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If a case is dismissed for lack of prosecution, can you recover fees as prevailing party & what happens to any setoff defense?

Vero Beach, FL |

Recoupment and setoff were raised as affirmative defenses and attorney's fees were demanded in motions to dismiss, answer & in the motion to dismiss for lack of prosecution.

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Attorney answers 3


Yes, you should be able to recover fees and costs. However, the motion for the same need to be filed in a timely manner pursuant Rule 1.525 Rules of Procedure. The pertinent part of the Rule is set forth below.
1.525 Motions For Costs and Attorneys Fees
Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.



Thank you. Any chance of recovering a setoff raised as an affirmative defense in the process?

Joseph Gufford III

Joseph Gufford III


Unless you have a counterclaim filed, I doubt it. Further once the case is dismissed, it's pretty much over.


I would want to review all of the pleadings/paperwork to form an opinion as to your available options. Your timeframe may be limited and you should discuss with an attorney immediately.

Mention this posting if you call and we will provide a telephone consultation at NO charge.

J. Garry Rooney
Attorney at Law
Rooney & Rooney, P.A.
2145 14th Avenue, Suite 20
Vero Beach, FL 32960
(772) 778 5400
(772) 778 5290 (fax)


Fees are likley only availble if provided by contract or law. The mere fact that a claim for attorney's fees was made in a motion/answer doesn't mean there is a legal right to same. However, if there was a legal right, then the Defendant is the previaling party when a case is dismissed for lack of prosecution and can obtain a judgmnet for fees.
That beign said, and as mentioned in previous answers, there is a short window in which to move for fees after judgment. Thus, if it's not too late, you must act fast.

Don't forget to select a favorite answer. This answer does not establish an attorney-client relationship. Every situation is unique. You should contact an attorney to fully explain your situation and have your rights fully explained to you.

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