Responding to an Alaska complaint: 20 days, seven days' warning before default, and the loser pays fees

Two things make Alaska different from every other state on this site. Its default rule gives a defendant an express seven-day warning and lets them answer right up to the moment default is entered. And Rule 82 awards attorney's fees to the winner in every civil case, calculated by a schedule.

The second one should change how you evaluate the case before you answer.

Twenty days, or forty

Alaska R. Civ. P. 12(a): a defendant "shall serve an answer within 20 days after the service of the summons and complaint upon that defendant," unless otherwise directed when service is made under Rule 4(e).

Forty days applies in three situations:

• The state, or an officer or agency of it, answering a complaint or cross-claim, or replying to a counterclaim — 40 days after service upon the attorney general;
• a non-governmental party served through an officer or agency of the state appointed, authorized or designated by statute as its agent for service — 40 days after that service;
• an individual in a foreign country served under Rule 4(d)(13) — 40 days after service.

Cross-claims and replies: 20 days. A reply to a counterclaim is due 20 days after service of the answer, or 20 days after service of a court order requiring one.

After a Rule 12 motion: if the court denies the motion or postpones disposition until trial, the responsive pleading is due within 10 days after notice of the court's action; if the court grants a motion for a more definite statement, 10 days after service of the more definite statement.

The seven defenses

Rule 12(b) follows the federal pattern. Every defense goes in the responsive pleading, "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) improper venue (4) insufficiency of process (5) insufficiency of service of process (6) failure to state a claim upon which relief can be granted (7) failure to join a party under Rule 19

A motion raising any of them "shall be made before pleading if a further pleading is permitted," and "no defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion."

Conversion: matters outside the pleading presented on a (6) motion and not excluded turn it into a Rule 56 motion, with a reasonable opportunity for all parties to present pertinent material.

A dismissal is not a judgment until someone drafts one

This is an Alaska-specific step with no federal counterpart, appearing in both Rule 12(b) and Rule 12(c):

A decision granting a motion to dismiss is not a final judgment under Civil Rule 58. When the decision adjudicates all unresolved claims as to all parties, the judge shall direct the appropriate party to file a proposed final judgment. The proposed judgment must be filed within 20 days of service of the decision, on a separate document distinct from any opinion, memorandum or order that the court may issue.

So winning the motion does not end the case on the docket. Someone has to prepare and file the judgment, on its own document, within 20 days.

Two consequences follow. Post-judgment and appellate clocks run from that judgment, not from the decision. And under Rule 82(c), the 10 days to move for attorney's fees runs from the clerk's certificate of distribution on the judgment as defined by Rule 58.1.

More definite statement and motion to strike

Rule 12(e): available where a pleading to which a responsive pleading is permitted "is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." The motion must point out the defects and the details desired. If it is granted and the order is not obeyed within 10 days, the court may strike the pleading or make such order as it deems just.

Note that Alaska uses only the federal ground here. Washington's CR 12(e) adds a second, efficiency-based ground; Alaska does not.

Rule 12(f): a motion to strike an insufficient defense or redundant, immaterial, impertinent or scandalous matter, made before responding, or within 20 days where no responsive pleading is permitted, or on the court's own initiative.

Rule 12(d): the seven enumerated defenses and a Rule 12(c) motion for judgment on the pleadings "shall be heard and determined before trial on application of any party," unless the court defers them to trial.

Default: the seven-day warning

Alaska's default procedure is the most protective on this site, and it turns on two provisions.

Rule 55(a)(1): where a party has failed to appear and answer or otherwise defend, and that fact is shown by affidavit or otherwise, the clerk shall enter a default. And:

The party seeking default must serve the application on all parties, including the party against whom the default is sought, in accordance with Civil Rule 5.

Rule 55(a)(2):

A party who fails to appear or who appears but fails to answer or otherwise defend may be defaulted by the clerk not less than seven days following service of the application for default.

Federal Rule 55(a) requires no notice at all before entry of default. Washington and Oregon require notice only to a party who has already appeared — CR 55(a)(3) and ORCP 69 B(2). Alaska requires the application to be served on everyone, including the party who never appeared, and then requires a seven-day wait.

And Rule 55(d) makes that window meaningful:

A party may respond to any pleading at any time before a default is entered.

Read together: you get notice, you get seven days, and filing an answer inside that period stops the default. There is no motion to make and no showing of good cause required. You simply answer.

If you have been served with an application for default in Alaska, the answer is to file your response — now, not after briefing.

Default judgment

By the clerk — Rule 55(b)(1). Where the defendant was defaulted for failure to appear and the claim is "for a sum certain or for a sum that can by computation be made certain," the clerk enters judgment on an application including an affidavit of the amount due that also states the defendant is not an infant or incompetent person and not in the active military service of the United States — or that the plaintiff cannot determine the military-service question.

Rule 55(b)(2): the clerk may not enter default judgment in a multi-defendant case unless all defendants have been defaulted.

By the court — Rule 55(c). In all other cases, application goes to the court. No default judgment against an infant or incompetent person unless represented by a general guardian, committee, conservator or other representative who has appeared.

If the party against whom default judgment is sought has appeared in the action, that party … shall be served with written notice of the application for judgment at least three days prior to a decision.

Three days, where the federal rule uses seven. The notice requirement and the Rule 55(c)(2) memorandum requirement do not apply where the party fails to appear for trial — the court may then proceed ex parte.

