Associates Chelsea Glynn and Heather Lee published in The Women Advocate Newsletter

Associates Chelsea Glynn and Heather Lee published in The Women Advocate Newsletter

Smith Freed Eberhard Associates Chelsea Glynn and Heather Lee recent article, “Responding to a Federal Complaint: Answer or Motion” was published in The Women Advocate. Read the full article included below:

Your client has been sued in federal court. When you receive the complaint, your initial thought may be to prepare an answer, admitting or denying the allegations, automatically assuming you will subsequently conduct discovery and then look to settle the case. However, there are a number of important things to consider before responding, because the way you respond could change the entire course and outcome of the case. For instance, imagine that instead of filing an answer, you successfully moved to dismiss part of the plaintiff’s claim. This, in turn, significantly reduced the amount of discovery needed and therefore reduced not only your client’s, but the opposing plaintiff’s, attorney fees and costs. As a result, the plaintiff was willing to settle for a lower amount, and the case was resolved early on. Significant time and costs were saved for everyone. You can imagine how the case could have taken a much different course had you filed an answer instead.

Therefore, before you respond to a complaint, keep in mind how you see the case playing out from beginning to end. Consider whether you should file an answer or a motion, the timelines you must follow, and any affirmative defenses you must assert or else waive. This article will take you through these considerations so you have the basic tools you need in order to respond to the complaint.

Timelines
The very first thing you need to do is to determine when your response is due. Always check your court’s local rules as well as the Federal Rules of Civil Procedure. Generally, a party served with a complaint must respond within 21 days after being served. See Fed. R. Civ. P. 12(a)(1)(A). However, there are a few exceptions. First, if service is waived, then a response is due within 60 days after the request for waiver was sent (or 90 days if it was sent to a defendant outside of the United States). See id. Alternatively, the judge may also set a schedule for when an answer is due, or a party may move the court for an order extending the deadline to answer. Regardless of which it is, keep track of this deadline. A failure to timely respond can result in an entry of a default judgment. See Fed. R. Civ. P. 55(a).

On or before the deadline to file a responsive pleading (unless your local rules state otherwise) and after conferral, you may move to dismiss the claim, to make parts of it more definite and certain, or to strike parts of the complaint. Such motions typically extend the time you have to answer until after the court rules on your motion. If you file only a partial motion to dismiss, check the law in your jurisdiction to make sure you do not need to file a responsive pleading to those claims that are not the subject of your motion to dismiss. See Gerlach v. Mich. Bell Tel. Co., 448 F. Supp. 1168 (E.D. Mich. 1978). If the court denies the motion or postpones its disposition until trial, the answer must be served within 14 days after notice of the court’s action, unless the court sets a different time schedule. See Fed. R. Civ. P. 12(a)(4)(A). If the court grants a motion for a more definite statement, the answer must be served within 14 days after the more definite statement is served unless the court orders otherwise. See Fed. R. Civ. P. 12(a)(4)(B).

The Answer
The answer is the defendant’s pleading responsive to the complaint. It is designed to narrow the issues and give the plaintiff notice of the defendant’s legal defenses, including affirmative defenses, counterclaims, and cross-claims. For each allegation in the complaint, the answer must admit, deny, or deny based on lack of information. See Fed. R. Civ. P. 8(b)(1)(B). The failure to deny any allegation in the complaint, except for the amount of damages, constitutes an admission. See Fed. R. Civ. P. 8(b)(6).

Denials. There are different forms of denials to a complaint’s allegations: general and specific denials, denials of part of an allegation, and denials based on lack of knowledge or information. See Fed. R. Civ. P. 8.

A general denial is a blanket denial of the entire complaint and controverts every allegation of the claim to which it is directed. General denials should only be made if you can deny each and every allegation “in good faith.” In practice, a general denial is rarely used in federal court, because typically there is something in the complaint, such as the party identity or jurisdiction, which should be admitted in good faith. An answer with specific denials will respond to the complaint paragraph by paragraph with either an admission or denial.

