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?
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.
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:
- Act fast.
- 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).
- File your motion to dismiss in state court within 20 days.
- Do not request or schedule a hearing on a motion to dismiss.
- 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.