Florida Small Claims Rule 7.110
RULE 7.110. DISMISSAL OF ACTIONS
(a) Voluntary Dismissal; Effect Thereof.
(1) By Parties. Except in actions where property has been
seized or is in the custody of the court, an action may be dismissed by the
plaintiff without order of court (A) by the plaintiff informing the defendant and
clerk of the dismissal before the trial date fixed in the notice to appear, or
before retirement of the jury in a case tried before a jury or before submission
of a nonjury case to the court for decision, or (B) by filing a stipulation of
dismissal signed by all parties who have appeared in the action. Unless
otherwise stated, the dismissal is without prejudice, except that a dismissal
operates as an adjudication on the merits when a plaintiff has once dismissed
in any court an action based on or including the same claim.
(2) By Order of the Court; If Counterclaim. Except as
provided in subdivision (a)(1) of this rule, an action shall not be dismissed at a
party’s instance except upon order of the court and on such terms and
conditions as the court deems proper. If a counterclaim has been made by the
defendant before the plaintiff dismisses voluntarily, the action shall not be
dismissed against the defendant’s objections unless the counterclaim can
remain pending for independent adjudication. Unless otherwise specified in the
order, a dismissal under this subdivision is without prejudice.
(b) Involuntary Dismissal. Any party may move for dismissal of an
action or of any claim against that party for failure of an adverse party to
comply with these rules or any order of court. After a party seeking affirmative
relief in an action has completed the presentation of evidence, any other party
may move for a dismissal on the ground that upon the facts and the law the
party seeking affirmative relief has shown no right to relief without waiving the
right to offer evidence in the event the motion is not granted. The court may
then determine them and render judgment against the party seeking
affirmative relief or may decline to render any judgment until the close of all
the evidence. Unless the court in its order for dismissal otherwise specifies, a
dismissal under this subdivision and any dismissal not provided for in this
rule, other than a dismissal for lack of jurisdiction or for improper venue or for
lack of an indispensable party, operates as an adjudication on the merits.
(c) Dismissal of Counterclaim. The provisions of this rule apply to
the dismissal of any counterclaim.
(d) Costs. Costs in any action dismissed under this rule shall be
assessed and judgment for costs entered in that action. If a party who has once
dismissed a claim in any court of this state commences an action based on or
including the same claim against the same adverse party, the court shall make
such order for the payment of costs of the claim previously dismissed as it may
deem proper and shall stay the proceedings in the action until the party
seeking affirmative relief has complied with the order.
(e) Failure to Prosecute. All actions in which it affirmatively appears
that no action has been taken by filing of pleadings, order of court, or
otherwise for a period of 6 months shall be dismissed by the court on its own
motion or on motion of any interested person, whether a party to the action or
not, after 30 days’ notice to the parties, unless a stipulation staying the action
has been filed with the court, or a stay order has been filed, or a party shows
good cause in writing at least 5 days before the hearing on the motion why the
action should remain pending.
Committee Notes
1978 Amendment. Former subdivision (e) provided for 1 year rather
than 6 months.
1984 Amendment. Subdivision (e) is changed to allow more time for an
attorney to inquire about the status of a claim. Many actions are disposed of by
a stipulation to pay, and it may take longer than 10 days to determine the
amount due, if any.
1996 Amendment. Subdivision (e) is amended to be consistent with Fla.
R. Civ. P. 1.420(e), which includes specific language concerning a stipulation
staying the action approved by the court or a stay order as a condition when an
action would not automatically be up for dismissal based on lack of
prosecution.
Court Commentary
1972 Amendment. Substantially the same as Florida Rule of Civil
Procedure 1.420.
(a) Voluntary Dismissal; Effect Thereof.
(1) By Parties. Except in actions where property has been
seized or is in the custody of the court, an action may be dismissed by the
plaintiff without order of court (A) by the plaintiff informing the defendant and
clerk of the dismissal before the trial date fixed in the notice to appear, or
before retirement of the jury in a case tried before a jury or before submission
of a nonjury case to the court for decision, or (B) by filing a stipulation of
dismissal signed by all parties who have appeared in the action. Unless
otherwise stated, the dismissal is without prejudice, except that a dismissal
operates as an adjudication on the merits when a plaintiff has once dismissed
in any court an action based on or including the same claim.
(2) By Order of the Court; If Counterclaim. Except as
provided in subdivision (a)(1) of this rule, an action shall not be dismissed at a
party’s instance except upon order of the court and on such terms and
conditions as the court deems proper. If a counterclaim has been made by the
defendant before the plaintiff dismisses voluntarily, the action shall not be
dismissed against the defendant’s objections unless the counterclaim can
remain pending for independent adjudication. Unless otherwise specified in the
order, a dismissal under this subdivision is without prejudice.
(b) Involuntary Dismissal. Any party may move for dismissal of an
action or of any claim against that party for failure of an adverse party to
comply with these rules or any order of court. After a party seeking affirmative
relief in an action has completed the presentation of evidence, any other party
may move for a dismissal on the ground that upon the facts and the law the
party seeking affirmative relief has shown no right to relief without waiving the
right to offer evidence in the event the motion is not granted. The court may
then determine them and render judgment against the party seeking
affirmative relief or may decline to render any judgment until the close of all
the evidence. Unless the court in its order for dismissal otherwise specifies, a
dismissal under this subdivision and any dismissal not provided for in this
rule, other than a dismissal for lack of jurisdiction or for improper venue or for
lack of an indispensable party, operates as an adjudication on the merits.
(c) Dismissal of Counterclaim. The provisions of this rule apply to
the dismissal of any counterclaim.
(d) Costs. Costs in any action dismissed under this rule shall be
assessed and judgment for costs entered in that action. If a party who has once
dismissed a claim in any court of this state commences an action based on or
including the same claim against the same adverse party, the court shall make
such order for the payment of costs of the claim previously dismissed as it may
deem proper and shall stay the proceedings in the action until the party
seeking affirmative relief has complied with the order.
(e) Failure to Prosecute. All actions in which it affirmatively appears
that no action has been taken by filing of pleadings, order of court, or
otherwise for a period of 6 months shall be dismissed by the court on its own
motion or on motion of any interested person, whether a party to the action or
not, after 30 days’ notice to the parties, unless a stipulation staying the action
has been filed with the court, or a stay order has been filed, or a party shows
good cause in writing at least 5 days before the hearing on the motion why the
action should remain pending.
Committee Notes
1978 Amendment. Former subdivision (e) provided for 1 year rather
than 6 months.
1984 Amendment. Subdivision (e) is changed to allow more time for an
attorney to inquire about the status of a claim. Many actions are disposed of by
a stipulation to pay, and it may take longer than 10 days to determine the
amount due, if any.
1996 Amendment. Subdivision (e) is amended to be consistent with Fla.
R. Civ. P. 1.420(e), which includes specific language concerning a stipulation
staying the action approved by the court or a stay order as a condition when an
action would not automatically be up for dismissal based on lack of
prosecution.
Court Commentary
1972 Amendment. Substantially the same as Florida Rule of Civil
Procedure 1.420.