Answers + Defenses

Question 1

How Defendant can respond to Complaint

Answer 1

1. Motions: Responsive Motions [often submitted before the answer]
2. Answers + Defenses
3. Cross-claims/counterclaims
4. Additional Parties.

Question 2

If Defendant fails to respond?

Answer 2

DEFAULT

Question 3

How to Present Defenses

Answer 3

Defense to claim MUST be asserted in responsive pleading.
- BUT, Party may assert these Defenses [Grounds to file MTD] by Motion,
1. Lack of Subject-Matter Jx
2. Lack of personal Jx
3. Improper Venue
4. Insufficient Process
5. Insufficient Service of Process
6. Failure to state a claim upon which relief can be granted
7. failure to join Party

Question 4

When to Assert Defenses and What happens if you Don’t

Answer 4

Party waives any defense by:
1. Omitting it from a motion in circumstance described in Rule 12(g)(2); OR
2. Failing to either
–a. Make it by Motion; OR
–b. Include it in Responsive Pleadinf/Amendment.

Failure to:
- state a claim which relief can be granted/join a person required/to state a legal defense to a claim may be raised:
A. in any pleading allowed/ordered
B. By a Motion; OR
C. At Trial.

Question 5

Must be asserted as MTD/in Answer[Responsive Pleading]/ Amendments

Answer 5

• Lack of personal jx
  -Improper venue
• Insufficient Process
• Insufficient Service of Process

Question 6

May be asserted in
- Any pleading
- Summary Judgment Motion
- At Trial

Answer 6

• Failure to state a claim/failure to join necessary party

Question 7

Must Dismiss Action

Answer 7

Lack of Subject Matter Jx

Question 8

Less-favored v. Favored Defenses

Answer 8

Less favored defenses
- Waived if you do raise in 1st Responsive Pleading:
[i.e. personal jx, venue, Process+ Service of Process]

Favored Defenses
- Can be raised at anytime
[i.e. Subject matter jx; Failure to state a claim; Joinder]

Question 9

What goes into an Answer?

Answer 9

1. Admissions
   - Fact is “taken as true” for remainder of the case
   - Must be done in good faith
2. Denials
   - Party must state if they lack knowlege/info sufficient to form a belief about truth of allegation.
   - If allegation not denied in Responsive Pleading –> Allegation is admitted.
3. Affirmative Defenses
   - On Allegations, NOT on law
   - [i.e. duress, illegality, SoL, res judicata [claim/issue unable to be heard from prior litigation.]etc ]
4. Counter+ Cross Claims
   - Counter claim: Def. makes a claim against plaintiff
   - Cross claim: Plaintiff’s claim against another plaintiff/defendant’s claim against another Def.

Question 10

Is there a Responsive Pleading to an Answer?

Answer 10

NO, Unless Defendant has counter claims in Answer