In Pro Per Document Preparation-State or Federal Court

What are a Summons and Complaint?

It is important to note that State and Federal Courts have their own different set of rules that govern how the court expects litigants appearing in its court to follow procedure. These include methods for filing papers with the court and requirements for appearing before the court. Therefore, to avoid delays, it is imperative that the local rules be checked to ensure that the litigant’s practice conforms to them

States have their own rules of civil procedure, some of which are considerably different than the federal rules. The Federal Rules of Civil Procedure are applicable in federal court while the state rules control for the state court. Thus, one cannot rely on a federal rule for a determination of how one must act in federal court. However, knowledge of the basics of the federal rules will assist understanding the requirements of all civil procedure rules, regardless of jurisdiction.

Under the federal rules, a civil lawsuit begins when a complaint is filed with the court. See Local Union No. 38, Sheet Metal Workers’ Intern. Ass’n, AFL-CIO v. Pelella, 350 F.3d 73, 82 (2d Cir., 2003) (“An action is . . . instituted when a plaintiff files a complaint as that constitutes the first step invoking the judicial process.”). Under some states’ rules, a civil lawsuit begins when the defendant is served with the summons and complaint. The complaint, which contains the plaintiff’s allegations against the defendant and the supporting factual basis for those allegations, is often accompanied by a summons. The summons is a written document that identifies the court in which the lawsuit will be heard, contains the signature and seal of the clerk and the court, and identifies the parties involved in the lawsuit. Both the summons and complaint must be properly filed with the other parties and the court before the lawsuit may proceed.

Counterclaim

If the defendant asserts his or her own harm as part of the same incident or transaction that gave rise to the lawsuit, the defendant can file a counterclaim against the plaintiff. For example, if the plaintiff sues you for damages resulting from a car accident, but you believe the plaintiff actually caused the accident (and that the plaintiff is, therefore, responsible for your resulting injuries) you would file a counterclaim against the plaintiff.

Cross-claim

A cross-claim is made by one co-party against another, meaning that a party on one side of the lawsuit makes a claim against a party on the same side. So here, a plaintiff sues another plaintiff within the larger case, or one defendant sues another.

Amended Pleadings

The court can give either party permission to file an amended pleading, which simply changes or expands on information provided in the original version of the document (an amended complaint might contain allegations not included in the original, and an amended answer might include affirmative defense not previously raised, for example).

Responses to Summons and Complaint Answer

An Answer is your written response to the allegations made in the Plaintiff’s complaint. If you do file just an answer when an Unlawful Detainer is pending against you, you may lose certain rights the law affords you, while at the same losing precious extra time you could gain to get yourself off of your feet. An answer is one of the several documents you can file with the court to respond to a complaint.

The answer may also contain defenses that the defendant may offer in response to the plaintiff’s complaint. There are two main types of defenses that the defendant may put forth. First, the defendant may offer affirmative defenses, which are defenses that the defendant has the burden of proving. Some examples of affirmative defenses are previous settlement of the case (where the defendant claims that the issues of liability or damages that are raised in the complaint and have been previously settled), statute of limitations (where the defendant claims that the plaintiff has exceeded the legally allotted time to bring a lawsuit), and fraud. The other type of defense that may be brought are known, under the federal rules, as Rule 12(b) defenses. These defenses are enumerated in Rule 12(b) of the Federal Rules of Civil Procedure and are distinguished from affirmative defenses because these defenses place the burden on the plaintiff to disprove the defense. The defenses included are lack of jurisdiction over the subject matter, failure to state a claim (i.e., the plaintiff has failed to establish that he or she has a valid lawsuit), insufficiency of service of process (where the plaintiff failed to properly execute service of process of the complaint), lack of jurisdiction over the person (also known as lack of personal jurisdiction), and failure to join a necessary party to the lawsuit, among others. If the defendant is able to successfully put forth one of these defenses, he or she may successfully have the plaintiff’s complaint dismissed, in part or in whole. If the defense motion causes the entire complaint to be dismissed, the lawsuit is over.

