Reply to an Answer

Reply to an Answer

A reply to an answer is the one responsive pleading that a party serves only when a judge asks for it. Rule 12(a)(1)(C) supplies the deadline: 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.¹ The order does two jobs at once. It creates the duty to reply, and it starts the clock. Service of the answer starts nothing, and a party who has not been served with an order has no reply deadline to miss.

That design makes sense once you ask who controls the triggering event. The court alone decides whether a reply will exist, so the period runs from the moment the court's decision reaches the party. A period measured from the answer could expire before the judge had even thought to ask for a reply, and no party can fairly be held to a deadline it did not know it had. A judge might order a reply, for example, when the answer pleads a release that the complaint never mentioned and the judge wants the plaintiff's account of it. The 21 days is only a default. The order may name a different time, and the order's time then governs.

The word "reply" causes the most trouble when the answer includes a counterclaim, as Tolson v. Hodge shows. An insurance company mailed the pleadings to a second attorney whom it had chosen to defend its insured. He received them on April 5, one day after the time to respond to the counterclaim had expired. A request that the defendant's attorney grant an extension was refused, and the clerk entered a default judgment nisi the same day. Three days later the plaintiff moved for leave to file a reply to the counterclaim.²

The opinion's own label, "reply to the counterclaim," hides what the rule requires. The clock in Tolson ran under Rule 12(a) from the counterclaim itself, not from any order to reply. The current rule calls that response an answer to a counterclaim and ties it to the same trigger: it is due within 21 days after the party is served with the pleading that states the counterclaim.³ Service of the counterclaim starts the period, and a court order plays no part.

When an exam stem says a plaintiff "failed to reply," sort the facts before computing anything. If the answer included a counterclaim, the plaintiff's paper is an answer to a counterclaim, and the 21 days run from service of that pleading with no order needed. If the answer contained only denials and defenses, a reply is due only after the court orders one, and the clock starts when the order is served. Silence after a defenses-only answer, with no order served, misses nothing. Silence after a counterclaim lets a deadline run.