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Florida Third DCA rules that Fla.R.Civ.P. 1.530 motion for rehearing permitted when plaintiff's case was dismissed under Fla.R.Civ.P. 1.420(e) for lack of prosecution

On November 29, 2017, in McGrath v. Martin, No. 3D15-1821, the Florida Third DCA reversed a trial court’s ruling denying a plaintiff a rehearing under Fla.R.Civ.P. 1.530 of the trial court’s dismissal of the case under Fla.R.Civ.P. 1.420 for failure to prosecute the claim. The trial court had denied the plaintiff’s motion for rehearing on the basis that the dismissal was neither a summary judgment nor a judgment following a non-jury trial, reading Fla.R.Civ.P. 1.530 narrowly to apply only in those situations or following a jury verdict. The Third DCA rejected such a narrow application, citing two prior Fifth DCA cases permitting a Rule 1.530 rehearing on dismissal orders for failure to prosecute. See Beverly Enters.- Fla., Inc. v. Lane, 855 So. 2d 1172 (Fla. 5th DCA 2003) (recognizing the trial court could rehear an order which was “dismissed without prejudice for failure to prosecute”); Cape Royal Realty, Inc. v. Kroll, 804 So. 2d 605, 606 (Fla. 5th DCA 2002) (recognizing the trial court could use Rule 1.530 to rehear a “final order dismissing [plaintiff's] case for failure to prosecute”). The Third DCA's ruling was more than a pyrrhic victory for the defense because, as the Third DCA pointed out, there had in fact been record activity in the case in the ten months prior to the defendant’s filing of the notice of lack of prosecution, which called into question the underlying validity of the trial court’s dismissal of the case.