This checklist for drafting an answer to a complaint and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
- Calendar the deadline to file an answer or other responsive pleading: within 21 days after being served with the summons and complaint in Federal Court, F.R.C.P. 12(a), or within 20 days after service of the summons and complaint in Colorado, C.R.C.P. 12(a).
- Consider asking for an extension of time to answer or otherwise respond (be sure to state "or otherwise respond," or opposing party could argue any motion under Rule 12(b) is untimely).
- Begin to build a litigation plan for this lawsuit (review legal requirements for claims asserted, discuss claims with client, etc.).
- Identify the required elements of all claims asserted (part of the litigation plan).
- Determine if a complaint in state court can and should be removed to federal court.
- Determine whether there are grounds to file a motion to dismiss, a motion for a more definite statement, or a motion to strike.
- Determine whether venue is proper, and file a motion for a change of venue if appropriate.
- Respond appropriately to each allegation in complaint:
-- Admit or deny any allegation that is either true or false in its entirety.
-- Admit any portion of allegation which is true, stating "defendant denies the remainder of the allegations contained in Paragraph X of the complaint."
-- Where you have insufficient knowledge to admit or deny, state so, but conclude that "and therefore defendant denies the allegations of Paragraph X of the complaint."
-- If an allegation states a legal conclusion, state so and add that "therefore no response is required. However, to the extent a response is required, defendant denies the allegations of Paragraph X."
-- If an allegation makes a conclusion about the meaning of a legal document or purports to summarize such document, state that "the document speaks for itself and no response is required. However, to the extent a response is required, defendant denies the allegations of Paragraph X."
- Include a reservation of rights and general denial: "defendant denies that plaintiff is entitled to judgment in its favor or for any relief whatsoever, including the relief requested in paragraphs (x) through (x) of plaintiff’s prayer for relief. Defendant denies any allegations in the complaint to which it did not specifically respond. Defendant reserves the right to assert any additional and further defenses as may be revealed by discovery or otherwise."
- Identify and plead all appropriate affirmative defenses (alternately called additional defenses). Despite the reservation of rights above, it may not be possible to amend an answer to add affirmative defenses at a later date, so review a comprehensive list of affirmative defenses.
- Determine whether it is appropriate to file a counterclaim, a cross-claim, a third-party complaint, or to move to join additional defendants to this action. Per F.R.C.P. 13(a) and C.R.C.P. 13(a), if a counterclaim "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim" and "does not require adding another party over whom the court cannot acquire jurisdiction," then it is a compulsory counterclaim and must be asserted concurrently with the answer.
Thoughts & Best Practices:
- When considering a motion to dismiss that will likely result in the opportunity to amend the pleading or a motion for more a definite statement, weigh whether the advantage gained by forcing the plaintiff to re-plead or amend will outweigh the disadvantage of highlighting the weaknesses in plaintiff's complaint so that they can be fixed. Would it be better to save this argument for a motion for summary judgment, or even for trial?
- Consider what advantages can be gained by electing to admit some allegations that could be properly contested--e.g. cost control, reduction in scope of discovery, narrowing the issues to those where your client has the more compelling argument, etc.?
Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
This answer checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.