Motion to Quash Service of Summons

Motion to Quash Service of Summons – a legal response that a Defendant can file in a lawsuit if the Defendant believes that the Plaintiff did not properly serve the summons and complaint. A timely filed motion to quash avoids entry of default (CCP § 585(b)); and also does not subject defendant to the court’s personal jurisdiction.Within the thirty-day pleading deadline, defendants may file a motion to quash service of summons. Broadly, a motion to quash is used to challenge the court’s personal jurisdiction over the moving party.If you have been served with papers illegally, meaning the person serving left the papers on your doorstep, or any other way where an actual person didn’t receive them, don’t sit around. You have options.

Motion to Strike

A Motion to Strike is a legal motion given by one party in a trial requesting the presiding judge order the removal of all or part of the opposing party’s pleading to the court. Motions to strike are most commonly asserted by the defendant to a matter contained in the plaintiff’s complaint; however, they may also be asserted by plaintiffs to a defendant’s answer or other pleadings such as cross-complaints. Federal Rules of Civil Procedure Rule 12(f)states that if a complaint contains “any redundant, immaterial, impertinent or scandalous matter,” it can be stricken upon motion. Similarly, California Code of Civil Procedure section 436 provides, in part, that a motion to strike may be made to strike out any “irrelevant, false, or improper matter inserted in any pleading.” A motion to strike is also used to request elimination of all or part of a trial witness’s testimony. During a jury trial, if the motion to strike witness testimony is accepted, the jury is instructed to disregard the stricken statements.It not only may get the case dismissed, but it could buy you extra time.

Demurrer

A written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. A hearing before a judge (on the law and motion calendar) will then be held to determine the validity of the demurrer. Some causes of action may be defeated by a demurrer while others may survive. Some demurrers contend that the complaint is unclear or omits an essential element of fact. If the judge finds these errors, he/she will usually sustain the demurrer (state it is valid), but “with leave to amend” in order to allow changes to make the original complaint good. An amendment to the complaint cannot always overcome a demurrer, as in a case filed after the time allowed by law to bring a suit. If after amendment the complaint is still not legally good, a demurrer will be granted sustained. In rare occasions, a demurrer can be used to attack an answer to a complaint. Some states have substituted a motion to dismiss for failure to state a cause of action for the demurrer. It not only may get the case dismissed, but it could buy you extra time.

Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6)

A motion to dismiss asks the court to dismiss either whole or part of a complaint, counterclaim, or crossclaim.

Discovery

The discovery process is the period in the litigation when information related to the substance of the lawsuit is gathered by both parties. It normally begins after the parties’ pleadings (the plaintiff’s complaint and the defendant’s answer) are finalized and are completed prior to the beginning of the trial. Discovery, as it is generally referred to, is a crucial period in a lawsuit. The information and evidence gathered during discovery determine what the lawyers will present at trial. Thorough information gathering is, therefore, necessary to build a strong case and a sound discovery plan and execution will increase the likelihood of a successful outcome.

Different Types of Discovery Include:

• Form Interrogatories
• Special Interrogatories
• Request For Admissions
• Depositions
• Request For Production Of Documents
• Physical and mental examinations
• Subpoenas

Miscellaneous Motions and Oppositions to Motions

A motion is a way to ask the court for certain action. The party will “move” the court for an order or other action. Motion practice is a substantial part of litigation. A timely, persuasive, and thorough motion can cause an entire count to be stricken from the complaint, can cause an entire case to be dismissed before it gets started, or can even cause judgment to be rendered on either whole or part of the case without a jury or judge hearing a single witness’ testimony.

The ways in which, and when, motions must be presented, are governed by rules specific to the jurisdiction in which the case is pending. Unless the motion concerns something administrative, such as a motion for a continuance or rescheduling of discovery, a memorandum of law must accompany most motions, especially those concerning legal questions or the application of law to the facts of the case. Also, it is essential to review the local rules of the court to determine whether additional requirements are imposed, such as paper dimensions, margin size, format, page limitations, etc. Some courts also require a special backing paper onto which all filings must be attached.

Motions look like pleadings in that they usually begin with the name of the court, followed by the caption, the title of the motion, the body of the motion, the “wherefore” clause (i.e., the relief requested), and the litigant’s signature.

