Legal Memorandum: Motion to Dismiss for Failure to Prosecute

Issue: Under Florida law, what length of time is sufficient to establish abandonment of a case for purposes of a motion to dismiss for failure to prosecute?

Where a plaintiff has waited for over two years and still has not had a rehearing on the merits of the involuntary dismissal, the court must dismiss the case. See also Kathleen G. Kozinski, P.A. v. Phillips, 126 So. 3d 1264, 1268-69 (Fla. 4th DCA 2013) (holding court abused discretion in vacating default where party failed to move to vacate for over two years from entry of default); Nastasi v. Thomas, 88 So. 3d 407, 410-411 (Fla. 4th DCA 2012) (citing Fla. R. Civ. P. 1.540(b)) (holding motion without merit where party failed to move for relief from judgment for over a year); Bank One, N.A. v. Batronie, 884 So. 2d 346, 347-48 (Fla. 2d DCA 2004) (holding court lacked jurisdiction to set aside final judgment where party filed over one year after rendition of judgment); Condo Bacon Family Partners, L.P. v. Apollo. Ass’n, 852 So. 2d 882, 890 (Fla. 2d DCA 2003) (holding denial of motion for relief appropriate where party waited eighteen months after notice of voluntary dismissal of counter claim); Yu v. Weaver, 364 So. 2d 539, 540 (Fla. 4th DCA 1978) (holding proper to deny motion to vacate where defendant did not move to vacate for over two years after entry).

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