Miami, Fla. (March 5, 2019) – What if you determine that your company or insured has grounds to dismiss a state court complaint as well as a basis to remove the action to federal court? As the Eleventh Circuit noted in Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, 365 F.3d 1244, 1246, litigating a state court action on the merits generally waives a defendant’s right to remove a state court action to federal court.

So, what do you need to know to make the right decision?

Key point

Filing a motion to dismiss in state court does not by itself constitute a waiver of a defendant’s right to remove a Florida state court action to federal court. See id.

The Quandary

In Florida, a state court defendant has only 20 days to respond to a complaint after service of process (Fla. R. Civ. P. 1.140(a)(1)). At the same time, federal law provides that a defendant has 30 days to seek removal of the action from state to federal court (28 U.S.C. §1446(b)).

This time discrepancy places the defendant in a quandary of having to either: (1) remove the action and file a motion to dismiss in federal court within 20 days; (2) file a motion to dismiss in state court and then immediately seek removal; or (3) request an extension to file a responsive pleading in state court prior to removal. See Yusefzadeh, 365 F.3d at 1246.

How to Best Protect Your Company/Insured:

  1. Act fast. 
  2. Get your complaint to a trusted attorney to confirm the grounds for both a motion to dismiss and removal (based on diversity of citizenship or federal question jurisdiction).
  3. File your motion to dismiss in state court within 20 days. 
  4. Do not request or schedule a hearing on a motion to dismiss. 
  5. Seek removal within 30 days (earlier if possible), with a preference for filing removal papers simultaneously with your motion to dismiss.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.