responding to a complaint - kansas

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A Q&A guide to responding to a complaint in a trial court of general jurisdiction in Kansas. This Q&A addresses the time to respond, extending the time to respond, pre-answer motions, answers, replies to the answer, counterclaims, crossclaims, third-party claims (also known as impleader) and defensive interpleader.

In Kansas, a complaint is referred to as a petition (see Kan. Stat. Ann. § 60-207(a)).

Responding to a petition is generally governed by the Kansas Rules of Civil Procedure and the Kansas Supreme Court Rules. However, each district court may impose additional requirements in its local rules, which are available on the Kansas Judicial Branch website.

The Kansas Statutes Annotated establish three classes of civil pro-ceedings:

�� Lawsuits under Chapter 60.

�� Limited actions under Chapter 61.

�� Small claims under Chapter 61.

To the extent there are differences in procedure, this Q&A only ad-dresses the treatment of lawsuits under Chapter 60 of the Kansas Statutes Annotated. The petition's case caption should reflect wheth-er the lawsuit is filed under Chapter 60 or whether it is a limited ac-tion filed under Chapter 61 (Kan. Stat. Ann. § 60-207(c)). Practitioners should refer to the appropriate statutory sections for limited actions and small claims for rules specific to those lawsuits.

OVERVIEW OF RESPONDING TO A STATE COMPLAINT

1. When must a defendant respond to the complaint?

In Kansas, a defendant must respond within 21 days after being served with the summons and petition. If the plaintiff served by publication, the defendant must respond within the time fixed in the

notice, which must not be less than 41 days from the time the notice is first published. (Kan. Stat. Ann. § 60-212(a)(1)(A).)

For those defendants served outside the state, no default may be entered until at least 30 days after service (Kan. Stat. Ann. § 60-308(a)(3)). This provision effectively gives the defendant an additional nine days to protect its interests after the expiration of the 21 days within which a defendant must answer (4 Kan. Law & Prac., Code of Civ. Proc. Anno. § 60-308(a) (5th ed.)). The additional time only ap-plies to service of process outside of Kansas, so a foreign defendant served within Kansas (for example, by a registered agent) has only 21 days to serve its answer.

Insurance companies receive service of process through the Kansas Insurance Commissioner and must respond within 40 days of service on the commissioner (Kan. Stat. Ann. § 40-218).

2. How, if at all, can one obtain an extension of time to respond (for example, by stipulation, so-ordered stipulation, ex parte motion, motion on notice)?

A defendant may unilaterally obtain a 14-day Clerk's Extension, which is a one-time, automatic extension from the clerk of the district court. The party seeking the extension must prepare an order for the clerk's signature, and serve copies of the signed order on all other parties. (Kan. Sup. Ct. R. 113.)

Any other extension of time to plead must be by court order (Kan. Sup. Ct. R. 113). A party may obtain an order through a motion with notice to the other party. The motion should reflect the position of the other party to the requested extension and if the party agrees to the requested ex-tension, the title of the motion can reflect that it is an "agreed motion."

3. What types of responses are permitted (for example, answer, motion, demurrer, special appearance)?

The following types of responses to a petition are permitted:

�� An answer.

�� A motion.

(Kan. Stat. Ann. §§ 60-207(a)(2) and 60-212.)

Responding to a Complaint: KansasAMY E. MORGAN, POLSINELLI PC, WITH

PRACTICAL LAW LITIGATION

View the online version at http://us.practicallaw.com/6-556-5665

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Responding to a Complaint: Kansas

Demurrers have been abolished in Kansas and the function of a general demurrer is served by a motion to dismiss for failure to state a claim upon which relief can be granted (4 Kan. Law & Prac., Code of Civ. Proc. Anno. § 60-207(a) (5th ed.)).

The special appearance doctrine has also been made obsolete by Section 60-212(h) of the Kansas Statutes Annotated (4 Kan. Law & Prac., Code of Civ. Proc. Anno. § 60-207(a) (5th ed.)). Special appear-ances are not necessary to avoid submission to jurisdiction (4 Kan. Law & Prac., Code of Civ. Proc. Anno. § 60-208(b) (5th ed.)).

PRE-ANSWER RESPONSES

4. If motions, demurrers or the like are permitted:

�� Are there any preliminary requirements (for example, meet and confer with the plaintiff's counsel, have a conference with the court)?

�� What grounds can be asserted (for example, subject matter jurisdiction, personal jurisdiction, failure to state a claim)?

