Oklahoma Bar Journal
Defending a Lawsuit With Your Best Foot Forward
By Melissa East
As a defense lawyer, you will often face a client – whether it’s a current client or a new client – who has been served with a petition and discovered they have been sued. When the client presents that petition to you, they may be stressed, they may be angry or they may be in denial. What is certain is the client will want the lawsuit to go away. Having a case dismissed on the merits from the outset can be daunting for defense lawyers, and when faced with responding to a petition, you must perform your due diligence before taking that next step. Review the allegations in the petition and meet with the client to determine the facts and understand their side of the story. While you may be tempted to simply answer the allegations and move into discovery to determine the plaintiff’s side of the story, moving too quickly could lead to a missed opportunity. It is important to closely analyze who the parties are, the allegations and the basis for the claims before taking that next step to ensure you put your best foot forward for the client. The question ultimately becomes: What can be done?
What follows in this article is a summary of the many strategic moves and procedural tactics available when responding to a petition and an analysis of the law that justifies each strategic move or procedural tactic.
SPECIAL ENTRY OF APPEARANCE AND RESERVATION OF ADDITIONAL TIME TO PLEAD
When you receive a petition from a client, you may determine that you cannot perform your due diligence and submit a timely response and then find yourself needing additional time. What can be done to get that additional time? Under the Oklahoma Pleading Code, a defendant has 20 days from the date of service to serve an answer.1 In Young v. Walton,2 the Oklahoma Supreme Court held that the terms of Okla. Stat. Tit. 12, §2012(A) provide a defendant with the ability to file an appearance within the 20 days and extend the period to respond, but in doing so, the appearance operates as a waiver of certain defenses.3 The Oklahoma Supreme Court in Young stated, however, that this waiver of defenses only applied to a general appearance, or an unspecified appearance, and it did not apply to an appearance that is explicitly qualified.4 By filing a qualified or special appearance, it reserved the right to later assert additional defenses.5 Oklahoma defense attorneys could therefore file a “special entry of appearance” to not only extend their time to respond but to also preserve their right to assert affirmative defenses. This tactic has often been used by defense attorneys.
The ability to use this tactic was, however, recently affected by the Oklahoma Supreme Court ruling in McBee v. Shanahan Home Design.6 In McBee, the defendants filed special appearances citing Young v. Walton and requested additional time to respond without waiving any affirmative defenses.7 In its ruling, the Oklahoma Supreme Court recognized that in 2002, the language of Okla. Stat. Tit. 12 §2012(A) changed, and the use of the word “appearance” was removed and replaced by the term “reservation of time.”8 This arguably overturned Young v. Walton and removed the ability to file a special entry of appearance to extend the period of time to respond and not waive certain affirmative defense.9 “The distinction between a special or general appearance would now appear inconsequential, and ostensibly, any reservation of time ‘waives the defenses in paragraphs 2, 3, 4, 5, 6, and 9 of subsection B of Section 2021.’”10
Defense attorneys can no longer rely on a special entry of appearance to extend the period of time to respond to a petition without waiving any affirmative defenses. Instead, defense attorneys needing additional time must now obtain consent from the plaintiff’s attorney or a court order granting a request for additional time. While this is not an incredibly difficult task, defense attorneys should not sit on their hands. Upon receipt of a new lawsuit from a client, defense attorneys should act immediately to investigate the claims asserted in the lawsuit and avoid the need to file an application with the court to seek additional time to respond. Otherwise, you may face filing an answer and foregoing other possible strategic moves.
MOTION TO DISMISS
Motions to dismiss can be the most effective strategic move in response to a new lawsuit. Filing a motion to dismiss can not only lead to a dismissal of the lawsuit, but it could cause a plaintiff to reconsider their allegations. Still, filing a motion to dismiss can be time consuming and costly to a client, so a determination on whether to file a motion to dismiss must be thoroughly examined and discussed with the client. Oklahoma is a notice pleading state, and all that is required for a plaintiff to plead a viable lawsuit is to give fair notice of their claim and the grounds on which it rests.11 Under the Oklahoma Pleading Code, a petition must contain “[a] short and plain statement of the claim showing that the pleader is entitled to relief.”12 Terms of art or legal phraseology is not required, and each allegation “shall be simple, concise, and direct” with no technical form of pleading or motion required.13
Motions to dismiss test the law that governs the claims in the petition and are generally disfavored.14 The court examines the controlling law, not the facts, and a motion to dismiss will be granted only when there are no facts consistent with the allegations or there are insufficient facts under a cognizable legal theory.15 The question becomes, when is it appropriate to file a motion to dismiss?
