Civil procedure, affirmative defense, limitation of action
Full Question:
Answer:
In this response to your question I shall present only general information, not legal advice. Especially when involved in pending litigation as you are, you should consult an attorney of your choice regarding both substantive and procedural law as each pertains to the pending litigation.
Both statutes of limitation and the judicial interpretation of those statutes vary from state to state; that is, both statutes of limitation and the case law interpretating statutes of limitation are very state specific. As a general rule, a statute of limitation is an affirmative defense that the other party must raise in the proceeding by an appropriate pleading and frequently at an early stage in the proceeding. If the other party fails to raise an affirmative defense in a timely manner, then as a general rule, the other party has waived its affirmative defense, such as the defense that the claim is barred by the statute of limitations.
Limitation of Actions: Law & Legal Definition.
Limitation of actions refers to a law which sets the maximum period which one can wait before filing a lawsuit, depending on the type of case or claim. The periods vary by state and by type of claim. Federal statutes set the limitations for federal lawsuits. If the lawsuit or claim is not filed before the statutory deadline, the right to sue or make a claim is lost forever.
In some instances, a statute of limitations can be extended ("tolled") based on delay in discovery of the injury or fraud. A minor's right to bring an action for injuries due to negligence is tolled until the minor turns 18 (except for a claim against a governmental agency). There are also statutes of limitations related to criminal charges, but homicide generally has no time limitation on prosecution. The contractual methods for dealing with statutes of limitations restrictions include a new promise to pay or an acknowledgment of a debt from which such promise may be inferred, or contractual limitation periods and waivers of the defense.
Statute of Limitations: Law & Legal Definition
A statute of limitations is a law which sets the m.aximum period which one can wait before filing a lawsuit, depending on the type of case or claim. The periods vary by state and by type of claim. Federal statutes set the limitations for federal lawsuits. If the lawsuit or claim is not filed before the statutory deadline, the right to sue or make a claim is lost forever.
In some instances, a statute of limitations can be extended ("tolled") based on delay in discovery of the injury or fraud. A minor's right to bring an action for injuries due to negligence is tolled until the minor turns 18 (except for a claim against a governmental agency). There are also statutes of limitations related to criminal charges, but homicide generally has no time limitation on prosecution. The contractual methods for dealing with statutes of limitations restrictions include a new promise to pay or an acknowledgment of a debt from which such promise may be inferred, or contractual limitation periods and waivers of the defense.
Statute of Repose: Law & Legal Definition.
A statute of repose provides a date upon which the action no longer exists, whether it has accrued by that date or not; it entirely cuts off an injured person's right of action even before it accrues. It is a stricter deadline than a statute of limitations because it may not be tolled by fraud, discovery of injury, etc. A statute of repose is neither an avoidance nor a defense to a cause of action because the cause of action does not exist once the period of duration is passed. While a statute of limitation allows a party to avoid suit, a statute of limitations does not affect the validity of the claim; however, once the period of duration under a statute of repose is expired, there is no suit to avoid, because the statute of repose extinguishes the cause of action, and failure to plead the statue of repose as an affirmative defense could not resurrect a cause of action that no longer exists. A statute of repose bars an action after a specified period of time has run from the occurrence of some event other than the injury which gave rise to the claim.
That said, as I read your question, you appear to ask whether when litigation is pending, should you as defendant assert a claim against plaintiff as a counter-claim in the pending proceeding, or as a claim for relief in a separate civil action. You go on to raise the issue of statute of limitations but the fundamental issue is how to assert your claim against plaintiff. I respond to your question with general information, not with legal advice.
In the next portion of this response , I present as general informaton, an overview of civil procedure as it currently exists generally in state courts in the United States, in order to help you understand the respective roles of claims for relief and affirmative defenses in clvil litigation generally.
Civil Procedure: Complaints Law & Legal Definition.
In a civil action, the complaint is the document that initiates a lawsuit. The complaint outlines the alleged facts of the case and the basis for which a legal remedy is sought. Civil complaints seek to remedy a harm to the plaintiff, usually with money damages, The party filing the complaint is usually called the plaintiff and the party against whom the complaint is filed is called the defendant or defendants. Complaints are pleadings and must be drafted carefully to properly state the factual as well as legal basis for the claim, although some states have approved complaint forms which can be filled in by an individual.
A complaint also must follow statutory requirements as to the form of the document. A specific type of paper may be required, and it must include certain elements. A complaint must include a caption, which names the parties involved in the action, the title of the pleading, and once filed with the court will contain a case number. The complaint also contains the allegations forming the basis for the action, frequently called the "claim for relief," and a statement of the relief requested, generally called the "prayer". A copy of the complaint and the summons must be served on a defendant before a response is required. A complaint when filed with a court must be accompanied by a filing fee payable to the court clerk, unless a waiver based on poverty is obtained.
Civil Procedure - Defense Law & Legal Definition
A defense is a denial, or answer or plea in opposition to the truth or validity of a claim by a plaintiff. It may be made by an oral motion, written pleading, or through the introduction of evidence. An affirmative defense is a type of defense in which the defendant seeks to avoid liability by introducing new evidence not addresses in the claims of the plaintiff's complaint. Such a defense must be raised in the defendan't answer and the defendant has the burden of proof of proving the defense.
