How to Start a Lawsuit
When deciding whether to start a lawsuit, you need to know whether you have the right to sue the person with whom you have a dispute, whether you are starting the lawsuit within the applicable time limits, and whether the court has the power, known as jurisdiction to hear the case.
In many jurisdictions, a lawsuit is started by filing a Complaint with the Court. But in North Dakota and Minnesota, you can start a lawsuit by serving the Complaint and Summons on the defendant, without filing anything with the court initially (though you do have to do this eventually or risk dismissal of your case).
Once the Complaint has been served, the defendants must respond. They can also assert their own claims against the plaintiff and can add additional parties to the lawsuit.
An individual can file a lawsuit without the assistance of an attorney. But beware: there are complicated rules that apply. As a result, if you are considering starting a lawsuit, or have received legal papers and think you were named as a defendant in a lawsuit, it is wise to consult with an experienced civil litigation attorney as soon as possible.
Service of the Summons and Complaint
To start a lawsuit in North Dakota or Minnesota, the plaintiff serves a Summons and Complaint on the Defendant.
The Complaint describes, in short, plain statements, the nature and basis of the plaintiff’s claim. It states why the plaintiff is entitled to relief, specifies the type of relief the plaintiff is requesting, and if applicable requests a jury trial.
The Summons requires that the defendant answer the Complaint within a specified amount of time, and notifies them that if they do not answer a default judgment will be entered against them.
In Minnesota and North Dakota, the Summons and Complaint must be delivered to the defendant, thereby notifying the defendant of the plaintiff’s claims and giving the defendant time to respond. The defendant must show Proof of Service so the court knows when, how, and where the defendant was served. Proof of Service also starts the clock regarding the amount of time the defendant has to respond.
The Summons and Complaint do not need to be personally served on (i.e., handed directly to) the defendant, although this is a common and legally acceptable method of service. Instead, the Summons and Complaint can be served by leaving a copy of the Summons and Complaint at the defendant’s home with a person of suitable age, by certified mail with return receipt requested, or by publication of the summons in a newspaper.
Because North Dakota and Minnesota do not require that the Complaint be filed to start a lawsuit, a person may receive legal papers but not fully appreciate the importance of the documents. This can lead to a default judgment if the defendant fails to timely answer the Complaint.
Standing and Jurisdiction
Before serving the Summons and Complaint, a plaintiff must make sure that the court has jurisdiction to hear the case, that the court is the proper venue to bring the case, and that the statute of limitations has not expired.
The plaintiff must show that the court has both subject matter and personal jurisdiction over the defendant. To have subject matter jurisdiction, the court must have the power to hear the type of claim that the plaintiff is bringing. For example, bankruptcies must be heard in federal bankruptcy court. Most other cases are heard in the local state or federal District Court. To bring a case in federal court generally requires that there is a federal question or that there is at least $75,000 in dispute and the parties are from different states.
The court must also have personal jurisdiction over the defendant. Generally, this means that the defendant lives or has a business in an area that is under the court’s jurisdiction, or has sufficient contacts with the jurisdiction that the court can exercise power over the defendant.
The plaintiff must also select the appropriate venue to bring the case. In most cases, this is the court that has jurisdiction where the defendant lives or has its principal place of business, or the court where the activities that give rise to the Complaint occurred.
Finally, a plaintiff must ensure that the case is not barred by the statute of limitations. A statute of limitations sets the amount of time a plaintiff has in which to bring a complaint. If the plaintiff brings the case outside of the statute of limitations, the defendant may seek to have the case dismissed. Different statutes of limitations apply to different types of cases. Some statutes of limitations, such as for cases of medical malpractice, are as short as two years, while others can be as long as 15 years. To verify whether a case is barred by the statute of limitations, it is wise to consult with an attorney as soon as you believe you have a possible case.
Answering a Complaint
Once the defendant has been served with the Summons and Complaint, the defendant must formally respond. This is called an Answer. The Answer addresses each paragraph of the Complaint, and usually takes the form of an admission, a denial, or a statement that the defendant does not have sufficient information to admit or deny a particular allegation in the Complaint.
In addition to responding to the Complaint, the Answer may also set forth affirmative defenses, which are legal reasons that the defendant should not be held liable for the plaintiff’s allegations.
In the Answer, a defendant can also raise any claims he has against the plaintiff. These are called Counterclaims. They are written in a manner similar to the Complaint and are usually included in the Answer.
A defendant can also include a Cross-claim. A Cross-claim arises when there are multiple parties to a lawsuit, and the other parties may have their own dispute that arises out of the same transaction or occurrence. An example of a Cross-claim is if a plaintiff was hurt in a car accident involving two potential defendants. The plaintiff files a Complaint against both defendants, but the defendants can file Cross-a claim against one another. They can also include Counterclaims against the plaintiff.
Answering a Counterclaim or Cross-Claim
If a defendant files a Counterclaim or Cross-claim, the other party must file an Answer in response to those claims. This is done in the same way as the Answer that was filed in response to the original Complaint.
Third-Party Complaints by Defendants
Sometimes a defendant will claim that an entirely new party is actually responsible for the plaintiff’s claims. A defendant can include this third-party by filing a Third-party Complaint. A Third-party Complaint is similar to the original Complaint and sets forth the defendant’s claims for relief as to the third party.
Get Help Starting or Responding to a Lawsuit
Starting a lawsuit is just the beginning. There are complex rules about how to start a lawsuit, and how to respond if you have been named as a defendant.
Once the lawsuit has been started, there are numerous substantive and procedural issues that must be addressed. If you fail to address these issues or do not address them correctly, the lawsuit could be thrown out. If you are a defendant and fail to properly respond to the issues raised in a lawsuit, the court might enter a judgment against you or your business.
Fremstad Law. Moving You Forward.
If you have a legal issue that you suspect may result in a lawsuit, or if you have been served with a Summons and Complaint, you should contact and hire an attorney as quickly as possible.
If you are filing the Complaint, you want to be certain that the lawsuit is properly commenced and includes all potential defendants. If you received a Complaint or suspect you might be named as a defendant in a lawsuit, you should get an attorney involved as quickly as possible so you can respond appropriately, avoid a default judgment, and defend yourself against the allegations in the Complaint, Counterclaim, or Cross-claim.
At Fremstad Law, our mission is to move our clients forward. If you are thinking about how to start a lawsuit or have been named as a defendant in a lawsuit in North Dakota or Minnesota, Joel Fremstad and the civil trial attorneys at Fremstad Law are here to help.