Law-Splainer - Part 3: The Lawsuit is Filed: What Happens Next? Responses

In Part 1 of our law-splainer litigation series, we covered what it takes to file a federal lawsuit and a number of factors that need to be considered before filing a complaint in a federal district court. 

In Part 2, we went over the structure of the federal court system. For the purposes of Part 3, we’ll assume that the criteria to bring a lawsuit has been met. Which brings us to the next logical question, after our complaint has been filed: What happens next?

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When filing a case that challenges the constitutionality of a statute, Federal Rules of Civil Procedure ("FRCP") Rule 5.1 requires that plaintiffs serve the notice and papers on the Attorney General of the United States (for federal laws) or state attorney general (for state laws). There are a number of other service requirements, generally, but we’ll skip the rest of the boring procedural details about that and get right to the juicy part: The opposing party’s response. 


FRCP Rule 12(a) generally requires that a defendant/responding party file an answer to a complaint within 21 days of service. (When the party being sued is the United States, one of its agencies, or officers or employees in their official capacity, they have 60 days to file an answer.) 

However, that 21 or 60 day timeline is altered if a motion is filed by the Defendant under FRCP Rule 12(b). When a motion is filed under FRCP Rule 12(b), the time to file an Answer extends until 14 days after the court either 1) denies the motion or defers it until trial, or 2) if a more definite statement is ordered, 14 days after service of the statement. (See below for more on “definite statements” and Rule 12(b) motions.)


Simply put, an answer is the responding defendant(s)’s written response to the allegations contained in the complaint. 

Much like a complaint, which has numbered paragraphs, an answer has corresponding numbered paragraphs, in which the responding defendant either: 1) admits the allegation is true, 2) denies the allegation is true, or 3) uses some other legal language to avoid admitting or denying the allegation is true.

Below are some actual examples from the complaint and answer in Williams v. Att'y Gen'l Sessions, et al. 

From the Complaint :

9. Defendant Jeff Sessions (“Attorney General” or “Sessions”) is being sued in his official capacity as the Attorney General of the United States. As Attorney General, Defendant Sessions is responsible for executing and administering the laws, regulations, customs, practices, and policies of the United States. He is presently enforcing the laws, regulations, customs, practices, and policies complained of in this action. As Attorney General, Defendant Sessions is ultimately responsible for supervising the functions and actions of the United States Department of Justice, including the ATF, which is an arm of the Department of Justice.

Corresponding response from the Answer:

9. Defendants admit that Jeff Sessions currently serves as Attorney General of the United States and that plaintiff seeks to sue Jeff Sessions in his official capacity as Attorney General of the United States.

From the Complaint:

28. ATF Philadelphia Division Counsel Kevin White previously confirmed to the Attorney Joshua Prince that an individual convicted of a misdemeanor of the first degree DUI is prohibited under Section 922(g)(1) and there is currently no mechanism available in Pennsylvania or under federal law for Mr. Williams to obtain relief from his federal disability, as a result of his isolated DUI conviction.

Corresponding response from the Answer:

28. Defendants deny the allegations contained in paragraph 28 of the Complaint.

If the responding defendant does not know if the allegation contained in the complaint is true or not, they may state that they do not have sufficient information or knowledge to admit or deny. If the allegation contained in the complaint contains a legal conclusion, the defendant is not required to respond to it. 

From the Complaint:

16. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e)(1)(B) and (C), as a substantial part of the events and omissions giving rise to the claims occurred in the Eastern District of Pennsylvania.

Corresponding response from the Answer:

16. Defendants lack knowledge or information sufficient to form a belief as to the truth of the plaintiff’s allegations that a substantial part of the events and omissions giving rise to the claims occurred in the Eastern District of Pennsylvania and the allegations are therefore deemed denied. The remaining allegations in this paragraph state legal conclusions to which no response is required.

Definite Statement - FRCP Rule 12(e) requests

FRCP Rule 12(e) governs definite statements. The rule allows a party to ask the court to require a more definite statement from the party which filed the complaint because the information contained in the complaint is too vague or ambiguous, resulting in an inability to prepare a response. This motion has to be made before filing an answer and must point out the defects, as well as state the details desired. 

Defenses - FPCP Rule 12(b) Motions 

FRCP Rule 12(b) governs how a responding defendant may present defenses. The rule lists 7 defenses that may be brought by a motion rather than being asserted in an answer. 

The Seven FRCP Rule 12(b) Defenses:

(1) Lack of subject-matter jurisdiction

(2) Lack of personal jurisdiction

(3) Improper venue

(4) Insufficient process

(5) Insufficient service of process

(6) Failure to state a claim upon which relief can be granted

(7) Failure to join a party under Rule 19

Lack of Subject-Matter or Personal Jurisdiction

As we discussed in Part 1 of the series, in order for a court to hear a case, it needs to have jurisdiction over the parties. There are two types of jurisdiction: subject-matter and personal. Rule 12(b)(1) and (2) allow a party to challenge the court’s authority to hear the case based on those two types of jurisdiction. Subject matter jurisdiction refers to the tribunal’s power to hear a case. Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67 (2009) (quotations and citations omitted). Personal jurisdiction refers to the court’s authority to exercise its power over a party to the suit. 

