Tests Applied When Considering Dismissal for Failure to Prosecute
In Del Duca v. Anthony, the Florida Supreme Court approved the Second District Court of Appeal's decision in Anthony v. Schmitt, which sets forth a two-step test for trial courts to apply when considering a dismissal for failure to prosecute, where there has been some discovery activity during the year preceding the filing of a motion to dismiss under rule 1.420(e). Anthony, 557 So. 2d at 658-59, approved by, Del Duca, 587 So. 2d at 1308-09.
"First, the defendant is required to show there has been no record activity for the year preceding the motion.
Second, if there has been no record activity, the plaintiff has an opportunity to establish good cause why the action should not be dismissed." Id.
The issue in Del Duca involved only the first step, specifically, whether the discovery activity that had been filed in the record was not "a mere passive effort to keep the suit on the docket."587 So. 2d at 1309 (quoting Eastern Elevator, Inc. v. Page, 263 So. 2d 218, 220 (Fla. 1972)).
The test that emerged from Anthony allows a trial court to dismiss an action if the only activity within the year is discovery taken in bad faith and "without any design 'to move the case forward toward a conclusion on the merits.'" Del Duca, 587 So. 2d at 1309 (quoting Barnett Bank of East Polk County v. Fleming, 508 So. 2d 718, 720 (Fla. 1987)).
Thus, the first step of the test requires that the trial court determine whether there has been record activity, as that term has been interpreted by the Florida courts.
A review of the record may in fact reveal no filings of record, in which case no further inquiry is necessary at that stage. See Metropolitan Dade County v. Hall, 784 So. 2d 1087, 1090 n. 4 (Fla. 2001). However, where there has been some activity the trial court is left with the task of determining whether the activity in question constitutes record activity to preclude dismissal under rule 1.420(e). Del Duca, 587 So. 2d at 1309.
If it is shown that no action toward prosecution has been taken within a year, the plaintiff then has the opportunity under the second step to present the trial court with good cause in writing to avoid dismissal.
In the absence of good cause, the trial court is bound to dismiss the case. See Nesbitt v. Community Health of South Dade, Inc., 566 So. 2d 1, 2 (Fla. 3d DCA 1989); Martinez v. Fuenmayor, 533 So. 2d 935 (Fla. 3d DCA 1988).