CITY OF MIAMI, APPELLANT,
v.
EFRAIM KATZ D/B/A AFRICAN GEM CUTTERS, APPELLEE
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FERGUSON, Judge.
The dispositive question is whether a trial court in the exercise of its discretion may deny a defendant’s motion to dismiss a complaint, pursuant to Florida Rule of Civil Procedure 1.420(e) for failure to prosecute, where a hearing on the motion is not scheduled until seven months after filing the motion and where, in the interim, the plaintiff has actively prosecuted the claim through completion of discovery and setting the case for trial. We hold that the court did not abuse its discretion in denying the defendant’s motion to dismiss.
Rule 1.420(e) is not self-executing. Where no timely notice of hearing is scheduled on a motion to dismiss prior to the resumption of action which furthers prosecution of the case, the nonmoving party is entitled to assume that the motion has been abandoned. See Pollock v. Pollack, 116 So. 2d 761 (Fla.1959); Fields v. Fields, 291 So. 2d 663 (Fla. 1st DCA 1974); Equity Capital Co. v. 601 West 26 Corp., 223 So. 2d 762 (Fla. 3d DCA 1969).
Affirmed.
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Pennsylvania Blue Shield v. Wolfe, 575 So. 2d 1361 (Fla. 3d DCA 1991)…discretion in concluding that good cause had been shown based on the factual showing submitted by the physician. We therefore need not reach the physician’s alternative contention that denial of the motion was also mandated by City of Miami v. Katz, 498 So. 2d 635, 636 (Fla. 3d DCA 1986), review denied, 506 So. 2d 1040 (Fla.1987). The insurer next contends that there was insufficient evidence to support the judgment. In our view, the testimony of the physician’s office manager about communications with the i…
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Noughton v. Hooker, 941 So. 2d 1176 (Fla. 2d DCA 2006)…gue that granting the defendants’ motions to dismiss for failure to prosecute was error because the defendants abandoned their motions by participating in discovery and mediation. In making this argument, the Noughtons rely on City of Miami v. Katz, 498 So. 2d 635 (Fla. 3d DCA 1986). In Katz, the hearing on the motion to dismiss for failure to prosecute was held seven months after the motion was filed. Id. at 636. In the interim, the plaintiff had “actively prosecuted the claim through completion of discover…
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THE Florida BAR v. O'Connor, 945 So. 2d 1113 (Fla. 2006)…or failure to prosecute, has been held to require some affirmative action and to not be self-executing. See, e.g., Pollock v. Pollack, 116 So. 2d 761 (Fla.1959); Mitchell v. Coker Fuel, Inc., 511 So. 2d 344 (Fla. 2d DCA 1987); City of Miami v. Katz, 498 So. 2d 635 (Fla. 3d DCA 1986); Peterzell v. James Urbach, M.D., P.A., 497 So. 2d 921 (Fla. 5th DCA 1986); Barnes v. Escambia County Employees Credit Union, 488 So. 2d 879 (Fla. 1st DCA 1986); Fla. E. Coast Ry. Co. v. Russell, 398 So. 2d 949 (Fla. 4th DCA 1981)…
Authorities Cited
- Pollock v. Hymie Pollack and Sara Pollack, 116 So. 2d 761 (Fla. 1959)
- Fields v. Fields, 291 So. 2d 663 (Fla. 1st DCA 1974)
- Gieger-Jones Constr. Co., Inc. v. Bank OF W. Orange, 223 So. 2d 762 (Fla. 4th DCA 1969)
- Equity Cap. Co. v. 601 W. 26 Corp., 223 So. 2d 762 (Fla. 3d DCA 1969)