The Oklahoma Bar Journal August 2022

admitted, denied or if some other response may be appropriate. The Oklahoma Pleading Code pro vides that a defendant shall set forth “in short and plain terms” their defenses to each claim, and it sets forth the standard for answering a petition. While you don’t want to show all your cards at this early stage, at times it may become necessary to set forth a brief explanation for why an alle gation is denied. This is proper under Okla. Stat. Tit. 12 §2008. Once you have answered each allegation in the petition, you will want to assert your affirmative defenses. Under Okla. Stat. Tit. 12 §2008(C), when responding to a petition, a defendant must set forth several defenses affirmatively. The language under Okla. Stat. Tit. 12 §2008(C) is mandatory, and the failure to plead an affirmative defense operates as a waiver of that defense. 47 For that reason, you will want to ensure you know your case when setting forth your affirmative defenses so you don’t waive any defenses that could become import ant to the case. Should you discover that you omitted an affirmative defense after filing your answer, you can amend your answer to include an affirmative defense that may have been omitted. Under the Oklahoma Pleading Code, 12 O.S. §2015(A), you can amend your answer as a matter of course at any time within 20 days after the answer is served. If the 20 days have elapsed, you will have to seek leave of court to do so, and effective Nov. 1, 2022, per an amendment to 12 O.S. §2015(A), you must submit your proposed amendment with the motion for leave to amend. It is within the court’s discretion on whether to allow you to amend your answer, so if you discover you have omitted an affirmative defense in your answer, you will want to act quickly. 48

should discuss all the pros and cons with the client to ensure the client is on board. Under 28 U.S.C. §1446, a defen dant can file in the United States district court for the district within which the state court action is pending a notice of removal con taining a short and plain statement of the grounds for removal. 42 The notice of removal must be filed within 30 days after the defendant is served with the initial pleading setting forth the claim for relief. 43 Typically, the basis for removal of a state court action to federal court is either diversity of citizenship or the inclusion/joinder of federal law claims. Removal under 28 U.S.C. §1441(b) based on diversity of citizenship occurs when the matter in controversy exceeds the sum of $75,000 and is between citizens of different states. 44 Removal under 28 U.S.C. §1441(c) because of fed eral question jurisdiction occurs when one or more claims asserted

in the initial pleading arises under the Constitution, laws or treaties of the United States. 45 A plaintiff does have the ability to object to removal. Within 30 days of when the notice of removal was filed, a plaintiff can file a motion asking the federal district court to remand the case back to state court. 46 This is where it can begin to get costly for the client, and before filing the notice of removal, the client should have a good understanding of what the removal process will entail. Answering the Petition There will be times, more often than not, when the only way to put your best foot forward is by answering the petition. Again, the decision for how you should answer a petition should not be rushed. Before answering the petition, you should sit down with your client and review each allegation to determine whether the allegation should be

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THE OKLAHOMA BAR JOURNAL