendants in a commercial litigation case. Whether your business is the plaintiff or defendant, it is essential to have reliable commercial litigation counsel on your side to make sure that you are getting the benefit of all of the procedural tools available or are, at least, not getting tripped up by them.

The case arose after a bank made available to two Venezuelans certain loans. The case, filed in state court in Miami, pitted the corporations, as the plaintiffs, against two of the bank’s owners. The corporations asserted claims for fraud, conversion and unjust enrichment among other things.

In the fall of 2017, the owners filed a notice with the court. That notice stated that no activity had taken place in the case since Dec. 21 of the preceding year. The corporations, in response, did nothing. On Dec. 27, 2017, the owners asked the court to dismiss the corporations’ lawsuit. The owners argued that the corporations had failed to prosecute their case, which is one of the procedural grounds for throwing out a civil case in Florida.

Eventually, after some continuances, the trial judge granted the owners’ request and dismissed the case. The corporations appealed but still lost. The corporations lost because the owners did everything that the Florida court rules required of them in order to obtain a dismissal for failure to prosecute.

10 months… then another 60 days

The rules in Florida say that, as a civil defendant, there are several things that have to happen in order for you to obtain a dismissal based upon the plaintiffs’ failure to prosecute. First, there must have been a period of at least 10 months in which no activity occurred, and no stay was entered in the case. If that happens, then you can file a notice under Rule 1.420(e) stating that no activity has happened for 10 months. That begins a new deadline period. If, after you file your notice, 60 more days elapse with no activity and no stay, then the court can dismiss the case. If the court doesn’t dismiss the case on its own, you can make a motion asking to have the case dismissed.

Even after you do all these things, the plaintiffs can still avoid dismissal. The law gives them until 5 days before the hearing on your motion to give the judge “good cause” why the case shouldn’t be dismissed.

In this lawsuit, the required 10-month period of no activity happened. The defense filed the required notice. The required 60-day period elapsed with no activity. The defense filed a motion to dismiss and the court scheduled a hearing for April 12, 2018. That meant the corporations had until April 7 to give the court good cause to keep the case on the docket. In Florida, proof of good cause requires evidence that the plaintiffs engaged in “some contact with the opposing party,” and that the plaintiffs had “some form of excusable conduct or occurrence which arose other than through negligence or inattention to the… deadline.”

In this case, the corporations asserted that there had been “disarray” regarding the control of those two corporate entities. This was not good cause. This was a problem that was wholly within the plaintiffs’ power to resolve, therefore it “was incumbent on the plaintiffs to resolve those matters within a reasonable time,” or else to pay the penalty… such as a dismissal for failure to prosecute. If disarray within the plaintiffs’ organization caused a prolonged delay, then the law says that the plaintiffs, not the defendants, are the ones who should bear the punishment for that.

There are many things that can derail a commercial litigation case, regardless of the strength of a plaintiff’s factual evidence. That’s why, whether your business is a plaintiff or a defendant, it is vital to have legal counsel who is on top of all the requirements, including procedural deadlines and obligations, as these procedural rules can be the difference between success and defeat. For legal counsel upon which you can confidently rely, be sure you contact the skilled South Florida commercial litigation attorneys at Stok Kon + Braverman. Our attorneys have been providing helpful advice and thorough, diligent and effective representation to our clients for many years.

Contact us online or by calling (954) 237-1777 to schedule your consultation and find out how this firm can help you.

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