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A company can lose leverage long before trial. In the first month of a lawsuit, deadlines run on choices the defendant may not know it has. Where the case is heard, which defenses stay alive, and what evidence survives can all be decided before anyone argues the merits.
How Do Defendants Lose Leverage Early in a Case?
They let options expire. In the first 30 days, a defendant can lose the right to move the case to federal court, the right to arbitrate, several threshold defenses, and the chance to answer before a default. Some expire on a clock, like removal and the answer deadline. Others, like the right to arbitrate and several threshold defenses, are lost by what the company files or does in court before raising them.
Has your company been served in the last few weeks? Talk with a Jimerson Birr lawsuit defense attorney before you file anything with the court.
For the broader sequence, see our guide to early lawsuit defense moves that protect your business and our checklist for the first 72 hours after service.
Can You Still Move the Case to Federal Court?
Usually only if the case qualifies and you file within 30 days. Under 28 U.S.C. 1446, the notice of removal must be filed “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading” setting out the claim. Once that window closes, the federal option is generally gone unless a later filing first shows the case has become removable.
Two limits matter for Florida businesses:
- The home-state bar. Under 28 U.S.C. 1441, a case removable only because the parties are from different states “may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” A Florida company sued in Florida state court usually cannot remove on that basis alone.
- Co-defendants. Under 28 U.S.C. 1446(b)(2)(A), when a case is removed solely under section 1441(a), “all defendants who have been properly joined and served must join in or consent to the removal of the action.”
Claims arising under federal law follow different rules, so check removal in week one.
Are You Waiving Your Arbitration Clause by Defending in Court?
You can. In Raymond James Financial Services, Inc. v. Saldukas, the Florida Supreme Court defined waiver as “the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Adopting a federal appellate standard, the Court framed the question as whether, “under the totality of the circumstances,” the party “has acted inconsistently with the arbitration right.”
The same decision held “there is no requirement for proof of prejudice in order for there to be an effective waiver of the right to arbitrate.” The plaintiff does not have to show it was harmed by your delay.
If your contract has an arbitration clause, raise it before you engage on the merits. Under Florida’s Arbitration Code, a party can move the court to compel arbitration, and the court must stay the claims alleged to be subject to arbitration while it decides the motion. Our arbitration and mediation page explains how arbitration differs from litigating in court. Our post on what to do when served with a breach of contract complaint covers forum clauses and arbitration in more detail.
Which Defenses Disappear If You Skip Them?
Threshold defenses that are not raised at the first opportunity. Rule 1.140(b) of the Florida Rules of Civil Procedure lists seven, including lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process. Under Rule 1.140(h)(1), a party waives defenses it does not present by motion or, “if the party has made no motion, in a responsive pleading.”
The rule also requires the grounds to be “stated specifically and with particularity,” and “Any ground not stated must be deemed to be waived,” except a challenge to subject matter jurisdiction. Under Rule 1.140(g), a party that files a motion under the rule but leaves out a defense then available generally cannot make a later motion on it. Rule 1.140(h)(2) gives a longer life to a short list: failure to state a cause of action or a legal defense, failure to join an indispensable party, and lack of subject matter jurisdiction. Our post on how businesses successfully defend lawsuits explains how defenses are preserved and, in some cases, added later by amendment.
Asking the Court for Help Can Cost You a Jurisdiction Defense
In Babcock v. Whatmore, the Florida Supreme Court held that “a defendant waives a challenge to personal jurisdiction by seeking affirmative relief,” because such requests are “logically inconsistent” with that defense. The Court also found that a defensive motion seeking to avoid a judgment was not affirmative relief. The line between the two deserves a lawyer’s review before you file.
Your Own Claims Have a Deadline Too
Rule 1.170(a) requires the answer to “state as a counterclaim” any claim the company has against the plaintiff that arises out of the transaction or occurrence that is the subject matter of the plaintiff’s claim, subject to narrow exceptions. Because Babcock approved federal decisions treating a permissive counterclaim as a request for affirmative relief, the order of a jurisdiction challenge and a counterclaim needs a lawyer’s review. Our breach of contract post above covers when an omitted counterclaim can be added later.
How Does Lost Evidence Shift Leverage to the Plaintiff?
It can give the plaintiff a sanctions argument. Rule 1.380(f) applies when electronically stored information “that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.”
On a finding of prejudice, the court may order measures “no greater than necessary to cure the prejudice.” Only on a finding of “intent to deprive” may the court presume the information was unfavorable, instruct the jury to do so, or enter a default judgment.
Auto-delete settings keep running after service unless someone stops them. A written litigation hold is the usual first step.
What Happens If the 20-Day Deadline Passes?
The plaintiff can move for a default. Rule 1.140(a)(1) requires a defendant to “serve an answer within 20 days after service of original process and the initial pleading on the defendant.” Under Rule 1.500(a), once that time expires without any filing, the plaintiff may file and serve a motion for default.
Until a default is entered, Rule 1.500(c) provides that “A party may plead or otherwise defend at any time before default is entered.” Our post on how a late answer can still stop a default explains that window. If a judgment has already been entered, see our guide to a motion to vacate default judgment.
A rushed answer carries its own risk, because it can lock in the waivers described above. Our overview of the stages of a business lawsuit shows what follows the first response, and our business litigation attorneys handle the case from there. Gather the documents on our list of what to bring to your first meeting with a business litigation lawyer, and review the background of Charles Jimerson, who handles business litigation for the firm.
What Should You Check Before Your Company Responds?
Five facts change which options are still open:
- The date and method of service. The 20-day answer clock and the 30-day removal clock both generally run from the date your company was served.
- Where every party is organized and based. That decides whether federal diversity removal is possible at all.
- Whether a contract contains an arbitration, forum selection, or venue clause. Then whether anyone at the company has already taken a position in court.
- Whether anything has been filed on the company’s behalf. Including a motion, an extension request, or a request for affirmative relief.
- Who controls the company’s email, devices, and messaging accounts. And whether a written hold has gone out.
These facts decide which rights your company still has, and an attorney needs to review them before anything is filed.
Is your company’s response deadline already running? Talk with a Jimerson Birr attorney before the first filing locks in your options.
How Can Jimerson Birr Help in the First Month of a Lawsuit?
If your company is losing leverage in the first month of a lawsuit, timing is the issue. Jimerson Birr’s lawsuit defense attorneys run an early case assessment, raise procedural and jurisdictional challenges, assert counterclaims, and tender claims to insurers. Call (904) 389-0050 or request a free consultation. The 20-day answer deadline and the 30-day removal window both generally run from the date your company was served, and every day spent waiting counts against them.