A person who is handed a summons and complaint is involved in a lawsuit. She is legally bound to respond to the complaint within a certain period of time, usually 30 days. The types of possible responses can vary to some extent, depending on state law, but all include a few standard options like filing an answer, filing a demurrer or filing a motion requesting that the court take some action regarding the complaint.
Filing a Complaint
A complaint is a legal document used to begin a lawsuit. In most cases, the first two documents filed in a case are the summons and the complaint. In some jurisdictions, the complaint document is called a petition. The party filing this document is called the plaintiff and the person being sued is called the defendant.
In the complaint, the plaintiff spells out the factual basis for the claims raised in the lawsuit including the damages suffered as a result of the defendant's conduct. The summons is a court form that "summons" the defendant to court to respond to the complaint. It tells him how long he has to respond and also provides the name and address of the court.
In most cases, the time the defendant has to respond to the complaint is 30 days. However, the time can be as short as a few days in certain types of actions like eviction.
Service of a Complaint
A complaint begins a lawsuit and the courts want to make sure that a defendant has notice of the legal action. That is why court rules require that the plaintiff use specific and provable methods of getting the documents to her. The manner of service most often used is personal service: having a third party carry a copy of the documents to the defendant's home or office and hand them to her.
However, if personal service proves impossible or even just very difficult, most states allow other types of service. The options range from leaving the document with another adult at the defendant's residence to publishing notice of the suit in the newspaper. Appropriate types of service depend on the circumstances that make personal service difficult.
The person handing the document to the defendant is called the process server. This person must fill in and sign a document under penalty of perjury telling the court when, where and how the papers were served.
Filing an Answer to the Complaint
It is important that a defendant realize that he must make a formal response to a complaint. Writing a letter or placing a phone call will not protect the defendant's legal interests.
Most defendants respond to a complaint by filing an answer. In an answer, the defendant admits or denies each allegation in the complaint. He must also raise in the answer all defenses to the plaintiff's claims or allegations including the factual basis for each defense. Finally, a defendant can, but need not, assert any "affirmative defenses" that she has. Affirmative defenses are new matters that may constitute defenses.
In some jurisdictions, fill-in-the-form answers exist for certain types of complaints. For example, in California a defendant can use form answers for contract claims and automobile accident complaints. In most jurisdictions, the defendant must also pay a filing fee when he files an answer. In California, the current filing fee is $450.
Filing a General Denial for Answer
Another option a defendant can use to respond to a complaint is called a general denial. This is in effect an answer, but a very different type of answer. It is essentially one sentence in which the defendant denies all of the allegations of the complaint in one fell swoop.
Some states allow general denials, while some don't. In those that do, they may restrict their use to certain cases or situations. For example, in California, a defendant can only use a general denial in certain circumstances, including if the damages claims are $1,000 or less or if the complaint is not verified. A complaint is verified if the plaintiff includes a statement that he makes the allegations under penalty of perjury.
In states that allow general denials, the defendant is also allowed to add new material that serves as affirmative defenses. For example, if the plaintiff sues the defendant for damage to a car in an accident, the defendant can raise a totally unrelated claim, like a loan she made to the plaintiff that the plaintiff never paid back. The defendant is not obligated to raise counterclaims, however.
Filing a Demurrer
Another possible response a defendant can make to a complaint is called a demurrer. A demurrer doesn't admit or deny anything. Instead, a demurrer tells the court that the claims that the plaintiff makes in his complaint do not provide a legally sufficient reason for suing the defendant.
A demurrer puts the focus on the legal sufficiency of the allegations, not their accuracy. The defendant specifies in a demurrer, the different ways in which the complaint is legally insufficient, objecting to all of it or just parts of it. Typical grounds for a demurrer include claims that the complaint fails to state a cause of action, that the complaint is ambiguous or unclear, or that the plaintiff lacks the legal capacity to sue. If the issues raised in the complaint are being litigated by the same parties in another tribunal, this is good grounds for a demurrer as well.
The court can deny the demurrer in which case, the defendant is given a time in which she must answer the complaint. It can grant the demurrer but give the plaintiff a chance to amend the complaint, or it can grant the demurrer without giving the plaintiff leave to amend. The latter scenario results in dismissal of the case.
Read More: Difference Between Demurrer & Motion to Dismiss
Filing a Motion With the Court
In many jurisdictions, the defendant can also respond to the complaint by filing one of several motions. However, these motions are only appropriate in very specific circumstances and in most cases, they will not result in the dismissal or termination of the lawsuit.
For example, if the case was filed in an inappropriate court, the defendant can file a motion for change of venue. If the complaint was not served according to law, the defendant can file a motion to quash summons. A motion to strike asks the court to eliminate specific parts of the complaint. This is appropriate if sections of the complaint are irrelevant, improper or not made in conformity with laws, rules or court orders.
Failure to Respond
What happens if the defendant fails to respond to the complaint? Once the time period passes for the defendant to respond to the complaint, he loses the right to respond. At that time, the plaintiff can ask the court to enter a judgment.
This is called a default judgment and is entered without the defendant having the chance to make an argument or present facts. Once the court enters a default judgment for the plaintiff, that party can take action to enforce the judgment against the defendant like taking action to collect funds after a money judgment.
A defendant can file a motion asking the court to set aside the default. This may be granted if the defendant has a good excuse for failing to answer.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.