Rule 1.420(E) Florida Rules of Civil Procedure - Interpretation
In Del Duca v. Anthony, 587 So. 2d 1306 (Fla. 1991), the Court reviewed Florida Rules of Civil Procedure rule 1.420(e), and set forth a two-step test for trial courts to apply when considering whether a dismissal for failure to prosecute is proper when some discovery activity has occurred during the last year.
The Court stated that, first, the defendant must show that there was no record activity for the year preceding the motion.
Second, if there was no record activity, the plaintiff has an opportunity to establish good cause why the action should not be dismissed. See Del Duca, 587 So. 2d at 1308-09.
These steps are encompassed within rule 1.420(e), which sets forth the lack of record activity for one year as triggering a dismissal unless there is a showing at least five days before the hearing of why the case should not be dismissed.
Rule 1.420(e) plainly states that actions "shall" be dismissed if it appears on the face of the record that there was no activity within the past year.