Converting a Dismissal with Leave to Amend into a Dismissal with Prejudice
By Kelly A. Karstaedt, Esq.
Some might say it is logical to think that if a complaint is dismissed with leave to amend within a prescribed time period that, should counsel fail to file an amendment, the case would automatically become dismissed with prejudice. This is not the case under Florida law. In fact, in order for the dismissal to convert from without prejudice to with prejudice, the plaintiff must be provided notice of same by the defense. Therefore, if by some means of neglect you to fail to file your amended complaint within the time allowed by the court, hope is not lost.
In Edward L. Nezelek, Inc. v. Sunbeam Television Corporation, 413 So.2d 51, 52 (3rdDCA 1982), Nezelek filed a claim for defamation based on a television broadcast by Sunbeam. The Court dismissed Nezelek’s complaint for failure to state a cause of action, giving 20 days to amend. Id . When Nezelek failed to file the amendment, Sunbeam moved for and obtained a final judgment. Id. The Court’s first observation is that a dismissal with leave to amend is not a court order to amend; it is simply permission to do something that the rules would not normally allow. Id at 54. Instead, it surmised that failing to amend is just a continuation of the original failure of the complaint to, in this case, state a cause of action. So, by this continued failure to state a cause of action, the relief the defense could seek would be an involuntary dismissal. Id.
Rule 1.420(b) of the Florida Rules of Civil Procedure is the method necessary to convert a dismissal without prejudice and allowing leave to amend into a final adjudication of the matter. In order to move for an involuntary dismissal, the rule requires a hearing pursuant to Rule 1.090(d). Therefore, if the Court is stating that the method for obtaining a final dismissal of the action for failure to amend is to obtain an involuntary dismissal, and the Florida Rule for doing so requires a hearing, it is clear that a dismissal with leave to amend cannot automatically convert to a dismissal with prejudice.
The Third DCA in Nezelek further explained that the order dismissing with leave to amend does not and will not serve as notice of a motion to dismiss with prejudice unless the order so states. Id at 54. This statement was based on the idea that a plaintiff should be given the opportunity to voluntary dismiss an action, even after the court has dismissed the action with leave to amend, so long as no other order has been entered prior to a final judgment. Id. The Court’s final holding was that a complaint which was dismissed with leave to amend can only be dismissed with prejudice in two ways: (1) separate notice is provided to plaintiff of a hearing on either a motion to dismiss with prejudice or a final judgment, or (2) the order dismissing the complaint with leave to amend specifically states that failure to amend will automatically result in a dismissal with prejudice upon the expiration of the amendment period. Id.
The Supreme Court of Florida finally tackled this issue when it was asked to determine whether the dismissal with prejudice of a medical malpractice claim due to failure to amend the complaint was proper. The Court first noted that a district court has the discretionary power to dismiss a complaint with prejudice should the plaintiff fail to timely file an amendment. Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993). However, the prevailing attitude of the Court was that dismissing a case with prejudice based solely on an attorney’s neglect would unduly punish the plaintiff. Idat 818. Instead, the Court laid out a set of factors which should be used to determine whether a dismissal with prejudice would be the appropriate remedy for failing to amend a complaint. Those factors are:
- Whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience;
- Whether the attorney has been previously sanctioned;
- Whether the client was personally involved in the act of disobedience;
- Whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion;
- Whether the attorney offered reasonable justification for noncompliance; and
- Whether the delay created significant problems of judicial administration.
In sum, the judicial policy in Florida is to withhold dismissing a cause with prejudice unless proper notice has been provided to plaintiff. Since the courts do not view an order dismissing a complaint but allowing for leave to amend as proper notice, there must be some further notice in order to implement such a sanction. That means, if you did indeed miss your deadline for amending a complaint, there is still an opportunity to remedy the situation before a final judgment is entered.