Lack of Jurisdiction
To have a viable cause of action against a defendant, a plaintiff must set forth allegations sufficient to allow a court to exercise subject-matter jurisdiction over the claims and personal jurisdiction over the defendant. Under Okla. Stat. Tit. 12 §2012(B)(1) and (2), a defendant can seek dismissal of a lawsuit because of a lack of subject-matter jurisdiction or personal jurisdiction. Jurisdiction “is the authority by which courts take cognizance of and decide cases, and that the three elements necessary to the validity of a court order are jurisdiction of the person, jurisdiction of the subject matter and the power of the court to decide the particular matter and render the particular judgement at issue.”16
Subject-matter jurisdiction. For a court to have authority to adjudicate a dispute, it must have jurisdiction over the type of legal issues in dispute. Subject-matter jurisdiction “is the power and authority of a court to hear and determine causes of the kind in question.”17 Subject-matter jurisdiction cannot be waived by the parties or conferred upon the court through consent, and it can be challenged at any time during the proceedings.18 Subject-matter jurisdiction is generally challenged at the beginning of litigation by filing a motion to dismiss under Okla. Stat. Tit. 12 §2012(B)(1). When filing a motion to dismiss for lack of subject-matter jurisdiction, a party is allowed to submit evidence outside the pleadings. While a court faced with a motion to dismiss attaching evidence outside of the pleadings will typically treat the motion as a motion for summary judgment, when attaching evidence to a motion to dismiss to challenge subject-matter jurisdiction, the court is not required to convert the motion to dismiss to a motion for summary judgment.19 To avoid having the motion to dismiss converted to a motion for summary judgment, however, the evidence submitted must only relate to the issue of jurisdiction. “When this additional disputed evidence relates to an element of the cause of action pled by a party, the motion to dismiss for lack of subject-matter jurisdiction is converted to one for summary judgment.”20
Personal jurisdiction. Personal jurisdiction is a protection granted by the Due Process Clause of the U.S. Constitution and Oklahoma Constitution.21 It is the power of the court to deal with a person as a defendant and issue a binding judgment against that defendant.22 “When in personam jurisdiction is challenged, the jurisdiction over a non-resident defendant cannot be inferred, but instead must affirmatively appear from the trial court record, and the burden of proof in the trial court is upon the party asserting that jurisdiction exists.”23 When deciding whether personal jurisdiction exists, the court will exercise the minimum contacts test to determine whether the defendant has certain minimum contacts with Oklahoma, such that the exercise of jurisdiction over the defendant does not offend “traditional notions of fair play and substantial justice.”24 To exercise personal jurisdiction over a defendant, the minimum contacts between the defendant and the state of Oklahoma must be sufficient to show the defendant reasonably anticipated being hauled into court in Oklahoma.25
Failure to State a Claim Upon Which Relief May be Granted
Under the Oklahoma Pleading Code, a petition that fails to state a claim upon which relief can be granted is subject to dismissal.26 A court may dismiss a party’s claim as a matter of law for two reasons: 1) lack of any cognizable legal theory or 2) insufficient facts under a cognizable legal theory.27 A petition must set forth sufficient facts in support of each element of the claim being asserted. A motion brought under Okla. Stat. Tit. 12 §2012(B)(6) will be granted where it appears beyond doubt that the plaintiff cannot prove a set of facts that support the requested relief.28 In reviewing a petition upon a motion to dismiss, the court considers the legal sufficiency of the petition, taking all allegations as true.29 A dismissal is appropriate for lack of any cognizable legal theory or insufficient facts under a cognizable legal theory.30
If the petition asserts a fraud claim, the pleading standard is higher, and a motion to dismiss can be more effective. In Oklahoma, all claims of fraud must be pled in accordance with the particularity requirements of Okla. Stat. Tit. 12 §2009(B).31 The Oklahoma Supreme Court has recognized this particularity requirement extends to all claims of fraud, and when an action involves more than one defendant, the plaintiff “must plead facts from which fraud may be reasonably inferred as to each defendant.”32 A fraud claim must set forth facts sufficient to show the time, place and content of the alleged false representation and must show more than circumstances from which fraudulent intent could be inferred.33Thus, while a petition may set forth allegations sufficient to withstand Oklahoma’s notice pleadings standard, a petition may not withstand the higher pleading standard for fraud claims.
When the petition fails to fulfill the particularity requirement under Okla. Stat. Tit. 12 §2009, there is a procedure for obtaining this information instead of pressing for dismissal. Under Oklahoma case law, a defendant can file a request that the plaintiff provide a more definite statement with the necessary particulars that would support the allegation of fraud – i.e., time, place and content of the alleged false representation.34 This may be asserted in the alternative rather than a request for dismissal.
RESPONDING TO THE PETITION
Filing a motion to dismiss can be costly for a client as it can require an attorney to expend a great deal of time researching and brief writing. Because motions to dismiss are rarely granted in Oklahoma state courts, there will often be times when a motion to dismiss is not proper and responding to the petition is the appropriate move. However, it is still not the time to rush as there are numerous considerations to be made, strategic moves that can be pursued and opportunities that can be missed. The next step should result from discussions with the client and a determination of the facts.
