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DRD Marine Corp. v. Byrd Technologies, Inc.

Florida Court of Appeal, Fourth District

January 18, 2012

DRD MARINE CORPORATION, an Arizona corporation, Appellant,
v.
BYRD TECHNOLOGIES, INC. d/b/a Marquipt, a Florida corporation, Appellee.

Page 868

Patricia Leigh McMillan Minoux of Hayden Milliken & Boeringer, P.A., Miami, for appellant.

Vincent O'Brien and Julie Rannik Houston of DeOrchis, Hillenbrand & O'Brien LLP, Fort Lauderdale, for appellee.

GERBER, J.

The plaintiff appeals: (1) the circuit court's July 17, 2006 " Directions to the Clerk" to close the file because of the lack of record activity; and (2) the circuit court's October 25, 2010 order granting the defendant's motion to dismiss for failure to prosecute. The plaintiff argues that the court entered the directions and the order contrary to Florida Rule of Civil Procedure 1.420(e), as amended effective January 1, 2006. In re Amendments to the Florida Rules of Civil Procedure (Two Year Cycle), 917 So.2d 176, 176 (Fla.2005). We agree and reverse both the directions and the order.

Rule 1.420(e), as amended, states:

(e) Failure to Prosecute. In 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 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

Fla. R. Civ. P. 1.420(e) (2006); In re Amendments, 917 So.2d at 181-82.

On July 17, 2006, the circuit court, without following the requirements of rule 1.420(e), directed the clerk to close the file because of the lack of record activity for more than one year. The court's directions stated that the case was " subject to reopening upon appropriate petition."

On July 28, 2006, the plaintiff filed a motion to reopen the case. However, the plaintiff did not set a hearing on the motion or obtain an order granting the motion. Instead, two more years passed. Then, in 2008, the plaintiff resumed record activity. Record activity continued over the next two years, albeit very infrequently.

Page 869

On September 10, 2010, the defendant filed a " Motion to Deem Case Closed or, in the Alternative, Motion to Dismiss for Failure to Prosecute." The defendant based the motion on the large gaps of non-record activity which occurred before 2008. However, the defendant filed the motion: (1) without first serving the notice which rule 1.420(e) requires; and (2) without regard to the fact that record activity occurred in the ten months immediately preceding the filing of its motion. It appears that the defendant's oversights in filing the motion resulted from its express reliance on the pre-2006 version of rule 1.420(e), which contained neither of those requirements. The pre-2006 version provided:

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, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

Fla. R. Civ. P. 1.420(e) (2005); In re Amendments, 917 So.2d at 181-82.

Despite the defendant's failure to comply with rule 1.420(e) as amended, the circuit court granted the defendant's motion to dismiss by order ...


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