Friday, 14. June 2024

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Commencing legal action in Germany and New York

How does a civil trial actually start? What are the parallels and differences of a court case (lawsuit) in Germany and in the US, namely in New York? What are the reasons for and the effects of these differences? …

Let’s start at the beginning, i.e. with how to file a lawsuit in a German court on the one hand and in a New York court on the other, and then go on and see how the defendant has to react.

1. Summons and Complaint (Klage)

a) Germany

If you are a German lawyer, you probably know how to initiate a civil lawsuit here in Germany:

You send the complaint (Klage) together with a certified and an uncertified copy of it to the court. In the past, this was done by mail (Post) and, in order to meet the deadline, by fax. For some time now, however, it has become more and more common to file the complaint electronically via the special electronic lawyer’s mailbox (beA).

In the complaint, you have to state the facts on which your claim is based. It has to be conclusive (schlüssig), which means that the cause of action must justify the relief that you demand. Usually, a complaint will also state the law on which the cause of action is based. But that is not necessary since “the court knows the law” or iura novit curia, as German lawyers like to quote in Latin to show off.

The relief that you seek (Anträge) will always be at the beginning of your complaint, right after the names of the parties. And every relevant fact should be supported by an offer of proof (Beweisangebot), for instance the copy of a relevant document (which you attach to the complaint) or the name and address of a witness that you want to question at the trial. …

After the plaintiff has paid the Gerichtskostenvorschuss, that is the advance on court costs (about € 1,233 for an amount in dispute of € 25,000), the court sends the complaint to the defendant and orders him in a Verfügung (court order) to state within a period set by the court whether he intends to defend himself against the complaint (Verteidigungsanzeige) and then to answer/respond to the complaint in detail (Klageerwiderung).

If the defendant fails to do so, a default judgment (Versäumnisurteil) may be entered against him, unless the complaint is inconclusive (unschlüssig) and fails to state a cause of action.

b) New York

In New York, too, the plaintiff  – or his lawyer – drafts a complaint and files it with the court. This process is called filing. Upon filing, a so-called filing fee of about $200 is due, and the lawsuit is given a file number, called an index number.

Electronic filing is mandatory for attorneys. Plaintiffs who are not represented by an attorney, on the other hand, can still file the lawsuit in paper form. By the way, the Electronic Case Filing Rules & Instructions are very complex and cover 32 pages!

The New York Supreme Court, which contrary to its name is a court of first instance, can only be approached if the claim exceeds $25,000, whereas the German regional or district courts (Landgericht) have jurisdiction over claims starting at €5,000. In New York City, the Civil Court is responsible for smaller claims.

The formal requirements for a complaint are relatively strict (Section 2101 ff CPLR: Form of Papers). In the complaint, each paragraph should be consistently numbered and contain only one allegation at a time (Section 3014 CPLR: Statements).

The content requirements for the complaint can be found, for example, in Sections 3015 ff CPLR. The statement of facts must contain at least those allegations which, assuming they are correct, fulfill the requirements of a cause of action. In addition, each claim should contain a specific request for relief (Section 3017 CPLR: Demand for relief). However, courts are supposed to be rather generous in this regard (Section 3026: Defects shall be ignored if a substantial right of a party is not prejudiced).

Together with the complaint, the plaintiff must prepare a document called  summons. In it, the defendant is informed that he is hereby served with a complaint, to which he must respond within 20 or 30 days. If the defendant fails to respond within this period, a default judgment may be entered against him.

Summons and Complaint must then be served by the plaintiff on the defendant. This is usually done by a professional process server.

The confirmation that the defendant has been formally served with the complaint must in turn be filed by the plaintiff with the court in order to prove to the court that the defendant has actually received those papers.

As an alternative to the immediate filing of a complaint, there is the so-called Notice Pleading or Summons with Notice. In this case, no complaint is attached to the summons (see above), but only the type of claim asserted (e.g. breach of contract, negligence) and the compensation sought by the plaintiff (e.g. payment of damages) are stated in very brief form.