Asserting a Counterclaim, Cross-Claim or Both
Under the Oklahoma Pleading Code, there are two types of counterclaims: a compulsory counterclaim and a permissive counterclaim. A compulsory counterclaim is any claim against the opposing party that arises out of the transaction or occurrence that is the subject matter of the opposing party’s claims.35 If you do not assert a compulsory counterclaim in response to the petition, it will bar a later action of that claim.36 “The purpose of the compulsory counterclaim bar is to prevent multiplicity of litigation over related claims.”37 A permissive counterclaim includes any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claims.38 Any claim that falls short of a compulsory counterclaim essentially qualifies as a permissive counterclaim, and the failure to assert a permissive counterclaim in response to a petition does not bar a later action.
If there are multiple defendants, a cross-claim may be appropriate. A cross-claim is a claim against any party that is not an opposing party arising out of the transaction or occurrence that is the subject matter of the original action.39 The most common cross-claims are derivative cross-claims, i.e., a claim for contribution or indemnification. Contribution is available when one or more persons become jointly or severally liable in tort for the same injury to a person or property.40 An indemnification claim is available to one who, without fault on their own, has paid damages because of the negligence of another.41
Under Okla. Stat. Tit. 12 §2014, a defendant can serve a petition and summons on a non-party who is or may be liable for the plaintiff’s claim or a defendant’s counterclaim arising out of the transaction or occurrence that is the subject matter of a claim asserted against them. This can be pursued by a defendant any time after the commencement of the action or by a plaintiff any time after a counterclaim is asserted. Often, third-party claims are initiated to assert a contribution or indemnification claim or both. Yet it is worthy to note a recent trend surrounding contribution claims in the district courts. Under Okla. Stat. Tit. 23 §15, joint and several liability in Oklahoma was completely abolished in 2011 and liability in Oklahoma became several only. Any liable party is, therefore, only liable for their pro rata share of liability, and Oklahoma district courts have concluded that contribution is, therefore, not a viable cause of action between defendants. While the Oklahoma Supreme Court has not concluded there is no viable third-party contribution claim in the state of Oklahoma, it is vital to ensure you consider this analysis when determining whether to initiate that third-party claim for contribution.
Removal to Federal Court
Transferring a case from state court to federal court is a tactical move that could prove to be beneficial to a client. Federal courts have different procedural rules, and federal judges have more precedential authority to rely on than Oklahoma courts on many different issues. That said, removing a case from state court to federal court can be more costly than filing a motion to dismiss, and you should discuss all the pros and cons with the client to ensure the client is on board.
Under 28 U.S.C. §1446, a defendant can file in the United States district court for the district within which the state court action is pending a notice of removal containing a short and plain statement of the grounds for removal.42 The notice of removal must be filed within 30 days after the defendant is served with the initial pleading setting forth the claim for relief.43 Typically, the basis for removal of a state court action to federal court is either diversity of citizenship or the inclusion/joinder of federal law claims. Removal under 28 U.S.C. §1441(b) based on diversity of citizenship occurs when the matter in controversy exceeds the sum of $75,000 and is between citizens of different states.44 Removal under 28 U.S.C. §1441(c) because of federal question jurisdiction occurs when one or more claims asserted in the initial pleading arises under the Constitution, laws or treaties of the United States.45 A plaintiff does have the ability to object to removal. Within 30 days of when the notice of removal was filed, a plaintiff can file a motion asking the federal district court to remand the case back to state court.46 This is where it can begin to get costly for the client, and before filing the notice of removal, the client should have a good understanding of what the removal process will entail.
Answering the Petition
There will be times, more often than not, when the only way to put your best foot forward is by answering the petition. Again, the decision for how you should answer a petition should not be rushed. Before answering the petition, you should sit down with your client and review each allegation to determine whether the allegation should be admitted, denied or if some other response may be appropriate. The Oklahoma Pleading Code provides that a defendant shall set forth “in short and plain terms” their defenses to each claim, and it sets forth the standard for answering a petition. While you don’t want to show all your cards at this early stage, at times it may become necessary to set forth a brief explanation for why an allegation is denied. This is proper under Okla. Stat. Tit. 12 §2008.
