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Being Sued?

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Being Sued?

If you know or received a civil COMPLAINT, take a deep breath and enter the LitigationMonster™ portal. Go to the Being Sued tab and read or listen to VIDEO 1 – BEING SUED.  Obviously, each STATE has different rules, laws and procedures. This guide will show general rules usually found in most states and specific examples and exemplars of California STATE law.  Learn the general issues here and then go to your STATE guide and court website to pull these topics and obtain the local rules, laws and procedures. Remember, even each courtroom may have its own rules. Call the courtroom or judge on your case and ask the clerk where you can get the rules of that judge. Follow the rules, step by step. Put one foot forward at a time.   This guide is of course NON-EXHAUSTIVE as there is endless details, rules, laws, and procedures which may or may not apply in certain situations. This is why lawyers or attorneys are an integral and necessary part of effective representation of clients. Everyone should seek to retain an attorney especially if one can afford to do so.  An attorney’s experience can prove to be invaluable in developing strategy and effecting the goal of the litigant.

Being Sued Options:

Generally, a defendant must file an ANSWER or proper MOTION within the time deadline set by the local court. For example, in California Superior Court, one must file and serve an answer within 30 days from the date service was perfected.  In Federal court its usually 20 days.

Generally, your choices are:

• Object to PERSONAL SERVICE of the COMPLAINT;
• Object to JURISDICTION of the COMPLAINT;
• ANSWER the COMPLAINT; or
• File a DEMURRER (if same is used as it is in the STATE of California);
• File a Motion to Dismiss (if in FEDERAL Court);

• Object to PERSONAL SERVICE of the COMPLAINT

Generally, SERVICE must be perfected to be effective or valid.  You may seek to OBJECT TO SERVICE on grounds of lack of personal jurisdiction. States vary as to these procedures but generally if you were not served the complaint or charging document, service was not perfected and you have a right to object. Some states may require you to file a MOTION TO QUASH SERVICE FOR LACK OF PERSONAL JURISDICTION along with the PROPOSED ANSWER or PROPOSED MOTION such as a DEMURRER.

There are many methods of SERVICE which may be used to perfect service upon you or a defendant. For example, Personal Service, Substituted Service, Publication Service, etc.  By example, California has the following methods for STATE court:

Personal Service (i.e.: process server hands defendant that Complaint)

Substituted Service (i.e.: process server leaves the Complaint with an adult at home address of defendant)

Publication Service (i.e.: court orders Complaint served by publication in common newspaper)

Object to JURISDICTION of the COMPLAINT

Generally, a court must have JURISDICTION over both the person and the subject matter to affect power over that person.

Personal Jurisdiction:

As indicated in the section above, a COMPLAINT must be SERVED to have the force of law. Once the COMPLAINT is SERVED on the person, the court has jurisdiction over that person. Violating the court power may result in sanctions or jail.  If the court lacks personal jurisdiction, generally a litigant can file a MOTION TO QUASH based upon LACK OF PERSONAL SERVICE.

Subject Matter Jurisdiction:

A court must also have SUBJECT MATTER JURISDICTION over the matter before it.  Generally, a litigant may object to the court’s lack of subject matter jurisdiction by filing a MOTION to dismiss or a DEMURRER.

ANSWER the COMPLAINT

Generally, a defendant must file an ANSWER the Complaint within the time deadline set by the local or state court rules. For example, in California Superior Court, one must file and serve an answer within 30 days from the date service was perfected.  In Federal court its usually 20 days.

 WARNING: If you are filing and serving an ANSWER or RESPONSE to a Complaint, do NOT be late or Plaintiff may move the court for a DEFAULT/JUDGMENT against you. If this happens, you generally, must file a timely MOTION TO SET ASIDE DEFAULT/JUDGMENT. See local rules for deadlines/forms.

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