Improper Venue

As described in Part 1, venue is where a case is heard and is governed by 28 U.S.C. § 1391. If the case falls within one of the general categories described by § 1391(b) or an enumerated venue grant, then the court may hear it. 

Insufficient Process

Process is governed by FRCP Rule 4. Subsection (a) dictates what information is required on a summons for an individual being sued in federal court. 

(1) Contents. A summons must:

(A) name the court and the parties;

(B) be directed to the defendant;

(C) state the name and address of the plaintiff's attorney or—if unrepresented—of the plaintiff;

(D) state the time within which the defendant must appear and defend;

(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;

(F) be signed by the clerk; and

(G) bear the court's seal.

This objection concerns the form of the process rather than the manner or method of its service. Gartin v. Par Pharm. Cos., Inc., 289 Fed. Appx. 688, 691 n.3. (5th Cir. 2008) (citing 5B C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 3d § 1353). Generally, a court will allow the information to be amended unless it is prejudicial to the defendant. 

Insufficient Service of Process

Service of process is governed by FRCP Rule 4 as well. With regards to the federal government, it is governed by subsection (i), which states:

(1) United States. To serve the United States, a party must:

(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought—or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk—or

(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office;

(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and

(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.

(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.

(3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).

(4) Extending Time. The court must allow a party a reasonable time to cure its failure to:

(A) serve a person required to be served under Rule 4(i)(2), if the party has served either the United States attorney or the Attorney General of the United States; or

(B) serve the United States under Rule 4(i)(3), if the party has served the United States officer or employee.

Subsection (m) requires that a party be served within 90 days of the complaint being filed. If a party is not served in the manner or time specified by the rule, they can use this objection.

Failure to State a Claim Upon Which Relief Can Be Granted

Generally, one of the most common defenses asserted is FRCP Rule 12(b)(6), or a defendant saying that the plaintiff(s) failed to state a claim upon which relief can be granted by a court. 

In order to survive a Rule 12(b)(6) motion, a complaint must allege “enough facts to state a claim [for] relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In order for a claim to be “plausible”, the plaintiff has to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).

When a Rule 12(b)(6) motion is filed, the court is required to accept as true all well-pleaded facts in the complaint, but disregard legal conclusions. A complaint may be dismissed if it does not sufficient facts, accepted as true, to state a plausible claim for relief as a matter of law. 

Failure to Join a Party Under Rule 19

Joinder is a legal term of art for bringing additional parties into one lawsuit. There are two types; permissive, and required joinder. Permissive joinder is governed by FRCP Rule 20 and required joinder is governed by FRCP Rule 19

Permissive joinder is typically sought in situations where there are two or more plaintiffs, e.g. a situation such as a car crash that injured multiple people, or where there is a primary and secondary defendant, such as when suing both a worker and the worker’s employer or company. Required joinder is grounds for dismissing a complainant’s claim because the party who is not present is both a necessary and indispensable party to the litigation. Failure to join a required party is grounds for a moving party to file a motion to dismiss under Rule 12(b)(7). 

A motion under Rule 12(b)(7) requires a two step analysis of Rule 19. Under Rule 19(a), the court has to determine whether the absent party “who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction” should be joined as a “required party”. “If joinder is warranted, then the person will be brought into the lawsuit. But if such joinder would destroy the court's jurisdiction, then the court must determine under Rule 19(b) whether to press forward without the person or to dismiss the litigation. Factors to consider under Rule 19(b) include ‘(1) prejudice to an absent party or others in the lawsuit from a judgment; (2) whether the shaping of relief can lessen prejudice to absent parties; (3) whether adequate relief can be given without participation of the party; and (4) whether the plaintiff has another effective forum if the suit is dismissed.’” 

A quick note about Rule 12(b)(7) motions: The burden is on the moving party to show the nature of the unprotected interests of the absent parties.


After a complaint is filed, there are several ways the case can proceed. 

It is important that the person(s) filing the case ensure that the proper parties are notified and properly served, and within the correct period of time. Otherwise, it is possible for the court to dismiss the action. However, generally speaking, either an answer or a FRCP Rule 12 motion is filed. 

If a FRCP Rule 12(b)(6) (or any other Rule 12) motion is filed, then the plaintiffs must first litigate the motion before the case can proceed on the merits. If the court finds in favor of the plaintiff(s), the case will generally continue on a normal basis, and the defendants will be required to file an answer.

If the court finds in favor of the defendant(s), then usually it will provide “leave to amend” the complaint to remedy whatever defects were found by the court. And if the court grants the Rule 12 motion (either on the first motion, or on a subsequent motion) and does not grant leave to amend (or amend further), then the plaintiff(s) either lose their case from the beginning, or they must appeal the court’s grant of the defendant(s) motion to dismiss.

We’ll get into these appeals in a future part. Stay tuned!

Next up in Part 4: Motions- Temporary Restraining Orders and Preliminary Injunctions...

Adam Kraut is an attorney and FPC's Director of Legal Strategy