If I Want to Sue the Plaintiff Back
If you are the defendant and the plaintiff owes you money or hurt you, you can sue the plaintiff back now. This is called "countersuing," or filing a defendant’s claim.
NOTE: If you don’t want to sue now, you can choose to sue later – as long as the statute of limitations has not run out in your case. However, it is often better to sue back at the same time and put both cases before the same judge to avoid conflicting judgments.
Before you file your countersuit, ask the plaintiff to pay the money you are owed.
- For help writing a letter to the person or business asking for payment, click here.
- For help writing a letter for a bad check, click here; for a stop-payment check, click here.
- You can only countersue those who have sued you. For example, if you were only sued by the partnership then you cannot countersue both the partnership and a partner.
- Your claim does not have to be related to the plaintiff’s claim. A defendant’s claim could be a dispute about an entirely different problem.
- The same rules apply to the defendant’s claim as apply to the plaintiff’s claim. To read about who can use the small claims court, limits of time and place, etc., read the section called Before You Start a Court Case.
If you are the defendant and want to sue the plaintiff back now in the small claims case take the following steps:
Step 1. Get and fill out:
- Defendant's Claim and Order to Plaintiff (Small Claims) (Form SC-120)
Make photocopies of the form – one copy for you and one for each plaintiff you are suing back. (The court will keep the original.)
Step 2. File the original Defendant’s Claim (SC-120) at court. Also include your photocopies so they can be stamped by the court clerk to become “conformed.”
You can file your court forms in one of three ways:
- In person (By visiting the courthouse, handing the forms to the clerk yourself and paying the appropriate filing fee.)
- By mail (This process can be slower than filing in person if you have made mistakes in completing the forms.)
TIP: If you file by mail, include a stamped, self-addressed envelope with enough postage so the court can mail your copy of the forms back to you. Also, write a simple letter to the court clerk explaining what you are mailing to the court and why. Be sure to include the fess for filing and service.
- By hiring a forms filing service (For a fee, some companies will take your forms to the courthouse and make sure they are filed and that the filing fees are paid. These companies are called “attorney services” and can be found in the yellow pages of your phone book.)
Step 3. Serve a copy of the filed-stamped copy of the Form SC-120 on the plaintiff. This must be done at least 5 "court" days before your court hearing date. (“Court days” are Monday through Friday. Court days do not include Saturday, Sunday, or holidays.)
NOTE: You may not serve the court documents on the plaintiff yourself.
- You have to have someone over the age of 18, not a defendant in the case, serve the plaintiff. The person may be a relative or a friend.
- You can also hire a professional server. Look in the yellow pages or contact your local bar association for service of process or process servers. If you think you are going to have problems with the other person, use a professional server.
There are three ways copies of your counterclaim can be "served":
• Personal Service (A person over 18 who is not a defendant in this case delivers a copy of the forms to the plaintiff in person at least 5 days before your court hearing date.)
• Service by Mail (The court clerk sends a copy of the claim by certified mail, return receipt requested, to the plaintiff. The plaintiff must sign and return a receipt to the clerk. There is a fee for this type of service.)
If the court clerk mails the claim to the plaintiff, it must be mailed 10 days before your court hearing date.
• Substituted Service: Someone over 18 - not you or another defendant in the case - must leave a copy of the claim with someone in charge at the plaintiff's office, or with a competent adult who is at least 18 years old at the plaintiff's home.
- Your server must tell that person "this is a small claims lawsuit against [name of plaintiff]; please be sure to give it to [name of plaintiff]."
- Your server must write down the name of the person to whom he or she gave the court papers. Or, if that person’s name is not known, your server should be able to describe him or her in the Proof of Service (see below).
- Then your serve must mail another copy of the claim to the plaintiff at the same address where he or she left the first copy of the claim. Service is considered complete 10 days after mailing.
Step 4. Tell the court that you have served your forms.
Your server should complete a:
- Proof of Service (Form SC-104)
Then you should file this form with the small claims clerk before the hearing.
Next, you should prepare for your hearing. To learn how to do this, click here.
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