Anatomy of a Lawsuit, Part 3: Defendant’s Move – Default, Answer, Motion to Dismiss

Now that the papers have been appropriately served, the ball shifts to the defendant(s), who have several options. Generally, this boils down to 3 options: (1) default; (2) submit an answer; or (3) make a motion to dismiss. 


Where a defendant defaults – i.e., fails to submit an answer or responsive pleading , the plaintiff may make a motion for an order finding the defendant in default. If that happens, the plaintiff will proceed to prove their damages in a process called an “inquest.” 


Defendant’s second option is to submit an “Answer,” which is a responsive pleading that responds, in correspondingly-numbered paragraphs, to plaintiff’s complaint. The answer typically includes responses to plaintiff’s factual contentions (“admit,” “deny,” “deny sufficient knowledge or information necessary to respond” (“DKI”)) and affirmative defenses (as to which they bear the burden of proof) and, in applicable, one or more “counterclaims” seeking affirmative relief against the plaintiff and/or “cross claims” seeking relief against other defendants. 


Alternatively, the defendant may, in lieu of filing an answer, file a motion seeking, among other things, dismissal on various grounds (including that plaintiff’s complaint “fails to state a claim on which relief may be granted,” lack of jurisdiction, etc.). 

Next: Discovery.

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