JOSE J. OTERO AND FRANCISCA OTERO, HIS WIFE, APPELLANTS,
v.
GASTROENTEROLOGY GROUP OF SOUTH FLORIDA, P.A., APPELLEE
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A Florida appellate court affirmed the dismissal of a medical malpractice action for failure to prosecute under Rule 1.420(e), holding that filing settlement notices, status inquiries, and administrative letters does not constitute sufficient record activity to toll the one-year dismissal deadline.
The court held that the documents filed by appellants did not constitute valid record activity because they were not affirmative acts calculated to hasten the suit to judgment. The dismissal was proper and not an abuse of discretion.
[1] Record activity sufficient to toll the one-year time limitation for dismissal for failure to prosecute must be an affirmative act calculated to hasten the suit to judgmen…
[2] A notice of proposed settlement, a motion for judicial notice of a party's medical condition, a status inquiry to the court, and a letter to the clerk of court seeking in…
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Join FLexlaw to unlock all legal intelligence“Record activity must be more than a mere passive effort to keep the ease on the docket; the activity must constitute an affirmative act calculated to hasten the suit to judgment.”
Establishes the legal standard for what constitutes sufficient record activity to toll the one-year dismissal deadline.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellants Jose and Francisca Otero filed a medical malpractice action against Gastroenterology Group of South Florida, P.A. In the year preceding the…
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PER CURIAM.
This is an appeal from a final order of dismissal for appellants’ failure to prosecute this medical malpractice action for more than one year pursuant to Florida Rule of Civil Procedure 1.420(e). We affirm.
The record before us reveals that in the year preceeding appellee’s motion to dismiss, appellants filed the following documents: (1) a notice of proposed settlement wherein appellants advised appellee that they would settle this ease for $750,000.00; (2) a motion for the court to take judicial notice of appellant, Jose Otero’s medical condition; (3) a status inquiry wherein the appellants sought the court’s assistance in determining the status of the case; and (4) a letter to the clerk of court seeking information as to the cost of copying the entire court file. Appellants argue that these documents were sufficient record activity to toll the one year time limitation in Rule 1.420(e). We disagree.
Not every document filed in a court file qualifies as record activity. See Toney v. Freeman, 600 So. 2d 1099, 1100 (Fla.1992). Indeed, the supreme court has held that “[rjecord activity must be more than a mere passive effort to keep the ease on the docket; the activity must constitute an affirmative act calculated to hasten the suit to judgment.” Id. (citing Eastern Elevator, Inc. v. Page, 263 So. 2d 218, 220 (Fla.1972)). In this case, we conclude that none of the documents filed by appellants were calculated to hasten this case to judgment. See id.; see also Caldwell v. Mantei, 544 So. 2d 252, 254 (Fla. 2d DCA 1989) (letter to court advising of case status was inadequate to stop dismissal pursuant to Rule 1.420(e)); Norflor Constr. Corp. v. City of Gainesville, 512 So. 2d 266, 267 (Fla. 1st DCA 1987) (party’s response to court order advising of case status was insufficient record activity to prevent dismissal); Brennan v. Ryter, 339 So. 2d 661, 663 (Fla. 1st DCA 1976) (settlement offer which was not followed up with settlement negotiations was insufficient to preclude dismissal for lack of prosecution); id. (communication with clerk was inadequate record activity to satisfy Rule 1.420(e)).
Thus, in the absence of valid record activity for the year preceeding the motion to dismissal and in the absence of any record evidence of good cause for appellants’ failure to prosecute this claim, we cannot conclude that the lower court’s dismissal of this ease was an abuse of discretion. See Metropolitan Transit Auth. v. Kaneva, 351 So. 2d 748, 748 (Fla. 3d DCA 1977).
Affirmed.
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Sheen v. THE Time Inc. Magazine Co. & John Sims, 817 So. 2d 974 (Fla. 3d DCA 2002)…prosecute. The case law interpreting rule 1.420(e) makes it clear that not every document filed in a case qualifies as record activity. See Toney v. Freeman, 600 So. 2d 1099, 1100 (Fla.1992); Otero v. Gastroenterology Group of South Florida, P.A., 710 So. 2d 148, 149 (Fla. 3d DCA 1998); Heinz v. Watson, 615 So. 2d 750 (Fla. 5th DCA 1993); Caldwell v. Mantei, 544 So. 2d 252 (Fla. 2d DCA 1989); Boeing Co. v. Merchant, 397 So. 2d 399, 402 (Fla. 5th DCA 1981). This is because for purposes of rule 1.420(e), “[r]…
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Dollar Sys., Inc. v. O'Connor & Meyers, P.A., 883 So. 2d 295 (Fla. 3d DCA 2004)…Time Inc. Magazine Co., 817 So. 2d 974, 977 (Fla. 3d DCA 2002) (concluding that documents filed of record concerning discovery “may, but do not always, constitute sufficient record activity”); Otero v. Gastroenterology Group of South Florida, P.A., 710 So. 2d 148, 149 (Fla. 3d DCA 1998)(“[n]ot every document filed in a court file qualifies as record activity”). While it was undisputed that the taking of Lemos’ deposition clearly constituted activity designed to move the case forward to conclusion, there was…
Authorities Cited
- E. Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972)
- Toney v. Nebuchadnezzar Freeman, 600 So. 2d 1099 (Fla. 1992)
- Norflor Constr. Corp. v. City OF Gainesville & CH2M Hill Se., Inc., 512 So. 2d 266 (Fla. 1st DCA 1987)
- L.R. Caldwell, Jr. v. Mantei, 544 So. 2d 252 (Fla. 2d DCA 1989)
- Brennan v. Ryter, 339 So. 2d 661 (Fla. 1st DCA 1976)
- Metro. Transit Auth. v. Kaneva, 351 So. 2d 748 (Fla. 3d DCA 1977)
- Lefkowitz v. City OF Miami, 351 So. 2d 748 (Fla. 3d DCA 1977)