When Plaintiffs Cross the Line Into Bad-Faith Litigation

Most lawsuits, even the ones a business owner thinks are wrong, are filed in good faith. The plaintiff believes they were harmed and asks a court to decide. That is how the system is supposed to work. But every so often, a lawsuit is not a real attempt to resolve a dispute. It is a weapon. The goal is to pressure you, drain your resources, damage your reputation, or force a settlement on a claim that was never going to win.

When a plaintiff crosses that line, Florida law stops treating the lawsuit as an ordinary disagreement and starts giving the defendant real leverage. This guide explains what “bad-faith litigation” actually means, how to spot it, and the specific tools a focused lawsuit defense strategy can use to shut it down and, in some cases, make the plaintiff pay.

What “Bad-Faith Litigation” Actually Means

It helps to clear up a common misunderstanding first. A lawsuit is not “bad faith” just because it is weak, or because you are confident you will win. Plaintiffs are allowed to lose. Courts expect some cases to fall apart once the facts come out.

Bad-faith litigation is different. It generally describes a claim or a litigation tactic that has no real basis and is being used for an improper purpose. Think of it as the difference between a plaintiff who is wrong and a plaintiff who knows they are wrong and sues anyway. A claim built on invented damages or a fabricated story can edge into fraud and fraud in the inducement territory, which changes how a court views it.

Courts and Florida statutes tend to focus on a few hallmarks:

• The claim has no support in the facts, and the plaintiff knew or should have known that before filing.
• The legal theory has no support in existing law or any good-faith argument to change the law.
• The lawsuit was filed mainly to harass, delay, or extract a nuisance settlement.
• The plaintiff or their lawyer engages in tactics designed to run up your costs rather than move the case toward resolution.

Bottom line: losing a case is normal. Filing or running a case for an improper purpose is what crosses the line.

Warning Signs a Lawsuit Has Crossed the Line

You do not need a law degree to notice when something feels off. These are the patterns that most often signal a plaintiff is acting in bad faith:

• The complaint is vague, contradicts documents you already have, or makes claims that are simply not true.
• The plaintiff refuses reasonable settlement discussions but keeps the case alive anyway.
• Discovery requests are sweeping, repetitive, and seem designed to cost you money rather than gather evidence.
• The same plaintiff has a history of filing similar suits against other businesses.
• A competitor appears to be using the courts as leverage, which can look a lot like tortious interference with your business relationships.
• The timing is suspicious, such as a claim that surfaces right after you enforce a contract or end a relationship. In some cases, a business does not even realize a dispute has escalated until it is served, a problem we cover in you are being sued and did not know it.
• The demands keep shifting, and the real message is “pay us to go away.”

If several of these are present at once, it is worth having your defense team evaluate whether the case is not just defensible but actionable. For a broader look at how to read the strength of a claim against you, our guide on how to respond to a lawsuit filed against your business is a useful starting point.

Bottom line: patterns matter. One red flag may be nothing. Several together often signal an improper purpose.

The Tools Florida Gives Defendants

Florida does not leave businesses defenseless against abusive lawsuits. There are several distinct tools, and the right strategy usually combines more than one.

1. Section 57.105 Motions for Frivolous Claims

The most direct tool is Florida Statute 57.105. It allows a court to order the losing party, and in many cases that party’s attorney, to pay your reasonable attorney’s fees when a claim or defense was not supported by the facts or by then-existing law.

What makes this statute powerful is the warning step built into it. Before you file the motion with the court, you serve it on the plaintiff and give them 21 days to withdraw the offending claim. If they drop it, the issue goes away. If they double down and lose, they are on the hook for fees. That deadline turns the statute into both a shield and a settlement tool. It is also one of several paths to recovering attorney’s fees and costs in dismissed actions.

Bottom line: a well-timed 57.105 motion forces the plaintiff to put real money behind a claim they may not believe in.

2. The Court’s Inherent Authority to Punish Bad Faith

Even when a specific statute does not fit, Florida courts keep a backstop. In Moakley v. Smallwood, the Florida Supreme Court confirmed that a trial court has the inherent authority to order attorney’s fees as a sanction against a party or a lawyer who acts in bad faith during litigation.

This power is deliberately narrow. It is reserved for extreme cases, and it requires a specific finding of bad-faith conduct, not just an aggressive or unsuccessful case. But it covers conduct that the rules and statutes might miss, such as misleading the court or weaponizing the discovery process.

Bottom line: judges have a catch-all power to sanction genuine bad faith, even when no single statute squarely applies.

3. Proposals for Settlement (Offer of Judgment)

One of the most effective ways to create pressure is the proposal for settlement, governed by Florida Statute 768.79. It works like this: you make a formal offer to resolve the case for a set amount. If the plaintiff rejects it and then recovers far less than your offer, or nothing at all, you can recover the attorney’s fees and costs you spent from the date of the offer forward.

