ABU-HAMDEH v. ROMERO-BOLUMEN

• Decision Date: 01 December 2004
• Docket Number: No. 3D03-3358.,3D03-3358.
• Citation: 889 So.2d 879
• Parties: Rime ABU-HAMDEH, as parent and natural guardian of Samah ABU-HAMDEH, a minor, Appellant, v. Ileana ROMERO-BOLUMEN, M.D., Eduardo Bolumen, M.D., and West Hialeah Pediatric Associates, P.A., Appellees.
• Court: Florida District Court of Appeals

889 So.2d 879

Rime ABU-HAMDEH, as parent and natural guardian of Samah ABU-HAMDEH, a minor, Appellant, v. Ileana ROMERO-BOLUMEN, M.D., Eduardo Bolumen, M.D., and West Hialeah Pediatric Associates, P.A., Appellees.

No. 3D03-3358.

District Court of Appeal of Florida, Third District.

December 1, 2004.

Perez, Goran Rodriguez, P.A., and Javier J. Rodriguez, Coral Gables, for appellant.

Mintzer, Sarowitz, Zeris, Ledva Meyers, LLP, Coral Gables, and Lisa R. Harris, for appellee.

Before SHEVIN, WELLS and SHEPHERD, JJ.

SHEPHERD, J.

Appellant, the plaintiff below, appeals from an order dismissing her medical malpractice action with prejudice under Fla. R. Civ. P. 1.420(e). We have jurisdiction, Art. V, § 4(b)(1), and affirm with the reservation that the dismissal should have been a dismissal without prejudice.¹ On April 14, 2003, the appellee/co-defendant, Dr. Ileana Romero-Bolumen, filed a motion to dismiss for failure to prosecute. The motion was filed subsequent to the filing by the plaintiff of a notice of taking the deposition of appellee/co-defendant Dr. Eduardo Bolumen just a week earlier. The deposition never occurred. Following two hearings, the motion to dismiss for failure to prosecute was granted on November 25, 2003.

Rule 1.420(e) states:

All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

As explained by the Florida Supreme Court in Del Duca v. Anthony, 587 So.2d 1306 (Fla.1991), the determination of whether or not a case should be dismissed for lack of prosecution is a two step process: "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. at 1308-09. The issue in this case involves only the first step since it is clear that the notice of taking deposition was filed within the year preceding the motion.

Although a showing of record activity can prevent dismissal of an action under Rule 1.420(e), the existence of such activity does not automatically redeem a plaintiff from her inattention to an action in all cases. In Del Duca, the Florida Supreme Court went on to say that a trial court could nevertheless dismiss an action under Rule 1.420(e) where otherwise facially redeeming record activity appears within the one-year period "if the discovery is in bad faith and is also `without any design' to move the case forward toward a conclusion on the merits." Del Duca, 587 So.2d at 1309 (citations omitted). We have had occasion to apply this principle. See, e.g., National Enters., Inc. v. Foodtech Hialeah, Inc., 777 So.2d 1191 (Fla. 3d DCA 2001)

(filing of two notices of hearing directed to a motion already disposed of by the trial court not sufficient record activity to prevent dismissal); Dollar Sys., Inc. v. O'Connor & Meyers, P.A., 883 So.2d 295 (Fla. 3d DCA 2004) (the filing of a deposition transcript which served no purpose fails the requirement of "more than `a mere passive effort'").

In the instant case, the appellees contend that the record activity proffered by the plaintiff² fails to pass the "mere passive effort" threshold. We agree. At the first hearing held on the motion, plaintiff's counsel candidly admitted that he filed the notice because he "knew the year was coming up." While that admission cannot be dispositive of the failure to prosecute issue since there is nothing wrong per se in a plaintiff taking an action that avoids the effect of the rule, cf. National Enterprises,777 So.2d at 1196 n. 8 (Schwartz, C.J., specially concurring), counsel here further admitted that the deposition did not proceed because he was unable to fulfill certain discovery obligations to the defendant³ that he recognized had to be fulfilled before he could take the noticed deposition. Although the trial court was initially inclined to give the plaintiff the benefit of the doubt on its "good faith" argument, it finally dismissed the case after counsel again came up dry on securing client cooperation in necessary pre-deposition discovery. We do not have the benefit of a transcript from the second hearing, but we can only conclude that those proceedings solidified the trial court's ultimate conclusion that the notice was filed in bad faith.

Whether or not record activity proffered by an adversely affected party to keep an action on the docket in the face of a challenge that it is impermissible "passive activity" is...