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CHAPTER 8: OVERVIEW OF CIVIL CASES - Table of Contents

8.1 - Introduction8.2 - Where to find civil law8.3 - Starting a civil case: the complaint8.4 - Serving the complaint8.5 - Responding to the complaint8.6 - Requesting a jury8.7 - Alternate Dispute Resolution8.8 - Initial Procedural Requirements8.9 - Pretrial Discovery8.10 - Summary judgment motions8.11 - Trial8.12 - Damages, Costs and Attorneys Fees

8.5 RESPONDING TO THE COMPLAINT

Once served or otherwise notified of the Plaintiff's Complaint, the Defendant has a number of decisions that must be made.

In the vast majority of cases, the Defendant's first step is to file an Answer with the court, responding to the Complaint's factual allegations and legal claims, and asserting "affirmative defenses" to those claims. If the Defendant were served within the State, the Answer in a state-court case is due within 20 days of such service; service outside of Colorado results in a 30-day period.

Instead of initially filing an Answer, the Defendant sometimes has other options available. If there is an indication that the Plaintiff's service of process has been procedurally proper, the Defendant could challenge that by filing a motion "to quash" such service. If there are questions whether the Colorado court properly has personal jurisdiction over an out-of-state resident or company, the Defendant could file a motion to dismiss the Plaintiff's complaint for lack of jurisdiction. And if there is arguably no legal basis at all for the Plaintiff's claims, the Defendant could file a motion to dismiss the Complaint on the ground that it fails to state a proper claim that could result in the requested relief. [Because such a motion requires the court to assume all of the facts alleged by the Plaintiff are true and to interpret those facts in the light most favorable to the Plaintiff, such a motion is rarely successful, unless the Plaintiff is asserting an unusual or innovative claim.] All of these motions will have the effect of postponing the Defendant's actual Answer until the motion is resolved. Like most motions, the parties will usually present their legal arguments in written briefs filed with the court. If factual disputes are raised by preliminary motions, a hearing will be held by the Court to resolve them. Often such motions are decided by the court based on the parties' written submissions alone; sometimes a judge will prefer a hearing for the parties to present additional arguments, and occasionally an actual evidentiary hearing at which witnesses testify in person may be necessary.

A defendant who is not a Colorado individual or business and who has been sued by a Colorado resident or company has an additional option available: transfer of the case from state to federal court. In order to prevent residents of other states from getting "home-towned" in a hostile court in another state, Congress has provided the option of "removal" of the case to the presumably less-parochial federal court located in that state if there is a "diversity of citizenship between the parties: that is, if all of the plaintiffs are residents of one state, and if none of the defendants are residents of that state. For example, if two Boulder County residents are injured in a car accident by a truck owned by a South Dakota trucking company and driven by a Nebraska resident and sue both Defendants in the Boulder County District Court for state common-law negligence claims, either Defendant could choose to "remove" that case to the Colorado Federal District Court, even though that court would otherwise not usually handle such state-law claims. It will generally take much longer for such a removed diversity case, however, to be resolved in the federal court than if it remained in state court (which the defendant would usually not mind).

If the Defendant does not have such preliminary options available or does not choose to exercise them, the primary decision is what "affirmative defenses" to include in the Answer. A defendant sued for having breached a contract, for example, may simply deny that any such breach occurred. The Defendant may also have certain "affirmative defenses" available that would supplement that denial or would alternatively assert that even if a breach occurred, there is a legal excuse for that breach or a legal obstacle to the Plaintiff's claim. Defendant's Rule 8 of the Colorado Rules of Civil Procedure lists these affirmative defenses:

• accord and satisfaction (the parties previously had a contract, a dispute arose about what one party should be required to do, they previously agreed to a resolution of that dispute (an accord), and the Defendant now alleged to have breached the original contract performed (the satisfaction) everything required under the accord);
• arbitration and award (the parties' dispute was previously raised and resolved in an arbitration proceeding);
• assumption of risk (even if the Plaintiff were injured by the Defendant's negligence, the Plaintiff had assumed that risk by his own conduct and cannot complain);
• contributory negligence (even though the Plaintiff were injured partially because of the Defendant's negligence, the injury was more than 50 percent the result of the Plaintiff's own negligence and thus she cannot recover);
• discharge in bankruptcy (the Plaintiff's claim was resolved (discharged) in a prior bankruptcy proceeding commenced by the Defendant);
• duress (the parties' agreement was the product of duress brought against the Defendant);
• estoppel (the Plaintiff has previously assured the Defendant that it was excusing the Defendant's breach of contract and the Defendant relied on those assurances);
• failure of consideration (the contract allegedly breached (such as a unilateral promise of a gift) was not based on an exchange of promises (consideration) and is therefore not enforceable);
• fraud (the Defendant only entered into the contract because the Plaintiff misrepresented or concealed important background facts);
• illegality (the contract is unenforceable because its objective was illegal);
• injury by fellow servant (because the Defendant was a co-worker when his actions injured the Plaintiff, the Plaintiff cannot sue him because the exclusive remedy is workers' compensation benefits);
• laches (the Plaintiff waited an unconscionable and unfair period of time before suing the Defendant);
• license (the Plaintiff had previously granted permission (license) to the Defendant to do the complained-of actions);
• payment (the Defendant has in fact paid the amounts Plaintiff claims are owed);
• release (the Plaintiff previously released the Defendant from any liability for the now-asserted claims);
• res judicata (the Plaintiff's claims were resolved in a previous court action between the parties or their agents);
• statute of frauds (the parties' oral agreement (such as for the sale of land) is unenforceable because it was of the type required by Colorado's "Statute of Frauds" to be in writing);
• statute of limitations (the Plaintiff waited too long to bring its claim (for example, more than three years following a car accident) under Colorado 's Statute of Limitations); and
• waiver (the Plaintiff has previously voluntarily given up the right to sue for the claim now asserted).

These affirmative defenses are not really resolved in any different way than the Defendant's mere denial of the Plaintiff's claims, except that it is the Defendant who has the burden of proving such defenses, whereas the Plaintiff has such "burden of proof" as to its own claims.

A defendant also has the option of pursuing its own claims ("counterclaims") against the Plaintiff. If the claim arises out of the same transaction which underlies the Plaintiff's claim, the Defendant's claim would be a "compulsory counterclaim" which could be asserted only in the case initiated by the Plaintiff (that is, the Defendant could not bring it in a separate or later proceeding). For instance, if a home-buyer sued a general contractor for a defectively-constructed house, the contractor's claim for the unpaid balance of the purchase price would be a compulsory counterclaim. If the contractor instead had a claim based on the home-buyer having backed his car into the contractor's pickup parked in the driveway, that would instead be merely a "permissive counterclaim," which the contractor could choose, but would not have, to pursue in the same action.

A defendant who does not timely respond to a complaint by either filing an answer or a motion to dismiss runs the risk that the court will enter a judgment in the plaintiff's favor by "default."

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