You’ve just been served with a lawsuit, and the law requires you to answer a complaint within a certain number of days or risk default. Or does it? Read the summons a little closer and you’ll find the language more precise. The law only requires you to respond to the complaint within three weeks (more or less, depending on your jurisdiction). Assuming you’ve been properly served, all you really need to do is acknowledge receipt. There are ways to comply that turn the tables on the plaintiff and let you control this phase of the case.
The legal requirements for your response are defined in the Federal Rules of Civil Procedure, specifically F.R.C.P. 12(b), a variant of which exists in each state.
HOW TO PRESENT DEFENSES. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(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[n indispensable] party under Rule 19.
A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.
The part that lets you take control of the case is here: A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. The “responsive pleading” is your answer, but defenses can be lodged — and must be ruled upon by the court — before you can be required to answer the complaint.
Why is this important? Plaintiffs have the upper hand when a complaint is filed because they or their attorneys have spent months studying the law, applying it to the facts of the case, and preparing their best arguments for why you owe them money. You probably didn’t even know it was coming. It’s unreasonable to expect you to learn the necessary law, recall or discover other facts and prepare a position statement that you’ll be stuck with throughout the case, all in 20 days or so. That goes triple for a pro se defendant. So you want to level the playing field. You want to take time to understand your legal situation before answering the complaint.
How do you do it? First, ask the court for more time to respond, say an extra 30 days. You’ll need a good reason — the search for a lawyer, for instance — but I’ve rarely seen a motion for extension of time denied. Second, prepare a motion to dismiss the complaint. Guided by Rule 12(b), check the jurisdiction, venue, service of process and indispensable parties that are absent from the case. If you find some defenses there, great. But focus like a laser on why the complaint fails to state a claim. Assuming everything the plaintiff has alleged is the absolute truth, is there something missing that lets you off the hook? Are there elements of the complaint that have not been asserted? Are there preconditions to filing suit that have not been asserted in the complaint? If so, the complaint is a failure and the court may dismiss it.
The beauty of a motion to dismiss is that you say nothing at all about your own position in the case. The only issue on a motion to dismiss is whether the complaint is good enough from a legal perspective to give a court the jurisdiction to hear it. But remember, the court will assume every factual allegation in the complaint is true, and no additional facts will be considered. No evidence at all will be considered; only the complaint and the law are relevant. It’s best to follow the rules of civil procedure in your state, so search your state’s rules for ‘defenses’ to find the analogy to F.R.C.P. 12(b).
Regardless of the merits, don’t count on the success of your dismissal motion. Most courts will err on the side of hearing a case. Even if you find some small defect that gets the complaint dismissed, the judge will likely do so “with leave to amend” or “without prejudice”, which allows the plaintiff to fix the complaint or refile it later. As a strategic matter, the purpose of your motion to dismiss is to give you time to do your research and prepare your answer. Getting the motion scheduled for hearing and ruled upon could take months. Use that time wisely.