Served Summons and Complaint, what to do?
December 10, 2010 # 1:20 pm # General Info # No Comment
Never been involved in litigation? Never heard what happens in a lawsuit? Not even friend’s friends were sued. Served Complaint and Summons, what to do? What we watch in movies is not exactly the way the real life Court operates! First of all, calm down and rationally analyze and react to the situation.
First, in a lawsuit, the person sued is called Defendant and the person suing is called Plaintiff. Whenever the Plaintiff files a lawsuit, Plaintiff has to serve Complaint and Summons to the Defendant, to notify the Defendant to respond/answer to the Complaint, within the time limit indicated on the Summons. The time limit on the Summons can be date or number of days from the date of receiving Summons.
Serving the Summons is a way to bring to the Defendant’s attention the existence of lawsuit and the Defendant being sued by Plaintiff and Defendant can defend, if desired. Summons is always accompanied with Complaint so the Defendant knows what exactly has brought this Summons to him/her and the exact nature of the lawsuit. Defendant should always study the complaint well and respond to it accordingly.
In general, the summons will specify the following:
- Name and contact information of the person to whom it is directed (Defendant)
- Issuing Court
- Case Title
- Case Number
- Assigned Judge
- Assigned Magistrate Judge
- Name and contact information of the person who summoned (Plaintiff)
- Notice that a legal proceeding has been started and response is required
- Time limit to respond to the summons or Date
- Warning if one fails to respond
- Date and sign of the Court Clerk
Served Complaint and Summons, now what to do? This means the Defendant must file a response with the issuing court. In most states, a Response can be a Motion to Dismiss or an Answer or Appearance with Motion for Extension of Time to file a Responsive Pleading.
If the Defendant chooses to file an Answer within the time permitted, he/she must respond to each of the plaintiffs’ allegations by admitting the allegation, denying it, or pleading a lack of sufficient information to admit or deny the allegation. Along with the Answer the Defendant can file counterclaim, third party complaint and also raise Affirmative defenses.
The defendant can choose to dispute the validity of the complaint by filing motion to dismiss. The defendant should have valid grounds like lack of jurisdiction or improper venue, etc. to get the motion to dismiss granted. If the motion to dismiss is denied by the court, then the defendant must file an answer.
If the Defendant cannot file an Answer within the specified period then the Defendant should file Appearance and Motion for Extension of Time to file a Responsive Pleading with the Court. By filing Appearance, the Defendant is letting the court know that the Defendant is appearing to defend or respond to the lawsuit. One can hire an attorney to represent and take care of the litigation henceforth. Or one can file Pro se Appearance and represent own self. And Motion for Extension should specify how much more time is requested to file an Answer and why.
Before you respond, it is important that the Plaintiff has opted the appropriate jurisdiction and venue for the lawsuit. These are normally stated in the beginning of the Complaint. Also make sure that the Summons is addressed to you. A mistake in the summons can be addressed to the Plaintiff, with the help of the contact information specified in the Summons.
But whatever you choose to do, file the Response before the specified date or as soon as possible. By failing to file your Response with the Court, you give the Plaintiff an opportunity to get a Default Judgment against you!
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