�� Are available grounds that are not asserted waived (either just for pre-answer litigation or for the whole case)?

�� What papers are required (for example, notice of motion, motion, affidavit, memorandum of law)?

�� Can the defendant offer evidence outside the complaint?

�� When and how does the plaintiff respond?

�� Can the defendant reply? If so, when and how?

�� Does the court hear oral argument before deciding?

�� Is discovery stayed until the court decides?

�� If the court does not dismiss the complaint, how much time does the defendant have to serve an answer?

A defendant served with a petition may file three types of pre-answer motions:

�� Motion to dismiss.

�� Motion for more definite statement.

�� Motion to strike.

Counsel making a motion should always check the local and judge's rules, as they may alter the general requirements discussed below.

MOTION TO DISMISS

Preliminary Requirements

Neither the Kansas Rules of Civil Procedure nor the Kansas Supreme Court Rules specifically contemplates any preliminary requirements to filing a motion to dismiss.

Grounds Asserted

A defendant may base a pre-answer motion to dismiss on one or more of the following grounds:

�� Lack of subject matter jurisdiction.

�� Lack of personal jurisdiction.

�� Improper venue.

�� Insufficient process.

�� Insufficient service of process.

�� Failure to state a claim upon which relief can be granted.

�� Failure to join a party under Section 60-219 of the Kansas Statutes Annotated.

(Kan. Stat. Ann. § 60-212(b).)

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed (Kan. Stat. Ann. § 60-212(b)).

If the court determines at any time that it lacks subject matter jurisdic-tion, the court must dismiss the action (Kan. Stat. Ann. § 60-212(h)(3)).

Waiver

A defendant waives the defenses of lack of personal jurisdiction, im-proper venue, insufficient process and insufficient service of process by:

�� Omitting an available defense from a motion and attempting to raise it in a later motion.

�� Failing to either:

�� make it by motion under Section 60-212 of the Kansas Statutes Annotated; or

�� include it in a responsive pleading, or in an amendment allowed by Section 60-215(a)(1) of the Kansas Statutes Annotated, as a matter of course.

(Kan. Stat. Ann. § 60-212(h)(1).)

Required Papers

Neither the Kansas Rules of Civil Procedure nor the Kansas Supreme Court Rules specifically contemplates mandatory papers to accom-pany a motion, other than a memorandum in support. Every written motion must include, either in the motion or in an accompanying memorandum:

�� The reasons for the motion.

�� The authorities, if any, the court should consider in ruling on the motion.

(Kan. Sup. Ct. R. 133.)

The motion must state with particularity the grounds for seeking the order and state the relief sought (Kan. Stat. Ann. § 60-207(b)).

Outside Evidence

If the motion to dismiss is based on the grounds of failure to state a claim, and matters outside the pleadings are presented to the court and not excluded, the court must treat the motion as one for sum-mary judgment under Section 60-256 of the Kansas Statutes Anno-tated. All parties must receive a reasonable opportunity to present all material pertinent to the motion. (Kan. Stat. Ann. § 60-212(d).) This rule does not apply to motions to dismiss based on other grounds.

Response by Plaintiffs

The plaintiff may file a memorandum in opposition to a motion stating:

�� The reasons the motion should be denied.

�� The authorities, if any, the court should consider in ruling on the motion.

(Kan. Sup. Ct. R. 133(b).)

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The plaintiff generally must file its response either:

�� Not later than seven days after service of the motion.

�� At any other time provided by the court

(Kan. Sup. Ct. R. 133(b).)

Reply by Defendants

Neither the Kansas Rules of Civil Procedure nor the Kansas Supreme Court Rules specifically contemplates a reply in support of a motion to dismiss. However, attorneys typically file a reply brief unless local rules or the court provides otherwise. The defendant should serve its reply either:

�� Not later than seven days after service of the plaintiff's response.

�� Before the hearing on the motion, if the hearing is within seven days after service of the response.

Oral Argument

A party may request oral argument either in:

�� The motion.

�� A response filed by the adverse party.

(Kan. Sup. Ct. R. 133(c)(1).)

The court must grant a timely request for oral argument unless it states in the ruling or by separate communication that oral argument would not aid the court materially (Kan. Sup. Ct. R. 133(c)(1)).

If no party requests oral argument, the court may either:

�� Set the matter for hearing.

�� Rule on the motion immediately and communicate that ruling to the parties.

