The Florida Supreme Court dulls the edge of Rule 1.420(e).

• Author: Randazza, Marc J.

The Florida Supreme Court recently reinforced its position that the primary policy of the courts should be to see that cases are decided on their merits and not dismissed due to "mere technicalities." (1) In making this strong statement, the court significantly dulled the sharp edge of Motions to Dismiss for Failure to Prosecute, as provided for by Florida Rule of Civil Procedure 1.420(e).

A motion to dismiss for failure to prosecute under 1.420(e) is one of those "gotcha" motions that, when granted, leaves a defense attorney smiling, and a plaintiff 's attorney turning six shades of red. (2) Rule 1.420(e) provided an avenue to easily dispose of a case if the nonmoving party failed to file any record activity for more than 12 months, and that "record activity" had to be something that was calculated to affirmatively move the case toward resolution. (3)

Florida Supreme Court Changes Course: "Record Activity" Is No Longer Open to Interpretation

In October 2005, in the case of Wilson v. Salamon, 923 So. 2d 363 (Fla. 2005), the Florida Supreme Court significantly reexamined its jurisprudence surrounding Rule 1.420(e) and what constitutes "record activity."

Interestingly enough, the most influential case law surrounding motions to dismiss for failure to prosecute pre-dates Rule 1.420(e), and the passage of (and amendments to) the rule and appear to have had little effect upon subsequent cases. (4) For example, Gulf Appliance Distributors, Inc. v. Long, 53 So. 2d 706 (Fla.1951), looms large over all decisions dealing with motions to dismiss for failure to prosecute. Under this case, Florida courts would examine the underlying record activity in order to determine if the activity was "of a sufficient quality that it was something more than a mere passive effort to keep the suit on the docket of the court; ... some active measure taken by [the] plaintiff, intended and calculated to hasten the suit to judgment" (5)

Once the Florida Supreme Court embraced this language in 1951, it became an indispensable part of any court's evaluation of a motion to dismiss for failure to prosecute, despite the fact that the 1976 amendment to the rule appears to have overruled Gulf Appliance. (6)

For example, in Toney v. Freeman, 600 So. 2d at 1100 (Fla. 1992), (7) the Florida Supreme Court, almost verbatim, issued a holding that echoed the Gulf Appliance analysis. As recently as 2002, the Florida Supreme Court warmly embraced this analysis. In Moossun v. Orlando Reg'l Health Care, 826 So. 2d at 946 (Fla. 2002), the court held that a trial court order setting a case management conference was not sufficient "record activity" to preclude a dismissal for failure to prosecute, because it was not an "affirmative act calculated to hasten the suit to judgment." (8)

There were, however, court decisions that did not conform to the Gulf Appliance / Moossun standard. For example, in Metropolitan Dade County v. Hall, 784 So. 2d 1087 (Fla. 2001), the court held: "[A]ctions 'shall' be dismissed if it appears on the face of the record that there was no activity within the past year. This requires only a review of the record. There is either activity on the face of the record or there is not."

In the fall of 2005, by issuing its opinion in Wilson v. Salamon, the Florida Supreme Court said "enough is enough," and corrected what appears to be decades worth of erroneous jurisprudence, firmly establishing that "record activity" means precisely what it says. There is no longer room in the rule for interpretation as to the meaning of "record activity":

[T]he language of the rule is clear--if a review of the face of the record does not reflect any activity in the preceding year, the action shall be dismissed, unless a party shows...