OPENING Your Honor, We are here today on the ‘Motion to Dismiss for Lack of Prosecution’. I have a copy of: ! ! ! !

NOTICE served in February 25th 2011, My MOTION to dismiss, My UPDATED Memorandum of Law in support, My Reply to Plaintiff’s ‘Response to notice of lack of prosecution’.

They were all previously filed with the court and served on Plaintiff. I have courtesy copies for you. May I ask the bailiff to hand them to you?

Opening: 76 words NOTE: I need 3 copes of each of the 4 documents listed in the opening. One for me, one for the judge and one for Plaintiff’s counsel.

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ARGUMENT Prior to my motion, there has been NO RECORDED ACTIVITY for more than one year. ! ! NOTICE was SERVED on February 25th Plaintiff failed to file anything, in the 60 days following the notice.

When the record shows no activity for a year, dismissal is mandatory. ! This is addressed in sections 1 through 7, of my Updated Memorandum of Law in support of my motion.

Plaintiff’s written response fails to show a ‘good cause’ excuse, for lack of prosecution, Therefore this action must be dismissed.

What is, or is not, ‘good cause’ is addressed in: ! ! My Reply to Plaintiff’s written response, And paragraphs 8 though 10 of my Updated Memorandum of Law.

Plaintiff’s written response fails to meet the ‘good cause’ standard. Therefore, this court must dismiss this action.

Argument: 129 words

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REBUTTAL Your honor, may I address what they have argued?

Oral argument at this hearing cannot cure Plaintiff’s failure to show good cause in the written reply. ! “Oral argument at hearing on motion to dismiss action for lack of prosecution could not cure failure to supply written response to motion.” See “West’s Florida Statutes Annotated” on Rule 1.420(e). Paragraph 11 of my Updated Memorandum of Law expands this issue with the supporting case law.

!

Therefore, under the Rule 1.420(e), this action must be dismissed.

Rebuttal: 76 words.

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OBJECTION TO CONTINUANCE (Probably not necessary)

Under rule 1.420(e) Plaintiff must submit a written response 5 days before the hearing. ! The response must show good cause why the action should not be dismissed. ! ! Plaintiff has filed the required written response. Everything the court needs to make a ruling is now in the record.

The court must rule on the motion, based on the record and Plaintiff’s written response. ! ! Oral argument at this, - or a future hearing - cannot cure Plaintiff’s failure to show good cause in the required written response. “oral argument at the hearing cannot cure this fatal defect “ See relevant case law in paragraph 11 of Updated memorandum of law.

Therefore Plaintiff gains nothing from a delayed hearing because: ! ! ! The argument has already been made in the written response It cannot be changed by oral argument in this, or a subsequent hearing The defects in lack of prosecution are shown in the record and cannot be cured by delay.

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