The defendant is requested to respond within 20 or 30 days (Notice of Appearance), otherwise a default judgment will be entered against him. If the defendant wants to defend himself against the claim, he will file this Notice of Appearance and at the same time request the plaintiff to submit a complaint within 20 days. If the plaintiff fails to do so, his complaint will be dismissed upon motion of the defendant (Section 3012b CPLR).

c) Similarities and differences

The “summons” in U.S. procedural law is similar in function to the court order (Verfügung) by which a German court serves the defendant with the complaint and requests/orders him to indicate whether he wishes to defend himself against the complaint (Verteidigungsanzeige).

The difference is that in Germany, the service (Zustellung) of the complaint and the request to the defendant to respond within the time limit, is done by the court (so-called official service or Amtszustellung), whereas in the USA, service of the complaint lies within the responsibility of the parties, in this case the plaintiff´s.

The U.S. court thus takes a more passive role here than a German court. In my opinion, this is a characteristic feature of U.S. civil proceedings, which we will encounter again and again later during the taking of evidence (questioning of witnesses) and also elsewhere. The litigants and especially their attorneys play a more important or at least more labor-intensive role in the U.S. than they do in Germany.

Notice pleading/summons with notice could perhaps be compared, if you will, to our Mahnverfahren (§§ 688 et seq ZPO).

2. Response/Answer to the complaint (Klageerwiderung)

a) Germany

In a German response/answer (Klageerwiderung), the defendant deals with the complaint in detail. If there are any objections or concerns about the admissibility of the complaint, they will be raised at the beginning before going into more detail about the plaintiff’s statement on the facts of the case and their legal evaluation.

A common structure would be to first address the facts and then later the relevant legal aspects (statutes, cases, legal opinions). One important aspect is also the burden of proof (Beweislast) and who can prove what. Sometimes, the answer to a complaint will end with a settlement offer or suggestion.

The defendant files the response/answer directly with the court, which then forwards it automatically to the plaintiff.

b) New York

If a U.S. defendant considers a lawsuit inadmissible, for example, because the court has no authority (lack of jurisdiction) or because he or she was not properly served with the summons and complaint, then he or she will apply to the court to discontinue the proceedings immediately and to dismiss the lawsuit for these formal reasons (motion to dismiss).

Otherwise, in the answer, the defendant will deal in detail with the statements made in the complaint. This often takes on very formalistic features. The reason for this is that New York procedural law requires the defendant to address each and every allegation of the complaint, even if only in the form of admitting (Admitted) or denying (Denied) the allegation.

The defendant sends his answer, you guessed it, not to the court, but directly to the plaintiff and has the receipt certified. The defendant then submits the receipt to the court as proof that he or she has responded to the complaint in a timely manner.

c) Similarities and differences

In terms of content, a German Statement of Defence and an American Answer to the Complaint have much in common.

In both cases, the defendant deals with the admissibility and merits of the claims made against him in the complaint, as would be expected, although an American answer to the complaint has a much more formalistic structure than a German Klageerwiderung.

The defendant’s representative in Germany sometimes follows the tactic of addressing only (or at least focusing only on) those statements in the complaint against which he can present good arguments, so that the answer reads quite convincingly in context. Weak points of one’s own position, on the other hand, are omitted or dealt with only vaguely. Thus, if the court is not paying close attention, it can easily overlook the fact that the defendant has no counter arguments against one or another of the assertions in the complaint.

With an attentive court, however, this strategy is not very promising, since one principle also applies in German procedural law: assertions by the plaintiff that are not disputed by the defendant are deemed to have been conceded. What’s more: In many cases, not even a simple denial helps, but the defendant must substantiate his answer to the corresponding plaintiff’s claim and specifically explain how, in his opinion, things were different. In contrast, it seems to me that in American procedural law a simple denial is often sufficient.

3.  And what happens next?

The complaint (Klage) and the answer (Klageerwiderung) are followed by what is called discovery or pretrial discovery in American civil procedure law. This is something that differs considerably from German law.

Here, the attorneys rather exchange a few more briefs before the case goes to trial.

But I would like to elaborate on this in more detail in a subsequent article. So stay tuned. …

Dr. Wolfgang Gottwald
Rechtsanwalt/Attorney at Law

Attorney at Law

Leopoldstraße 51
80802 München

Tel.: 089/383 293-10
Fax: 089/383 293-13