Daytona Beach Personal Injury Lawyers
Free Consultations 386.258.1622

Florida Fourth DCA affirms trial court's dismissal of civil complaint for lack of prosecution, finds that 5-day statutory deadline for showing of good cause not subject to excusable neglect exception

On September 6, 2017, in Lesinski v. South Florida Water Management District, No. 4D17-40, the Florida Fourth DCA affirmed a trial court’s dismissal of a plaintiff’s complaint for lack of prosecution. The trial court had entered a lack of prosecution notice under Fla. R. Civ. P. 1.420(e) noting no record activity in the case for 10 months, triggering the requirement that record activity occur within the next 60 days. When no such activity occurred, the trial court set the matter for a hearing. The plaintiff filed a “showing of good cause” two days before the hearing, alleging that he had not been prosecuting the case due to the defendant’s failure to answer the complaint and because of an inadvertent failure on his part to calendar the Rule 1.420 deadlines. Although the trial court dismissed the complaint without comment, the Fourth DCA noted that the deadline in Rule 1.420 for showing good cause in writing is 5 days before the scheduled hearing on the motion, a deadline which the plaintiff had missed. The plaintiff had filed a timely motion to vacate the dismissal order under Fla. R. Civ. P. 1.540(b)(1) for excusable neglect, but the Fourth DCA ruled the Rule 1.540(b)(1) does not apply to a failure to comply with the 5-day deadline under Rule 1.420. Citing as persuasive authority a Florida Third DCA case decided under an earlier version of Rule 1.420(e), CPI Mfg. Co. v. Industrias St. Jack’s, S.A. De C.V., 870 So. 2d 89 (Fla. 3d DCA 2003), the Fourth DCA held that to do otherwise would effectively eviscerate the “good cause” showing provision of Rule 1.420(e).