VI. STARTING A CIVIL CASE
A. What is a civil case?
In a civil case, the court is asked to resolve
a dispute between two parties. A party might be an individual,
a corporation, or a government agency. There are many types
of civil cases. Some examples are divorces, 209A restraining
orders, mental health proceedings, eviction proceedings, contract
disputes and personal injury claims. If you are uncertain whether
your case is civil, call your local court.
If you file a civil complaint, the other party
may respond by filing a counterclaim against you, or by involving
another party in the case. The claims raised by others then
become part of your case.
Plaintiff In
a civil case, the plaintiff is the person who
starts the case by filing a complaint.
Defendant In
a civil case, the defendant is the person being
sued by the plaintiff.
Petitioner In
some types of civil cases, a person starts
the case by filing a petition rather than a
complaint. This person is called the petitioner.
Respondent In
civil cases where a petition is filed, the
defending party is called the respondent.
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B. How do I start a civil case?
A civil case usually starts when a complaint
or petition is filed. The first thing you will need to do is
figure out in which court department and division you should
file your case. A case is usually filed in the court closest
to where one or both parties live or have their businesses.
Other factors that may affect where you should file your case
might be the type of case you have or where the event in dispute
took place.
The Massachusetts Rules of Civil Procedure, the
Massachusetts Rules of Domestic Relations Procedures, and other
applicable case law and statutes will help you determine where
and how to start your case. The laws and rules that apply in
this area can be complex. It is your responsibility to know
the rules and law that apply to your case. If you have specific
questions about how to file a claim, your local court might
be able to assist you. See Appendix A for additional resources.
In some cases, you can get a complaint or petition
form from the court or from the Trial Court's website. In other
cases, there is no form and you will need to write the complaint
or petition yourself. After you complete the complaint or petition,
the rules will specify how to properly file your claim at the
courthouse.
If a party files a case that the court determines
was filed for the sole purpose of making someone angry or to
harass them and the case has no sound legal basis, the court
can make that party pay for the other party's lawyer's fees
plus any costs that might apply and may even make that party
pay costs for wasting the court's time.
Small Claims is
a special process designed to resolve relatively
minor civil cases. Small claims procedure is
simpler and quicker than traditional civil
procedure. It is governed by its own set of
rules.
A small claims case starts with
the filing of a form called a "Statement
of Claim and Notice," rather than a complaint.
With a few exceptions, small
claims procedure can be used only in cases
in which the actual amount of damages the plaintiff
seeks is relatively small ($2,000.00 as of
the date of publication).
- The
parties are usually not represented by
attorneys.
- Small
claims cases are usually heard and decided
by a clerk-magistrate or assistant clerk-magistrate.
- The
defendant can appeal the decision to a
judge but the plaintiff cannot.
- Small
claims cases are heard in the District
Court, Boston Municipal Court, and Housing
Court departments.
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C. How much does it cost to file a civil
case?
Typically, there is a fee that must be paid when
you file a complaint or petition with the court. There are
other costs that may come up during a case as well. Make sure
you find out what costs apply to your type of case before proceeding.
ALERT!
Filing fees vary and are set by
the Legislature. If you cannot afford the fees
and costs required in connection with your case,
you may be able to have them waived.
You can request a waiver of a fee
or fees by filling out an "Affidavit of
Indigency" form. The Affidavit of Indigency
form asks for information about your income and
expenses. This will enable the court to determine
if you should be excused from paying the fees.
The waiver request can be granted
by the clerk-magistrate, register or recorder.
If the request is denied or if there are questions
about whether you qualify, the request might
be referred to a judge.
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D. How do I "serve" the
complaint?
Once you file your complaint or petition with
the court, you must have a copy of it delivered to the other
party in the manner required by the rules. You must also deliver
a summons or citation, which you can get from the clerk-magistrate,
register or recorder of the court. This is called "service
of process" and is a crucial part of your case. There
are several ways to do this. You must learn what rules apply
to your case and then follow them.
After you have served the other party, you will
need to file proof with the court that you have done so. This
is referred to as "return of service." Your local
sheriff's or constable's office may be able to provide helpful
information about how to serve your complaint or petition and
summons.
E. If I get served with a complaint,
what do I do?
- Read the summons and
the complaint or petition. It is important to read both
the summons (or citation) and the complaint (or petition)
very carefully. The complaint or petition will tell you
what claims are being made against you. The summons or
citation will include important instructions on what steps
you should take to defend yourself. Know the rules that
apply to your case and follow them.
- Write and file
an answer. The "answer" is your written response
to the claims made against you. You must file an answer
with the court that issued the summons or citation.
If you fail to answer, you could lose the case without
ever having the opportunity to tell your side of the
story. The summons or citation will provide you with
information regarding where and when to file your answer.
- Serve the other party
with a copy of the answer. You have to serve the other
party with a copy of your answer. Consult the rules to
find out how. The clerk's or register's or recorder's office
might also be able to answer questions you have. The Trial
Court law libraries are a source of information as well.
Refer to Appendix A.
ALERT!
Some defenses must
be stated in the answer or you may lose your
right to use them in court. These are called
affirmative defenses.
Research the rules
and law to find out if any of your defenses to
the complaint are affirmative defenses that must
be stated in your answer.
This is a critical
step in the court process. The applicable laws
and rules that apply are complex and will require
your attention.
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ALERT!
Failure of a defendant to file
an answer might result in the entry of a default
judgment. A default judgment is when the judge
grants the plaintiff's request and enters judgment
in favor of the plaintiff without hearing from
the defendant.
Failure of a plaintiff to actively
pursue a case might result in dismissal of the
case. A case can be dismissed by the court for
a variety of reasons, including the failure of
the plaintiff to meet court deadlines, orders,
or applicable rules.
A dismissal with prejudice prevents
the plaintiff in a civil case from bringing a
new case on the same claim. A dismissal without
prejudice disposes of the particular case before
the court, but a new case may be brought in the
future based on the same claim.
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