You were served with a lawsuit. what should you do?
“Being served” is simply the term describing the actual delivery of the lawsuit to you. Did you receive the lawsuit in the mail? Or, was it delivered to you in person at your doorstep? Were you in your state of residence when you were served? Is the lawsuit in your home-state or out of state? There could be any number of reasons that the “service” of the lawsuit was not proper which could have implications on how you respond to the lawsuit, or whether you are even required to respond at all? But, that is another issue to be addressed at another time.
Let’s assume for now that the “service of process” (which is the fancy term lawyers like to use) was proper. So. . . . now what do you do with this lawsuit you have against you?
RESPONDING TO THE LAWSUIT
You basically have 2 options.
Option 1: File an ANSWER to the lawsuit. This is a document you file with the Court in which you address each of the specific allegations in the Complaint/Lawsuit against you. The ANSWER does not have to be complicated. Generally, you will either admit or deny each of the specific allegations in the Complaint.
In Arizona you have 20 days from the date you were served with the Complaint to file your Answer with the Court. If you live outside of Arizona, but the lawsuit was filed against you in an Arizona court, you generally have 30 days to file your response/Answer. Of course, there are things you can do to procure a longer time to file your Answer (i.e., agreement with the opposing party or by obtaining a Waiver of Service which allows you more time), but you should generally follow the 20 or 30 day rule if you are uncertain.
Option 2: File a MOTION TO DISMISS. Before you jump into filing an Answer, sometimes circumstances will allow you to file a Motion to Dismiss the lawsuit entirely, or maybe you will just want to dismiss certain portions of the lawsuit. You do this by filing what is called a MOTION TO DISMISS (instead of an Answer). The MOTION TO DISMISS is filed using the same timelines as your Answer (i.e., the 20 or 30 day deadline). Some of the reasons you may file a Motion to Dismiss, for example, might be because they did not properly serve you with the lawsuit—which they are required to do. Or, maybe the court does not have jurisdiction over you because you live in New York, and someone brought a lawsuit against you in Arizona and you have nothing to do with Arizona and have never had any business dealings in Arizona. Or, perhaps the lawsuit asserts a claim against you that the law just does not recognize as a valid claim/lawsuit.
There are various reasons Motions to Dismiss may be filed, and those reasons can be complex in their analysis. In addition, you may lose your right to assert some of the arguments for dismissal if you do not raise them in a Motion to Dismiss before filing an Answer.
AVOID A DEFAULT JUDGMENT AGAINST YOU
If you do not respond to the lawsuit with an Answer or a Motion to Dismiss, you may have a Default Judgment entered against you which is the same as if the case had gone all the way to trial and you lost the case. You don’t want to have a default judgment entered against you to the extent you can avoid it—so file an Answer or a Motion to Dismiss. (There may be some limited reasons where an Answer would not need to be filed, for example, in the case that you have filed, or will be filing, Bankruptcy).
CONSIDER COUNTERCLAIMS
A final thing to consider when responding to a lawsuit is whether you have any counterclaims that you may want to assert against the other side. If you do not raise certain counterclaims in your Answer, you may lose the right to do so at a future time.
SEEK LEGAL ADVICE
Because the analysis of determining the proper timing of, and the manner in which you should respond to a lawsuit can be complicated, you really should seek the advice of an attorney who is experienced specifically in litigation matters. We here at Denton Peterson have years of experience in handling litigation matters from start to finish and through the appeals process if necessary.
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