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In Arizona, how long does a Defendant have to file an Answer to a Complaint if their initial Motion to Dismiss is denied?

Phoenix, AZ |

Plaintiff filed a civil Complaint in Superior Court. Defendant did not file an answer, only a rule 12(b)(6) Motion to Dismiss for failure to state a claim. Court denied the Motion to Dismiss. When would the Defendant have to file an Answer by, and is there an Arizona rule of which specifies when? If so, is it Rule (12)(A)(3)(A)? The court's minute entry of which denied the motion to dismiss did not specify a time for the answer to be filed by. It's been six months and no Answer has yet been filed. Application/Affidavit for default was filed BEFORE they filed the motion to dismiss, since they originally didn't respond to the complaint in any regard within 20 days.

I'm the Plaintiff. Also, to now seek default judgement, would I have to file a new application/affidavit for default judgement since the previous one I filed was filed before Defendant filed a motion to dismiss? Or does my original one still count?

Attorney Answers 1

Posted

Absent some other time set by the court, the rules of civil procedure would apply to the time-frame to respond after the denial of a 12(b) motion to dismiss. The application/affidavit for default filed before the Motion to Dismiss is no longer workable - the filing of the Motion to Dismiss is a responsive pleading that is required by the rules and precludes the entry of default. If there has been no answer or subsequent motion allowed by the rules a new application for entry of default would be appropriate. You may want to check with the court to make sure nothing has been filed and simply not mailed to you correctly before filing the motion.

This information is provided for general informational purposes and is not intended as legal advice. An attorney licensed in your jurisdiction can answer questions specific to your specific fact situation and provide you appropriate advice as necessary based on the specific facts of your matter and the jurisdiction in which you reside. If you are in Arizona and interested in discussing your matter further I can be reached at: (480) 838-9000 Mark D. Fullerton, P.C. 1839 S. Alma School Road, Suite 275 Mesa, Arizona 85210

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Thanks for the response, this is helpful information. Essentially, six months have gone by since the defendant's motion to dismiss was denied. In this time since the denied motion, they've never filed an answer. On the same token, I did NOT file a new application/affidavit for default entry, and per your response, it sounds like I should have done so. Now, the Defendants (six months since their denied motion to dismiss) have JUST filed an Answer. Do you think I can still move to strike their Answer it as untimely, even though I didn't file a new application/affidavit for default?

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