(Kan. Sup. Ct. R. 133(c)(2).)

If a party moves for oral argument on any of the following defenses, the defense must be heard and decided before trial unless the court orders a deferral until trial:

�� Lack of subject matter jurisdiction.

�� Lack of personal jurisdiction.

�� Improper venue.

�� Insufficient process.

�� Insufficient service of process.

�� Failure to state a claim upon which relief can be granted.

�� Failure to join a party.

(Kan. Stat. Ann. § 60-212(i).)

Stay of Discovery

Neither the Kansas Rules of Civil Procedure nor the Kansas Supreme Court Rules specifically contemplates a stay of discovery pending a mo-tion. However, Kansas courts may impose appropriate limits on discov-ery by limiting the frequency or extent of discovery methods otherwise allowed by the rules of civil procedure (Kan. Stat. Ann. § 60-226(b)(2)).

A stay of discovery may be appropriate if the court determines:

�� That a ruling on a motion to dismiss will likely conclude the action.

�� Discovery would not provide any information that could possibly affect the outcome of the ruling on the motion.

Filing an Answer or Other Response

If the court denies the motion to dismiss or postpones its disposition until trial, the defendant must serve its responsive pleading within 14 days after notice of the court's action (Kan. Stat. Ann. § 60-212(a)(2)(A)).

MOTION FOR MORE DEFINITE STATEMENT


Neither the Kansas Rules of Civil Procedure nor the Kansas Supreme Court Rules specifically contemplates any preliminary requirements to filing a motion for more definite statement.

Grounds Asserted

A party may move for a more definite statement if the pleading is so vague or ambiguous that the party cannot reasonably prepare a response. The party must make the motion before filing a responsive pleading and must include:

�� The defects complained of.

�� The details desired.

(Kan. Stat. Ann. § 60-212(e).)

Waiver

A defendant waives the right to file a motion for more definite state-ment by filing a responsive pleading before making the motion (Kan. Stat. Ann. § 60-212(e)).

Required Papers

See Motion to Dismiss.

Outside Evidence

Kansas law does not expressly preclude a movant from presenting outside evidence in a motion for more definite statement. This type of motion, however, does not generally require outside evidence.



Reply by Defendants

Neither the Kansas Rules of Civil Procedure nor the Kansas Supreme Court Rules specifically contemplates a reply in support of a motion for more definite statement. However, attorneys typically file a reply brief unless local rules or the court provides otherwise. The defendant should serve its reply either:



Oral Argument


Stay of Discovery

Neither the Kansas Rules of Civil Procedure nor the Kansas Supreme Court Rules specifically contemplates a stay of discovery pending a mo-tion. However, Kansas courts may impose appropriate limits on discov-ery by limiting the frequency or extent of discovery methods otherwise allowed by the rules of civil procedure (Kan. Stat. Ann. § 60-226(b)(2)).




If the court grants a motion for more definite statement, the defen-dant must serve its responsive pleading within 14 days after the more definite statement is served (Kan. Stat. Ann. § 60-212(a)(2)(B)).

If the court orders a more definite statement and the plaintiff does not comply within 14 days after notice of the order, or within the time the court sets, the court may:

�� Strike the pleading.

�� Issue any other appropriate order.

(Kan. Stat. Ann. § 60-212(e)).

If the court denies a motion for more definite statement or postpones its disposition until trial, the defendant must serve its responsive pleading within 14 days after notice of the court's action (Kan. Stat. Ann. § 60-212(a)(2)(A)).

MOTION TO STRIKE


Neither the Kansas Rules of Civil Procedure nor the Kansas Supreme Court Rules specifically contemplates any preliminary requirements to filing a motion to strike.

Grounds Asserted

A party may move to strike:

�� An insufficient defense.

�� Any matter that is:

�� redundant;

�� immaterial;

�� impertinent; or

�� scandalous.

A motion to strike must be made either:

�� Before responding to the pleading.

�� Within 21 days after being served with the pleading, if a response is not allowed.

(Kan. Stat. Ann. § 60-212(f).)

The court may act on its own or on a motion made by a party (Kan. Stat. Ann. § 60-212(f)).

Waiver

A defendant waives the right to file a motion to strike by:

�� Filing a responsive pleading before making the motion.

�� Allowing more than 21 days to lapse after service of the pleading, if a response is not allowed.

(Kan. Stat. Ann. § 60-212(f).)

