Collateral attack on a judgment in California

A collateral attack on a judgment in California is the topic of this blog post.

A collateral attack on a judgment in California requires the filing of a separate lawsuit which is also known as an independent action in equity.  A collateral attack on a judgment is fundamentally different from a standard motion to vacate a judgment in that it involves the filing of another lawsuit to vacate the judgment for lack of personal jurisdiction.  The complaint could also include other causes of action such as vacating the judgment on the grounds of extrinsic fraud or mistake if appropriate.

Advantages of a collateral attack on a judgment in California.

A collateral attack on a judgment in California has some very important advantages which include,

(1) there is NO time limit for a collateral attack on a judgment,

(2) because filing an independent action in equity involves a separate lawsuit, the party seeking to vacate the judgment is allowed the full range of discovery methods authorized in California litigation including interrogatories, requests for admission, requests for production of documents, depositions, and most importantly, the use of oral testimony as witnesses can be served with a subpoena to appear at the trial, and

(3) the fact that a California Court of Appeal ruled in a recently published decision that laches cannot be invoked as a defense in cases where there has been a complete failure of service of process upon a defendant.

And there is another important advantage in that even if a motion to vacate is made under section 473 of the Code of Civil Procedure and is denied that does not always preclude an independent action in equity to set aside the judgment, in other words the denial of the previous motion is not entitled to collateral estoppel effect although collateral estoppel may apply if the defendant had an opportunity to present oral testimony at the section 473 motion hearing and the issues were fully litigated.  See Groves v. Peterson (2002) 100 Cal.App.4th 659, 668.

The California Supreme Court has stated that the reasoning behind the general rule that the denial of the previous motion is not entitled to collateral estoppel effect, which has been well settled in California for over 100 years, is the fact that, in the standard motion procedure, the moving party is limited to presenting ex parte affidavits of voluntary witnesses in most cases unless the trial court exercises discretion and permits a greater latitude.  In using the motion procedure the party does not have the right to produce oral testimony or to compel witnesses to attend for deposition or cross-examination.  The motion procedure, while simpler and more convenient, does not involve all the aspects of full litigation.  Because the remedies of a motion in the underlying case and an independent action in equity are cumulative, parties should be entitled to resort first to the convenient and expeditious remedy without worrying about the issue of collateral estoppel if the motion is denied.  Thus even if a section 473 motion has been denied, parties may still pursue an independent action that affords them all the advantages of a regular trial of the issue.

Technically speaking there is no time limit to filing an independent action in equity to vacate a judgment.  However if you have recently become aware that a judgment has been entered against you should contact an experienced civil litigation attorney that can evaluate your situation and determine if a collateral attack on the judgment is appropriate.

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

Advertisements

Rule 60(b)(3) motion to vacate a judgment in United States District Court

A Rule 60(b)(3) motion to vacate a judgment in United States District Court is the topic of this blog post.

A Rule 60(b)(3) motion to vacate a judgment in United States District Court is filed on the grounds of fraud, misrepresentation, or other misconduct of an adverse party.

This motion is filed pursuant to Federal Rule of Civil Procedure Rule 60(b)(3) (“Rule 60”).

Rule 60 states in pertinent part that “(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:  (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.”

Deadline to file a Rule 60(b)(3) motion to vacate a judgment in United States District Court.

It should be noted that that the motion must be filed no later than one year after the entry of the judgment as Rule 60 states that “(c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

Requirements for a Rule 60(b)(3) motion to vacate a judgment in United States District Court.

A motion to vacate a judgment on the grounds of fraud, misrepresentation, or other misconduct of an adverse party is the appropriate motion if you can meet the burden of showing by clear and convincing evidence that,

The fraud or other misconduct resulted in a verdict against you’

The conduct prevented you from fully and fairly presenting their claim or defense, and

The fraud, misrepresentation or misconduct of the adverse party was not discoverable by due diligence before or during the trial.

“Rule 60(b)(3) “is aimed at judgments which were unfairly obtained, not at those which are factually incorrect.” See De Saracho v. Custom Food Machinery, Inc., 206 F.3d 874, 880 (9th Cir. 2000) (citing In re M/V Peacock, 809 F.2d 1403, 1405 (9th Cir. 1987).

The Ninth Circuit Court of Appeal has ruled that obtaining an arbitration award through perjury is fraud. See Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1297 (9th Cir. 1982) (obtaining an award through perjury is fraud), cert. denied, 459 U.S. 990, 103 S.Ct. 346, 74 L.Ed.2d 386 (1982).

If you have recently become aware of fraud, misrepresentation or other misconduct by an adverse party that resulted in a verdict against you and prevented you from fairly presenting your case you should contact an experienced civil litigation attorney as soon as possible.

