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Florida Third DCA affirms dismissal of commercial fraud lawsuit for failure to prosecute, ruling that “disarray” in control and representation of the plaintiff corporations did not constitute “good cause” for lack of activity.

On October 30, 2019, in Publicidad Vepaco, C.A. v. Mezerhane, No. 3D18-1424, the Florida Third DCA affirmed the dismissal of a commercial fraud lawsuit because of the plaintiffs’ failure to prosecute the case. The plaintiffs had failed to engage in any record activity after being given the requisite 60-day notice under Fla. R. Civ. P. 1.420(e) by the defendant following a lapse in record activity of more than 10 months. The statute provides that dismissal may be avoided if a party shows “good cause” in writing as to why the actions should remain pending. The Third DCA noted that under Florida law, “‘[g]ood cause’ has repeatedly been defined as requiring two prongs: [1] some contact with the opposing party and [2] some form of excusable conduct or occurrence which arose other than through negligence or inattention to the pleading deadline,” quoting from Havens v. Chambliss, 906 So. 2d 318, 319 (Fla. 4th DCA 2005). The Third DCA concluded that the plaintiffs’ explanation for the inactivity, reported disarray involving the control and representation of the plaintiff corporations, was inadequate to establish good cause. The Third DCA noted that the plaintiffs had in fact opposed the defendants’ motion to stay the case until the dispute over representation was resolved.