Re: JDB's lawsuit - answer and Affirmative Defenses
Date: Sat, 01/24/2009 - 13:09
Let's say, along with your answer to a complaint in a civil action you raise affirmative defenses that challenge the validity of the complaint and the legal requirements that they must have to be able to prove their case, and you know for certain that they will not be able to provide them in order to win;
Do you have to file your answer along with your complaint or can u file your answer on one day and then your affirmative defenses on another? Can you file your affirmative defenses before you file your answer? Should you file on required appearance date or before? Could filing answer along with complaint before (basically letting plaintiff know before hand that he has no case) just allow plaintiff more time to come up more ambiguous reasoning on the appearance date? Can filing on the appearance date give me a better chance of dismissal of the case?
I was wondering because my county court rules (simplified civil procedure) say:
a) Pleadings. There shall be a complaint and an answer which may or may not include a counterclaim. No other pleadings shall be allowed except by order or court.
b) Motions. Written motions are not permitted except by order of court or when specifically required by rule herein or when any rule herein requires that the motion be verified or accompanied by an affidavit.
c) Demurrers, Pleas, etc., Abolished. Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used.
With these court rules, it seems to me that I have no rights as far as trying to get a complaint dismissed or quick dismissal of the case.
I don't even think that the plaintiff will even show up in court. (Plaintiff, CA lawyer is over 2 hours away) Can the plaintiff ask for dismissal after I file my answer with the court?
Quote:challenge the validity of the complaint and the legal requ
Quote:
challenge the validity of the complaint and the legal requirements that they must have to be able to prove their case |
That's not an Affirmative Defense. An Affirmative Defense would be SOL, Mis-identified consumer, etc.
Okay, I guess I will have to just file my answer along with my a
Okay, I guess I will have to just file my answer along with my affirmative defenses. If I understand my CRCP rules correctly then I will have to assume that I am unable (not allowed) to object to the complaint and ask for it to be dismissed. So now I am left with desperation to try and get this case desolved as soon as possible. I am suppose to move (out of state) February 1st, and my initial appearance date is February 9th.
I've been reading alot in this forum about affirmative defenses. Expecially how the plaintiff usually just tries to motions to strike them. I've also read in this forum (and statutes for my state, Colorado) that if you don't raise them along with your answer to the complaint then you waive the right to use them later in the case. Since I have to be in a big hurry to desolve this case, should I only raise one important affirmative defense or is it best to raise all of the ones that apply? I don't want to make alot of work for the plaintiff because I don't want him to have any excuses for needing to take a long time to gather information during discovery process. Make sense?