The memorandum — Rule 55(c)(2): counsel must file a memorandum of the default showing when and against what parties it was entered and the pleadings to which no defense has been made; an affidavit on military service; a memorandum on representation where the record shows an infant, incompetent or service member; and a statement whether the record shows the required notice was served.

Unliquidated damages — Rule 55(c)(3): the applicant may submit evidence by affidavit, and where notice is required, the opposing party may submit affidavits in opposition.

Multiple defendants — Rule 55(c)(4): where not all defendants have been defaulted, the court may not enter default judgment "unless the nondefaulting defendant's defenses would not be available to the defaulting defendant," and such a judgment remains subject to Rule 54(b).

Against the state — Rule 55(g): no default judgment unless the claimant "establishes the claim or right to relief by evidence satisfactory to the court."

Proposed judgment — Rule 55(i): an application for default judgment must be accompanied by a proposed judgment in the form required by Rule 58.2.

Setting a default aside

Rule 55(e) draws the line that matters everywhere:

For good cause shown the court may set aside an entry of default and, if a default judgment has been entered, may likewise set it aside in accordance with Rule 60(b).

Entry of default: good cause. Default judgment: the full Rule 60(b) standard, with its grounds and its one-year limits on the first three.

Which is why Rule 55(d) is worth so much. Answering before entry costs nothing. After judgment you are litigating Rule 60(b).

Rule 82: the prevailing party gets fees

This is the provision that most changes the arithmetic of an Alaska case.

Rule 82(a):

Except as otherwise provided by law or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's fees calculated under this rule.

Not may — shall. Not only in fee-shifting statutory cases — in every civil case.

Where the prevailing party recovers money — Rule 82(b)(1), the court adheres to a schedule:

Where no money judgment is recovered — Rule 82(b)(2): the prevailing party gets 30 percent of its reasonable actual attorney's fees necessarily incurred in a case that goes to trial, and 20 percent in a case resolved without trial. Actual fees include work customarily done by an attorney but delegated to an investigator, paralegal or law clerk.

That is the number a defendant who wins outright is entitled to — a percentage of what it actually spent.

Variation — Rule 82(b)(3): the court may vary the calculated award on consideration of eleven listed factors, including the complexity of the litigation, the reasonableness of hourly rates and hours, efforts to minimise fees, the reasonableness of the claims and defenses pursued by each side, vexatious or bad faith conduct, and — notably — "the extent to which a given fee award may be so onerous to the non-prevailing party that it would deter similarly situated litigants from the voluntary use of the courts."

In default cases — Rule 82(b)(4): the plaintiff recovers an award calculated under the (b)(1) schedule or its reasonable actual fees necessarily incurred, whichever is less.

The motion — Rule 82(c): a motion is required, and it must be filed within 10 days after the date shown in the clerk's certificate of distribution on the judgment as defined by Rule 58.1. Failure to move within 10 days, or such additional time as the court allows, "shall be construed as a waiver of the party's right to recover attorney's fees." A motion in a default case must specify actual fees.

Rule 82(d): fees on a default judgment may be determined by the clerk; in all other matters, by the court.

And in a default case, Rule 55(h) folds it in. A party entitled to default judgment without further hearing under Rule 55(c)(1) must include in the application an itemised statement of costs allowable under Rule 79(f) and the party's actual attorney's fees. "In such case, no cost bill or motion for attorney's fees is required."

What Rule 82 means before you answer

The practical effect is that the cost of losing an Alaska case includes a share of the other side's legal bill, fixed by rule rather than left to discretion. Three things follow.

Evaluate early. A defence that costs more to run than the fee exposure it avoids is a bad investment, and the schedule lets you estimate that exposure at the outset.

Settlement has a different shape. A settlement resolves the fee claim along with the merits; a judgment does not.

A no-money win still carries a fee award. Rule 82(b)(2)'s 30 and 20 percent apply where the prevailing party recovers nothing — so a successful defendant is not left where it started.

How Alaska compares

A short checklist

1. Calendar 20 days — 40 if you are the state, were served through a state agent, or were served abroad.
2. Decide between motion and answer. Rule 12(b) makes all seven defenses optional by motion, and joining them waives nothing.
3. If a default application arrives, file your answer. Rule 55(d) lets you respond at any time before entry, and Rule 55(a)(2) gives you seven days.
4. If default has already been entered but no judgment, move promptly — good cause is the standard. After judgment, you are in Rule 60(b).
5. Estimate your Rule 82 exposure now, using the schedule and the 30/20 percent rule. It is part of the value of the case, not an afterthought.
6. If you win a motion to dismiss, prepare the judgment. It is a separate document, due within 20 days, and nothing final happens until it is filed.
7. Move for fees within 10 days of the clerk's certificate of distribution. Rule 82(c) treats silence as a waiver.

Where these rules live

• Alaska R. Civ. P. 4 — Process
• Alaska R. Civ. P. 5 — Service and filing of pleadings and other papers
• Alaska R. Civ. P. 6 — Time
• Alaska R. Civ. P. 12 — Defenses and objections
• Alaska R. Civ. P. 55 — Default
• Alaska R. Civ. P. 56 — Summary judgment
• Alaska R. Civ. P. 60 — Relief from judgment or order
• Alaska R. Civ. P. 79 — Costs; taxation and review
• Alaska R. Civ. P. 82 — Attorney's fees

This page explains what the rules say. It isn't legal advice, and Alaska's fee rule interacts with statutes this site doesn't reproduce.