YOU’VE BEEN SERVED WITH A LAWSUIT: NOW WHAT?
by Caitlin Szematowicz on April 20th, 2020 in Business & Corporate Law, Litigation
If you have been named as a defendant in a lawsuit, and a process server has served a copy of the complaint and summons upon you, you may be wondering what you need to do.
Time to Response to a Complaint
Pursuant to Florida Rule of Civil Procedure 1.140, “Unless a different time is prescribed in a statute of Florida, a defendant shall serve an answer within 20 days after service of original process and the initial pleading on the defendant, or not later than the date fixed in a notice by publication.”
This means that a defendant shall generally serve an answer to the complaint within twenty days after the service of process. There are certain exceptions to this general rule – such as responding to an eviction action – so it is critical to understand when your responsive pleading is due. The time to respond to the complaint should appear on your summons.
It is important to ensure that you file a timely responsive pleading to the complaint. If you do not file a responsive pleading within the timeframe required by law, a default may be entered against you.
There are two types of default: a clerk default and a court default. Pursuant to Florida Rule of Civil Procedure 1.500, if a party fails to file or serve a document in the action, the plaintiff may request that the clerk enter a default against the defendant for failing to serve or file a document. This is known as a clerk’s default. Pursuant to Rule 1.500, the court may also enter a default when the defendant has failed to file or serve a document in the action. This is known as a judicial default or a court default.
If you do not file or serve a responsive pleading to the complaint, it is likely that the plaintiff will seek to have a default entered against you. Once a court’s default is entered, the plaintiff will then likely move forward with having a judgment entered against you.
If a default has been entered against you, you can move to set aside the default. You would need to establish due diligence, excusable neglect, and meritorious defenses in order for the trial court to consider moving to set aside the default. Thus, while the trial court can set aside a default or even vacate a final judgment in certain instances, you should certainly avoid a default.
For this reason, a defendant will typically file a responsive pleading. A responsive pleading to a complaint will generally either be an answer or a motion to dismiss.
An answer is one way for a defendant to respond to the plaintiff’s complaint.
Florida Rule of Civil Procedure 1.110 provides that an answer must state in short and plain terms the defendant’s defenses to the claim asserted. The answer will admit or deny the allegations to the complaint (or state the defendant is without knowledge). An answer also typically includes affirmative defense – which are legal or factual defenses in response to the complaint.
Pursuant to the Florida Rules of Civil Procedure, an answer must set forth the affirmative defenses of accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.
Motion to Dismiss
There are multiple reasons why a defendant would elect to file a motion to dismiss. Pursuant to the Florida Rules of Civil Procedure, a motion to dismiss may be filed for: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and/or (7) failure to join indispensable parties
A common motion to dismiss is known as a motion to dismiss for failure to state a cause of action. The Florida Rules of Civil Procedure require that the pleader state a cause of action, contain a short and plain statement of the jurisdictional grounds, a short and plain statement of the ultimate facts showing the pleader is entitled to relief, and a demand for judgment. Thus, if a plaintiff did not set forth a plain statement of the ultimate facts establishing entitlement to relief, a defendant may choose to file a motion to dismiss.
This type of motion to dismiss thus tests the legal sufficiency of the complaint in order to determine whether the complaint states a valid claim. When considering a motion to dismiss, a court must accept the well-pled allegations contained in the complaint as true, and the trial court generally has no authority to look beyond the allegations contained within the complaint. However, the court is not required to accept as true any allegations that are inconsistent with law. Further, the facts establishing the plaintiff’s right to relief must be clearly and definitely pleaded. This means that mere statements of opinion or conclusion unsupported by specific facts will not suffice.
The function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action. A motion to dismiss should only be granted where the non-moving party can prove no set of facts in support of the proffered cause of action.
If the trial court grants a motion to dismiss, the plaintiff may be permitted to amend the complaint in order to state a cause of action.
Motion for More Definite Statement
A motion to dismiss may include an alternate motion for a more definite statement, or a defendant may file a motion for more definite statement on its own.
The Florida Rules of Civil Procedure provide that “if a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, that party may move for a more definite statement before interposing a responsive pleading.”
If the trial court agrees that the complaint is vague or ambiguous, it will order the plaintiff to provide a more definite statement.
Contact the Skilled Attorneys at Battaglia Ross
There are other motions which may be applicable to your case – such as a motion to transfer or motion to quash service of process.
It is thus important to hire experienced trial counsel familiar with this area of law to defend you. In fact, in the State of Florida, if you are a corporate entity, you will need a lawyer. A corporation cannot appear pro se and must be represented by counsel.