For a plaintiff chasing a weak case, this changes the math overnight. Suddenly, pushing forward carries a real risk of paying your legal bills rather than collecting a payday.

Bottom line: a properly drafted proposal for settlement can flip the financial risk of the lawsuit onto the plaintiff.

4. The Florida Vexatious Litigant Law

Some plaintiffs are not just wrong about one case. They sue repeatedly. The Florida Vexatious Litigant Law targets people who have a documented history of filing meritless actions, usually without a lawyer.

Under the statute, a court can require a vexatious litigant to post security to cover your anticipated fees and costs, and can enter a prefiling order that bars them from filing new cases without first getting a judge’s permission. For a business that keeps getting dragged into court by the same person, this can finally close the door.

Bottom line: the vexatious litigant law exists for serial filers, and it can stop the next lawsuit before it is ever served.

5. The Lawyer’s Own Ethical Duty

Plaintiffs do not litigate alone. Their attorneys are bound by Rule 4-3.1 of the Rules Regulating The Florida Bar, which prohibits a lawyer from asserting a claim unless there is a basis in law and fact that is not frivolous. A lawyer who ignores that duty risks both court sanctions and Bar discipline.

Pointing this out, professionally and at the right moment, can be a powerful nudge. Opposing counsel may not want to stake their license on a claim their client invented.

Bottom line: the plaintiff’s own lawyer has a duty to refuse a frivolous case, and reminding them of it can change the dynamic.

Going on Offense: Malicious Prosecution and Abuse of Process

Sometimes a defendant should do more than win. Florida recognizes two related claims that let a wrongfully sued business pursue the person who sued them.

A malicious prosecution claim can arise after you win the original case if it was filed without any reasonable basis and for an improper motive. An abuse of process claim is different. It focuses on misusing the litigation process itself, such as using a lawsuit or a subpoena to extort something the court was never meant to provide.

Both claims are demanding to prove, and Florida deliberately sets a high bar so that ordinary litigants are not afraid to use the courts. They are not the right move in most cases. But when the facts are strong, the possibility of a counterclaim or a follow-on suit can dramatically shift the balance of power. This is a decision to make carefully with experienced business litigation counsel.

Bottom line: in the right case, the target of a bad-faith lawsuit can become the plaintiff.

Why Timing and Documentation Decide These Cases

The tools above only work if you set them up early. A few habits make the difference between a defense that simply survives and one that recovers fees or ends the case outright:

• Preserve everything immediately. The moment litigation looks likely, suspend automatic deletion of emails and records and issue a litigation hold. Destroying evidence, even by accident, can sink an otherwise winnable case.
• Document the bad faith as it happens. Save the shifting demands, the abusive discovery requests, and the communications that show the real motive. Sanctions require proof, not just frustration.
• Move fast on deadlines. Many of these remedies, especially the 57.105 warning period and the proposal for settlement, are tied to strict timing. Waiting can forfeit them. The cost of delay is real, as our discussion of the lasting effect of failing to respond to a lawsuit explains.
• Keep your own conduct clean. Courts scrutinize both sides. A defendant who overreaches loses credibility and the moral high ground.

For a fuller walkthrough of the early moves that protect a business, see our step-by-step guide to what to do when your business is sued.

Bottom line: the evidence and the deadlines you handle in the first weeks usually decide whether the bad-faith tools are available later.

How a Lawsuit Defense Team Approaches a Suspected Bad-Faith Case

When a business brings us a lawsuit that looks abusive, the analysis tends to follow the same arc:

1. Verify the claim against the facts. Before assuming bad faith, we map every allegation against the documents. Sometimes a “ridiculous” lawsuit has a kernel that needs a real defense.
2. Identify the fastest exit. A motion to dismiss or early summary judgment can end a defective case before fees pile up.
3. Build the sanctions and fee record. We line up the 57.105 motion, a proposal for settlement, and documentation of any misconduct, so the financial pressure is ready when the timing is right.
4. Decide whether to counter. If the facts support it, we evaluate a counterclaim or a later malicious prosecution or abuse of process action.
5. Protect the business relationship and reputation. Litigation does not happen in a vacuum, and how a suit is handled affects credit, financing, and the way the market sees you.

Businesses in regulated and relationship-driven fields, including those we serve in the professional services industry, often have the most to gain from this approach, because a quick and credible response protects far more than the dollars at stake in the case.

Bottom line: a strong defense to a bad-faith lawsuit is built deliberately, not improvised at the deadline.

When to Bring in Counsel

If you suspect a lawsuit against your business was filed to harass rather than to resolve a real dispute, the worst thing you can do is wait and hope it disappears. The remedies that punish bad faith are powerful, but most of them reward speed, discipline, and a clear evidentiary record.

If your business is facing a lawsuit that feels less like a dispute and more like a shakedown, the attorneys at Jimerson Birr can evaluate your options and build a defense designed to end it. Contact us to discuss your situation with our lawsuit defense team.