Once you have answered each allegation in the petition, you will want to assert your affirmative defenses. Under Okla. Stat. Tit. 12 §2008(C), when responding to a petition, a defendant must set forth several defenses affirmatively. The language under Okla. Stat. Tit. 12 §2008(C) is mandatory, and the failure to plead an affirmative defense operates as a waiver of that defense.47 For that reason, you will want to ensure you know your case when setting forth your affirmative defenses so you don’t waive any defenses that could become important to the case. Should you discover that you omitted an affirmative defense after filing your answer, you can amend your answer to include an affirmative defense that may have been omitted. Under the Oklahoma Pleading Code, 12 O.S. §2015(A), you can amend your answer as a matter of course at any time within 20 days after the answer is served. If the 20 days have elapsed, you will have to seek leave of court to do so, and effective Nov. 1, 2022, per an amendment to 12 O.S. §2015(A), you must submit your proposed amendment with the motion for leave to amend. It is within the court’s discretion on whether to allow you to amend your answer, so if you discover you have omitted an affirmative defense in your answer, you will want to act quickly.48
There are several strategic moves available to a defendant when faced with a new lawsuit. A failure to properly consider these strategic moves as viable options when responding to a petition could lead to a missed opportunity for your client. Whether it is a current client or a new client, you will want to ensure you are zealously advocating for your client. By considering each of these strategic moves and determining whether any such move is appropriate, it will allow you and your client to put your best foot forward from the beginning.
ABOUT THE AUTHOR
Melissa East is a partner at McDaniel Acord PLLC in Tulsa. Her practice focuses on general civil litigation, including the areas of construction law, personal injury law, environmental and toxic tort law, commercial business litigation and family law. She is a 2007 graduate of the TU College of Law.
- See Okla. Stat. Tit. 12, §2012(A).
- 1991 OK 20, 807 P.2d 248.
- Id. ¶4, 807 P.2d at 249.
- Campbell v. American Intern. Group, 1999 OK CIV APP 37, ¶9, 976 P.2d 1102, 1105.
- 2021 OK 60, 499 P.3d 1.
- Id. ¶5 n. 12.
- Gens v. Casady School, 2008 OK 5, 177 P.3d 565.
- 12 O.S. §2008.
- Id.; Gens, 2008 OK 5.
- Osage Nation v. Board of Commissioners of Osage County, 2017 OK 34, ¶22, 394 P.3d 1224, 1233-1234.
- In re. A.N.O., 2004 OK 33, ¶9, 91 P.3d 646.
- Doe v. First Presbyterian Church U.S.A. of Tulsa, 2017 OK 106, ¶14, 421 P.2d 284, 288.
- Montgomery v. Airbus Helicopters, Inc., 2018 OK 17, ¶18, 414 P.3d 824, 829.
- Guffey v. Ostonakulov, 2014 OK 6, ¶12, 321 P.3d 971, 975.
- Montgomery, 2018 OK 17, ¶18, 414 P.3d at 829.
- Guffey, 2014 OK 6, ¶14, 321 P.3d at 975-976.
- State ex rel. Fisher v. South Atlantic Dredging Co., Inc., 2000 OK CIV APP 123, ¶6, 15 P.2d 523, 525 (quoting
- World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980)).
- 12 O.S. §2012(B)(6).
- Pryor v. Findley, 1997 OK CIV APP 74, ¶2, 949 P.2d 1218, 1219 (quoting Ind. Nat’l Bank v. State Dept. of Human Servs., 1994 OK 98, 880 P.2d 371, 375-76).
- Hayes v. Eateries, Inc., 1995 OK 108, ¶2, 905 P.2d 778, 780.
- Gens v. Casady School, 2008 OK 5, ¶8, 177 P.3d 565.
- Gay v. Akin, 1988 OK 150, ¶7, 766 P.2d 985, 989.
- Id. at ¶8.
- Estrada v. Kriz, 2015 OK CIV APP 19, ¶23, 345 P. 3d. 403, 410 (citing A-Plus Janitorial & Carpet Cleaning v. Employers’ Workers’ Comp. Ass’n, 1997 OK 37, ¶36, 936 P.2d 916, 931).
- 12 O.S. §2013(A).
- Robinson v. Texhoma Limestone, Inc., 2004 OK 50, ¶8, 100 P.3d 673, 675.
- Id. (citing Oklahoma Gas & Electric Co. v. District Court, Fifteenth Judicial District, 1989 OK 158, ¶11, 784 P.2d 61, 64).
- 12 O.S. §2013(B).
- 12 O.S. §2013(G).
- 12 O.S. §832(A).
- National Union Fire Insurance Company v. A.A.R. Western Skyways, Inc., 1989 OK 157, ¶7, 754 P.2d 52, 54.
- 28 U.S.C. §1446(a).
- Id. at §1446(b)(1).
- 28 U.S.C. §1332(a).
- 28 U.S.C. §1331.
- 28 U.S.C. §1447(c).
- Furr v. Thomas, 1991 OK 93, ¶23, 817 P.2d 1268, 1272.
- Prough v. Edinger, Inc., 1993 OK 130, ¶8, 862 P.2d 71, 75.
Originally published in the Oklahoma Bar Journal – OBJ 93 Vol 6 (August 2022)