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Florida Second DCA reverses trial court dismissal of Engle progeny tobacco case, remands for hearing on whether plaintiff received a copy of court's lack of prosecution notice

On November 14, 2018, in Purdue v. R.J. Reynolds Tobacco Company, et al., No. 2D18-333, the Florida Second DCA reversed the trial court’s dismissal of an Engle progeny tobacco case and remanded the case for a discovery hearing addressing whether the plaintiff had ever received a copy of court’s lack of prosecution notice and order dismissing the case. The parties in the case had entered into a “standstill agreement” without notifying the trial court, resulting in a lack of record activity and a subsequent lack of prosecution notice from the trial court. When no party filed any objection to the dismissal or engaged in any record activity during the sixty days after the notice of lack of prosecution was allegedly sent, the trial court summarily dismissed the case. However, the proper transmission of the notice and the subsequent order was subject to dispute. The plaintiff’s attorney filed an affidavit in which he alleged that he had never received either the notice or the dismissal order and the court clerk could not produce actual copies reflecting the transmission of either document to plaintiff’s counsel. Given these circumstances, the Second DCA concluded that the plaintiff’s due process rights could have been violated if in fact her counsel had never received either the notice or the order. The case was remanded for an evidentiary hearing to consider the veracity of the plaintiff’s claim of nonreceipt of the notice and order.