Responding to the claim

Early steps available

What steps are open to a defendant in the early part of a case?

During the early stages of a proceeding, a defendant has several options to eliminate, limit or otherwise address the claims asserted against it. A defendant can move to dismiss a complaint for failure to state a claim, or for inadequate process or service of process. If the court lacks jurisdiction, a defendant can move for dismissal. If the court has jurisdiction, but the defendant believes another forum is more closely connected to the litigation or is more convenient to the parties and witnesses, the defendant can move to transfer venue. Similarly, if a defendant is sued in state court, but a basis for federal jurisdiction exists, he or she can remove the case to federal court. Defendants often seek removal because they prefer the uniformity and predictability of the federal system.

If there is no basis on which to seek dismissal or transfer of a case, a defendant must file a written answer. The defendant must also assert any compulsory counterclaims against the plaintiff, which are those arising out of the same transaction or occurrence at issue in the complaint. Finally, if the defendant believes a third party may be responsible for all or part of a claim asserted, he or she can bring that third party into the action by filing a third-party complaint.

Defence structure

How are defences structured, and must they be served within any time limits? What documents need to be appended to the defence?

A defendant initiates its defence by filing an answer, which must address each allegation made in the plaintiff’s complaint. The answer must also include a list of the defendant’s affirmative defences, which are those defences on which the defendant will bear the burden of proof at trial. If an affirmative defence is not asserted timely, it may be waived. In federal courts, an answer must be filed within 21 days after the plaintiff’s complaint is served, unless the defendant files a preliminary motion, in which case the answer need not be filed until 14 days after the court resolves the motion (if the case is not dismissed).

Changing defence

Under what circumstances may a defendant change a defence at a later stage in the proceedings?

A defendant may seek leave of court to amend its answer to assert additional affirmative defences at a later stage in the proceedings. Under Federal Rule of Civil Procedure 15, leave to amend should be freely granted, absent bad faith or prejudice to the opposing party.

Sharing liability

How can a defendant establish the passing on or sharing of liability?

If a third party may be liable for all or part of the damages claimed, a defendant may assert a third-party claim seeking contribution. The law governing contribution liability varies by jurisdiction. A defendant may also be entitled to indemnification from an insurer or other third party. Indemnification claims are generally governed by the terms of an applicable contract.

Avoiding trial

How can a defendant avoid trial?

A defendant can avoid trial by seeking dismissal of the plaintiff’s claims during the early stages of a case. After the parties have engaged in discovery, a defendant can move for summary judgment, which asks the court to resolve the case before trial where there is no genuine dispute of material fact to be resolved at trial. Defendants also frequently avoid trial by negotiating a settlement resolving the plaintiff’s claims.

Case of no defence

What happens in the case of a no-show or if no defence is offered?

If a defendant does not timely answer a complaint filed against him or her, the plaintiff can seek entry of a default judgment. A court entering a default judgment against a defendant will deem the defendant to have admitted liability to all conduct alleged in the complaint. Once default judgment has been entered, a court can enter judgment in the full amount of damages sought by the plaintiff if that amount is fixed by contract or statute. If the amount of damages is not fixed, the court will typically hold a hearing and consider evidence - including testimony - to determine the appropriate amount.

Claiming security

Can a defendant claim security for costs? If so, what form of security can be provided?

Under the American rule, each party is obligated to pay its own fees and costs, regardless of who wins or loses. Accordingly, a defendant generally cannot claim security for costs absent a statutory or contractual right.