Required Papers


Outside Evidence

Kansas law does not expressly preclude a movant from presenting outside evidence in a motion to strike. This type of motion, however, does not generally require outside evidence.



Reply by Defendants

Neither the Kansas Rules of Civil Procedure nor the Kansas Supreme Court Rules specifically contemplates a reply in support of a motion to strike. However, attorneys typically file a reply brief unless local rules or the court provides otherwise. The defendant should serve its reply either:



Oral Argument


Stay of Discovery

Neither the Kansas Rules of Civil Procedure nor the Kansas Supreme Court Rules specifically contemplates a stay of discovery pending a motion. However, Kansas courts may impose appropriate limits on discovery by limiting the frequency or extent of discovery methods otherwise allowed by the rules of civil procedure (Kan. Stat. Ann. § 60-226(b)(2)).


If the court denies a motion to strike or postpones its disposition until trial, the defendant must serve its responsive pleading within 14 days after notice of the court's action (Kan. Stat. Ann. § 60-212(a)(2)(A)).

ANSWERING THE COMPLAINT

5. What are the required and optional contents of an answer?

REQUIRED CONTENTS

Caption

In Kansas, every pleading must have a caption listing the:

�� Court's name.

�� Title.

�� File number.

While the title of the petition must name all the parties, the title of the answer, after naming the first party on each side, may refer gen-erally to the other parties. (Kan. Stat. Ann. § 60-210(a).)

Denials or Admissions

The answer must respond to each allegation in the petition with one of the following:

�� A denial.

�� Lack of knowledge or information sufficient to form a belief about its truth, which has the effect of a denial.

�� An admission.

(Kan. Stat. Ann. §§ 60-208(b)(1) and (5).)

A denial must fairly respond to the substance of the allegation (Kan. Stat. Ann. § 60-208(b)(2)).



A party that intends in good faith to deny all the allegations of a pleading, including the jurisdictional grounds, may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. (Kan. Stat. Ann. § 60-208(b)(3).)

Section 60-208(b) of the Kansas Statutes Annotated is intended to prevent the indiscriminate use of the general denial, particularly in cases where much of the plaintiff's petition is not in controversy. If the defendant's attorney makes a general denial, the denial must be genuine. Otherwise, the defendant must make specific denials of what can justifiably be denied, or else allege lack of knowledge or information sufficient to form a belief. (4 Kan. Law & Prac., Code of Civ. Proc. Anno. § 60-208 (5th ed.).)

A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest (Kan. Stat. Ann. § 60-208(b)(4)).

An allegation is admitted if a responsive pleading is required and the allegation is not denied. The only exception concerns allegations relating to the amount of damages (Kan. Stat. Ann. § 60-208(b)(6)).

Defenses Generally

In responding to a petition, a party must state in short and plain terms its defenses to each claim asserted against it (Kan. Stat. Ann. § 60-208(b)(1)).

A party may set out two or more statements of a defense alternately or hypothetically, either in a single defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient. (Kan. Stat. Ann. § 60-208(d)(2).) A party may state as many separate defenses as it has, regardless of consistency (Kan. Stat. Ann. § 60-208(d)(3)).

Affirmative Defenses

The answer must contain any affirmative defenses (www.practicallaw.com/6-518-1993) that the defendant wants to raise (Kan. Stat. Ann. § 60–208(c)). If an affirmative defense is not pled, it is waived (Garden Nat'l Bank v. Cada, 738 P.2d 429, 432 (Kan. 1987)).

An affirmative defense must be pled so that it provides an opponent with fair notice of the nature of the defense. A general denial does not provide notice. (In re Estate of Tracy, 140 P.3d 1045, 1048 (Kan. 2006).)

Examples of affirmative defenses include:

�� Accord and satisfaction.

�� Arbitration and award.

�� Assumption of risk.

�� Contributory negligence or comparative fault.

�� Duress.

�� Estoppel.

�� Failure of consideration.

�� Fraud.

�� Illegality.

�� Injury by fellow servant.

�� Laches.

�� License.

�� Payment.

�� Release.

�� Res judicata.

�� Statute of frauds.

�� Statute of limitations.

�� Waiver.

(Kan. Stat. Ann. § 60-208(c)(1).)

It is not necessary to call the defenses "affirmative defenses" or use terms of art such as estoppel or waiver (see Truon State Bank v. Bo-zarth, 684 P.2d 419, 422 (Kan. 1984)). Each allegation must be simple, concise and direct. No technical form is required. (Kan. Stat. Ann. § 60-208(d)(1).)

