An action is commenced by filing the summons and complaint with the Court. This is the step that stops the statute of limitations. Then, the plaintiff has a period of 120 days in order to effectuate service of process. Usually, service of process can be accomplished quite early in that 120-day period.
What Occurs After Service Of The Summons & Complaint?
Depending upon the method of service, the defendant(s) will have 20 or 30 days to answer or otherwise respond to the complaint. In other words, the defendant has two options here. It can either file a document that is called an "Answer" or it can make a motion to dismiss without filing an answer.
What Is An Answer?
An "Answer" is a series of numbered paragraphs that correspond to the paragraph numbers in the complaint. It a completely legalistic document that may include such scintillating statements as: "In response to paragraph 84 of the Complaint, defendant John Smith denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained therein." Or "Defendant repeats and realleges each and every allegation contained in paragraphs "1" through "83," inclusive, hereof, with like force and effect as though set forth at length herein."
Basically, the defendant must choose between any of several responses for each paragraph: A defendant may admit all or part of the allegations in a paragraph; may deny all of part of the allegations; may deny knowledge or information sufficient to form a belief; or a combination thereof. The answer may also set forth affirmative defenses -- defenses that the defendant would have the obligation to prove, such as tha
What Is A Motion To Dismiss?
Just as it sounds, a motion to dismiss is an application to the court to get rid of the lawsuit altogether. It can be based on any of several possible grounds, but four of the most common grounds are:
a. Failure to state a cause of action upon which relief may be granted;
b. Expiration of the statute of limitations;
c. Lack of personal jurisdiction; and,
d. Lack of subject matter jurisdiction.
How Do These Grounds To Dismiss Apply?
"Failure to state a cause of action" means defendant claims plaintiff has not properly made out the cause of action, or that no such claim is actionable. A statute of limitations-based motion to dismiss means defendant claims the action is time-barred. Each cause of action has a different limitations period (i.e., breach of contract is 6 years in NY, negligence is 3 years; slander it 1 year). Lack of personal jurisdiction means jurisdiction was never properly acquired over defendant because he or she was not properly served with process. The court thus must dismiss. Lack of subject matter jurisdiction means the court does not have jurisdiction to hear the case. As a simple example, let's say that P, a Montana resident, sues D, an Alaska resident, for negligence due to a car accident that occurred in Wyoming. That's all well and good, but NY has no connection to the matter and thus the court has no jurisdiction. If the case is not dismissed, we move on to discovery.
What Is Discovery?
Discovery is the process by which the parties collect and exchange information about the facts underlying the lawsuit or the defense of the lawsuit. There are several possible methods by which this information is gathered. One method is interrogatories -- written questions that are answered in writing. Interrogatories can occasionally be useful, but because the responses are crafted by attorneys, they often shed relatively little light on the underlying facts.
Document requests are a powerful discovery device; as its name indicates, it is a request for documents related to particular facts that are relevant to the lawsuit.
Finally, depositions are the most powerful discovery device of all. A deposition is an in-person interrogation of a party or witness. It is usually held at a lawyer's office, but occasionally will be conducted at the courthouse or another location. A court reporter transcribes every word that is said. There is also authority for a videotaped deposition.
What Happens After Discovery?
The conclusion of discovery usually signals a defendant's right to move for summary judgment. Although plaintiff can also make a motion for summary judgment, plaintiffs ordinarily do not make such a motion.
What Is A Motion For Summary Judgment?
A motion for summary judgment is a request to the court by either party to resolve the case without a trial. The motion is an attempt to sidestep a trial.
The premise in a motion for summary judgment is that all of the evidence amassed thus far suggests that there is no genuine issue of material fact; in other words, that there is no real dispute as to the important facts and that therefore there is no need for a trial because the judge can simply apply the law to the established and undisputed facts. In a trial, the judge tells the jury what law to apply to the facts that the jury determines; if indeed there were no genuine issues of material fact, then there is no need for a jury trial.
Are Motions For Summary Judgment Common?
Motions for summary judgment are very common. Although the motion can be made at any point, it is usually made when trial would otherwise be the next step. Even if the defendant makes a motion for summary judgment and that motion is unsuccessful, the motion may still have been worthwhile to defendant's attorney, because such a motion forces the plaintiff to show all of his or her cards. After a motion for summary judgment, there usually are no secrets at all left in the case. That is because the stakes are so high -- a party dare not leave out any important evidence.
What Happens After The Summary Judgment Motion?
The motion can be granted, denied, or granted in part and denied in part. If it is completely granted, the case goes away. If it is denied in its entirety, the whole case goes to trial. If it is partly granted and partly denied, some claims may be dismissed and other claims may remain for trial. Stated more simply, any part of the case that remains after the court's decision on the summary judgment motion is what goes to trial.
Are Other Motions Available During The Proceeding?
There are plenty of other motions that can be made by either party. A full explanation of other motions could fill a short book. Since a motion is nothing more than an application to the court, you can imagine that there are a variety of other such applications that can be made.
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