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A Timely Response

On Behalf of | Feb 26, 2009 | Litigation

When a lawsuit is begun, the plaintiff is required to “serve” the defendant with a copy of the complaint which gives rise to the suit. Service can take several forms but is most commonly done by a county sheriff. The sheriff is instructed to either give a copy of the complaint to the defendant or leave a copy of the complaint at the defendant’s residence. If the defendant is served but fails to file a timely appearance or answer, the court may hold the defendant to be in “default.” When you are in default you may not be allowed to contest the claims that are being brought against you or to ask for relief from the court.

In the case of Maynard and Maynard (decided July 13, 2007), the New Hampshire Supreme Court highlighted the perils a party could face if they ignore a sheriff’s attempt to make service upon them. In Maynard, the husband filed a petition for divorce. A sheriff attempted to serve the petition. When the sheriff arrived at the wife’s residence and attempted to serve her in hand, the wife refused to answer the door. The sheriff then left a copy of the petition at the residence. The husband also attempted to provide notice to the wife by placing copies of the petition for divorce in the children’s school bag and in her car. Despite these attempts, the wife did not file an appearance, answer, or attend the temporary hearing.

When some time later the wife decided to participate in the divorce action, she argued at the final hearing that she should receive alimony. The marital court ruled that her failure to file a timely answer requesting alimony prevented her from seeking alimony at the final hearing. The court ruled that she had received proper notice of the hearing of the divorce case and her testimony to the contrary was not credible.

Maynard highlights the risks a person can face if they ignore a lawsuit. When served with a lawsuit, people’s reactions can vary widely. Some people are unable to cope with the thought of being sued and ignore the claim hoping it will go away. Others become indignant and believe that they have no obligation to respond to the claim because the claim is without merit. Both of these reactions can prove extremely harmful because the plaintiff, like the husband in Maynard, may obtain a default judgment against the defendant and thus bar him or her from contesting the merits of the claim. Therefore, if served with a lawsuit, one should immediately protect one’s rights and obtain counsel for assistance.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].