Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.

Chapter 10 ten responses to complaint civ lit 2

344 views

Published on

  • Be the first to comment

  • Be the first to like this

Chapter 10 ten responses to complaint civ lit 2

  1. 1. Civil Litigation:Process and Procedures Chapter TenPleadings: Responses to Complaint
  2. 2. Civil Litigation  Chapter
  3. 3. Further Responses  Replies to cross- or counterclaims  Third-party complaints  Third-party answers  Crossclaims  Affirmative defenses  Counterclaims  Replies to claims in third-party answersCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 4
  4. 4. Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 6
  5. 5. 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 partyCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 7
  6. 6. 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 Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 8
  7. 7. 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 judgmentCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 9
  8. 8. 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 jurisdictionsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 10
  9. 9. 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 Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 11
  10. 10. 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 orderCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 12
  11. 11. 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 claimCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 13
  12. 12. 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 Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 14
  13. 13. 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 barredCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 15
  14. 14. 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 confusionCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 16
  15. 15. 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 issueCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 17
  16. 16. 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 answerCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 18
  17. 17. 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 amountCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 19
  18. 18. 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 damagesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 20
  19. 19. Motion to Enter Default JudgmentCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 21
  20. 20. 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 respondCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 22

×