Rule 9. Answers; Defenses; Forms of Denials

(a)  An Answer or other responsive pleading shall be filed with the court within 30 days after the person filing said pleading has been served with the pleading to which the Answer or response is made.  It shall state in short and plain terms the pleader's defenses to each claim asserted and shall admit or deny the allegations upon which the adverse party relies. If the party is without knowledge or information sufficient to form a belief as to the truth of an allegation, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the allegations denied. A pleader who intends in good faith to deny only a part or a qualification of an allegation shall specify so much of it as is true and material and deny only the remainder. The pleader may not generally deny all the allegations but shall make the denials as specific denials of designated allegations or paragraphs. An Answer, to the effect that an allegation is neither admitted nor denied, will be deemed an admission. All facts well alleged in the Complaint and not denied or explained in the Answer, will be held to be admitted.

In addition, within the same 30 days, the person filing an Answer or other responsive pleading shall also file an appearance in accordance with Rule 17.  No attorney, non-attorney representative or self-represented party will be heard until his or her Appearance is so entered.

(b)  Instead of an Answer, a person responding to a pleading to which a response is required may, within 30 days after the person has been served with the pleading to which the Answer or response is required file a Motion to Dismiss.  If a Motion to Dismiss is submitted and denied, an Answer must be filed within 30 days after the date on the Notice of the Decision finally denying the motion; provided, however, that if a Motion to Dismiss which challenges the court’s personal jurisdiction, the sufficiency of process and/or the sufficiency of service of process is filed, an Answer must be filed within the time specified in section (e) of this rule.

(c)  To preserve the right to a jury trial, a defendant entitled to a trial by jury must indicate his or her request for a jury trial upon the first page of the Answer at the time of filing.  Failure to request a jury trial in accordance with this rule shall constitute a waiver by the defendant thereof.

(d)  Failure to plead as affirmative defenses or file a Motion to Dismiss based on affirmative defenses, including the statute of limitations, within the time allowed in section (b) of this rule will constitute waiver of such defenses.

Affirmative defenses include the following:

(1) accord and satisfaction;

(2) arbitration and award;

(3) assumption of risk;

(4) contributory negligence;

(5) duress;

(6) estoppel;

(7) failure of consideration;

(8) fraud;

(9) illegality;

(10) injury by fellow servant;

(11) laches;

(12) license;

(13) payment;

(14) release;

(15) res judicata;

(16) statute of frauds;

(17) statute of limitations; and

(18) waiver.

(e)  A party does not waive the right to file a Motion to Dismiss challenging the court's personal jurisdiction, sufficiency of process and/or sufficiency of service of process by filing an Answer or other pleadings or motions addressing other issues. However, a party who wishes to challenge the court's personal jurisdiction, sufficiency of process, and/or sufficiency of service of process must do so in a Motion to Dismiss filed within 30 days after he or she is served. If a party fails to do so within this time period, he or she will be deemed to have waived the challenge. If the trial court denies the Motion to Dismiss:

(1)  The party will be deemed to have waived the challenge if the party does not seek review of the denial by the supreme court within 30 days of the clerk's final written notice of the trial court's decision. If the party does not seek review of the denial by the supreme court, the party must file an Answer within 30 days of the clerk's final written notice of the trial court's decision.

(2)  If the party appeals the denial, and the supreme court declines the appeal, the party must file an Answer within 30 days after the date of the supreme court's final written notice declining the appeal. The supreme court's declining to accept the appeal does not preclude a party who has complied with this section from challenging the trial court's ruling on personal jurisdiction, sufficiency of process and/or sufficiency of service of process in an appeal from a final judgment of the trial court.

(3)  If the supreme court accepts the appeal and rejects the party's challenge, the party must file an Answer within 30 days after the date of the supreme court's final decision rejecting the challenge.

 

Comment

Pleadings which notify the opposing party and the court of the factual and legal basis of the pleader’s claims or defenses better define the issues of fact and law to be adjudicated.  This definition should give the opposing party and the court sufficient information to determine whether the claim or defense is sufficient in law to merit continued litigation.  Pleadings should assist in setting practical limits on the scope of discovery and trial and should give the court sufficient information to control and supervise the progress of the case.

Answers are to comply with statutory requirements that pertain to brief statements of defense.  See RSA 515:3, 524:2, 565:7, and 547-C:10.

This rule changes current practice in that it requires a defendant to file an Answer within 30 days after the defendant is served with the Complaint.  The practice under prior law whereby, in actions at law, the defendant’s entry of an appearance operated as a general denial of all allegations of the plaintiff’s writ has been eliminated.  Section (b) of the rule extends the time for filing an Answer if the defendant moves to dismiss the Complaint.  If a motion to dismiss is filed, the Answer is not due until 30 days after the clerk’s notice of the court’s decision finally denying the motion.  Except for challenges to personal jurisdiction, to the sufficiency of process or to the sufficiency of service of process, any defense that can be raised by motion also can alternatively be raised in an Answer. 

Section (d) of the rule makes clear that affirmative defenses are deemed waived if they are not raised in an Answer or a motion to dismiss filed within 30 days after the defendant is served with the Complaint.

Section (e) requires that motions to dismiss based on a challenge to the court’s personal jurisdiction, the sufficiency of process, or the sufficiency of service of process must be raised by motion to dismiss filed within 30 days after service of the Complaint.  This subsection is intended to modify long standing New Hampshire practice concerning the manner in which a litigant who desires to challenge the court’s personal jurisdiction or the adequacy of process or service of process must proceed.  Under prior law, a litigant desiring to make such challenges was required to enter a special appearance and to file a motion to dismiss within 30 days after being served.  If the litigant failed to follow this course, or if the litigant filed an Answer or pleading that raised any other issues, the litigant would be deemed to have submitted to the court’s jurisdiction and thus waived his or her challenge to personal jurisdiction or the adequacy of process or service of process. 

Under the new rule, a litigant desiring to challenge personal jurisdiction or the sufficiency of process or the service of process must still do so by filing a motion to dismiss within 30 days after being served.  However the litigant is not required to enter a “special appearance,” nor will the litigant be deemed to have waived such challenges and submitted to the court’s jurisdiction by filing an Answer or other pleadings or motions that raise issues aside from personal jurisdiction, sufficiency of process or sufficiency of service of process.  In accordance with Mosier v. Kinley, 142 N.H. 415, 423-24 (1997), the new rule preserves the requirement that a litigant whose motion to dismiss on these grounds is denied by the trial court must seek an immediate appeal of the trial court’s ruling, or be deemed to have waived these challenges.