Responding to a Montana complaint: 21 days, 42 for the state

Montana adopted the restyled federal rules, so the framework will look familiar: 21 days, 14 days after a denied motion, a clerk's default and a clerk's judgment on a sum certain. The Montana-specific number is 42 days for government defendants, and it is measured from service on the attorney general.

The deadline

Mont. R. Civ. P. 12(a)(1):

Unless another time is specified by this rule or a statute, the time for serving a responsive pleading is as follows: (A) A defendant must serve an answer within 21 days after being served with the summons and complaint, unless the court orders otherwise under Rule 4(c)(2)(C). (B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim. (C) A party 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.

Twenty-one days throughout, and the obligation is to serve.

Government defendants: 42 days

Rule 12(a)(2):

The State of Montana, a state agency, or a state officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 42 days after service on the attorney general.

Rule 12(a)(3) covers the individual-capacity case, and measures from a later date:

A state officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the state's behalf must serve an answer to a complaint, counterclaim, or crossclaim within 42 days after service on the officer or employee or service on the attorney general, whichever is later.

Two things follow.

Forty-two days, not sixty. Montana chose a period shorter than the federal 60 days for the United States, but double the ordinary 21.

And in the individual-capacity case the clock starts at the later of two dates. A plaintiff who serves the officer promptly and the attorney general weeks later has extended the defendant's own deadline. For plaintiffs, that is an argument for serving everything at once.

Default

Mont. R. Civ. P. 55(a):

When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.

Clerical, mandatory, and no notice is required before entry.

Rule 55(b)(1) — the clerk's judgment:

If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk — on the plaintiff's request, with an affidavit showing the amount due — must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.

Rule 55(b)(2) — everything else:

In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing.

The familiar lesson holds. There is no notice before entry of default and none before a clerk's judgment on a sum certain. Seven days' notice before a court's default judgment depends entirely on whether you appeared — which makes appearing the cheapest protective step available.

Answering, or moving

Rule 12(b) carries the pre-answer defenses on the restyled federal model — lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process, failure to state a claim, and failure to join a party. Serving one alters the 21 days: 14 days after notice of an order denying the motion or postponing it to trial, and 14 days after service of a more definite statement.

Consolidation and waiver track Rule 12(g) and (h). An available defense left out of your first motion is generally gone, except for those the rule preserves.

Conversion applies where outside material is presented on a failure-to-state-a-claim motion and the court does not exclude it — the motion becomes one for summary judgment under Rule 56.

How Montana compares

A short checklist

1. Calendar 21 days from service, and note the obligation is to serve your answer.
2. If the State, a state agency, or a state officer or employee is the defendant, the period is 42 days, running from service on the attorney general.
3. In an individual-capacity suit, count from the later of the two services — on the officer, or on the attorney general.
4. A Rule 12 motion suspends the answer deadline, and a denial leaves 14 days from notice.
5. Raise your Rule 12 defenses together. Omitted ones that were available are generally foreclosed.
6. Appear. There is no notice before entry of default and none before a clerk's judgment on a sum certain.
7. If a clerk entered judgment against you, check the affidavit and confirm the claim really was a sum certain or one made certain by computation.
8. Move before judgment if you can — Rule 55(c) good cause is easier than Rule 60(b).

Where these rules live

• Mont. R. Civ. P. 4 — Persons Subject to Jurisdiction; Process; Service
• Mont. R. Civ. P. 5 — Serving and Filing Pleadings and Other Papers
• Mont. R. Civ. P. 6 — Computing and Extending Time; Time for Motion Papers
• Mont. R. Civ. P. 8 — General Rules of Pleading
• Mont. R. Civ. P. 12 — Defenses and Objections
• Mont. R. Civ. P. 15 — Amended and Supplemental Pleadings
• Mont. R. Civ. P. 55 — Default; Default Judgment
• Mont. R. Civ. P. 60 — Relief from Judgment or Order

This page explains what the rules say. It isn't legal advice, and the statutory notice requirements that apply before suing the State of Montana are outside what this page covers.