Responding to a Complaint: Maryland

1 2017 Thomson Reuters. All rights the Resource ID numbers in blue on Westlaw for more. Resource ID: w-011-5932 CHRISTOPHER C. JEFFRIES AND STEVEN A. BOOK, KRAMON & GRAHAM, WITH PRACTICAL LAW LITIGATIONA Q&A guide to Responding to a complaint in a trial court of general jurisdiction in Maryland . This Q&A addresses the time to respond, extending the time to respond, pre-answer motions, answers, replies to the answer, counterclaims, crossclaims, third-party claims (also known as impleader), and defensive interpleader. Answers to questions can be compared across a number of jurisdictions (see Responding to a Complaint: State Q&A Tool).OVERVIEW OF Responding TO A STATE COMPLAINT1. When must a defendant respond to the complaint?CIRCUIT COURTSIn Maryland circuit courts, a defendant must file an answer to a complaint within 30 days after being served, with some exceptions (Md.)

2 Rule 2-321(a)). For example: A defendant who is served with a complaint outside of Maryland but within the US must file an answer within 60 days after being served. A defendant who is served with a complaint outside of the US must file an answer within 90 days after being served. If the US or an officer or agency of the US is a defendant, the answer must be filed within 60 days after service of the complaint. If a defendant is required by statute to have a resident agent, and the original pleading is served on a state agency authorized by statute to receive process, that defendant must file an answer within 60 days of service on the state agency. A defendant who is served with a complaint by publication or posting must file an answer within the time specified by the notice .

3 When rules for special proceedings or state or federal statutes impose a different time to answer, the answer must be filed within the time specified by those rules or statutes.(Md. Rule 2-321(b).)Rather than filing an answer, a defendant may file a preliminary motion (Md. Rule 2-322). The filing of a preliminary motion under Maryland Rule 2-322 automatically extends the time for filing an answer to either: 15 days after the court s entry of the decision on the motion. 15 days after service of a more definite statement.(Md. Rule 2-321(c).)DISTRICT COURTSIn the Maryland district court, a defendant must respond to a complaint by filing a notice of intention to defend within 15 days after service of the complaint (Md. Rule 3-307). However, a defendant has 60 days to file the notice if the defendant is: Served outside of the state.

4 A person who is required by statute to have a resident agent and who is served by service on a state agency authorized by statute to receive process. The US or an officer or agency of the US.(Md. Rule 3-307(b).) There are no district court rules specifically addressing whether preliminary motions are permitted (see generally Md. Rule 3-311 (motion practice in district court)).2. How, if at all, can one obtain an extension of time to respond (for example, by stipulation, so-ordered stipulation, ex parte motion, motion on notice )?BY MOTIONIn Maryland , a court may extend the time to respond to a complaint, for cause shown, if a defendant files a motion either: Before the answer or notice of intention to defend is due. After the answer or notice of intention to defend is due, if there is a reasonable excuse for the failure to timely to a Complaint: Maryland 2017 Thomson Reuters.

5 All rights reserved. 2 Responding to a Complaint: Maryland (Md. Rule 1-204(a).) This motion may be ex parte only if the motion sets out facts that show either: The moving party both: zattempted but was unable to reach agreement with the opposing party; and znotified or attempted to notify the opposing party of the time and place the moving party intends to confer with the court. The moving party would be prejudiced if required to comply with the above requirements.(Md. Rule 1-204(b).)BY STIPULATIONIn practice, the parties may stipulate in writing to an extension of time to respond. However, the only method set forth in the Maryland Rules for requesting an extension of time is by motion (Md. Rule 1-204). Parties should obtain court approval of the What types of responses are permitted (for example, answer, motion, demurrer, special appearance)?

6 Under Maryland law, the ways to respond to a complaint differ by court. In circuit court, a defendant may respond with: An answer (Md. Rule 2-323). A motion (Md. Rule 2-322, 2-327, and 2-501).In district court, a defendant must respond with a notice of intention to defend (Md. Rule 3-307). A defendant may also file a motion contemporaneously with the notice of intention to RESPONSES4. If motions, demurrers, or the like are permitted: Are there any preliminary requirements (for example, meet and confer with the plaintiff s counsel, have a conference with the cour t)? What grounds can be asserted (for example, subject matter jurisdiction, personal jurisdiction, failure to state a claim)? Are available grounds that are not asserted waived (either just for pre-answer litigation or for the whole case)?

7 What papers are required (for example, notice of motion, motion, affidavit, memorandum of law)? Can the defendant offer evidence outside the complaint? When and how does the plaintiff respond? Can the defendant reply? If so, when and how? Does the court hear oral argument before deciding? Is discovery stayed until the court decides? If the court does not dismiss the complaint, how much time does the defendant have to file an answer?There are no district court rules addressing whether preliminary motions are permitted. The following applies to preliminary motions filed in circuit TO DISMISSP reliminary RequirementsThere are no preliminary requirements for a motion to AssertedA party must raise the following mandatory defenses in a preliminary motion to dismiss: Lack of personal jurisdiction.

8 Improper venue. Insufficient process. Insufficient service of process.(Md. Rule 2-322(a).)A party may raise the following permissive defenses in a preliminary motion to dismiss: Lack of subject matter jurisdiction. Failure to state a claim upon which relief can be granted. Failure to join a party. Discharge in bankruptcy. Governmental immunity.(Md. Rule 2-322(b).)WaiverIf mandatory defenses are not asserted in a preliminary motion before an answer is filed, they are waived (Md. Rule 2-322(a)). A party may raise the following permissive defenses in a preliminary motion, in any pleading, in a motion for summary judgment, or at trial on the merits: Failure to state a claim on which relief can be granted. Failure to join a party. Governmental immunity.

9 (Md. Rule 2-324(a).) The permissive defense of discharge in bankruptcy may be raised in the answer or in any other appropriate manner after the answer is filed (Md. Rule 2-322(b)). The law is unclear on the meaning of in any other appropriate manner , but it is likely that this would include dispositive motions filed after the answer. A party may always raise the defense of lack of subject matter jurisdiction (Md. Rule 2-324(b)).Required PapersA preliminary motion to dismiss must comply with Maryland Rule 2-311 and 2-322. The motion to dismiss must: Be in writing. Clearly state the relief or order sought. State with particularity the grounds and authorities in support of each ground.(Md. Rule 2-311(a), (c).)Although the Maryland Rules do not expressly require a memorandum of law, in practice, attorneys typically file a motion and a separate memorandum of law in 2017 Thomson Reuters.

10 All rights to a Complaint: MarylandOutside EvidenceIf a defendant offers outside evidence in a motion to dismiss, the court typically treats the motion as one for summary judgment (Md. Rule 2-322(c)). However, if a defendant includes a document that is expressly referred to in the complaint or merely supplements the allegations of the complaint, and the document is not controverted, consideration of the document usually does not convert the motion into one for summary judgment (see Advance Telecom Process LLC v. DSFederal, Inc., 119 175, 181-82 (Md. Ct. Spec. App. 2015); Margolis v. Sandy Spring Bank, 110 784, 788 (Md. Ct. Spec. App. 2015)).A court may also take judicial notice of additional facts that are either matters of common knowledge or capable of certification without converting a motion to dismiss into a motion for summary judgment, such as: Official entries in circuit court records.