Civil Litigation
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Jain v. Green Clinic, Inc.
27 Fla. L. Weekly D872 (April 19, 2002)
The Second District Court of Appeals reaffirmed rule 1.420(e), Fla. R. Civ. P., in requiring a two-step process in deciding whether a motion to dismiss for failure to prosecute is appropriate. The first step is for the moving party to show that there is no record activity for at least a one year period preceding the motion. The second step, required only if no record activity is determined during the period in question, allows the opposing party to establish a good cause for failing to meet date requirements. In the current case, the court determined that there was no record activity for a period of over one year. Then turning to the second step, the court found that there was good cause for delay by opposing counsel when they previously contacted the moving counsel and explained their troubles locating a witness. The court stressed that this courtesy rewarded opposing counsel but was considered very weak evidence by stating that "this was the proverbial close shave with the unfortunate result that a nick nearly caused a fatal loss of blood."
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