An experienced civil litigation attorney can evaluate your situation and determine whether filing a motion to vacate a judgment under Rule 60(b)(3) is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

 

Motion to expunge a Lis Pendens in California

A motion to expunge a Lis Pendens in California is the topic of this blog post

The technical name for a Lis Pendens is a notice of pendency of action. The term Lis Pendens is more commonly used and is Latin for pending lawsuit.

The statutes governing a Lis Pendens in California are found in Code of Civil Procedure sections 405.1 through 405.39.

Code of Civil Procedure § 405.20 authorizes the recording of a Lis Pendens and Code of Civil Procedure § 405.4 states that, “Real property claim” means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility.”

Law authorizing a motion to expunge a Lis Pendens in California.

A motion to expunge a Lis Pendens in California is authorized by Code of Civil Procedure section 405.30 which states that,

“At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice. Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.”

Burden of proof on motion to expunge a Lis Pendens in California.

Once the motion to expunge has been filed the burden is on the plaintiff to show that at least one of the causes of action of their complaint states a real property claim.  The Court must order the notice expunged if the complaint does not state a real property claim.

Code of Civil Procedure § 405.31 states that,

“In proceedings under this chapter, the court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice where the court finds the pleading does not contain a real property claim.”

Code of Civil Procedure § 405.32 states that,

“In proceedings under this chapter, the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice if the court finds the claimant has not established the probable validity of the real property claim.”

Grounds for filing a motion to expunge a Lis Pendens in California.

The most common grounds for expunging a Lis Pendens in California are that the complaint does not state a real property claim as required by California law.

Another ground for expunging a Lis Pendens in California is on the grounds that it is void and invalid as the Plaintiff did not comply with the requirements of Code of Civil Procedure §  405.22 which states that, “ Except in actions subject to Section 405.6, the claimant shall, prior to recordation of the notice, cause a copy of the notice to be mailed, by registered or certified mail, return receipt requested, to all known addresses of the parties to whom the real property claim is adverse and to all owners of record of the real property affected by the real property claim as shown by the latest county assessment roll. If there is no known address for service on an adverse party or owner, then as to that party or owner a declaration under penalty of perjury to that effect may be recorded instead of the proof of service required above, and the service on that party or owner shall not be required. Immediately following recordation, a copy of the notice shall also be filed with the court in which the action is pending. Service shall also be made immediately and in the same manner upon each adverse party later joined in the action.”

Code of Civil Procedure § 405.23 states that, “Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of pendency of action.”

The recording of a Lis Pendens against a real property clouds the title and may prevent any transfer of the real property.  Therefore, the Lis Pendens procedure is abused very frequently.

The California Supreme Court has stated that, Courts have long recognized that “[b]ecause the recording of a lis pendens place[s] a cloud upon the title of real property until the pending action [is] ultimately resolved . . . , the lis pendens procedure [is] susceptible to serious abuse, providing unscrupulous plaintiffs with a powerful lever to force the settlement of groundless or malicious suits.”  See Malcolm v. Superior Court (1981) 29 Cal.3d 518, 523, fn. 2, 524 (emphasis in original).

Several California Courts of Appeal have stated in published decisions that the history of the legislation indicates a legislative intent to restrict rather than broaden the application of the remedy.

The California Courts of Appeal have stated in several published decisions that causes of action with equitable liens do not state a real property claim if those causes of action act only as an alternative or collateral means to collect money damages as the real purpose of the statutes is to provide notice of pending litigation and not to provide plaintiffs with more leverage for use in negotiating a settlement.

Causes of action for money only do not state a real property claim in California.

Attorney’s fees and costs available on a motion to expunge a Lis Pendens in California.

The prevailing party on the motion to expunge is entitled to reasonable attorney’s fees and costs pursuant to Code of Civil Procedure § 405.38 which states that,

“The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney’s fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney’s fees and costs unjust.”

An experienced litigation attorney can evaluate your situation and determine whether filing a motion to expunge a Lis Pendens is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

Request for an extension of time to respond to a complaint in California

A request for an extension of time to respond to a complaint in California is the topic of this blog post.

A request for an extension of time to respond in California is typically made by filing an ex parte application as the circumstances that necessitate the request usually arise when there is not sufficient time for the request to be heard by filing a noticed motion.

Law authorizing a request for an extension of time to respond to a complaint in California.

A request for an extension of time to respond in California is authorized by Code of Civil Procedure section 1054(a) which allows a judge to grant an extension of tine not exceeding 30 days to respond to a complaint upon a showing of good cause.  An extension of time may also be granted to respond to a cross-complaint as well.