A denial of part of an allegation is directed at one particular paragraph, or part of one paragraph, in the complaint. If only part of a paragraph can be denied, then you must admit the part that is true and deny the rest. If using this form of denial, it is still good practice to include a catch-all denial either at the beginning or at the end, in case you missed a paragraph.

Finally, if you lack sufficient knowledge to form a belief about the truth of your opponent’s allegation, you must say so in your responsive pleading. Doing so will have the same effect as a denial.

Defenses. After either admitting or denying the paragraphs in the complaint, the answer must assert the defendant’s affirmative defenses. An affirmative defense does not directly controvert the allegations of the claim to which it responds; instead, it alleges new facts that, if true, defeat the claim. Every affirmative defense to a claim for relief must be asserted in the answer or it may be waived. See Fed. R. Civ. P. 12(b), (h)(1); John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133 (2008). Therefore, it is crucial that you include all potential affirmative defenses in the answer. Remember that affirmative defenses are distinguishable from mere defects in the plaintiff’s prima facie case, which merely need to be denied.

Counterclaims and cross-claims. The last piece is to determine if you need to plead a counterclaim or cross-claim. See Fed. R. Civ. P. 13. A counterclaim is a claim against the opposing party. It may be either compulsory or permissive. A counterclaim is compulsory, meaning it must be included in the answer, if at the time the complaint is served the counterclaim arises from the same transaction or occurrence and the counterclaim does not require adding another party outside of the court’s jurisdiction. Any counterclaim that is not compulsory is permissive. A cross-claim is a claim by a defendant against a codefendant. A cross-claim may be asserted if it arises out of the same transaction or occurrence or if it relates to any property that is the subject matter of the original action.

Motion to Dismiss
A motion to dismiss is a formal request for the court to dismiss the plaintiff’s claim or case entirely based on the allegations in the complaint. Federal Rule of Civil Procedure 12(b) provides that a defendant may move to dismiss based on any of the following defenses:

1.         Lack of subject matter jurisdiction;
2.         Lack of personal jurisdiction;
3.         Improper venue;
4.         Insufficient process;
5.         Insufficient service of process;
6.         Failure to state a claim upon which relief can be granted; and
7.         Failure to join a party under Rule 19.

Remember that the following defenses are waived if they are not included in the motion to dismiss or answer: lack of personal jurisdiction, improper venue, insufficient process, or insufficient service of process. See Fed. R. Civ. P. 12(h)(1). Therefore, you should fully analyze all potential defenses and include them if applicable in your motion to dismiss.

A motion to dismiss is not limited to those defenses set forth in Rule 12(b). Additional defenses may be asserted in a motion to dismiss, as long as they can be made on the face of the complaint. Some examples of defenses that could be asserted are immunity, lack of capacity to sue, collateral estoppel, res judicata, statute of limitations, statute of frauds, and failure to exhaust administrative remedies, among others. Make sure to do your research up front to determine appropriate defenses.

Prevailing on a motion to dismiss is difficult. Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” To survive a motion to dismiss, the complaint must state sufficient facts to state a claim that is plausible on its face. The court must accept the nonmoving party’s allegations as true. See Ashcroft v. Iqbal, 556 U.S. 662 (2009).

If matters outside the complaint are presented in a motion to dismiss, the court may treat the motion as one for summary judgment. See Fed. R. Civ. P. 12(d). This would allow the plaintiff to respond with his or her own evidence, but you can also anticipate the plaintiff may argue that this motion for summary judgment is not appropriate because the plaintiff has not had the opportunity to conduct discovery.

Motion for More Definite Statement/Motion to Strike
You may move for a more definite statement if the complaint is so vague or ambiguous that a defendant cannot reasonably prepare a response. See Fed. R. Civ. P. 12(e). You may also move to strike portions of the complaint that are redundant, immaterial, impertinent, or scandalous. See Fed. R. Civ. P. 12(f). These motions must be made before filing an answer to clarify the defects in the complaint and the details necessary for the defendant to respond.

