A civil lawsuit is typically started with the filing of a complaint. The complaint identifies the plaintiff(s), who is the party or parties who are claiming they have been harmed and filed the lawsuit; it identifies the defendant(s), who is the party or parties claimed to have harmed the plaintiff; it describes the basis of the court’s jurisdiction and venue to handle the type of claims asserted in the complaint; it describes the basis for the court to assert personal jurisdiction over each defendant being sued; it describes the facts upon which the claims asserted are based; it describes the claims being made and the relief requested from the court. In addition to the complaint, a summons must be prepared and issued by the clerk. The summons is the formal directive from the court summoning the defendant to appear in the court within the time specified by law or a judgment may be entered against the defendant. Depending on the type of court where the lawsuit is filed, some ancillary papers must also be filed contemporaneously with the complaint.
Once the complaint is filed and the summons issued, the plaintiff must have them both served on each defendant typically within 120 days or less. After each defendant is served, they have a time period set by a court rule or statute for how long they have to file with the court an answer or a certain type of motion challenging the complaint. If the specified motion is filed, then the parties will file papers on the motion and the court will decide the extent to which, if at all, the lawsuit will proceed based upon the original complaint. Assuming the case continues to proceed, whether based upon the original complaint or perhaps based upon an amended complaint, once the motion is finally decided an answer will be filed. When answer is filed, a party has a mandatory obligation to file any claims arising from the same transaction or occurrence that is the subject matter of the complaint if no third person has to be brought in over whom the court lacks jurisdiction. In addition to mandatory counterclaims, a defendant also may file a permissive counterclaim asserting any other claims defendant may have against the plaintiff. When one files an answer to the complaint, one defendant may make a cross-claim against one of the other named defendants if the claim arises out of the same transaction or occurrence that is the subject matter of the complaint. When an answer is filed, a defendant may also file a third party complaint and have a summons issued for service to bring into the lawsuit someone who is not already a party and who is or may be liable to third-party plaintiff for some or all of plaintiff’s claims against the third-party plaintiff. For the counterclaim, cross-claim and third party complaint, the responding party can file an answer or a certain type of motion challenging these pleadings. This process serves to identify the claims going forward and the defenses to those claims.
In my next blog I will discuss the Discovery Phase of the Civil Litigation Process and the steps that are taken to resolve issues related to a lawsuit.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact us at 480.461.5300. log on to udallshumway.com, or contact an attorney in your area.