IN THE SUPREME COURT OF FLORIDA RESPONSE TO COMMENTS OF HONORABLE PETER D. WEBSTER TO PROPOSED AMENDMENT TO RULE 1.420

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1 IN THE SUPREME COURT OF FLORIDA IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE CASE NO.: SC RESPONSE TO COMMENTS OF HONORABLE PETER D. WEBSTER TO PROPOSED AMENDMENT TO RULE Mark A. Romance, Chair, Civil Procedure Rules Committee, and John F. Harkness, Jr., Executive Director, The Florida Bar, file this Response to the Comments of the Honorable Peter D. Webster. On January 26, 2010, the Civil Procedure Rules Committee filed its threeyear cycle report with the Court. Thereafter, the Court directed that the Committee s proposals be published for comment. The proposals were published in the March 3, 2010, Florida Bar News. On May 27, 2010, the Honorable Peter D. Webster filed a comment on proposed Rule 1.420(a)(1) and a motion for leave to file his comment out of time. On June 8, 2010, this Court granted Judge Webster s motion and accepted his comments as timely filed. The Court directed the Committee to file a response to Judge Webster s comments no later than June 18, The comment was reviewed by the Committee and this response was approved by a vote of In its three-year cycle report, the Committee proposes to amend Rule 1.420(a)(1) to allow voluntary dismissal of part, not just all, of a lawsuit. Judge Webster does correctly highlight that the rationale of the Committee is not 1

2 adequately explained in its three-year cycle report. Without the benefit of the Committee s full rationale, Judge Webster suggests that this change to Rule 1.420(a)(1) is both unnecessary and ill-advised. Judge Webster first asserts that amending Rule 1.420(a)(1) is unnecessary because the rules already provide a way for a party who wishes to delete a claim or part of an action or claim to do so. Judge Webster correctly explains that under Rule 1.190, a party may file (or seek leave to file, depending on the stage of the litigation) an amended pleading that deletes the desired portions of the previous pleading. In fact, Rule does permit a party to so amend a pleading in a fashion that effectively drops particular parties or particular claims. However, the proposed rule change goes significantly further. Under the proposed amendment to Rule 1.420(a)(1), a party may withdraw some but not all of its claims without the need to file an amended pleading. In many cases the withdrawal will obviate the filing of a motion for leave to amend a pleading and thus avoid the need to obtain court approval. The Committee believes that the proposed amendment is a better, more flexible alternative than requiring an amended pleading. For example, if an amended pleading is filed to voluntarily dismiss part, but not all of an action, new responsive pleadings will be required. The case will no longer be at issue and the case must be removed from a trial docket. Thus, the 2

3 party desiring to drop a claim after the matter is set for trial is faced with the choice of proceeding with a claim that it no longer desires to prosecute, or of potentially accepting an unnecessary delay in the trial. While amendment under Rule is to be freely granted, court approval is nevertheless necessary after a certain point in the litigation. If a party desires to narrow the issues for trial by dropping some, but not all, claims in a case, allowing that party to unilaterally do so without court approval avoids delay. Consistent with Rule s mandate that the rules be construed to secure the just, speedy and inexpensive determination of every action, the proposed amendment to Rule 1.420(a)(1) is intended to allow a party who desires to expeditiously reduce the issues to be resolved or to remove a party from the case to do so unilaterally. The proposed amendment may in fact serve to encourage a claimant to streamline its case for trial. The proposed amendments to Rules 1.420(a)(1) and (d) also clarify the provisions of Rule 1.250, which allow a party to drop an adverse party from the lawsuit. Dropped parties are protected by the proposed amendments to Rule 1.420(d), which allow them to immediately pursue recovery of their costs. To the extent that a defendant may have a right pursuant to statute or contract to recover attorneys fees expended on the voluntarily dismissed claim, the defendant would be entitled to claim prevailing-party status and seek recovery of fees. See 3