Each affirmative defense should be in a separately numbered para-graph (Kan. Stat. Ann. § 60-210(b)).

An affirmative defense omitted from an initial answer to a petition may, in the court's discretion, be added in an answer to an amended petition (King v. Pimentel, 890 P.2d 1217, 1222-23 (Kan. 1995)).

Signature and Attorney Contact Information

Every pleading, written motion and other paper must be signed by at least one attorney of record or by a party personally if the party is unrepresented. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention. (Kan. Stat. Ann. § 60-211(a).)

Pleadings must contain the filing attorney's:

�� Name.

�� Kansas registration number.

�� Address.

�� Telephone number.

�� Fax number

�� E-mail address.

(Kan. Stat. Ann. 60-211(a); Kan. Sup. Ct. R. 111.)

Jury Demand

A party may demand a jury trial by both:

�� Serving the other parties with a written demand, which may be included in a pleading, no later than 14 days after the last pleading directed to the issue is served.

�� Filing the demand according to Section 60-205 of the Kansas Statutes Annotated.

(Kan. Stat. Ann. § 60-238(b).)

If a party wants a jury, however, it is much better practice to endorse the demand on the first pleading filed by the party. The defendant can endorse the demand for a jury on the answer, or can make the demand by separate writing within 14 days after the answer is served. (4 Kan. Law & Prac., Code of Civ. Proc. Anno. § 60-238 (5th ed.).)



In its demand, a party may specify the issues that it wishes to have tried by a jury. Otherwise, the party is considered to have demanded a jury trial on all triable issues. If the party has demanded a jury trial on only some issues, any other party may serve a demand on any other triable issues within either:

�� 14 days after being served with the demand.

�� A shorter time ordered by the court.

(Kan. Stat. Ann. § 60-238(c).)

A party waives a jury trial unless its demand is properly served and filed, but the court may set aside a waiver:

�� In the interest of justice.

�� When the waiver inadvertently results.

(Kan. Stat. Ann. § 60-238(d).)

A demand for a jury, once made, cannot be withdrawn without the consent of all the parties involved (Kan. Stat. Ann. § 60-238(d); 4 Kan. Law & Prac., Code of Civ. Proc. Anno. § 60-238 (5th ed.).)

There is no general statute defining what issues are triable to a jury as a matter of right and which are not (4 Kan. Law & Prac., Code of Civ. Proc. Anno. § 60-238 (5th ed.).)

Claims for Relief

A party may include in its answer counterclaims, crossclaims or third party claims (Kan. Stat. Ann. § § 60-213 and 60-214 and see Question 9). Whenever a defense or counterclaim is based on a written instru-ment, a copy may be attached to the pleading as an exhibit (Kan. Stat. Ann. § 60-209(h)).

6. Under what circumstances, if any, must a defendant verify its response?

Unless a rule or statute specifically states otherwise, there is no re-quirement that a pleading be verified or accompanied by an affidavit or a declaration (Kan. Stat. Ann. § 60-211(a)). Neither the Kansas Rules of Civil Procedure nor the Kansas Supreme Court Rules specifi-cally contemplates verification of a response.

AMENDING AN ANSWER

7. Can a defendant amend its answer? If so:

�� When?

�� What grounds, if any, must be shown to justify an amendment?

AMENDMENT AS OF RIGHT

Time to Amend

A defendant in Kansas may amend its answer once, without seeking leave of the plaintiff or the court, within either:

�� 21 days after serving the answer.

�� 21 days after service of a responsive pleading or motion.

(Kan. Stat. Ann. § 60-215(a)(1).)

Grounds for Amendment

There are no grounds required for an amendment as of right.

AMENDMENT BY STIPULATION

Time to Amend

A party may amend its pleading at any time with the opposing party's written consent (Kan. Stat. Ann. § 60-215(a)(2)).


The defendant may amend if the opposing party gives written con-sent. No particular grounds are required.

AMENDMENT BY MOTION

Time to Amend

The court may grant a defendant leave to amend at any time (Kan. Stat. Ann. § 60-215(a)(2)).


The court should freely grant leave to amend (Williams v. Amoco Prod. Co., 734 P.2d 1113, 1119 (Kan. 1987); Kan. Stat. Ann. § 60-215(a)(2)). No particular grounds are required. Amendment is not an absolute right, however, and the court has discretion over whether to grant leave (Williams, 734 P.2d at 1119).

