Summons, Complaint and Answer
Federal Rules of Civil Procedure:
Service of process:
Statute of limitations:
The summons, complaint, and answer are the documents that begin a lawsuit. These documents present the positions of both the plaintiff and defendant and are required before a lawsuit can proceed. The Federal Rules of Civil Procedure outline the basic requirements for the contents of each of these documents. The plaintiff bringing the lawsuit must file a summons and complaint to start the lawsuit. This serves a dual purpose: to notify the defendant that there is a lawsuit against him or her, as well as to inform the court and the defendant of the substantive basis upon which the lawsuit rests and the type of damages the plaintiff seeks. The answer is the defendant’s opportunity to respond to the plaintiff’s complaint and to put forth any defenses if he or she so desires.
It is important to preface this section by noting that each federal district court maintains its own “local rules,” or rules that govern how the court expects attorneys appearing in its court to follow procedure. These include methods for filing papers with the court and requirements for appearing before the court. Therefore, to avoid delays, it is imperative that the local rules be checked to ensure that the attorney’s practice conforms to them.
Similarly, states have their own rules of civil procedure, some of which are considerably different than the federal rules. The Federal Rules of Civil Procedure are applicable in federal court while the state rules control for the state court. Thus, one cannot rely on a federal rule for a determination of how one must act in federal court. However, knowledge of the basics of the federal rules will assist understanding the requirements of all civil procedure rules, regardless of jurisdiction.
The Summons and Complaint
Under the federal rules, a civil lawsuit begins when a complaint is filed with the court. See Local Union No. 38, Sheet Metal Workers' Intern. Ass'n, AFL-CIO v. Pelella, 350 F.3d 73, 82 (2d Cir., 2003):
“An action is . . . instituted when a plaintiff files a complaint as that constitutes the first step invoking the judicial process.”
Under some states’ rules, a civil lawsuit begins when the defendant is served with the summons and complaint. The complaint, which contains the plaintiff’s allegations against the defendant and the supporting factual basis for those allegations, is often accompanied by a summons. The summons is a written document that identifies the court in which the lawsuit will be heard, contains the signature and seal of the clerk and the court, and identifies the parties involved in the lawsuit. Both the summons and complaint must be properly filed with the other parties and the court before the lawsuit may proceed.
Here is an example of a summons:
Rule 7 of the Federal Rules of Civil Procedure requires that a lawsuit contain a complaint by the plaintiff’s attorney and an answer by the defendant’s attorney. See Johnson v. Reilly, 349 F.3d 1149, 1156 (9th Cir., 2003). Under the federal rules, the complaint must be written in short and plain language. It is preferred that technical legal language be excluded from the complaint. The complaint should identify the basis for the court’s jurisdiction over the plaintiff’s lawsuit, the claim for which the plaintiff seeks relief, and the demand for the particular type of relief that the plaintiff seeks through the lawsuit. See Federal Rules of Civil Procedure; Rule 8. In other words, the defendant should be able to identify the subject of the lawsuit, how the defendant is involved in it, what complaints the plaintiff has, and the type of damages requested. The courts traditionally read these requirements liberally. Therefore, even if the plaintiff submits a complaint whose language is not entirely clear but addresses all of the necessary elements, the courts will generally accept the entry. See Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir., 2003):
[T]he complaint need only set forth ‘a short and plain statement of the claim,’ Fed. R. Civ. P. 8(a)(2), giving the defendant fair notice of the claim and the grounds upon which it rests.
Below is an example of a complaint:
The complaint is the crucial first step in a lawsuit. It is the plaintiff’s first opportunity to communicate what injury he has allegedly sustained as a result of the defendant’s actions. It also strategically lays out the plaintiff’s legal concerns. In addition, it is from the plaintiff’s complaint that the defendant can strategize his response and any defenses he or she may have to the plaintiff’s allegations.
