Pleadings, Request for Orders, and Lis Pendens

Responsive Pleadings. In response to an initial complaint in Circuit Court, D may file:

A motion to dismiss (terminate the action), a motion for bill of particulars (pleading for other relief), an answer that responds directly to the complaint, or Defendant’s own aggressive pleading (counterclaim)

In Circuit Court, D’s responsive pleading must be filed when:

Defendant’s responsive pleading must be filed within 21 days after process is served on the defendant, unless the defendant has waived service of process

In General District Court, a responsive pleading

Defendant does not have to file a responsive pleading to aggressive pleading

When does Defendant have to file an answer when Defendant filed a motion to dismiss, demurrer, motion for bill of particulars, or plea

The defendant must file an answer within 21 days after the entry of the court order overruling the defendant’s responsive pleading unless the court states otherwise

Affirmative Defenses

If Plaintiff files, the allegations are true, Defendant may assert an affirmative defense which bars plaintiff recovery

Example of Affirmative Defenses

Accord and satisfaction, adequacy of legal remedy, collateral estoppel, res judicata, unclean hands, fraud, illegality, impossibility, infancy, laches, mistake, statute of frauds, and statute of limitations

Plea in Bar

asserts a single factual issue that if resolved in favor of the defendant constitutes a complete defense to one or more of plaintiff’s claims

Demurrer

contends that the aggressive pleading does not state a cause of action or that the pleading fails to state facts upon which the relief demanded can be granted. Can be used to seek dismissal of the action based on lack of subject matter jurisdiction

When should a demurrer be filed?

Must be pled before or at the same time as filing an answer

Motion to Strike a Pleading

A challenge to the sufficiency of a responsive pleading

What is the difference between a motion to strike a pleading and demurrer

Demurrer relates to an aggressive pleading. Motion to strike a pleading relates to a responsive pleading

Aggressive Pleadings

a pleading that contains a claim for relief, such as complaint or counterclaim

Initial pleading in CC requires

Complaint must contain the specific relief sought. If complaint requests an award for money damages, it must contain an ad danum clause stating the amount of damages sought

Initial pleading in General District Court requires

Plaintiff may file a complaint. However, it is more common to use one of the forms available online, such as a warrant in debt, warrant in detinue, distress petition, or summons for unlawful detainer

Counterclaim

Claim made by a defendant against one or more plaintiffs. It does not need to relate to any transaction that forms the basis of a claim against the defendant made by the plaintiff in the inital pleading

Cross Claim

Claim made by a defendant against another defendant. Claim must come from a matter pleaded by the plaintiff in the initial complaint.

Third Party Claim

claim by defendant against a third party whom Defendant asserts is or may be liable for all or part of plaintiff’s claim

Motion for Bill of Particulars

a request for a court order compelling a party to elaborate on any pleading that does not provide notice of a claim or defense sufficient to allow the opposing party a fair opportunity to respond or prepare a case

When does a response need to be provided after filing a motion for bill of particulars?

A party has 21 days after Bill of Particulars is filed in which to file a response

Motion to Object Venue (circuit court)

In Circuit court, must be filed within 21 days after service of process.

Motion to Object Venue

In General District Court, must be filed with or received by the court on or before the day of trial.

Motion to Quash service of process

Defendant who has been served with process may file a motion to quash service of process based on a defect in the issuance, service, or return of process

When does a motion to quash need to be filed?

A motion to quash service of process must be filed before or simultaneous with the filing of any pleadings

Motion to Dismiss for failure to serve process

D may make a special appearance to file a motion to dismiss when plaintiff fails to file service of process within a year of filing initial pleading.

Other Challenges to service of process or lack of personal jurisdiction

Defendant must enter a special appearance to object to lack of personal jurisdiction or defective service, unless Defendant filed a motion to quash service of process or motion to dismiss for failure to timely serve process

Motion Craving Oyer

A motion craving oyer seeks a court order compelling the plaintiff to produce a document mentioned in the pleading, but not attached to the complaint

Untimely filed pleading

The Court has discretion to allow a party additional time to file a pleading

Amended pleading

a party may not amend a pleading after it is filed unless leave of court is obtained.

Request for a court order

a party may request a court order by:
(1) presenting a proposed order to the court with endorsement by all counsel of record or
(2) serving a proposed order on the counsel of record who have not endorsed the proposed order, along with the written notice of the date, time, and court that will consider the proposed order

Lis Pendens

a notice of pending action regarding interest in real property or to enforce a zoning ordinance against that property.