Leave to amend should be freely given in the absence of any appar-ent or declared reason, including:

�� Undue delay.

�� Bad faith.

�� Dilatory motive on the part of the movant.

�� Repeated failure to cure deficiencies by amendments previously allowed.

�� Undue prejudice to the opposing party.

�� Futility of the amendment.

(Johnson v. Bd. of Pratt Cnty. Comm'rs, 913 P.2d 119, 135 (Kan. 1995).)

The Kansas Supreme Court has ruled that it was not an abuse of dis-cretion when, four days before trial and again on the morning of trial, a trial court permitted the defendant to amend its answer to include the affirmative defenses of lack of consideration and misrepresenta-tion (Commercial Credit Corp. v. Harris, 510 P.2d 1322, 1325 (1973)).

REPLYING TO AN ANSWER

8. Can a plaintiff serve a reply pleading? If so:

�� When is it due?

�� What grounds, if any, must be shown to justify a reply?

�� What are the optional and required contents?

A reply to an answer is normally not allowed. A reply is required only if either:

�� The court orders one.

�� The answer contains a counterclaim.

(Kan. Stat. Ann. § 60-207(a).)



A reply is not required to an answer that contains an affirmative de-fense but does not contain a counterclaim (Kan. Stat. Ann. § 60-207(a); 4 Kan. Law & Prac., Code of Civ. Proc. Anno. § 60-207(a) (5th ed.)).

TIME TO REPLY

A plaintiff must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time (Kan. Stat. Ann. § 60-212(a)(1)(C)).

GROUNDS FOR REPLY

Neither the Kansas Rules of Civil Procedure nor the Kansas Supreme Court Rules specifically contemplates what grounds exist for a reply to an answer. Because a reply is only permissible if ordered by the court, the court presumably will state its grounds upon which the reply is ordered.

REPLY CONTENTS

Neither the Kansas Rules of Civil Procedure nor the Kansas Supreme Court Rules specifies the contents for a reply to an answer.

DEFENDANT'S AFFIRMATIVE CLAIMS

9. Can a defendant assert affirmative claims of its own? If so:

�� What types of claims are available (for example, counterclaims, crossclaims, third-party claims) and what is the basic nature of each (for example, who is a proper defendant to it and what is a proper subject)?

�� Are any claims by a defendant mandatory (for example, compulsory counterclaims, claims covered by an entire controversy rule)?

�� When and how does the defendant assert its claims?

�� When and how do other parties respond to a defendant's claims?

AVAILABLE CLAIMS

A defendant may assert a counterclaim or crossclaim under Section 60-213 of the Kansas Statutes Annotated or a third-party petition under Section 60-214 of the Kansas Statutes Annotated.

Counterclaims

An answer may state as a counterclaim any claim that the pleader has against an opposing party (Kan. Stat. Ann. § 60-213(a)-(b)). Some counterclaims are compulsory, meaning that the pleader must assert them in its answer or forfeit them (Kan. Stat. Ann. § 60-213(a)(1) and see Mandatory Claims for Defendant).

A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that:

�� Exceeds the amount of relief sought by the opposing party.

�� Differs in kind from the relief sought by the opposing party.

(Kan. Stat. Ann. § 60-213(c).)

Crossclaims

Under Kansas law, the answer may contain crossclaims asserted

against a co-party if the claim either:

�� Arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim.

�� Relates to any property that is the subject matter of the original action.

(Kan. Stat. Ann. § 60-213(g).)

The crossclaim may include a claim that the co-party is or may be liable to the defendant for all or part of a claim asserted in the action against the defendant (Kan. Stat. Ann. § 60-213(g)).

When a claim is governed by Section 60-258a of the Kansas Statutes Annotated relating to comparative negligence, the defendant must state as a crossclaim any claim the defendant has against any co-party, if the claim arises out of the same transaction or occurrence that is the subject matter of the negligence claim (Kan. Stat. Ann. § 60-213(f)).

Third-party Petitions

A defending party may, as a third-party plaintiff, serve a summons and petition on a nonparty who is or may be liable to the defendant for all or part of the plaintiff's claim against the defendant. The third-party plaintiff must, however, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer. (Kan. Stat. Ann. § 60-214.)

MANDATORY CLAIMS FOR DEFENDANT

Under Kansas law, an answer must state as a counterclaim any claim that, at the time of its service, the pleader has against any opposing party if the claim:

�� Arises out of the same transaction or occurrence.

