A summons just landed in your hands. You have been sued. Consulting a lawyer is the first important step for fighting the lawsuit. Then, you have to respond. There are several ways to respond, and you must respond to show that you are contesting the case. Otherwise, whoever sues you automatically wins by default.
Know your deadlines. For most lawsuits, the law requires you to file a written response within 30 days (sometimes 20 days). Otherwise, the other side wins by default and can enforce this judgment by garnishing wages, placing liens on your property, or levying your bank accounts.
An Answer is the most common way to respond. In essence, you answer by admitting or denying the specific allegations of the complaint. The answer also must include any defenses to the allegations, or they are waived. Even if you file motions or counterclaims, you likely will eventually file an answer for the case to proceed.
The General Denial is a simple response and in one sentence, you deny every allegation in the complaint.
Motion to Dismiss
The motion to dismiss, also called a demurrer, attacks the legal sufficiency of the complaint. This does not attack the truth of the allegations, but rather that they do not state a claim for relief.
The motion can also attack the complaint if it is uncertain or if the plaintiff does not have capacity or standing to sue. The motion can even attack jurisdiction issues, which apply if you have been sued in the wrong geographic location or in the wrong court. An alternate option is to file a motion to change venue or motion to transfer, which asks the Court to move the case to another court.
This motion may get rid of some claims in the complaint, but often the court will grant the other side the opportunity to amend the complaint.
Motion to Quash Service of Summons
The motion to quash service of summons attacks the method use to serve the summons and the complaint. This often occurs if there is a defect in the summons or process by which you were served. For example, this can apply if the summons forgot to list your name or if the summons was emailed to you (instead of served to you in person). This type of response will not get rid of the case. The court will often give the other side an opportunity to properly serve you and the case will then proceed.
Motion to Strike
The motion to strike asks the court to eliminate parts of the complaint. This may apply if the complaint is not understandable, redundant, scandalous, or not relevant. The court may delete any or all parts of the complaint. This motion is similar to a demurrer, but is generally used to remove specific parts such as phrases or individual words. The demurrer is generally used to attack an entire cause of action.
Counterclaims, also called cross-complaints, are claims that you may have against the person who sued you. Basically, you’ve been sued, and now you want to sue them back. If your counterclaim arises out of the same transaction, occurrence, or series of events, then you must file them in this lawsuit or they will be given up forever.
However you choose to respond, you must also send a copy of your response (i.e. answer, motion to dismiss, etc.) to the person who sued you. Most courts require you to attach a proof of service. If you do want to respond, do not wait until the last minute to seek an attorney. Your attorney will need adequate time to prepare a response by the deadline.