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When a Party Is — and Is Not — Entitled to a Dismissal for Lack of Prosecution in a Florida Commercial Litigation Case

In any lawsuit, there may be certain types of procedural maneuvers that may alter how your case proceeds. One of the keys to success, then, is making the proper maneuvers in response to the actions taken by the other side in your case. Your opponent may try to convince the judge in your commercial litigation case that it is, for example, entitled to a dismissal when it actually isn’t. To be sure your case doesn’t get wrongfully derailed before you even get to trial, be sure you have the skilled and experience of a knowledgeable South Florida commercial litigation attorney on your side.

For example, take this recent case from Broward County. In the lawsuit, a New Jersey-based entity and a Maryland-based entity were involved in a legal action that included several commercial claims, including “fraud, breached fiduciary duties, converted funds, and intentionally interfered with an advantageous business relationship.”

In this suit, the plaintiffs asked the trial judge to sever the claims against the Maryland entity and one individual defendant from those against all other defendants. The judge ruled in the plaintiffs’ favor.

After that, however, the plaintiffs did not take any additional action for an extended time. Seeing an opportunity, the defendants asked the judge to dismiss due “lack of prosecution.” Dismissal for lack of prosecution is something that has some specific requirements in Florida. First off, the evidence must show that there’s been “no record activity” for a period of at least 10 months and that there’s been no stay in the case. That, however, only entitles the side seeking dismissal to the issuance of a “Notice of Intent to Dismiss,” which gives the other side 60 days to take action or obtain a stay… or else face dismissal.

There are actually many perfectly valid reasons why a plaintiff that is very serious about its case may take no action for many months. If you are the party in that position, you still have certain rights under the rules, and a failure to follow those rules may allow you to use that failure to revive your case even after the trial judge dismissed it.

No ‘Notice of Intent’ Meant No Entitlement to Dismissal

That’s what happened in this case. The two defendants moved for dismissal and the trial judge granted it. The appeals court reversed that dismissal, concluding that the procedural rules weren’t followed. What was the flaw? The plaintiffs never received a “Notice of Intent to Dismiss.” Without that, the final deadline “clock” for the plaintiffs never started running. The law says clearly that a party may have its case dismissed only if it took no action in a “reasonable time” after receiving the notice. Without the notice, there can’t be a dismissal for lack of prosecution.

Winning on the facts, winning on the law and winning on the rules of procedure are each important elements of a successful civil lawsuit, whether you’re a plaintiff or a defendant. To best advance your business’s interests, retain the skilled South Florida commercial litigation attorneys at Stok Kon + Braverman. Our knowledgeable lawyers have been helping clients to reach positive results in commercial litigation actions 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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