Chapter 10 ten responses to complaint civ lit 2

Civil Litigation:Process and Procedures

Chapter Ten

Pleadings: Responses to Complaint

Civil Litigation

Chapter

Civil Litigation: Process and ProceduresGoldman/Hughes

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Further Responses

Replies to cross- or counterclaims

Third-party complaints

Third-party answers

Crossclaims

Affirmative defenses

Counterclaims

Replies to claims in third-party answers

Civil Litigation: Process and ProceduresGoldman/Hughes

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Civil Litigation: Process and ProceduresGoldman/Hughes

© 2009 Pearson Education, Upper Saddle River, NJ 07458.

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Motion to Dismiss

Instead of an answer

Argues that it would be improper to proceed

Lack of jurisdiction (personal, subject matter) or venue

Insufficiency of process or defect in service

Failure to state a legal claim

Failure to join an indispensible party

Civil Litigation: Process and ProceduresGoldman/Hughes

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Curing Defects

Before statute of limitations expires

Can withdraw the defective complaint & amend it

Can correct service of process defect and re-serve

Can provide additional information to perfect a claim [Rule 12(B)(6) response]

Civil Litigation: Process and ProceduresGoldman/Hughes

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Tickler Systems

To avoid default judgments

Upon receipt of a pleading, the response date must be entered on calendars (tickled) to avoid a default

Upon service of a pleading, the date of the expected response must be entered on calendars (tickled) in order to determine whether there should be a motion made for a default judgment

Civil Litigation: Process and ProceduresGoldman/Hughes

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Calendaring Software

Some calendar programs

Have select jurisdictional deadlines built in

Will customization based on local timelines

Provide reminders, follow-up dates, self-imposed deadlines

Automated online calendaring services

Based on local rules

Particularly useful for foreign jurisdictions

Civil Litigation: Process and ProceduresGoldman/Hughes

© 2009 Pearson Education, Upper Saddle River, NJ 07458.

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Extensions

Frequently, not enough time to prepare defenses

May ask for an extension of time to respond

Prepare & file a stipulation if the opposing counsel agree

If they don’t agree, prepare a motion for enlargement of time (liberally granted, when made in good faith)

Civil Litigation: Process and ProceduresGoldman/Hughes

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Motions

Used by litigants to ask the court to act

Dismiss the complaint

Extend time

Impose sanctions for non-cooperation

Protect undiscoverable information, etc.

Caption, statement of the issue, action requested

Usually includes supporting documents, a prepared order

Civil Litigation: Process and ProceduresGoldman/Hughes

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Answers

Same basic format as complaint

Caption

Numbered paragraphs

Prayer for relief

Signatures

Adds defenses and/or counterclaims

Numbered paragraphs correspond to the complaint, answering each claim

Civil Litigation: Process and ProceduresGoldman/Hughes

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Responses

Admit the averment in the complaint

Deny the facts of the averment generally

Specific denials may be required Facts are not as stated, provide alternative facts

After reasonable investigation, Δ lacks sufficient

knowledge

Requires a legal conclusion

Not applicable to this defendant (addressed to a co-party)

Civil Litigation: Process and ProceduresGoldman/Hughes

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Affirmative Defenses

Legal theories that bar the claim, e.g.,

Statute of limitations has expired

Assumption of the risk

π knew the risk

Voluntarily assumed it

Contributory/comparative negligence

π was also at fault

Jury determines relative responsibility unless action is completely barred

Civil Litigation: Process and ProceduresGoldman/Hughes

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Related Causes of Action

Δ can raise claim against the π that arise

out of the same incident

Mandatory counterclaims must be raised at this time (res judicata)

Permissive counterclaims don’t arise from the same event

Involve the same party

Judicial economy without undue confusion

Civil Litigation: Process and ProceduresGoldman/Hughes

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Cross-Claims

Between parties on the same side, e.g., co-defendants

Due process notice requirements must be met by cross-claimant

A reply to a cross-claim is required to avoid a default judgment on the issue

Civil Litigation: Process and ProceduresGoldman/Hughes

© 2009 Pearson Education, Upper Saddle River, NJ 07458.

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Third-Party Practice

Joinder A party not named in the pleadings has been found

to bear some responsibility

Added to the suit by a third-party complaint

If filed within 10 days of the initial answer (Fed.), no permission needed to join new defendant

If located later, must ask the court’s permission

Requires a response, follow the rules for drafting an answer

Civil Litigation: Process and ProceduresGoldman/Hughes

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Failure to Respond

If the Δ fails to respond by the deadline

π files a motion for a default judgment

Varies by jurisdiction, but the Fed. system requires 2 parts Request for entry of a default judgment & supporting

affidavit, once entered, prevents the Δ from answering,

and the court can grant identified damages

If damages must be determined, the motion will go to the court for approval of an amount

Civil Litigation: Process and ProceduresGoldman/Hughes

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Consequences of a Default

If the damages

Are a “sum certain,” the clerk may enter judgment upon a request with an affidavit of counsel

Are not easily ascertainable, counsel makes a motion to the court

There will be a hearing to determine damages

Civil Litigation: Process and ProceduresGoldman/Hughes

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Motion to Enter Default Judgment

Civil Litigation: Process and ProceduresGoldman/Hughes

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Motion to Set Aside a Default Judgment

May be filed simultaneously with a motion to request an extension of time

A delay may result in the motion being denied

Must demonstrate good cause for the failure to respond