Do you have a customer who refuses to pay you for the repairs you made to her car? Or maybe a friend won't return some tools or equipment you loaned him? These are just a couple of examples of the types of claims or disputes that are resolved by the Montana small claims courts.
And, now that you've realized that the only way you're going to get your money or belongings is to file a small claims lawsuit, you need to know the mechanics of what to do and how to do it. In general, you have to have to know exactly who you're suing, have the right paperwork and file the suit in the right court.
Where to File
You (you're the "plaintiff") file a small claims case with the clerk of the appropriate justice court. There are over 60 justice courts in Montana and at least one in each of the state's counties. Generally, you have to file your lawsuit in the justice of the peace court of the county where the person you're suing lives (he's called the "defendant"). However:
- If your suit involves a landlord-tenant dispute, like a security deposit refund, you should file in the county where the rental property is located
- If you're suing to get the defendant to return some personal property to you, you may file in the county where the property is located or in the county from which the property was taken or removed
- If the defendant is a Montana corporation, you may file suit in any county where it does business; if it was incorporated in another state, you may file in any county
If there's a written contract involved in the suit, like a sales agreement or equipment lease, it may say where exactly any suit must be filed.
If you don't file the lawsuit in the right county, the defendant can ask the court to move the case to the proper court or even that the case be dismissed or "thrown out" of court. This can slow things down for you. So, if you're unsure about where to file your suit, contact the clerk's office for your area for some help.
Generally, lawsuits begin when the plaintiff files a "complaint." In the Montana, there's a special small claims Complaint form. The form is self-explanatory and simple to use, and the court clerk will give you some instructions to help you complete it. If you need additional help, the clerk can give you some assistance, but don't expect legal advice about your suit.
When filling out the form, you need to give information about your case in a clear and simple way. Print neatly and just give the facts about your claim. Specifically, you'll need to give:
- Your name, address and a telephone number where you can be contacted during the day
- The defendant's name and address
- The amount of money you want the defendant to pay or, a description of the property you want from the defendant
- Reasons why the defendant owes you money, or why you think the property you want rightfully belongs to you
It's very important that you have the proper name and address of the party you're suing. If you're suing:
- A business that's not a corporation, like a sole proprietorship or a "dba" (meaning "doing business as"), you may be able to get the legal names and addresses for the business and its owner from Montana's Secretary of State, Business Division. You should also check with the local Better Business Bureau (BBB), and with the office or agency that issues occupational or business licenses in the city or county where the business is located
- A corporation, you can get its exact name and address from the Secretary of State. You'll also find the name of the company's "registered agent," the person who accepts important documents for the corporation
- A partnership, you should list the name of the partnership as well as the individual partners as defendants. Again the Secretary of State can help you get that information for some partnerships, and you should check with the BBB and local business license office, too
Along with the complaint, you need to complete parts of a Order and Notice to Defendant form, which basically tells the defendant when and where to appear for trial. You also need to fill out parts of a Praecipe, which asks that copies of the papers be delivered to the defendant.
In Montana, you need to file these papers in person and sign the Complaint in front of the court clerk. Also, unless your lawsuits involve shoplifting, you can't file more than 10 claims per year.
At the time you file your forms, you will need to pay your filing fees. In Montana, the fee is $15, but it can change at any time, so be sure to ask the court clerk about the fee.
Generally, if you win your case, the small claims court will order the defendant to pay your filing fee (called "court costs"). This will be in addition to any other money or "damages" the court awards you on your claim.
Service of Process
"Service of process" is when one party gives the other party notice that he's being sued. Generally, this is done by making sure that the defendant gets a copy of the Complaint and other forms you filed. You're responsible for making sure that the defendant is served. When you file your papers, the clerk will give you detailed instructions on how to do this. Generally, you need to have a process server or the sheriff of the county where the defendant lives to deliver or "serve" the papers. The clerk or sheriff can tell you about the fees you have to pay for having the papers served.
Make sure you have the right name and address! If the defendant isn't served properly your case can't go forward, and it may be dismissed, or "thrown out" of court, and you'll then have to start all over again. If you're suing a corporation, you need to serve its "registered agent." She's the person named by the corporation who's responsible for accepting important documents and papers on behalf of or for the corporation. If you're suing a sole proprietorship, you need to serve the business's owner or its registered agent, if it has one. If you're suing a partnership, you need to serve its general or managing partner.
Once you've filed suit, the defendant can do any number of things, such as:
- Settle the claim. That is, the defendant can simply agree with your claim and either pay you or return your property. If you settle before trial, it needs to be in writing, signed by both you and the defendant, and a copy of it must be filed with the court clerk
- Answer the suit. This is where the defendant either gives the court a written and signed letter that sets out in clear and simple language why you shouldn't win the case, or he shows up for trial on the date scheduled by the court clerk and challenges or contests your claim
- Default. If the defendant doesn't show up for trial he "defaults," and you may win automatically if you can show the judge that the defendant was properly served with your Complaint and other papers and that your claim against him is valid
- Counterclaim , or file a claim against you. The defendant has to pay a $15 filing fee, and it has to be filed with the clerk and a copy of it served on you within three days of the trial date. Also, the counterclaim can't be for more than $2,500
- Remove or transfer the case out of the small claims court and into the regular justice court. He has to file a "Notice of Removal" form within 10 days after he receives your Complaint and other papers, and he has to pay a fee. If he removes the case, he may request a jury trial. Also, more complicated court rules and procedures will be applied to the case
- Ask for a continuance, which postpones the trial to another day. The request has to be writing and there must be a good reason for it, such as illness
Questions for Your Attorney
- I filed a small claims suit against a dog owner, who lives on the next street over from me, because her dog bit me. She says that she never received my papers, but I know I gave the sheriff the correct address. What can I do now?
- Why do you think the defendant I sued in small claims court removed the case to the regular justice court? How much will you charge to represent me in that court?
- The defendant I sued in small claims court said that I filed suit in the wrong justice court and the case was moved to another court. Do I have to file another Complaint and pay another filing fee?