After the complaint is filed, there sometimes arise circumstances in which new facts may be discovered that the plaintiff wishes to include in the lawsuit. There may also be new legal avenues to pursue. For instance, if a plaintiff files a lawsuit against a defendant, seeking monetary damages for stealing a secret soft drink formula, the plaintiff may later also decide to seek to prevent the defendant from using the soft drink formula for its business. In these cases, the plaintiff will want to amend or supplement the original complaint.
Amendment or supplementation of pleadings (the complaint and the answer) is generally allowed. Rule 15 of the Federal Rules permits the plaintiff to amend its complaint once as a matter of right, i.e., without the need for the court’s permission, if it occurs before the defendant has responded with its answer and the lawsuit has not yet been put on the trial schedule. However, if either of these events have occurred at the time that the plaintiff wishes to amend its complaint or if the plaintiff has already made one amendment and is seeking to make a second amendment, then the plaintiff must obtain permission from the court or the defendant to amend. If the court finds that it is in the interests of justice and fairness to allow the plaintiff to amend the complaint, then the court will allow the plaintiff to do so. Amendments to the complaint often relate to facts and evidence which the plaintiff would like to present in its complaint that existed at the time the complaint was originally submitted, but which were not known to the plaintiff. See Wheeler v. Missouri Highway & Transp. Com'n, 348 F.3d 744 (8th Cir., 2003).
For facts and evidence that are discovered after the original complaint is submitted, the plaintiff must submit a supplemental complaint. The plaintiff must ask the presiding court for permission (via a motion) to file the supplemental complaint.
The defendant’s response to a complaint is called the answer. The answer contains the defendant’s version of the events leading to the lawsuit and may be based on the contents of the complaint. The filing of the answer is one option that the defendant has in deciding how to respond to the complaint. The defendant may instead file a motion to dismiss the lawsuit or to have the complaint redone in a different manner. These motions are covered in a later subchapter. This section will focus on the answer.
Under the federal rules, in most instances, the defendant’s answer must be made within 20 days of receiving service of the complaint. See O.J. Distributing, Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 352 (6th Cir., 2003). Other jurisdictions allow a 30 day response time. Under the federal rules, if the defendant has waived service of the complaint, the defendant has 60 days after receiving the complaint to serve his answer. Like the complaint and other pleadings, the answer must be a short statement in plain English. See Costello, Porter, Hill, Heisterkamp & Bushnell v. Providers Fidelity Life Ins. Co., 958 F.2d 836, 837 n.1 (8th Cir., 1992):
“The answer did not comply with the federal rules of civil procedure that pleadings be ‘simple, concise, and direct.’ ”
Here is an example of an answer:
The answer may also contain defenses that the defendant may offer in response to the plaintiff’s complaint. There are two main types of defenses that the defendant may put forth. First, the defendant may offer affirmative defenses, which are defenses that the defendant has the burden of proving. Some examples of affirmative defenses are previous settlement of the case (where the defendant claims that the issues of liability or damages that are raised in the complaint and have been previously settled), statute of limitations (where the defendant claims that the plaintiff has exceeded the legally allotted time to bring a lawsuit), and fraud. The other type of defense that may be brought are known, under the federal rules, as Rule 12(b) defenses. These defenses are enumerated in Rule 12(b) of the Federal Rules of Civil Procedure and are distinguished from affirmative defenses because these defenses place the burden on the plaintiff to disprove the defense. The defenses included are lack of jurisdiction over the subject matter, failure to state a claim (i.e., the plaintiff has failed to establish that he or she has a valid lawsuit), insufficiency of service of process (where the plaintiff failed to properly execute service of process of the complaint), lack of jurisdiction over the person (also known as lack of personal jurisdiction), and failure to join a necessary party to the lawsuit, among others. If the defendant is able to successfully put forth one of these defenses, he or she may successfully have the plaintiff’s complaint dismissed, in part or in whole. If the defense motion causes the entire complaint to be dismissed, the lawsuit is over. These defenses are discussed in greater detail in a later subchapter.