Shira Forman ()
Your client has been sued, and the summons and complaint that initiated the lawsuit have landed on your desk. After considering and ruling out some of the possible next steps—a motion to dismiss, removal, and jurisdictional objections, to name a few—the task at hand is to file a strong and thorough answer to the complaint. Here are some guidelines and strategies for drafting an answer that will serve your client well as the case moves forward.
Calculate Time to Respond
The first thing to do upon receiving a summons and complaint is to note the date on which the client was served. In a New York state court case, the answer must be filed within 20 days of personal service of the complaint, or within 30 days of the time when service by any other means is effective. In federal court, in most cases, a defendant must respond within 21 days after service of the complaint. (Consult the applicable rules for guidance on how to obtain, if necessary, an extension of time to answer the complaint.)
Is Defendant Named Correctly?
Complaints often name the wrong defendants. In the case of a corporate defendant, a complaint may erroneously list a “D/B/A” name instead of the defendant’s registered legal name or name a parent company instead of a subsidiary, or vice versa. Regardless of who is named as a defendant, you should make sure to enter an appearance and answer only on behalf of the proper individual or legal entity. The New York Secretary of State website has a corporation database which is a good resource for ascertaining correct legal names of businesses and other helpful information about the parties.
Do Your Research
As with drafting a complaint, it is important to gather as much information as possible before you get started. Review each allegation with your client and determine whether there are witnesses or documents that either support or contradict the facts alleged. Explore whether there are facts that give rise to affirmative defenses or counterclaims. Although you have the option of asserting a general denial, courts look more favorably upon answers with specific admissions and denials, as it is rare that a complaint will contain no facts which can be admitted.
Respond to the Allegations
The crux of the answer is the defendant’s numbered statements admitting or denying the allegations in the complaint. For each numbered allegation in the complaint, state clearly whether the defendant admits or denies the allegation. Any allegation that is not responded to will be considered admitted.
An allegation can be admitted in part and denied in part, but be sure to specify which part of the allegation is admitted and which is denied. For example: “Defendant denies the allegations in Paragraph 12 of the Complaint, except Defendant admits that he began working for the Plaintiff in May 2005.”
CPLR 3018(a) requires that, for each denial, the defendant must assert whether the denial is based on the defendant’s knowledge, on defendant’s information or belief, or on lack of sufficient knowledge and information. Denial based on lack of sufficient knowledge or information should not be pled in connection with an allegation that is a matter of public record. When appropriate, you can also answer that a particular allegation calls for a conclusion of law for which no response is required.
Plead Affirmative Defenses
After responding to the plaintiff’s allegations, the defendant has the opportunity to raise any available affirmative defenses—defenses that, if successful, will defeat the plaintiff’s claim even if the allegations in the complaint are determined to be true. CPRL 3018 describes affirmative defenses as “matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading.” CPLR 3018 also offers a helpful (but not exclusive) list of possible affirmative defenses: “arbitration and award, collateral estoppel, culpable conduct claimed in diminution of damages as set forth in article 14-A, discharge in bankruptcy, facts showing illegality either by statute or common law, fraud, infancy or other disability of the party defending, payment, release, res judicata, statute of frauds, and statute of limitation.”
Often, defendant’s counsel, for fear of waiving an affirmative defense, lists every possible affirmative defense that could potentially apply, even if it is irrelevant to the facts at hand. This “kitchen sink” approach to pleading affirmative defenses can backfire as some judges may question on what basis your client is pleading each defense. It is also important to bear in mind that any affirmative defense you assert will, later down the line, require the production of discovery—potentially leading to increased costs—and will have to be supported by evidence at trial.
Some defense counsel believe that the best defense is a good offense, and counterclaims represent a defendant’s chance to bolster its defense by raising claims against the plaintiff. Your counterclaims should be set forth in a separate section of the answer and should follow the format of a complaint.
A defendant may also plead a cross-claim against another defendant or a third party complaint against someone who is not yet a party to the case.
When asserting counterclaims, be sure that they are directly related to the causes of action alleged in the complaint. New York courts have held that when a defendant interposes a counterclaim that is unrelated to the plaintiff’s claim (e.g., a counterclaim in a breach of contract action that involves a different transaction than the one discussed in the complaint), the defendant waives any personal jurisdiction defense it may have had since it has taken affirmative advantage of the court’s jurisdiction.
Ask for Relief
Like a complaint, an answer should end with a “Wherefore” clause in which the defendant demands relief. A defendant’s requests may include denial of plaintiff’s requests for relief, dismissal of the case, awarding of the relief requested in the counterclaims, and an award of attorney’s fees and costs to the defendant. A typical “Wherefore” clause in an answer would be, “WHEREFORE, Defendant prays that this court dismiss the complaint of the plaintiff herein, with costs and disbursements to defendant, together with any other relief the Court finds to be just and proper.”