How do you respond to a complaint? Luckily, or perhaps unluckily, there are multiple ways. You can choose fear-, or anger-driven responses, like crying or calling the plaintiff and cursing them out. Or, you can do what so many others who cannot afford a lawyer do. Nothing.
So, we’re back at square one. How do you respond to a complaint? There are multiple acceptable ways of doing so. Using four people in four different states with the same problem, we’ll explore four acceptable first responses to a complaint.
Jasmine, Jaden, Mace, and Monique are homeowners from different states. One week in October 2015, all four were sued for foreclosure by the bank that holds their mortgage. They all want to stay in their homes long enough to save for another place.
General steps in a complaint
Jasmine, Jaden, Mace, and Monique, fairly experienced pro se litigants, will follow a set of general steps to respond to the complaint.
- Review the complaint and calculate response deadline
- Consider options
- File response with the court
- Give the plaintiff a copy of the response
Multiple ways to respond to a complaint
Jasmine, Jaden, Mace, and Monique have reviewed the complaint and summons, calculated their response deadlines, and considered how they will respond. Now, they’ve chosen their first responses to the complaint. Interestingly, they’ve all chosen different first responses.
Jasmine — Youngstown, Ohio
In Ohio, Jasmine has chosen to respond to the complaint with an answer and affirmative defenses. That is, she will either deny the truth of the plaintiff’s allegations, admit allegations that are true, or assert additional facts that make up a defense to the action. Her numbered answers will address each allegation in the complaint.
In the same document, and in a separate section, she will allege each of her affirmative defenses separately with facts showing that all the elements of that defense have been met.
Pros: This approach is familiar and meets everybody’s expectations. It will give Jasmine some credibility. More importantly, it is a proper response and frees Jasmine from the dreaded motion for default judgment. She has answered, and bought herself some time.
Cons: After getting over their initial shock that a pro se litigant can put forth a proper answer and affirmative defenses, the bank’s lawyers will like this response. By her answer, Jasmine has deemed the summons and complaint properly written and delivered. That saves a lot of time and work for the opposing attorneys. Answering in this way gets the case clicking on a speedy path to judgment unless Jasmine can slow it down later.
Jaden — Charleston, South Carolina
Jaden in Charleston, South Carolina, responds first to the complaint with a motion to dismiss. Many of the reasons for dismissing a case can only be argued at this point, and Jaden feels he’s found some. In his motion, Jaden can argue lack of jurisdiction, improper venue, failure to state a claim, insufficient service of process and other problems with the complaint, summons, or service.
If his motion to dismiss is granted, it is with prejudice or without prejudice. With prejudice means the bank cannot refile it. Without prejudice means the bank is allowed to refile the lawsuit again or amend the complaint.
Pros: Given everyone’s goals, Jaden’s response is better than Jasmine’s because it buys him more time to answer the complaint. It may take a month or even two to schedule a hearing on his motion. That means an extra month or two in his home. He has a good chance of getting a dismissal without prejudice. If he does, he has even more time. He has successfully responded.
Cons: Like Jasmine’s response, it’s standard. The bank’s lawyers will be expecting it. They might even have pre-written documents to file for just such a motion to dismiss. Unlike Jasmine, Jaden has not answered. He can still lose the case if he doesn’t answer when the judge orders him to.
Mace — New Haven, Connecticut
In New Haven, Mace responds to the complaint with a demurrer. By way of his demurrer, he’ll dispute the sufficiency of either the entire complaint (general demurrer) or parts of it. Like Jaden, he’ll identify deficiencies on the face of the complaint. In a general demurrer, he’ll argue that the complaint fails to allege facts supporting a cause of action or lacks subject matter jurisdiction.
Mace, will state each ground for the demurrer in separate paragraphs. Then, he’ll state whether the demurrer is for the entire complaint or a single cause of action.
Pros: Like Jaden’s response, Mace’s is better than Jasmine’s because it buys him time. It may take a month or two to address the demurrer. Depending on how the judge rules on the demurrer, Mace may still have to answer. But this is good news. Anything placed before the answer will buy time. He has successfully responded.
Cons: In states where the demurrer is allowed, the bank’s lawyers will be expecting it. They might even have pre-written documents to file for in response. If the judge denies the demurrer, Mace will still have to answer. He can lose the case if he doesn’t answer
Monique — Fort Lauderdale, Florida
Monique responds to the summons with a motion for extension of time. Her motion asked the court to give her additional time to respond to the complaint. Typically, this motion is granted and is usually limited to 30 days or so. Few pro se litigants know they can do this as a first move in litigation.
Pros: Note that Monique requests time to respond–not time to answer. That means she gets 30 days first. Then, her next response can be, say, the motion to dismiss. That might give her two or more months. After that, she can answer when the judge tells her to. More time. Additionally, taken off guards, lawyers from the other side won’t have much to say. They’ll just wait out the thirty days and prepare for the next response. Monique has successfully responded.
Cons: A motion for extension of time is not an answer. Monique can lose the case if she doesn’t answer. Also, in a rare move, the judge could deny the motion. Then, Monique would have to scramble to get another response in on time.
Of the responses, Monique has the best given her goals. But all the responses are good. Depending on your own goals, issues in your case and the jurisdiction, any of them can work for you.
Bottom line. If you want to prevail, at least respond to the complaint.
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