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Home County Civil Division Frequently Asked Questions I am being sued! Can I do anything besides just go to Court?

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I am being sued! Can I do anything besides just go to Court?

In addition to just appearing at the appointed time, the Defendant may also file documents with
the Court. These include, but are not limited to, a motion to dismiss, an answer, an affirmative
defense, a counterclaim, and a third-party complaint.

An answer is simply an admission or denial of the claims made by the Plaintiff. The other
documents, called pleadings, are discussed in more detail below. Copies of all pleadings are
required to be served on the other party or the party's Attorney. This subsequent service may
be accomplished by regular mail.

Motions to Dismiss

A motion to dismiss attempts to demonstrate to the Court why the Plaintiff should not be
allowed to continue, regardless of the truth of the Plaintiff's claim. The following are examples
of basic motions to dismiss and simple explanations of these motions:

  • Lack of Jurisdiction over the subject matter - the action is not properly filed in small
    claims Court because it involves more than $5,000.00 or involves an equitable claim
    (i.e. a divorce claim).
  • Improper Venue - the complaint is filed in the wrong county.
  • Insufficiency of Process - the summons was not served on the Defendant
  • Failure to Join Indispensable Parties - the complaint does not seek damages
    from any other party who should be liable along with the Defendant if the Plaintiff is

Affirmative Defenses

Affirmative defenses, unlike other defenses, seek to avoid liability by asserting a legal excuse
as to why the Plaintiff would not be awarded any damages based on the clam. Some
examples of affirmative defenses are:

  • Accord and Satisfaction - the Defendant has paid or satisfied the amount due or
    has paid a mutually agreed upon settlement.
  • Failure of Consideration - the Defendant agreed to pay the Plaintiff if the Plaintiff
    performed a service for the Defendant; however, the Plaintiff's performance was
    so inferior that the Defendant should not be liable to the Plaintiff for payment.
  • Statute of Limitations - the Plaintiff failed to file the Statement of Claim by the time
    required by law. For a more detailed explanation of the Statue of Limitations, consult
    Chapter 95 of the Florida Statutes.


A counterclaim is as a lawsuit which the Defendant files against the Plaintiff after he is served
with the Plaintiff's lawsuit. Counterclaims fall into two (2) categories, compulsory and
permissive. To be compulsory, the counterclaim must be based upon the incident which is
the subject of the Plaintiff's suit. Permissive counterclaims are not based upon the incident. A
Defendant wishing to file a counterclaim must do so not less than five days prior to the
appearance date or such time as the Court designates, or it is deemed to be abandoned.

Third-Party Complaints

Third party complaints are filed with the permission of the Court when the Defendant feels that
another party should be responsible for the amount of damage claimed by the Plaintiff. If a
Defendant wishes to file a third-party complaint, he must request permission of the Court at the
pre-trial conference. If the Court allows the filing of a third-party complaint, the Court will set a
time for filing and schedule another pre-trial conference. Likewise, the Plaintiff may request
leave of Court to file a third-party complaint in response to any counterclaim made by the


Parties to any lawsuit should be aware that they may be subjected to discovery prior to trial.
Discovery is an attempt by a party to gain information about the strength of the opposing
party's position. Although generally not allowed in Small Claims cases with parties not
represented by an Attorney, discovery is nonetheless possible in certain circumstances.
Those wishing to gain more information on discovery as it relates to Small Claims should
consult Rule 7.020(b), Florida Small Claims Rules.

Voluntary Dismissal

The Plaintiff in a Small Claims case may end the lawsuit by voluntarily dismissing the suit. In
order to properly do this, property must not have been seized, nor may property be in the
custody of the Courts, and the Plaintiff must inform the Defendant and the Clerk of the Court of
the dismissal prior to the trial date; or the parties must enter into joint stipulation for dismissal

  • the Plaintiff must inform the Defendant and the Clerk of the Court of the dismissal prior
    to the trial date; or
  • the parties must enter into joint stipulation for dismissal.

Any dismissal by the above methods shall be without prejudice, unless otherwise requested
by the Plaintiff or stipulated to by the parties. The "without prejudice" designation allows the
lawsuit to be re-filed even though it may allege the exact grounds as the previously dismissed
case. However, if a Plaintiff chooses to again dismiss a lawsuit which had previously been
voluntarily dismissed, the second dismissal will bar subsequent attempts to re-file. No other
dismissals are allowed except by order of the Court. Furthermore, a lawsuit in which a
counterclaim has been filed will not be dismissed over the counterclaimant's objections unless
the counterclaim is allowed to go forward as an independent lawsuit.


Cases may also fail to reach the trial stage due to settlement. The parties may agree to settle
the case at any stage of the proceedings, and in most cases are encouraged to do so at the
pre-trial conference. If the case is settled, the Plaintiff must notify the Clerk of the Court. The
settlement may bring about a dismissal or continuance, the continuance being based upon the
payment or performance by a party. When a settlement is agreed upon at the pre-trial
conference, both parties enter into a written agreement called a Stipulation. Failure of the
Defendant to comply with a Stipulation will result in a final judgment being entered upon the
filing of an affidavit of noncompliance by the Plaintiff and service by mail of a copy upon the

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