This document discusses the various responses that can be filed in a civil litigation case, including answers to complaints, replies to counterclaims, motions to dismiss, extensions, affirmative defenses, cross-claims, third-party complaints, and the consequences of failing to respond by the deadline such as a default judgment. It provides details on the proper formatting and content required for each type of response.

1. Civil Litigation:
Process and Procedures
Chapter Ten
Pleadings: Responses to Complaint

3. Civil Litigation
 Chapter

4. 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 Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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6. Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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7. 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
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8. 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.
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9. 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 Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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10. 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
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11. 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.
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12. 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 Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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13. 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
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14. 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)
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15. 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
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16. 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
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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
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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
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19. 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
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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 Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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21. Motion to Enter Default Judgment
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22. 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
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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