Responding to a Mississippi complaint: 30 days, and one extension you can grant yourselves

Mississippi uses 30 days, the most common period in the country. What is unusual is the last sentence of the same subdivision, which lets the lawyers add ten days by agreement, without a motion and without a judge.

The deadline

Miss. R. Civ. P. 12(a):

A defendant shall serve his answer within thirty days after the service of the summons and complaint upon him or within such time as is directed pursuant to Rule 4. A party served with a pleading stating a cross-claim against him shall serve an answer thereto within thirty days after the service upon him. The plaintiff shall serve his answer to a counterclaim within thirty days after service of the counterclaim. If a reply is ordered by the court, the reply shall be served within thirty days after service of the order, unless the order otherwise directs. The service of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court: (1) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten days after notice of the court's action; (2) if the court grants a motion for a more definite statement, the responsive pleading shall be served within ten days after the service of the more definite statement. The times stated under this subparagraph may be extended, once only, for a period not to exceed ten days, upon the written stipulation of counsel filed in the records of the action.

Four things.

Thirty days throughout for the answer, the cross-claim answer, the counterclaim answer and any ordered reply.

The obligation is to serve, not to file.

"Or within such time as is directed pursuant to Rule 4." Read the summons. Certain methods of service carry their own period, and the rule defers to them rather than overriding them.

And counsel may extend, once, by up to ten days. This is the provision worth knowing:

• It is available once only.
• It is capped at ten days.
• It requires a written stipulation of counsel, and the stipulation must be filed in the records of the action. A handshake or an email that never reaches the file does not do it.
• On its terms it extends "the times stated under this subparagraph" — the post-motion periods in (1) and (2).

If you need more time than that, or the other side will not agree, the ordinary route is a motion under Rule 6(b).

Default

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

When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.

Clerical entry on an affidavit or other showing, with no notice required — the familiar structure.

Rule 55(b) — judgment, and this is where Mississippi departs from most states:

In all cases the party entitled to a judgment by default shall apply to the court therefor. If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing of such application; however, judgment by default may be entered by the court on the day the case is set for trial without such three days' notice.

Three consequences.

There is no clerk's default judgment in Mississippi. Federal Rule 55(b)(1) lets a clerk enter judgment on a sum certain; Mississippi sends every default judgment to the court.

Three days' notice if you appeared — shorter than the federal seven.

And the exception swallows a good deal of the rule. On the day the case is set for trial, the court may enter a default judgment without the three days' notice. So an appearing defendant who does not show up on the trial date cannot rely on the notice provision. The protection covers applications made between hearings, not the trial setting itself.

That is the trap in Mississippi practice: appearing gets you notice everywhere except the one date you were already told about.

Answering, or moving

Rule 12(b) carries the pre-answer defences on the federal model, and serving one alters the thirty days as subdivision (a) provides.

Two points for the choice.

Ten days after a denial is short, though it is the one period the stipulation provision can stretch. If you expect to need the room, get the agreement in writing and into the file before the ten days run rather than after.

And conversion applies where matter outside the pleadings is presented on a failure-to-state-a-claim motion and not excluded — the motion becomes one for summary judgment under Rule 56, carrying that rule's schedule and standard.

Fixing a missed deadline

Rule 55(c) sets the two tiers:

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

The gap between "good cause" and Rule 60(b)'s enumerated grounds is the reason to move before judgment rather than after. Because Mississippi requires a court application for every default judgment, there is always a hearing between the entry of default and the judgment — and that hearing is the opportunity.

Expect to bring two things: a reason the deadline was missed, and a defence that would matter if the default were lifted.

How Mississippi compares

A short checklist

1. Calendar 30 days from service, and note the obligation is to serve your answer.
2. Read the summons. Rule 12(a) defers to any period directed pursuant to Rule 4.
3. A Rule 12 motion alters the clock, and a denial leaves you ten days from notice of the court's action.
4. If you need a little more time, ask opposing counsel. A written stipulation, filed in the record, buys up to ten days — once.
5. Get the stipulation into the file. An unfiled agreement does not satisfy the rule.
6. Appear. Three days' written notice before a default judgment depends on it.
7. But do not rely on that notice on a trial date. The court may enter judgment that day without it.
8. Move before judgment if you can. Good cause sets aside an entry of default; Rule 60(b) governs after judgment, and it is narrower.

Where these rules live

• Miss. R. Civ. P. 4 — Summons
• Miss. R. Civ. P. 5 — Service and Filing of Pleadings and Other Papers
• Miss. R. Civ. P. 6 — Time
• Miss. R. Civ. P. 8 — General Rules of Pleading
• Miss. R. Civ. P. 12 — Defenses and Objections — When and How Presented
• Miss. R. Civ. P. 15 — Amended and Supplemental Pleadings
• Miss. R. Civ. P. 55 — Default
• Miss. R. Civ. P. 60 — Relief from Judgment or Order

This page explains what the rules say. It isn't legal advice, and the good-cause standard for setting aside an entry of default is developed in case law this site doesn't cover.