Litigation 101: What to do if you’ve been sued
By CASEY A. JONES | OCTOBER 1, 2019
While it may seem obvious to some, many do not realize the very harsh consequences that can result from failing to respond to a lawsuit. If you’ve been sued and don’t really understand what the next steps are, you aren’t alone.
When a party files a civil (i.e., not criminal) lawsuit against another, the case is initiated upon the filing of a “Complaint.” The Complaint sets forth the parties, the factual allegations, the causes of action, and the remedy or relief sought.
Okay, so you’ve been served with the Complaint . . . Now what?
Once the defendant is served with the Complaint (thus, putting the defendant on notice of the lawsuit), he or she is required to respond within a certain number of days (28 days in Ohio; 20 days in Kentucky). The response to the Complaint could be an “Answer” (where the party will admit or deny each of the allegations and set forth any defenses it may have) or, alternatively, a defendant can respond with a variety of motions, such as a motion to dismiss.
If a defendant fails to respond to the Complaint within the time frame allotted, the plaintiff may move for “default judgment” against the defendant. This is, essentially, what it sounds like – the moving party wins by “default.” Under Ohio law, “default judgment is proper against an unresponsive defendant ‘as liability has been admitted or confessed by the omission of statements refuting the plaintiff’s claims.’” Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Ass’n., 28 Ohio St. 3d 118, 121, 502 N.E.2d 599 (1986). In other words, if you do not refute the plaintiff’s allegations, you are deemed to have admitted them. The onus is on the defendant.
If you do not respond to the Complaint and, therefore, admit the allegations, the other side’s claims have, more or less, been proven in most instances. For example, if someone sues you for breach of contract and claims damages of $70,000.00, and you fail to respond to the Complaint (thus, admitting that you breached the contract and owe the sought damages), the Court can enter judgment against you for the full $70,000.00. The plaintiff can then begin to pursue collection efforts against you, including garnishing wages and/or bank accounts, foreclosing on property, etc.
Additionally, default judgments can be very difficult to have overturned. In order to get relief from the judgment, a defaulting defendant must demonstrate that he or she has a meritorious defense to the lawsuit, that one of the provisions of Civ.R. 60(B) applies, and that the motion for relief was filed within a reasonable time after the judgment was entered. GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St. 2d 146, 150-51 (1976). This is not always an easy task.
In the case of Ben. Ohio, Inc. v. Poston, 5th Dist. Fairfield No. 03-CA-07, 2003-Ohio-4577, the court held that defendants were not entitled to relief from judgment where their daughter signed for service of the Complaint and did not inform them. In Fouts v. Weiss-Carson, 77 Ohio App. 3d 563 (11th Dist. 1991), the defendant was not entitled to relief from judgment where she claimed she was distraught from her divorce and seeking psychiatric treatment when her response was due, absent a showing that defendant’s condition rendered her incompetent). And in Universal Bank N.A. v. Thornton, 8th Dist. Cuyahoga No. 72553, 1997 Ohio App. LEXIS 5694, at *7 (Dec. 18, 1997), the court held “[a] party who willfully and deliberately chooses to ignore a complaint and has stated no other reason for failing to appear or answer a complaint has not stated adequate grounds for relief from default judgment.”
The Answer: Answer the Complaint (and Make a Plan), and We Can Help You
Even if you believe the claims against you are entirely meritless, it is still important to respond to any claims filed against you so that you can refute the plaintiff’s claims and assert your defenses. You may even have a viable counterclaim against plaintiff (which often incentivizes an early settlement and/or dismissal). While no one wants to spend a ton of money defending a lawsuit (especially a meritless one), it is necessary to follow the proper steps and maybe even formulate an “exit strategy.” Otherwise, the result could be devastating. The litigation team at the Finney Law Firm understands that the legal process can be confusing (and, sometimes, even unforgiving) to those who, like most, don’t litigate often. We would be happy to speak with you about your rights and obligations as a party in litigation, as well as strategies to help minimize your exposure.