Different Types of Motions Include:

• Motion For Reconsideration From Dispositive Order
• Motion For Reconsideration From Non-Dispositive Order
• Motion To File A Late Brief
• Motion To File Nonstandard Brief
• Motion To File Oversized Brief
• Motion To File Substitute Or Corrected Brief
• Motion To File Supplemental Brief
• Motion To Reinstate Case After FRAP 42-1 Dismissal
• Motion To Withdraw As Counsel
• Motion For Summary Judgment
• Motion For 46-5 Exemption
• Motion For Appointment Of Counsel
• Motion For Appointment Of Pro Bono Counsel
• Motion For Attorney Fees
• Motion For Bail Pending Appeal Or Trial
• Motion For Certificate Of Appealability
• Motion For Certification To State Supreme Court
• Motion For Injunction Pending Appeal
• Motion For Miscellaneous Relief (To Be Used Only If No Other Relief Applies)
• Motion For Sanctions
• Motion For Summary Affirmance
• Motion For Summary Disposition
• Motion For Summary Reversal
• Motion To Assign Case To Prior Panel
• Motion To Compel Supplementation Of Excerpts Of Record
• Motion To Complete Production Of Reporters Transcript At Government Expense
• Motion To Consolidate Cases
• Motion To Continue Hearing
• Motion To Dismiss Case For Failure To Prosecute Under Circuit Rule 42-1
• Motion To Dismiss For Lack Of Jurisdiction
• Motion To Dismiss Party From Case
• Motion To Dismiss The Case
• Motion To Dismiss The Case Voluntarily Pursuant To Rule 42b
• Motion To Expedite Case
• Motion To Extend Time To Comply With Order
• Motion To Extend Time To File COA Request
• Motion To Extend Time To File FRAP 9a Memorandum
• Motion To Extend Time To File Mediation Questionnaire
• Motion To Extend Time To File Agency Record
• Motion To Extend Time To File Appellant Designation Of Reporters Transcript
• Motion To Extend Time To File Appellee Designation Of Reporters Transcript
• Motion To Extend Time To File Appendix
• Motion To Extend Time To File Bill Of Costs
• Motion To Extend Time To File Brief
• Motion To Extend Time To File Opposition
• Motion To Extend Time To File Petition For Rehearing
• Motion To Extend Time To File Record On Appeal
• Motion To Extend Time To File Reply
• Motion To Extend Time To File Response
• Motion To File A Late Brief
• Motion To File Addendum
• Motion To File Appendix
• Motion To File Joint Brief
• Motion To File Late Opposition (To File Motion And Opposition Together)
• Motion To File Late Petition For Rehearing (To File Motion And Petition For Rehearing Together)
• Motion To File Nonstandard Brief
• Motion To File Oversized Brief
• Motion To File Oversized Petition For Rehearing
• Motion To File Substitute Or Corrected Brief
• Motion To File Supplemental Brief
• Motion To File Supplemental Briefing For Petition For Rehearing
• Motion To File Supplemental Excerpts Of Record
• Motion To Hear Case With Other Case
• Motion To Join In Existing Brief
• Motion To Lift Stay
• Motion To Present Oral Argument By Video
• Motion To Proceed In Forma Pauperis
• Motion To Recall Mandate
• Motion To Refer Case To Mediation
• Motion To Reinstate Case After FRAP 42-1 Dismissal
• Motion To Remand Case
• Motion To Request Publication Of Memorandum Disposition
• Motion To Reschedule Oral Argument
• Motion To Stay Lower Court Action
• Motion To Stay Proceedings
• Motion To Stay Proceedings Pending Settlement
• Motion To Stay Removal/Deportation
• Motion To Stay The Mandate
• Motion To Strike Portion Or Whole Of Document
• Motion To Submit Case On Briefs
• Motion To Substitute Counsel
• Motion To Substitute Party
• Motion To Supplement Or Amend Mediation Questionnaire
• Motion To Supplement Or Amend Designation Of Reporters Transcript
• Motion To Supplement Record On Appeal
• Motion To Take Judicial Notice
• Motion To Transfer Appeal To Other Circuit
• Motion To Unseal Document
• Motion To Waive Filing Of Excerpts Of Record
• Motion To Waive Filing Of Motion To Supplement Or Amend Mediation Questionnaire
• Motion To Withdraw As Counsel

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