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
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.17
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.
All Rights Reserved.18
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
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.20
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
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.21
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