There are also equitable defenses, which appeal to basic notions of equity and fairness. Equitable defenses may include illegality, such as a contract for purchase of illegal goods, or fraud. Another example is defendant's claim that the plaintiff has "unclean hands", meaning that the plaintiff acted in a malicious or intentionally wrongful manner in regard to the transactions that form the basis of plaintiff's claim.
Civil Procedure: Counterclaims Law & Legal Definition.
A counterclaim is a retaliatory claim by a defendant against a plaintiff in a lawsuit included in the defendant's answer and intending to reduce the amount of the plaintiff's original claim against the defendant. Some states require the defendant to file a cross-complaint, which is a separate complaint that is part of the same lawsuit, rather than asserting a counterclaim in the answer. Federal courts require the defendant to state any asserted counterclaim to reduce damages in their answer or else it is barred from being considered.
Civil Procedure: Affirmative Defenses Law & Legal Definition.
An affirmative defense is a type of defense in which the defendant seeks to avoid liability by introducing new evidence not addresses in the claims of the plaintiff's complaint. Such a defense must be raised in the defendan't answer, and because affirmative defenses require the assertion of facts beyond those claimed by the plaintiff, the defendant has the burden of proof for the defense. The burden of proof is typically lower than beyond a reasonable doubt. It can either be clear and convincing or preponderance of the evidence. An affirmative defense must be timely made by the defendant in order for the court to consider it, or else it is considered waived by the defendant's failure to assert it.
Civil Procedure: Answer Law & Legal Definition.
In a civil case, an answer is the defendant's written response to the plaintiff's complaint. It must be filed within a specified period of time, and it either admits to or (more typically) denies the factual or legal basis for liability. Some states allow an answer to state a lack of knowledge as to whether a particular allegation is true or false. The answer may also include "affirmative defenses" including allegations which contradict the complaint or contain legal theories (like "unclean hands," "contributory negligence" or "anticipatory breach") which are intended to undercut the claims in the complaint. If the defendant fails to file an answer, the plaintiff usually wins by default. There are rules of evidence which govern the formalities and time period required in filing an answer. The answer is usually filed along with a proof of service of the same upon the other parties to the action.
Civil Procedure: Other Pleadings Law & Legal Definition.
Pleadings is a term referring to all legal documents filed in a civil lawsuit, petition, motion and/or hearing, including a complaint, petition, answer, demurrer, motion, declaration and legal memorandum. State or federal statutes and/or court rules exist requiring pleadings to be of a particular form and format: typed, signed, dated, with the name of the court, title and number of the case, name, address and telephone number of the attorney or person acting for himself/herself (in pro per) included.
Old rules of pleading were complex and strictly construed. Meritorious complaints were often thrown out of court for technical flaws in form rather than substance. Today, in most if not all states, a pleading may be a simple petition or complaint setting forth the relevant facts and asking for a remedy and modern courts are opposed to invalidating pleadings on technical grounds.
Civil Procedure: Default Law & Legal Definition.
In legal terminology, default refers to a failure to fulfill a legal obligation or duty. For example, a default by a borrower under a loan agreement permits a lender to take certain actions in response to the default.
Default is often used to refer to the non-appearance of the defendant within the time prescribed by law to defend himself. It also signifies the non-appearance of the plaintiff to prosecute his claim. In such cases, a judgment will be rendered in favor of the non-defaulting party automatically, which is called a "default judgment".
Judgments: Law & Legal Definition.
A judgment is the final decision by a court in a lawsuit, criminal prosecution or appeal from a lower court's judgment. This is distinguished from an "interlocutory judgment," which is only valid until a final judgment is made. It is a court’s final decision regarding the rights and obligations of the parties to a case. A judgment is also referred to as a decree.
There are certain legal requirements for the validity of a judicial judgment. It must be made by a competent judge or court at a time and place appointed by law and in the form it requires. For example, if the judge does not have jurisdiction of the matter, or does not hold a required hearing or present the required opportunity for a party to be heard, then any judgment rendered may be overturned. The judgment must confine itself to the question raised before the court and cannot extend beyond it. If the judgment is appealed, the appellate court generally reviews the law applied by the lower court, and will not disturb the factual findings.
The person who obtains a civil judgment for money is called a judgment creditor and the person who owes money on the judgment is called the judgment debtor. If the judgment debtor fails to pay the judgment, the judgment creditor may file a judgment lien and have the judgment debtor's assets sold to pay off the judgment. Local laws on procedures used to collect unpaid vary, so laws in your area should be consulted for specific requirements
To further inform you, I have included links to New Hampshire judicial and rules-of-court websites, and links to US Legal Law and Legal Definition websites. Please read these webpages carefully for additional, pertinant information.
Finally, I have included a link to the US Legal attorney referral website for New Hampshire litigation lawyers, should you decide you want legal advice or legal representation.
Please see the information at the following links:
http://www.courts.state.nh.us/lawlibrary/
http://www.courts.state.nh.us/rules/index.htm
http://www.courts.state.nh.us/rules/sror/index.htm
http://www.courts.state.nh.us/rules/dmcr/index.htm