Code of Civil Procedure § 1054(a) states that, “When an act to be done, as provided in this code, relates to the pleadings in the action, or the preparation of bills of exceptions, or of amendments thereto, or to the service of notices other than of appeal and of intention to move for a new trial, the time allowed therefor, unless otherwise expressly provided, may be extended, upon good cause shown, by the judge of the court in which the action is pending, or by the judge who presided at the trial of the action; but the extension so allowed shall not exceed 30 days, without the consent of the adverse party.”

Before filing a request for an extension of time to respond in California most judges want the defendant to first contact the plaintiff or opposing party or their attorney and request that they stipulate to an extension of time to respond to the complaint. If the request is denied that fact should be mentioned in the supporting declaration to show to the judge that you attempted to obtain a stipulation but were unsuccessful.

Common grounds for a request for an extension of time to respond to a complaint in California.

The judge has discretion as to whether or not to grant an extension of time to respond in California.  Most judges would consider that a defendant has established good cause if they can show that they need an extension of time to,

Obtain the funds to retain an attorney;

They have contacted an attorney that needs more time to review the case;

A family emergency requires the defendant to travel out of town, or

A medical emergency involving the defendant such as hospitalization prevents them from filing a timely response to the complaint.

Any declarations supporting a request for an extension of time to respond should include sufficient facts and evidence detailing the circumstances that have necessitated the request for an extension of time to respond.

The request for an extension of time should also state whether or not any previous extensions of time to respond by court order or stipulation have been granted.

An experienced litigation attorney can evaluate your situation and determine whether filing a request for an extension of time to respond is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

 

 

 

 

 

Motion for judgment notwithstanding the verdict in California

A motion for judgment notwithstanding the verdict in California is the topic of this blog post.

A motion for judgment notwithstanding the verdict is more limited in scope than a motion for a new trial.  However if it is used in the appropriate situations it is much more powerful due to the  fact that if you win the motion for judgment notwithstanding the verdict the court will enter a new and different judgment in your favor.

A motion for judgment notwithstanding the verdict in California (JNOV) challenges the legal sufficiency of the evidence at trial.  A JNOV also differs from a motion for a new trial in that a JNOV motion consists of a single document.  The entire motion, including the notice of motion and memorandum of points and authorities, is due at the same time as the notice of intent to move for a new trial.

Law authorizing a motion for judgment notwithstanding the verdict in California.

A JNOV motion in California is authorized under Code of Civil Procedure section 629 which states in pertinent part that, “The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days’ notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.”

Deadline to file a motion for judgment notwithstanding the verdict in California.

Because a motion for a new trial and a JNOV motion are often sought concurrently, the time limit for filing the JNOV motion is exactly the same as the time for filing a notice of intent to move for a new trial.  A JNOV motion must be filed and served on all adverse parties within the period for filing a new trial notice of intent under Code of Civil Procedure Section 659 which is within 15 days of the date of mailing notice of entry of judgment by the clerk of the court, or service upon the moving party by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.   This time period cannot be extended by any court or any stipulation.

Since a JNOV motion contemplates entry of a new and different judgment, a proposed judgment should be included with the motion or be submitted at the time of hearing at the latest.  Prompt compliance is extremely important because the trial court has a very limited time in which to act on the JNOV motion.

Limitations on motion for judgment notwithstanding the verdict in California.

The main limitation to the JNOV motion is that the trial court’s power to grant a motion for JNOV is severely limited.  The trial court may not grant a JNOV motion unless there is an actual verdict.  If the jury returns no verdict or an incomprehensible verdict, a JNOV is not appropriate. See Mish v. Bruckus, (1950) 97 Cal. App. 2d 770, 776.

However if no substantial evidence supports the jury’s verdict a JNOV motion must be granted as one California Court of Appeal has stated in a published decision that the purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury’s deliberation but to prevent a miscarriage of justice in those cases where the verdict rendered by the jury is without foundation.

An experienced litigation attorney can evaluate your situation and determine whether filing a motion for judgment notwithstanding the verdict is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

 

 

Answer to a complaint in United States District Court

An answer to a complaint in United States District Court is the topic of this blog post.

An answer to a complaint in United States District Court must be filed within the time period specified in the Federal Rules of Civil Procedure unless you have obtained a stipulation from the opposing party or their attorney, or an order of the court granting you an extension of time to answer.

An answer to a complaint in United States District Court can also include a counterclaim against the plaintiff, or a crossclaim against other parties that involves the same set of facts alleged in the complaint.

Deadline to file an answer to a complaint in United States District Court.

Rule 12 of the Federal Rules of Civil Procedure specifies the time period that a defendant has to answer or otherwise respond, that time period is 21 calendar days after being served with the summons and complaint, although there are exceptions which are listed in Rule 12.

Rule 12 states in pertinent part that,

“(a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:

(A) A defendant must serve an answer:

(i) within 21 days after being served with the summons and complaint; or

(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.

(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.

(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.”

Requirements for an answer to a complaint in United States District Court.

