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).
