WEST PALM BEACH JUDGE ORDERS PLAINTIFF TO ADVANCE CASE OR RISK DISMISSAL

In what the court identified as an OTAC (“Order to Advance Cause”), at least one circuit court judge in Palm Beach County is requiring plaintiffs to “take action” to advance their case by either having an “answer filed” or obtaining defaults within a 14-day window from issuance of the OTAC. Although it is in the plaintiff’s best-interest to move a case forward as quickly and efficiently as possible, the 14-day timeframe set by the court is problematic for several reasons.

Firstly, a plaintiff has no control over when or if a defendant will file an answer, so it is powerless to comply with the court’s requirement to have an “answer filed” within 14 days. Similarly, although a plaintiff can certainly move for a default, plaintiff has no control over when the clerk will enter a default once a motion is submitted and the OTAC specifically requires a default to be “entered” within 14 days.

Lastly, the sanction of dismissal is the most severe of sanctions and is only available to punish or deter particularly egregious behavior. These OTACs are being issued in cases which are moving forward in compliance with case management orders so it is perplexing why the court would threaten such a severe sanction. Procedural rules which permit dismissal as a sanction usually outline several stages of non-complying behavior before dismissal is an option.

For example, Fla. R. Civ. P. 1.420 provides for dismissal if a party fails to timely prosecute its case, but specifically notes that “mere inaction for a period of less than 1 year” is insufficient to warrant dismissal. Notably, even after 10 months without any activity in the case, the rule still requires that the court allow the party an additional 60-days to take appropriate action before it can dismiss for lack of prosecution. These requirements ensure a proper balance between the court’s interest in efficiently resolving matters while respecting constitutionally protected due process rights.

For the above reasons, particularly the due process concerns, these Palm Beach OTACs are likely to be reversed on appeal. Further, judges may be unpleasantly surprised by the additional delays the OTACs cause when parties seek post-dismissal relief from the trial court or challenge the dismissal orders on appeal. Hopefully, the court will recognize these unintended consequences and make the appropriate adjustments to the OTACs or stop using them altogether.

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