�� Does not require the presence of third parties over whom the court cannot acquire jurisdiction.

(Kan. Stat. Ann. § 60-213(a)(1) and see Counterclaims.)

The defendant need not state the claim, however, if, when the action was commenced, either:

�� The claim was the subject of another pending action.

�� The opposing party sued on its claim by attachment or other pro-cess that did not establish personal jurisdiction over the defendant on that claim and the defendant does not assert any counterclaim under Section 60-213 of the Kansas Statutes Annotated.

(Kan. Stat. Ann. § 60-213(a)(2).)

When a claim is governed by Section 60-258a of the Kansas Stat-utes Annotated relating to comparative negligence, the defendant must state as a crossclaim any claim the defendant has against any co-party, if the claim arises out of the same transaction or occurrence that is the subject matter of the negligence claim (Kan. Stat. Ann. 60-213(f) and see Crossclaims).

WHEN AND HOW CLAIMS ARE ASSERTED

Counterclaims, crossclaims and third-party petitions should be as-serted in the initial answer or, if the court permits a later amendment,

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in an amended answer.

Whether denominated as a counterclaim, crossclaim or third-party petition, any pleading that states a claim for relief must contain:

�� A short and plain statement of the claim showing that the pleader is entitled to relief.

�� A demand for the relief sought, which may include:

�� relief in the alternative; or

�� different types of relief.

Except in contract actions, every pleading demanding relief for money damages in excess of $75,000, without demanding a specific amount of money, must state only that the amount sought as dam-ages exceeds $75,000. Every pleading demanding relief for money damages in an amount of $75,000 or less must specify the amount sought as damages. (Kan. Stat. Ann. § 60-208(a).)

A party may not plead a claim for punitive damages in a crossclaim, counterclaim or third-party petition unless the court enters an order allowing an amended pleading that includes a claim for punitive damages. To obtain an order of that kind, the party must show that there is a probability that it will prevail on its claim. A party must make this type of motion on or before the date of the final pre-trial conference. (Kan. Stat. Ann. § 60-3703.) If the court allows an amended pleading to include a claim for exemplary or punitive dam-ages, the amended pleading must state only whether the amount sought as damages is or is not in excess of $75,000 (Kan. Stat. Ann. § 60-209(g)).

Counterclaims and crossclaims asserted against existing parties to the lawsuit may be served on the attorney for that party by a service method listed in Section 60-205(b) of the Kansas Statutes Annotat-ed. A third-party petition that brings a new party into the case must be formally served according to Sections 60-303 and 60-304 of the Kansas Statutes Annotated.

OTHER PARTIES' RESPONSE TO DEFENDANT'S CLAIMS

Counterclaims and Crossclaims

In Kansas, the responsive pleading to a counterclaim is called an "answer," rather than a "reply".

A party must serve an answer to a counterclaim or crossclaim within 21 days after being served (Kan. Stat. Ann. 60-212(a)(1)(B)). The method of answering the counterclaim or crossclaim follows the same guidelines as answering a petition. For more information, see Questions 1 and 5.

Third-party Petitions

In responding to third-party claims, the third-party defendant must assert any:

�� Defenses against the third-party plaintiff's claim under Section 60-212 of the Kansas Statutes Annotated.

�� Counterclaims against the third-party plaintiff under Section 60-213(a) of the Kansas Statutes Annotated.

�� Crossclaims against another third-party defendant under Section 60-213(f) of the Kansas Statutes Annotated.

For the links to the documents referenced in this note, please visit our online version at http://us.practicallaw.com/6-556-5665

RELATED CONTENT

Topic

�� Commencement and Pleadings

�� General Litigation

The third-party defendant may assert any:

�� Counterclaims against the third-party plaintiff under Section 60-213(b) of the Kansas Statutes Annotated.

�� Crossclaims against another third-party defendant under Section 60-213(g) of the Kansas Statutes Annotated.

�� Defenses that the third-party plaintiff has to the plaintiff's claim.

�� Claims arising out of the transaction or occurrence that is the sub-ject matter of the plaintiff's claim against the third-party plaintiff.

(Kan. Stat. Ann. § 60-214(a)(2)(B).)

The method of answering the third-party petition otherwise follows the same guidelines as answering a petition. For more information, see Questions 1 and 5.

responding to a complaint - kansas

Documents