The Clock Is Ticking
So it’s happened, you have been
served with a complaint, and now you have a lawsuit to defend. Whether
this is the long awaited culmination of a drawn out business dispute,
or a nasty surprise the company didn’t see coming, the clock is
ticking. Courts take a no nonsense approach with deadlines, and
missing one can have dire consequences.
Failing to file a responsive
pleading can lead to an entry of default and eventual default judgment
being entered against the company. Which means that you lost the
case, or at minimum will have to pay the additional legal expenses of
fighting for relief from the judgment, just to get back to square one.
In California, for most claims
you generally have 30 days from the time you were served the complaint
to file a responsive pleading. Cal. Civ. Proc. Code §412.20. If
you’ve been sued in Federal court, you may have as little as 21 days.
Fed. Rule Civ. Proc. 12(a)(1). There are exceptions to these rules,
for instance, unlawful detainer claims require a response in only 5
days! Cal. Civ. Proc. Code §§ 1167, 1167.3
This is not an exorbitant amount
of time considering that during this time the complaint will need to
travel through corporate channels, an attorney will have to be hired
(if you don’t currently have a litigation attorney you may need to
interview several), money will have to be accumulated to pay the
attorney’s retainer, corporate documents relevant to the complaint may
need to be located and reviewed, and lastly, your attorney will need
enough time to prepare the proper responsive pleadings.
Depending on the complexity of
the complaint, your attorney may need several days to prepare a
responsive pleading. (I’ll discuss the most common responsive
pleadings in a future post). Some pleadings like a simple answer may
not require extensive research by the attorney and can be completed in
several hours. Others like a demurrer, also known as a motion to
dismiss in Federal court, may take several days, and or may need to be
filed with additional pleadings like a motion to strike. These types
of responsive pleadings can require a significant amount of legal
research and time to draft properly.
In short, the company should
start building its defense team and working on its defense strategy
within a few days of being served, and in cases where litigation is
expected, the company should discuss the case with an attorney even
prior to being served.
