Answer to the Complaint

Rule 12(a)(1)(A) opens with a plain command: a defendant must serve an answer.¹ The answer is the defendant's first reply to the complaint. In it the defendant admits or denies each allegation and pleads any affirmative defenses. The colon that ends the command promises a deadline, and the rule supplies two, each with its own starting point.

A defendant who receives the case through formal service must answer within 21 days after being served with the summons and complaint.² A defendant who timely waived service under Rule 4(d) answers on a longer clock: 60 days after the request for a waiver was sent, or 90 days if the request was sent to a defendant outside any judicial district of the United States.³ The lengths differ because the starting points differ. Service puts the papers in the defendant's hands on the day the clock starts. A waiver request must reach the defendant, be considered, and be returned, so the longer period leaves room for that before the work of answering begins.

The first question in any answer-deadline problem is therefore how the defendant came to have the case. That fact selects the period and its trigger together. Apply 21 days to a defendant who waived, or count the waiver period from a date on which no request was sent, and the deadline comes out wrong even though the arithmetic is flawless. The default track comes first below because it governs unless the defendant timely waived. The waiver track follows. Later sections show how other rules and events change these periods for particular defendants and procedural settings.

The 21-Day Rule

Rule 12(a)(1)(A)(i) gives a formally served defendant 21 days to answer, counted from service of the summons and complaint.⁴ The clause has three parts: a length (21 days), a trigger (service), and an object (the summons and the complaint together). Each part can be misapplied, so the discussion takes the trigger first, then the counting, then what the defendant must do before the period ends.

Service starts the clock because it gives the defendant formal notice of the suit and a duty to respond. The summons commands an answer, and the complaint tells the defendant what must be answered. Nothing earlier counts. Filing the complaint starts no period, since a plaintiff may file weeks before any papers are delivered. A defendant's informal awareness of the suit starts none either, whether it arrives by phone call, an emailed courtesy copy, or a news story.

Once service has occurred, the counting is mechanical. Under the general time-computation rule, the day of service is not counted, so the first day of the period is the day after the papers were delivered. Service on March 1 therefore yields a last day of March 22. If the last day falls on a Saturday, Sunday, or legal holiday, the deadline moves to the next day that is none of those. Because the calculation turns entirely on dates, a short checklist keeps it reliable.

Step two matters because the 21 days govern only a defendant who has not waived. Suppose the defendant in the March 1 example had instead timely waived service. That defendant would answer 60 days after the request for the waiver was sent, a period that starts on a different date and runs far longer.⁶ Applying 21 days to that defendant yields a deadline weeks too early. The next section takes up the waiver track in full.

The 21 days measure when the defendant serves the answer on the plaintiff, and the rule's own text speaks of serving. An answer usually must be both filed with the court and served on the plaintiff, and commentary often frames the 21 days as a deadline to file.⁷ The safe course is to do both inside the period. An answer filed with the clerk on day 20 that does not reach the plaintiff's lawyer until day 25 was not served in time, however early it was filed. An answer delivered to the plaintiff's lawyer on day 20 meets the timing requirement, with filing still owed as its own step.

Extensions of time to answer are common in practice and are often granted with the opposing party's consent.⁸ An extension moves the due date in that one case and leaves the rule untouched. The default stays at 21 days. A problem that mentions no extension, stipulation, or order calls for the ordinary calculation, while a problem that mentions one tells you the deadline has moved for that defendant.

The short period matters beyond arithmetic. A defendant has a brief, fixed interval to investigate and to frame affirmative defenses, and courts take account of what a defendant can readily know when they test those defenses. In GEOMC Co. v. Calmare Therapeutics Inc., the Second Circuit stressed that the context of a pleaded affirmative defense matters and varies with the nature of the defense. The facts needed to plead a statute-of-limitations defense are usually readily available, while the facts needed to plead an ultra vires defense may not be known to the defendant, which can warrant a relaxed application of the plausibility standard.⁹ The pleading standard itself belongs to the pleading-sufficiency reading. Here the point is only that the 21-day clock shapes what a defendant can realistically plead.

Waiver of Service

Rule 12(a)(1)(A)(ii) supplies the second answer track for a defendant that has timely waived service under Rule 4(d). The answer is due within 60 days after the request for a waiver was sent, or within 90 days after it was sent to a defendant outside any judicial district of the United States.¹¹ Waiver under Rule 4(d) lets a defendant forgo formal service after the plaintiff asks it to. Because no summons is delivered, the 21-day period has no service to count from, and the waiver provision supplies a different starting event.

That starting event is the center of the rule. The clock begins on the day the plaintiff sent the request, and the rule gives no significance to the day the defendant received it, signed it, or returned it.¹² Here the waiver track differs from the 21-day track in a way an exam will exploit. Under the 21-day rule the trigger is service, which puts the papers in the defendant's hands. Under the waiver rule the trigger is an act of the plaintiff, and it can come days or weeks before anything the defendant does. A clock keyed to the sending fixes the start date beyond the defendant's control, whereas a clock keyed to the signature would let the defendant postpone the deadline by delaying the signing. Every day the defendant spends deciding whether to waive is therefore a day taken out of the answer period.

The two lengths reflect what each side gives up and gains. A defendant that waives spares the plaintiff the expense of formal service and in exchange receives more time than the 21 days that follow formal service. The 60 days must also cover an interval that formal service does not have: a mailed request must reach the defendant, be read, and be returned before the real work of preparing an answer begins. The 90-day period for a defendant abroad allows for the added delay of sending a request across a national border and getting a response back. Neither period measures the defendant's own effort. Each is a fixed allowance counted from the plaintiff's act.

A defendant that refuses to waive stands at the other pole. In U.S. Engine Production, Inc. v. AGCS Marine Ins. Co., the court treated the plaintiffs' March 3, 2011 letter as containing a waiver request and ordered the defendants to answer or otherwise move within 21 days of its decision and order. It also granted in part the plaintiffs' motion for the costs and fees incurred because the defendants failed to waive, and it directed the plaintiffs to submit a schedule of reasonable costs and fees under Rule 4(d)(2) within seven days.¹³ The excerpt shows two consequences of refusing. The court set the answer date itself, and the defendants bore the cost of the plaintiffs' having to proceed without a waiver. A defendant that ignores a proper request and is later formally served falls back on the default, an answer due 21 days after service, and it may be charged for the cost of that service.¹⁴ The longer period rewards cooperation, and the cost award gives defendants a reason to cooperate.

When a problem mentions a waiver, three errors recur:

Counting the 60 days from the date the defendant signed or returned the waiver, which pushes the deadline later than the rule allows.
Applying the 21-day period to a defendant that timely waived, which produces a deadline weeks too early.
Giving the 60-day period to a defendant that never waived and was formally served, since the longer track belongs only to a defendant that timely waived.

Two facts pick the track: whether a timely waiver occurred and where the request was sent. One fact fixes the date: the day the request left the plaintiff's hands.