An answer to a complaint in United States District Court should specifically deny each statement in the complaint that is untrue and admit each statement that is true.

Rule 8 of the Federal Rules of Civil Procedure states in pertinent part that,

“(b) Defenses; Admissions and Denials.

(1) In General. In responding to a pleading, a party must:

(A) state in short and plain terms its defenses to each claim asserted against it; and

(B) admit or deny the allegations asserted against it by an opposing party.

(2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation.

(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.

(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

(6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

  • accord and satisfaction;
  • arbitration and award;
  • assumption of risk;
  • contributory negligence;
  • duress;
  • estoppel;
  • failure of consideration;
  • fraud;
  • illegality;
  • injury by fellow servant;
  • laches;
  • license;
  • payment;
  • release;
  • res judicata;
  • statute of frauds;
  • statute of limitations; and
  • waiver

It is very important that an answer to a complaint in United States District Court that you specifically deny each allegation or part of an allegation of the complaint that is untrue as any allegations of the complaint that are not specifically denied in the answer will be deemed admitted.

If you do not have sufficient information or belief as to whether to admit or deny an allegation in the complaint you can deny the allegation based on a lack of information or belief.

An answer to a complaint in United States District Court should also include any affirmative defenses that you may have as well as admitting or denying all of the allegations in the complaint.  An affirmative defense is basically a defense where, even assuming that all of plaintiff’s allegations in the complaint were true, the law does not permit the plaintiff to win the case.

An answer to a complaint in United States District Court should include all relevant affirmative defenses as Rule 12(b) of the Federal Rules of Civil Procedure states that certain defenses may be waived if they are not raised in the answer or another response such as a motion to dismiss.  If an affirmative defense is not included in an answer the defendant may not be allowed to raise it later in the case unless they the court grants them leave of court to amend their answer.

An answer to a complaint in United States District Court must also state enough facts to support each affirmative defense.  If the answer fails to do so the plaintiff may file a motion to strike the defense on the grounds of an insufficient defense, or an immaterial allegation pursuant to Rule 12(f) of the Federal Rules of Civil Procedure.

An experienced litigation attorney can evaluate your situation and determine which affirmative defenses to include in your answer to the complaint as well as determine whether a counterclaim or crossclaim is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

 

 

Motion to vacate a judgment under Rule 60(b)(1) in United States District Court

A motion to vacate a judgment under Rule 60(b)(1) in United States District Court is the topic of this blog post.

A motion to vacate a judgment under Rule 60(b)(1) in United States District Court is filed on the grounds of mistake, inadvertence, surprise or excusable neglect.

Rule 60 of the Federal Rules of Civil Procedure states in pertinent part that “(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect.”  And Rule 60 also states that “(c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

Deadline to file Rule 60(b)(1) motion to vacate a judgment.

It should be noted that Rule 60 does state that the motion must be made within a reasonable time no more than one year after entry of the judgment or order, or date of the proceeding.   If you have recently become aware that a default judgment or any other judgment has been entered against you in Federal Court you need to act quickly to increase the probability that your motion to vacate a judgment under Rule 60(b)(1) as the Ninth Circuit Court of Appeal has stated that

the law is settled that a district court has great discretion in deciding whether to grant a motion under Rule 60. It is subject to review only for abuse of discretion.

You also need to emphasize that you have affirmative defenses to the complaint as you must show that you have a meritorious defense in order to prevail on the motion.

Relevant factors considered by the court on a Rule 60(b)(1) motion.

In ruling on a motion to vacate a judgment under Rule 60(b)(1) the court will look at three factors in deciding whether to grant relief from the default which are:

Whether the plaintiff will suffer prejudice if the judgment is vacated,

Whether the defendant has a meritorious defense

Whether the defendant engaged in any culpable conduct that led to the default or judgment being entered against them.

In discussing Rule 60 the Ninth Circuit Court of Appeal has stated that this rule, like all the Federal Rules of Civil Procedure, “is to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits.” See Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983) (internal citations omitted.)

See also Federal Rule of Civil Procedure 1, “The Federal Rules should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

However a motion to vacate a judgment under Rule 60(b)(1) can be denied if it is shown that the moving defendant was culpable, and that conduct led to the default.

And the United States Supreme Court has stated that the determination of what conduct constitutes “excusable neglect” under Rule 60(b)(1) and similar rules “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” See Pioneer Inv. Svcs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 395 (1993).

A motion to vacate a judgment under Rule 60(b)(1) does have a longer deadline than a motion to vacate a judgment in California under Code of Civil Procedure section 473(b).  However it has one significant difference in that the moving party is required to show a meritorious defense.

An experienced litigation attorney can evaluate your situation and determine whether filing a motion to vacate a judgment under Rule 60(b)(1) is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.