When Is The Answer Due? It Depends On What Court You Are In

Knowing when to answer a lawsuit is important to avoid a default judgment. However, different types of courts have different rules for how to serve a complaint and when the answer is due. While I have long known about the rule for Texas state courts, I did not realize that federal bankruptcy courts and district courts have different rules. 

Bankruptcy Court

Service in bankruptcy court is governed by Fed.R.Bankr.P. 7004 and Official Form 2500A. In bankruptcy court, the summons may be served by first class mail and nationwide service is allowed. Fed.R.Bankr.P. 7004(b) and (d). The answer is due within 30 days after issuance of the summons. Fed.R.Bankr.P. 7012(a). In order to keep plaintiffs from sitting on a summons and letting the time run out, a summons must be served within seven days from issuance. Fed.R.Bankr.P. 7004(e). Thus, when calculating an answer date in bankruptcy court, the answer is always due based on when the summons is issued. However, if the summons is not timely served, the plaintiff must obtain a new summons and start over.

Federal Court

Service in U.S. District Court is governed by Fed.R.Civ.P. 4 and Official Form AO 440. In District Court, the summons may be served by any means allowed by the state, by delivering a copy of the summons to the defendant, by "leaving a copy . . . at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there" or by delivering a copy to the person's agent for service. Fed.R.Civ.P. 4(e). Thus, the Federal Rules of Civil Procedure contemplate personal service unless state law allows a different method. An answer in district court is due within twenty-one days after being served. Fed.R.Civ.P. 12(a). Thus, the deadline in district court is nominally shorter than in bankruptcy court but runs from the date of service. 

Texas State Court

In Texas state court, service may be by delivery to the defendant or by certified mail or registered mail, return receipt requested. Tex.R.Civ.P. 106(a). While the rule is not explicit, cases governing substituted service suggest that when service is done by certified mail, the defendant must actually sign the return receipt for service to be effective. If regular service is not effective, the plaintiff can file a motion supported by an affidavit stating the attempts to serve the defendant and where the defendant can "probably" be found. Upon a proper motion, the court may authorize substituted service by leaving the summons with a person over the age of 16 years at the location specified in the affidavit or "in any other manner, including electronically by social media, email or other technology, that the statement or other evidence shows will be reasonably effective to give the defendant notice of the suit." Tex.R.Civ.P. 106(b). Thus, Texas state court is the most restrictive for initial attempts at service but allows greater flexibility once service has been unsuccessful. Of course, substituted service is subject to court approval prior to service.    The return of service must be on file for at least ten days prior to taking a default judgment. Tex.R.Civ.P. 107(h).  In Texas state court, an answer is due by 10:00 a.m. on the Monday which is at least twenty days after service.  Tex.R.Civ.P. 99(b). 

Comparing the Different Rules

Non-bankruptcy practitioners and defendants are often surprised that a lawsuit can be served by placing the summons and the complaint in regular first class mail. Of the three methods for service, service by first class mail is the easiest to accomplish. However, because there is not a record of someone receiving the summons, it is easier for a defendant to dispute that they were actually served. Unless the plaintiff carefully researches where to serve the summons, it is possible to obtain ineffective service that may be set aside later. U.S. District Court and Texas state court both rely primarily on personal service and measure the answer date from the date of service. It is harder to serve a defendant in these cases but service, once obtained, is likely to stand up. 

There are a lot of permutations and special circumstances I did not discuss since I just wanted to hit the high points here. The U.S. government gets more time to answer in federal court and Texas has various forms of citation by publication to deal with unusual situations.