After working a grueling double shift over the holidays, Mark was served with a summons and a copy of a complaint alleging that he was responsible for a slip and fall that occurred on a property owned by his deceased aunt. Like most defendants, Mark was frustrated. Although he was eager to start presenting evidence with the goal of having the case dismissed, he wasn’t sure where to start.
The summons is like the starting gun that signals the beginning of a civil lawsuit. While defendants may be aware of a potential dispute, receiving a summons can still come as a surprise. To make matters worse, it’s accompanied by a complaint. The summons and complaint contains all of the details about the legal action, including who is involved, the venue or jurisdiction and the deadline to respond in writing or to appear at hearings.
If you’re wondering what to do next, here’s what you can expect.
1. Reading the Summons
After being served, Mark’s first step was to sit down and read the document. His goal was to review all of the factual information in the summons and the complaint, including details regarding the deadline for answering the complaint and the consequences of failing to respond within the required timeframe. Mark was also looking for things that might help his defense, including the following:
- Service: Did the plaintiff serve him properly when sending the complaint and summons?
- Factual Allegations: Did the plaintiff make a valid claim? What issues could be disputed?
- Venue: Did the plaintiff file the complaint in the correct venue based on the type of claim, the amount of damages requested or the location of the incident?
2. Understanding Deadlines for Responding to a Summons
Mark was served by certified mail. After reading the applicable statute, he determined that he had 30 days to respond instead of the usual 20 that would have applied if a sheriff or process server had delivered the summons. He also learned that in some cases, such as evictions, defendants only have five days to answer a summons. Mark started researching his case and preparing his answer well in advance of the deadline.
3. Responding with a Motion for Extension of Time
Mark thought about the motion for extension of time. Should he file that? When you get a summons and complaint, the tendency is to prepare an answer immediately. But as a pro se litigant, you might need more time to respond, so a motion for extension of time might work.
4. Responding with a Motion to Dismiss
Mark didn’t move for an extension of time. Instead, he went straight to thinking about the motion to dismiss. Should he move for a dismissal before submitting his answer? On what grounds? Alternatively, defendants can sometimes have a case dismissed by filing a demurrer if they can prove that the court doesn’t have subject matter jurisdiction or that the plaintiff failed to state a valid claim. Defendants also have an option to submit a counterclaim along with the answer if they believe that they are entitled to damages from the plaintiff.
For Mark, thoughts of a counterclaim didn’t cross his mind. His main goal was to go over the complaint and summons with a fine-toothed comb and tear them to pieces. He checks to see if the complaint was filed in the proper jurisdiction and the right court. He looks for errors in the service of the summons to him and any gaps in factual statements that support the claim. If he finds one, he will jump on it.
5. Responding with an Answer and Affirmative Defenses
Mark settles on the answer and affirmative defenses. He began preparing the answer using a suitable template. He made sure to follow court protocol and the rules of civil procedure. Like the complaint, his answer opened with the name of the court, the court division, the docket number, the name of the plaintiff and defendant and the title of the pleading. This is all in the caption.
In the body of the document, he created numbered paragraphs corresponding to each allegation in the complaint. He started each paragraph with either “the Defendant admits” or “the Defendant denies” before explaining the reason.
Mark then prepares his affirmative defenses. An affirmative defense asserts that even if the plaintiff’s factual allegations are true, the defendant is not liable. Mark lists five affirmative defenses and the facts that support them. He attaches the affirmative defenses to his answer. Once he has addressed all of the allegations and listed all affirmative defenses he can find, he checks both documents for errors, signs, and dates them.
6. Submitting the Answer
After completing his answer, Mark needed to submit the document. As required by the local rules of civil procedure, Mark sent a copy of the document to the plaintiff’s attorney via certified mail. He also filed a copy of the answer with the court that issued the summons. In most cases, there’s no filing fee for submitting a response. However, completing this step early gave him more time to negotiate with the plaintiff and explore other ways to resolve the issue before scheduled hearings.
Responding to a summons and complaint is critical for avoiding a default judgment, a loss. In most cases, defendants have a month or less to respond to a civil summons, so it’s important to avoid delays and arm yourself with the knowledge to prepare a strong answer before the deadline. Service requirements, filing deadlines and formatting standards vary by jurisdiction, so check court rules to determine what needs to be done.
