In Optimum Nutrition, Inc. v. Performance Trading Imp. Exp. & Com. Ltd. (3D10-3807), the Third District reversed a trial court's dismissal for failure to prosecute because the trial court did not provide an additional five days to respond after a notice of lack of prosecution was sent by mail.
"On July 29, 2010, the trial court issued a notice of lack of prosecution." Therefore, Optimum had to conduct record activity within the time frame provided by "Florida Rule of Civil Procedure 1.420(e)" which "provides that a party has sixty days to conduct record activity after service of the notice of lack of prosecution in order to avoid dismissal under the rule." Optimum filed a motion for summary judgment on the sixty-first day after the notice of lack of prosecution was mailed and the trial court dismissed the case.
The Third District reversed and stated:
The time period for an act to be computed after service of a notice, pleading, motion, order or paper served by mail includes five days which are added to the time. Fla. R. Civ. P. 1.090; see Palmer v. Palmer, 582 So. 2d 639, 640 n.1 (Fla. 3d DCA 1991). Because the notice of lack of prosecution was served by mail upon Optimum, an additional five days must be added to the safe-harbor period, meaning the period for conducting record activity did not actually expire until Monday, October 4, 2010. As Optimum filed and served its motion for summary judgment on September 28, 2010, it effectively “conducted record activity” within the meaning of Florida Rule of Civil Procedure 1.420(e), as the expiration of the time period for service did not expire until five days after September 28, 2010.
The emphasis above was added by me.
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