4 Thornber v. City of Fort Walton Beach, 568 So. 2d 914 (Fla. 1990) (holding that voluntary dismissal by plaintiff normally confers prevailing-party status on defendant for fee-shifting purposes). Recovery of fees pursuant to the offer-ofjudgment statute would depend on whether the dismissal was with prejudice, either as stated in the notice or pursuant to the two-dismissal rule contained in Rule See MX Investments, Inc. v. Crawford, 700 So. 2d 640 (Fla. 1997) (holding that defendant is only entitled to attorneys fees under , Fla. Stat., following plaintiff s voluntary dismissal of action if dismissal was with prejudice or is a second voluntary dismissal). Using Rule 1.420, which is specifically referenced in Rule 1.250, rather than Rule 1.190, to drop parties will allow a dismissed party to be certain that it has been dismissed from the case, as opposed to wondering whether the absence of reference to it in an amended pleading means it no longer need defend. Second, Judge Webster contends that the proposed amendment is ill-advised because the filing of an amended pleading would allow the parties to review a single document to determine the claims being asserted in the case rather than to search the entire court file to determine what claims are still being asserted. While beneficial perhaps, this convenience clearly does not outweigh the potential cost and delay occasioned by the process of amending the pleadings. Moreover, the Committee submits that requiring a party to file an amended pleading does not 4

5 necessarily resolve Judge Webster s concern in every case. For example, when a court grants a motion to dismiss some, but not all, claims in a multi-count complaint, an amended pleading is often not filed to reflect the claims remaining in the case. Thus, prior to trial of the matter, the court and the parties must review the entire record to determine which claims have been dismissed and which remain. The result would be no different if a claimant was permitted by rule to voluntarily dismiss some, but not all, claims of a multi-count complaint. Accordingly, the need to search the entire court file to determine the claims being asserted before trial is similarly unavoidable in either case. Identification of the claims at issue is a necessary part of pretrial preparation that would normally be addressed at the final case management conference held pursuant to Rule 1.200(d). Moreover, pretrial orders that address simplification of the issues by the parties and the court, pursuant to Rule 1.200(d), supersede the pleadings in any event. Such a pretrial order will thus serve as the reference point for the issues and claims to be tried. The purpose of the proposed amendment to Rule is to allow claimants to narrow the issues to be tried in the case without risking a delay in the trial. The proposed amendment reduces the parties litigation expense and conserves judicial resources by avoiding unnecessary motion practice (i.e., motions for leave to 5

6 amend pleadings). It streamlines the process of getting cases trial ready and concluding them. Accordingly, the Committee respectfully requests that the Committee s proposed amendments to Rule be adopted. 6

7 Respectfully submitted. MARK ROMANCE JOHN F. HARKNESS, JR. Chair Executive Director Civil Procedure Rules Committee The Florida Bar 201 S. Biscayne Blvd., Ste East Jefferson Street Miami, FL Tallahassee, FL / / FLORIDA BAR NO.: FLORIDA BAR NO.:

8 CERTIFICATE OF SERVICE I certify that a copy of the foregoing was furnished by United States mail to: Rohan Kelly, 3365 Galt Ocean Dr., Fort Lauderdale, FL ; George Savage, 777 Brickell Ave., Suite 114, Miami, FL ; Bill Wagner, 601 Bayshore Blvd., Suite 910, Tampa, FL ; Hon. Ralph Artigliere, 573 Ridge Rd., Blue Ridge, GA ; Stanford Solomon, 1881 W. Kennedy Blvd., Tampa, FL ; Peter Kellogg, 1301 Riverplace Blvd., Suite 620, Jacksonville, FL ; David McNabb, Hillsborough County Attorney s Office, 601 E. Kennedy Blvd., Fl. 27, Tampa, FL ; Robert Brazel, Hillsborough County Attorney s Office, 601 E. Kennedy Blvd., Fl. 27, Tampa, FL ; Kurt Lee, 118 E. Garden St., Pensacola, FL 32502; Edward O Sheehan, 200 E. Broward Blvd., Suite 2100, Fort Lauderdale, FL 33301; Arthur Berger, DOT, Office of the General Counsel, 605 Suwannee Street, MS-58, Tallahassee, FL ; Henry Trawick, 2033 Wood St., Suite 318, Sarasota, FL 34237; Steven Schwartz, 6751 North Federal Highway, Ste. 400, Boca Raton, FL 33487; David J. Pascuzzi, 6751 N. Federal Highway, Ste. 400, Boca Raton, FL ; and Hon. Peter D. Webster, 301 South Martin Luther King Jr. Blvd., Tallahassee, FL on. CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this response was prepared in accordance with the font requirements of Fla. R. App. P (a)(2). ELLEN SLOYER Bar Staff Liaison, Civil Procedure Rules Committee The Florida Bar 651 E. Jefferson Street Tallahassee, FL (850)