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When a Florida Court Can — and Can’t — Dismiss Your Commercial Litigation Action for ‘Failure to Prosecute’

There are many reasons why the pursuit of your commercial litigation might proceed slowly at times. Perhaps you need to amass more evidence to make your case. Maybe there were other reasons that slowed the process. It is important to be careful in permitting too much time to elapse, though, as a prolonged delay may result in a fatal outcome for your case known as a dismissal for “failure to prosecute.” To make certain that your case is proceeding as it should, it helps to have a diligent and reliable South Florida commercial litigation attorney on your side from the start.

While the risk of a dismissal for failure to prosecute is very real, it’s worth noting that Florida erects some very substantial limits on when your case can be thrown out due to inactivity… and when it can’t.

As an example, we can look at this recent case from Miami-Dade County. The plaintiff was a lighting company that retrofits buildings with LED lighting systems. In 2012, the company sued a condo association for breach of contract. Seven years and two months after the filing of that complaint, the trial court sent the company a “Notice of Lack of Prosecution.”

When you receive this kind of notice under Rule 1.420(e) of the Florida civil court rules, there are several things that you have to do. One of those things is to show that there was activity that occurred in the case either in the 10 months before the notice or else “within sixty (60) days immediately following service of” the notice.

One of the key things to know about this requirement is that Florida law says almost any activity will satisfy the obligation and keep your case alive.

Fifty-five days after the issuance of the notice in the lighting company’s case, an attorney representing that plaintiff filed a document entitled “Stipulation for Substitution of Counsel.” The filing stated that the attorney’s firm was ceasing representation of the lighting company and that another law firm would become counsel of record.

‘Any filing of record… suffices to preclude dismissal’

The trial court later ruled that this filing was not sufficient to qualify as “record activity” in the case and dismissed the lighting company’s lawsuit. That, according to the appeals court, was a mistake. The Florida Supreme Court has made it clear that the “activity” requirement under this rule is what’s called in the law a “bright-line” standard. That standard is this: any “filing of record” qualifies.

This means that the trial court should do a docket review and only a docket review. If docket activity has taken place within the allowed time period, then dismissal is improper, and the plaintiff is allowed to continue proceeding with its case.

There are many things that can trip up a breach of contract case, including court procedural rules. To make sure you avoid such a pitfall and that your case has the best possible chance for success, you need a knowledgeable and diligent advocate handling your action. Rely on the experienced South Florida commercial litigation attorneys at Stok Kon + Braverman, with our many years of experience, to be that sort of powerful and effective advocate for you.

Contact us online or by calling (954) 237-1777 to schedule your consultation.

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