Preview
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
JORGE ALONSO,
Plaintiff, gs 3
VS. Case No.: 2007 CA 7948NBSE
[ea <
LOUIS B. LAWMAN, 2 c= OS —
Defendant. “EE c
/ 2 = G? oe
PLAINTIFF'S RESPONSE TO COURT'S MOTION AND
NOTICE OF HEARING TO DISMISS FOR FAILURE TO PROSECUTE
Plaintiff, by and through undersigned counsel, hereby responds to the Court's Motion And
Notice Of Hearing To Dismiss For Failure To Prosecute as follows:
1.
In the Court's aformentioned motion which was entered on August 10, 2011, and
brought pursuant to Fla. R. Civ. P. 1.420(e), the Court stated: "If no record activity occurs
within sixty (60) days immediately following the service of this motion and notice ... this action
shall be dismissed at a hearing on Friday, December 2, 2011."
2.
However, there has been record activity in this matter during the aformentioned 60
days immediately following the Court's August 10, 2011 order.
3. On September 29, 2011, Plaintiff filed his First Set of Interrogatories and First
Request to Produce Documents to Defendant, and Plaintiff's Certificate of Service of same. On
September 30, 2011, Plaintiff filed his Notice for Trial. These filings which constitute sufficient
record activity are shown in the case docket as being filed on September 30, 2011.
4.
As for determining record activity under Fla. R. Civ. P. 1.420(e), the Florida
(hielo
'
+
qyogau vod a3V
Supreme Court in Wilson v. Salamon, 923 So. 2d 363 (Fla. 2005), has adopted a plain meaning
construction, based upon the "clear" language of Rule 1.420(e), which resulted in a "bright line"
test. The bright line test is simple and easy to apply: if there is any activity on the record within
the previous one year, the inquiry ends and the Fla. R. Civ. P. 1.420(e) motion must be denied. A
subjective analysis of the activity on the record is neither necessary nor relevant. See Reddy v.
Farkus, 933 So. 2d 595, 596 (Fla. 5th DCA 2006) (The court reversed the trial court's dismissal
of the matter for lack of prosecution and remanded the matter for reinstatement of the action.
Under Fla. R. Civ. P. 1.420(e), dismissal was improvident because the filing of a notice of
cancellation of hearing was sufficient record activity).
5. The Florida Supreme Court just recently reiterated that any filing made during the
sixty-day grace period set forth in Rule 1.420(e) meets the Rule's requirement for record activity,
thus precluding dismissal for lack of prosecution. See Chemrock Corp. v. Tampa Elec. Co., 2011
Fla. LEXIS 1523 (Fla. June 30, 2011).
6. Therefore, in this matter based on the aforementioned record activity filed by the
Plaintiff on September 30, 2011, this matter should not be dismissed for lack of prosecution.
WHEREFORE, Plaintiff respectfully requests that the motion be denied, and the matter
should not be dismissed for lack of prosecution.1
CERTIFICATE OF SERVICE
| hereby certify that a true and correct copy of the foregoing has been sent by first class
mail to Jennifer Anne Gore Maglio, Esquire, Maglio Christopher & Toale Law Firm, 1751 Mound
Street, Second Floor, Sarasota, Fl 34236, on this 17th day of November, 2011.
Florida Bar Number 102865
1275 Second Street
Sarasota, Florida 34236
Telephone: (941) 955-4040
Facsimile: (941) 955-2340
Attorney for Plaintiff
Preview
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA JORGE ALONSO, Plaintiff, gs 3 VS. Case No.: 2007 CA 7948NBSE [ea < LOUIS B. LAWMAN, 2 c= OS — Defendant. “EE c / 2 = G? oe PLAINTIFF'S RESPONSE TO COURT'S MOTION AND NOTICE OF HEARING TO DISMISS FOR FAILURE TO PROSECUTE Plaintiff, by and through undersigned counsel, hereby responds to the Court's Motion And Notice Of Hearing To Dismiss For Failure To Prosecute as follows: 1. In the Court's aformentioned motion which was entered on August 10, 2011, and brought pursuant to Fla. R. Civ. P. 1.420(e), the Court stated: "If no record activity occurs within sixty (60) days immediately following the service of this motion and notice ... this action shall be dismissed at a hearing on Friday, December 2, 2011." 2. However, there has been record activity in this matter during the aformentioned 60 days immediately following the Court's August 10, 2011 order. 3. On September 29, 2011, Plaintiff filed his First Set of Interrogatories and First Request to Produce Documents to Defendant, and Plaintiff's Certificate of Service of same. On September 30, 2011, Plaintiff filed his Notice for Trial. These filings which constitute sufficient record activity are shown in the case docket as being filed on September 30, 2011. 4. As for determining record activity under Fla. R. Civ. P. 1.420(e), the Florida (hielo ' + qyogau vod a3V Supreme Court in Wilson v. Salamon, 923 So. 2d 363 (Fla. 2005), has adopted a plain meaning construction, based upon the "clear" language of Rule 1.420(e), which resulted in a "bright line" test. The bright line test is simple and easy to apply: if there is any activity on the record within the previous one year, the inquiry ends and the Fla. R. Civ. P. 1.420(e) motion must be denied. A subjective analysis of the activity on the record is neither necessary nor relevant. See Reddy v. Farkus, 933 So. 2d 595, 596 (Fla. 5th DCA 2006) (The court reversed the trial court's dismissal of the matter for lack of prosecution and remanded the matter for reinstatement of the action. Under Fla. R. Civ. P. 1.420(e), dismissal was improvident because the filing of a notice of cancellation of hearing was sufficient record activity). 5. The Florida Supreme Court just recently reiterated that any filing made during the sixty-day grace period set forth in Rule 1.420(e) meets the Rule's requirement for record activity, thus precluding dismissal for lack of prosecution. See Chemrock Corp. v. Tampa Elec. Co., 2011 Fla. LEXIS 1523 (Fla. June 30, 2011). 6. Therefore, in this matter based on the aforementioned record activity filed by the Plaintiff on September 30, 2011, this matter should not be dismissed for lack of prosecution. WHEREFORE, Plaintiff respectfully requests that the motion be denied, and the matter should not be dismissed for lack of prosecution.1 CERTIFICATE OF SERVICE | hereby certify that a true and correct copy of the foregoing has been sent by first class mail to Jennifer Anne Gore Maglio, Esquire, Maglio Christopher & Toale Law Firm, 1751 Mound Street, Second Floor, Sarasota, Fl 34236, on this 17th day of November, 2011. Florida Bar Number 102865 1275 Second Street Sarasota, Florida 34236 Telephone: (941) 955-4040 Facsimile: (941) 955-2340 Attorney for Plaintiff