The misinterpretation of the dismissal for failure to prosecute rule.

• Author: Waczewski, James P.

About three years ago, not long after graduating from law school and being admitted to The Florida Bar, I received a frantic call from an attorney, a friend, who was facing a motion to dismiss for failure to prosecute and needed some help with research. After he explained the factual scenario to me while I was reading the applicable Florida Rule of Civil Procedure (Rule 1.420(e)), I noted that he should not worry much about the motion. In essence, I said: "You just told me that there have been two orders of court entered into the record in the year preceding the motion to dismiss, and the language of the rule clearly indicates that an `order of court' is an indication of record activity. Anyway, I will look into it."

After I reviewed the defendants' motion and researched the issue, I began to worry as well. It turned out that despite the clear language in Rule 1.420(e), the term "order of court," as used in the rule, does not encompass all orders of court. Orders of court that are "passive" in nature, I found out, do not preclude dismissal for failure to prosecute. A few weeks later, my friend informed me that his wrongful death case was dismissed for failure to prosecute.

Since then, I have been bothered by the interpretation that our courts have given to Rule 1.420(e) of the Florida Rules of Civil Procedure. After all, rules of procedure must be perfectly clear, as it is in our best interest that all disputes in our courts be resolved on the merits. The rules serve to guide both attorneys and pro se parties through our legal system. Thus, it is essential that procedural rules give proper notice regarding what action(s) must be taken to avoid the negative consequences of noncompliance. The purpose of this article is to critique the current interpretation of Rule 1.420(e), the rule regarding dismissal for failure to prosecute, and to call for the repeal of the rule or, alternatively, to offer some suggestions on how the rule should be interpreted.

The Florida Constitution provides to every person the right to access our courts for redress of any injury.(1) That access is not unrestricted, however, and Florida civil litigants must comply with the Florida Rules of Civil Procedure and Rules of Judicial Administration in order to protect their right to access the courts. At the same time, Fla. R. Civ. P. 1.010 provides that the Florida Rules of Civil Procedure "shall be construed to secure just, speedy, and inexpensive determination of every action."(2) Thus, the rules are supposed to provide the means for the parties to achieve a just, speedy, and inexpensive determination of their dispute. They exist to facilitate the pursuit of justice in our courts. Any restrictions on the access to our courts imposed by the Florida Rules of Civil Procedure must be liberally construed in favor of the constitutional right to access our courts. See G.B.B. Investments, Inc. v. Hinterkopf, 343 So. 2d 899, 901 (Fla. 3d DCA 1977). The Florida Supreme Court noted recently in Tortura & Company, Inc. v. Williams, 754 So. 2d 671, 677-78 (Fla. 2000):

[A]ll too often rules and technicalities consume the very substance for which our system of justice exists. Rules just seem to spawn more-rules to coordinate the original and subsequent rules.... [courts should have] a greater latitude to deal with cases ... where technical defenses become the centerpieces of the litigation and the merits are obscured, if not totally overshadowed. As our courts have consistently admonished, that is not the purpose of the rules of civil procedure (citation omitted) as they have been contemplated by this Court and other appellate courts.

The Florida Supreme Court called the above a "bedrock principle." However, our courts seem to have set aside this bedrock principle when interpreting and applying Rule 1.420(e) (regarding dismissal for failure to prosecute). Decisions under the current interpretation of the rule have been criticized as unjust and bizarre.(3) The continuous misinterpretation of Rule 1.420(e) has lead to the unjust dismissal of numerous cases that were being actively pursued. Recently, the Florida Supreme Court has taken some steps toward reducing the injustice caused by the rule.(4) However, our courts have not gone far enough in this effort.(5) There remain several problems with Rule 1.420(e) as it presently stands: 1) that under the plain language of the rule any order of court should be deemed record activity; 2) that Rule 2.085 of the Rules of Judicial Administration and Rule 1.420(e) are inconsistent in that the former requires the trial court to take control of the progress of litigation while the latter punishes only the plaintiff for stagnant litigation; and 3) that consistent with Florida's constitutional right to access our courts and other justice considerations require that our courts reinterpret Rule 1.420(e) as noted above, or that the Florida Supreme Court repeal the rule.

General Principles Regarding Rule 1.420(e)

Motions to dismiss for failure to prosecute are controlled by Fla. R. Civ. P. 1.420(e), which provides in pertinent part as follows:

* All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, ... unless ... a party shows good cause ... why the action should remain pending. (Emphasis added).... Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

In Del Duca v. Anthony, 587 So. 2d 1306, 1308-9 (Fla. 1991), the Florida Supreme Court explained that application of Rule 1.420(e) is a two-step process:

First, the defendant is required to show there has been no record activity for the year preceding the motion. Second, if there has been no record activity, the plaintiff has an opportunity to establish good cause why the action should not be dismissed.

The one-year period in Rule 1.420(e) should be measured backwards from the time preceding the filing of the motion to dismiss for lack of prosecution. See Chrysler Leasing Corp. v. Passacantilli, 259 So. 2d 1, 3-4 (Fla. 1972). Our courts have defined "record activity" as any act reflected in the court file that is designed to move the case forward toward a conclusion on the merits. See, e.g., Barnett Bank of East Polk County v. Fleming, 508 So. 2d 718, 720 (Fla. 1987); Toney v. Freeman, 600 So. 2d 1099, 1100 (Fla. 1992).

Thus, pursuant to the current definition of record activity, and despite the plain language of the rule, not every order of court, pleading, or other paper has been found to constitute record activity precluding dismissal for failure to prosecute. The following is a nonexhaustive list of activity that our courts have found to be "passive" in nature and, therefore, not to constitute record activity for purposes of Rule 1.420(e): sua sponte status order,(6) sua sponte order setting a case management conference,(7) order allowing the substitution of counsel,(8) motion for substitution of counsel,(9) and motion for mediation conference that was not set for hearing.(10)

Defining Record Activity: Plain Language Argument

As the Florida Supreme Court pointed out in Metropolitan Dade County v. Hall, 26 Fla. L. Weekly S267 (Fla. April 26, 2001), Rule 1.420(e) "plainly states that actions `shall' be dismissed if it appears on the face of the record that there was no activity within the past year." Rule 1.420(e) partially defines what "activity" is required to preclude dismissal. The rule provides, in part, as follows: "All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of one year shall be dismissed..."

According to the plain language of the rule, therefore, an "order of the court" constitutes record activity. Nothing in the plain language of Rule 1.420(e) indicates that an order of court or other pleading in the record must hasten the cause to resolution in order to preclude dismissal for failure to prosecute. Nonetheless, not all orders of court or pleadings are treated equally in Florida for purposes of the above rule. Our courts have excluded from "record activity" orders...