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Thelawman2, Attorney
Category: Legal
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Experience:  Attorney-at-Law
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What happens if I didnt respond counterclaim in time? If a

Customer Question

what happens if I didnt respond counterclaim in time? If a default is given to defendants... does my case still proceed or is it a default for the whole case... or just the counterclaim?
Submitted: 11 months ago.
Category: Legal
Expert:  Thelawman2 replied 11 months ago.

If there is a counterclaim, and you do not respond, the other party can move for a default judgment against you with respect to that counterclaim. Even if the court grants this motion, it would not result in a default of your original claim against the defendant.

Expert:  Thelawman2 replied 11 months ago.

If you believe you have a good reason as to why you did not reply to the counterclaim, you can always file a motion to extend the time to file a reply to the counterclaim.

Customer: replied 11 months ago.
What happen is the following;
They filed a Counterclaim... I answer the counter claim with a defense motion "Summary Judgement". I thought this would do it. The Defendants' lawyer is saying is not an answer... but I read Rule 12(b) of the Nevada Revised Statute and I thought it was ok to do so. Im not sure if you're in Nevada but here it is....(b) How Presented.  Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) insufficiency of process, (4) insufficiency of service of process, (5) failure to state a claim upon which relief can be granted, (6) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (5) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.On my Summary Judgement, I sited " failure to state a claim upon which relief can be granted," which if im reading right, it is a defense motion correct? This should be an answer or am I wrong?
Expert:  Thelawman2 replied 11 months ago.

A motion for summary judgment is different than an answer to a counterclaim; so you are technically wrong in how you interpreted the rules. However, because you are handling the case on your own, you can request the court to treat the summary judgment motion as an answer because the defendant is not prejudiced and that this is really what you were trying to do. They have been notified that you are challenging the counterclaim so there is no reason that the court should not agree.