What to Consider Before You File a Motion to Dismiss
While some attorneys typically file an answer without fully considering potential motions, others may be overly aggressive in moving to dismiss. This may happen for many reasons. Oftentimes when a client is sued, he or she immediately wants to end the lawsuit, mistakenly believing it to be frivolous. From an attorney’s standpoint, if something is inherently wrong with the complaint, it is human nature to want to point it out immediately. It is important not to act solely on these initial instincts.

Instead, before moving to dismiss, take the time to decide if a motion to dismiss is really in your client’s best interest. The obvious benefit to filing a motion to dismiss is that the entire case could be over. However, while some motions may end the case, others, such as a challenge to venue, may only result in the plaintiff’s bringing the same suit in a different venue. Different venues could be more or less advantageous to a party, depending on factors such as the judge assigned to the case, the local jury pool, and convenience to the client. So you may end up with a more expensive and less convenient lawsuit.

You should also consider how a motion to dismiss can impact settlement negotiations. A strong motion to dismiss may strengthen bargaining power in negotiations. On the other hand, on a smaller case where the motion to dismiss is unlikely to dispose of the entire claim, a motion to dismiss may merely increase costs for both sides and make it more difficult to settle. Finally, if there is an uncertain legal issue in the plaintiff’s claim, this may lessen its settlement value. A ruling in your favor as a defendant would potentially further decrease settlement value, whereas a ruling in the plaintiff’s favor will likely increase settlement value.

Additionally, motion practice can be costly, depending on the complexity of the legal issues. A motion to dismiss based on the statute of limitations on the face of the complaint may be straightforward, but one made on substantive issues could require extensive research and time. Estimating the cost to make the motion to dismiss and outlining the potential outcomes and probabilities of each outcome is worthwhile, so that you and your client are able to make an informed decision.

Further, a motion to dismiss is unlikely to be the only opportunity to have the court rule on a legal issue. In certain situations, it may make sense to wait to assert your argument until summary judgment or even trial. At the pleadings stage, the judge must take the plaintiff’s assertions as true. By the summary judgment stage, however, the facts are generally nailed down, perhaps in your favor.

If your argument turns on a fact that has not been established, think about waiting until summary judgment. There may be a benefit to not alerting your opponent to the details of your legal argument before discovery. The plaintiff may structure its discovery and prepare a counter-argument if it has thoroughly explored a legal issue pre-discovery.

Finally, even if you do not believe you will be successful on a motion to dismiss, there still could be benefits to it, such as forcing your opponent to take a position on an issue, alerting the court to a complicated legal issue that you expect to come up again later in the case, and understanding the court’s position on an issue prior to discovery.

In sum, there is no easy formula to determine whether a motion to dismiss is the right course of action. This decision should only be made after careful consideration of multiple factors, a cost-benefit analysis, in-depth communication with your client, and potentially a discussion with other, more experienced attorneys. Outline your goals for the motion and make an objective prediction as to the likelihood of succeeding. Finally, make sure the motion is being made in good faith and that both you and your client have a complete understanding of the best—and worst—possible outcomes.

Conclusion
The next time your client is served with a complaint, take a moment to consider the appropriate course of action for your case. First, you need to determine your deadline to file a responsive pleading. Then, you need to decide whether you should file an answer or a motion. If you are planning to file an answer, you must think about admissions and denials, defenses, and counterclaims or cross-claims. However, you may want to assert certain defenses by filing a motion, which must be done before an answer is filed. You must consider multiple factors to decide if a motion is appropriate or necessary. It is extremely important to determine the strategy of your case before you file your responsive pleading, because it could change the entire course and outcome of the case.

Chelsea Glynn is an associate at Smith Freed Eberhard. Email Chelsea here.

Heather Lee is an associate at Smith Freed Eberhard. Email Heather here.

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