Top 13 Tips in Responding to a ComplaintBy: Amanda R. Phillips
January 31, 2018
As with subpoenas, being served with a summons and complaint can induce panic in many people. Don’t panic, but do call your attorney right away. Your attorney will help you prepare your response to the complaint that protects your rights, puts forward your defenses, and asserts any claims that you might have against the plaintiff.
A complaint is the first document filed with a court to begin a lawsuit. It is a formal legal document that asserts the plaintiff’s view of the facts and the legal reasons that the plaintiff believes it has a claim against the defendant. When the plaintiff files the complaint with the court, the court issues a summons, which instructs the defendant to answer the complaint within a specific time dictated by the rules in the court where the complaint was filed.
Once the complaint and summons are served on a defendant, a response is required. The defendant generally must either answer the complaint, or move to dismiss the complaint. A motion to dismiss is a formal request that the court dismiss the case, and can be brought for a variety of reasons such as the complaint is defective or the court lacks jurisdiction over the defendant. An answer sets forth the defendant’s view of the facts and asserts all affirmative defenses. An answer may be accompanied by counterclaims, which assert any claims that the defendant may have against the plaintiff.
Accordingly, consider the following when you are served with a complaint:
- Do not ignore the complaint. In most jurisdictions, if you do not respond within 21 days of service, you forever waive your defenses and may have a judgment entered against you. Moreover, if you have insurance that might cover the lawsuit, your insurer may have strict deadlines for notifying the insurer, and failure to notify the insurer may result in loss of coverage. Therefore when you receive a complaint, consult your general counsel or outside attorney right away, and contact your insurer immediately, usually through your insurance agent, after consulting your attorney.
- Your response to the complaint should both preserve your rights and also comply with court rules. An incorrect response or a failure to respond to a complaint can have serious consequences, such as the waiver of your rights or a judgment against you.
- Except for your attorney, do not speak with anyone outside the company about the complaint and speak only to those within your company who have a need to know about the complaint.
- You have an obligation to preserve documents and information relevant to the issues in the lawsuit. Do not destroy or throw away any documents, and contact your IT department to turn off auto-delete protocols on relevant employees’ email. Failure to do so can result in court sanctions, from monetary sanctions to a judgment against you.
- Some complaints are defective, and a motion to dismiss may be the most appropriate response. For example, if a complaint for a breach of contract fails to allege that the plaintiff and defendant ever had a contract, the plaintiff has failed to allege a necessary element of its case. Sometimes a complaint is brought in a court that does not have jurisdiction over the defendant. For example, absent some very specific exceptions, a Massachusetts court may not haul a Hawaiian defendant into Massachusetts to defend a case. If the defendant requests that it do so, the court may dismiss such complaints. When a complaint is dismissed, the lawsuit is over. Your general counsel or outside attorney can help you determine whether to file a motion to dismiss.
- If you do not move to dismiss the complaint, you must answer the complaint. Consult your general counsel or outside attorney to help draft the answer and defenses. The paragraphs of the complaint are numbered consecutively. Your answer must respond to each numbered paragraph either admitting or denying each alleged fact, or stating that you lack information to respond to the alleged fact. Your answer must also assert all of the defenses that you might rely on.
- Read the complaint carefully, and be very attentive to the allegations that you admit. Plaintiffs sometimes try to trick you by drafting an allegation that is mostly correct except for one word that mischaracterizes a key fact. If you admit the entire allegation, you are admitting to the key fact that was mischaracterized. Your attorney will help you identify and avoid such traps.
- Consider carefully whether any third parties might be liable to you for the damages that plaintiff alleges. For example, if a homeowner sues a general contractor for negligent work performed by the subcontractor, the general contractor may have a right to indemnity from the subcontractor. Your attorney can help you determine if any third parties might be liable to you, and will guide you on how to bring them into the lawsuit.
- If you have your own claims against the plaintiff, you may assert counterclaims along with the answer and defenses. If your counterclaim arises out of the same facts underlying the plaintiff’s claim, then you must assert the counterclaim or forever lose your right to assert it. An example is where plaintiff accuses you of breaching a contract, and you counterclaim that it was in fact the plaintiff breached that contract. If your counterclaim does not arise out of the same facts underlying the plaintiff’s claim, then you may assert it in this suit or file a separate lawsuit. An example is where plaintiff accuses you of breaching a contract, and you accuse plaintiff of crashing into your car in a separate incident unrelated to the contract. Consult your attorney regarding any counterclaims to make sure that you are properly asserting them.
- Whether you move to dismiss or answer the complaint, you must serve a copy of your response on the plaintiff. Your attorney can help you with this.
- You may be able to request additional time to answer the complaint if you have a good reason, and you must request the additional time before the deadline passes. To request additional time, consult your general counsel or outside attorney well before the deadline.
- One reason for requesting additional time is to negotiate a resolution with the plaintiff. If you can successfully negotiate a settlement, then the plaintiff will voluntarily dismiss its complaint and you need not answer. Ask your attorney about this option, which may resolve the case quickly before both sides incur substantial legal fees.
- Do not communicate with the plaintiff’s attorney. The plaintiff’s attorney may use anything you say against you in the lawsuit, and you may inadvertently admit certain things that might be harmful to your defense before all the facts are known. To protect you, your attorney should handle all communications with the plaintiff’s attorney.
For more information, please contact Amanda Phillips.