Can I File a Counterclaim in Florida?

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If you’re involved in an accident claim, you might find that a counterclaim is part of the case. If you’re the plaintiff who brings the case, the other side might bring a counterclaim against you.

On the other hand, if you’re the defendant, it might be appropriate to state a counterclaim. A counterclaim can be a critical part of any case. Understanding how it works is essential to getting the compensation that you deserve. Our Tampa personal injury attorneys explain counterclaims in Florida civil law.

What Is a Counterclaim?

A counterclaim is a legal claim for compensation by a defendant against a plaintiff in a pending case. Once a plaintiff files a legal complaint, a defendant can respond by filing a counterclaim. When a plaintiff starts a claim, and the defendant thinks they have a complaint against the plaintiff, too, they can file a counterclaim as part of the existing case.

What Is an Example of a Counterclaim?

This is an example of a counterclaim:

Francisco and Emma are both drivers who are involved in a car accident. They both sustain severe injuries and qualify to bring a third-party claim for compensation. Francisco believes that Emma acted negligently by speeding. Francisco files a claim against Emma.

However, Emma believes that Francisco acted negligently by running a red light. When Emma receives the complaint from Francisco, she replies by filing a counterclaim for negligence. With a counterclaim, Emma demands that Francisco pay her compensation for her losses.

How Does a Counterclaim Work?

A counterclaim works by establishing a legal claim from the defendant against the plaintiff. Both parties assert a legal demand for relief against the other. The court processes the claims simultaneously. The claims may be related to each other and from the same pattern of events, but they’re not always directly related.

After the parties establish the claim and counterclaim, both claims proceed through the court at the same time. The parties conduct discovery and prepare court motions. They negotiate the cases knowing that both claims are in controversy. If the parties are unable to resolve the claims, they may both proceed to trial. How a counterclaim works isn’t procedurally that much different than a legal claim with a single complaint. Still, the defendant is simultaneously defending against a demand for compensation while they bring their own complaint against the same party.

Is a Counterclaim Mandatory?

A counterclaim may or may not be mandatory. It depends on the circumstances. Sometimes, a counterclaim is compulsory. In other words, there are some circumstances where a defendant has to bring a counterclaim if they ever want to assert that particular claim against the other person.

Other times, a counterclaim is optional. In some instances, the defendant can’t bring their claim as a counterclaim, and they have to pursue it by initiating an entirely separate case.

Florida Rules of Civil Procedure for Counterclaims – Rule 1.170(a)

Florida Rules of Civil Procedure Rule 1.170 is the court rule for counterclaims in the State of Florida.[1] The rule lists when counterclaims are mandatory and permissive, as well as when they are not allowed. Florida Rules of Civil Procedure Rule 1.170 states how counterclaims work in several different scenarios. Litigants must follow the rules to pursue a counterclaim during civil litigation.

Florida Rules of Civil Procedure Rule 1.170(a) – Compulsory Counterclaims

Florida Rules of Civil Procedure Rule 1.170(a) states that counterclaims are compulsory in the State of Florida when certain circumstances are present.

A defendant must state any claim that they have against the other party that arises out of the same transaction or occurrence, as long as the claim doesn’t require adding third parties that the court can’t get jurisdiction over. There is another exception to compulsory counterclaims where the claim is already pending in another case.

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Florida Rules of Civil Procedure Rule 1.170(b) – Permissive Counterclaims

If a counterclaim isn’t mandatory in a case, it might still be permissible. That means that even if the defendant doesn’t have to bring the counterclaim, they still have the option to do so. Florida Rules of Civil Procedure Rule 1.170(b) states the rules of permissive counterclaims.

A defendant may assert a counterclaim that arises out of different circumstances or a separate transaction than the original complaint. Under Florida Rules of Civil Procedure Rule 1.170(b), the defendant may assert the claim as a counterclaim, but they don’t lose the right to bring the claim if they choose not to include it in the pending action.

Florida Rules of Civil Procedure Rule 1.170(d) – Counterclaims Against the State

Even though the rules of civil procedure establish guidelines for pursuing counterclaims, Florida Rules of Civil Procedure Rule 1.170(d) says that any special laws or regulations in place regarding a claim against the state stay in place.

A litigant must comply with those rules and regulations as well as abide by the rules of civil procedure for counterclaims. If you have a claim against the state, it’s essential to be aware that there may be multiple sets of rules and procedures to comply with to pursue the claim.

Florida Rules of Civil Procedure Rule 1.170(e)

Florida Rules of Civil Procedure Rule 1.170(e) gives the rules for what happens when a counterclaim matures after the initial pleadings. When that happens, the court may allow a special pleading to allow the defendant to assert the claim.

The defendant must have the permission of the court to make a supplemental counterclaim under the Florida Rules of Civil Procedure Rule 1.170(e).

Florida Rules of Civil Procedure Rule 1.170(h) – Adding Additional Parties

Sometimes, a counterclaim involves a third party. When that happens, Florida Rules of Civil Procedure Rule 1.170(h) requires the defendant to name the third party as a defendant in the lawsuit. Florida Rules of Civil Procedure Rule 1.170(h) says that when joining a third party in the case is necessary to fully litigate the issues and have complete relief, the defendant must name the third party in the cross-claim.

Florida Rules of Civil Procedure Rule 1.170(j) – Counterclaim Demand Exceeding Jurisdiction

In some instances, the defendant’s counterclaim is for an amount that exceeds the jurisdiction of the court that is hearing the case. When that happens, the court where the lawsuit is filed must immediately transfer jurisdiction to the appropriate court. Florida Rules of Civil Procedure Rule 1.170(h) says that the defendant who makes the counterclaim must pay the applicable filing fees for the court where the case is transferred to. Transfer to the new court to hear the case is mandatory.

Tampa, Florida Injury Attorneys

Do you have questions about how counterclaims work? Are you wondering how an attorney can help you with a case that involves a counterclaim? Our Florida civil litigation attorneys can help. Call or contact us today for a free consultation about your claim. There is no fee unless you win.


[1] Florida Rules of Civil Procedure RULE 1.170 COUNTERCLAIMS AND CROSSCLAIMS. (n.d.). Retrieved 17 January 2020