pleadings2018-09-20T14:50:36+00:00


2.  Pleadings


Filing The Complaint


Assuming that the pre-filing investigation supports the filing of a lawsuit against a defendant, the next step is the preparation and filing with the court of a document called a complaint. Any person or company that is part of a lawsuit is referred to as a party to the lawsuit. A party who files a lawsuit is called a plaintiff. A party who is being sued is called a defendant. The complaint sets forth the basic information about the lawsuit, such as the names and locations of the parties involved, the causes of action (e.g. patent infringement), the factual bases for the causes of action, why the court has jurisdiction over the dispute, whether a jury trial is requested, and the relief demanded.


Once the complaint has been prepared and signed by the plaintiff, or most commonly the plaintiff’s attorney, it will be filed with a court at a location chosen by the plaintiff. Every state has at least one U.S. federal court, which are the courts that have jurisdiction over lawsuits with U.S. federal intellectual property law claims (e.g. patent, trademark, and copyright). States with large populations may be divided into districts, with each district having at least one federal court. There are rules for determining which federal court a complaint may be filed in. The rules are based upon such things as where the accused defendant resides and where the acts that form the basis of the complaint occurred. Sometimes, depending upon the particular facts, the rules allow a choice as to where a complaint may be filed. The choice may be made by the plaintiff based upon a number of considerations including convenience, cost, time to trial, etc. . . .


At the time of filing the complaint a filing fee must be paid to the court clerk. When the complaint is filed with the court clerk, it is assigned randomly to one of the court judges at the particular federal court and given a case number.


The court clerk will then issue a summons;. The summons is a document addressed to the defendant that informs the defendant of the lawsuit, and summons the defendant to respond to the complaint within a prescribed period of time after being served. The expense of preparing and filing a complaint varies with the complexity of the complaint.


Serving The Complaint


In order to make a defendant subject to a lawsuit the plaintiff must arrange for proper service of the complaint and summons on the defendant. This is part of the due process requirement of the U.S. legal system. Service of a complaint usually involves hiring a professional process server to personally serve the complaint and summons. Once this is done, the process server completes a proof of service; document where he attests under oath to having served the accused defendant. This proof of service is filed with the court.


Sometimes service of the complaint is simple and inexpensive. For example, sometimes the defendant is a local corporation who has an assigned agent for receiving complaints and summonses. Other times it can be very expensive. A plaintiff has a limited time from the time he filed the complaint to serve all of the defendants. Failure to serve the complaint on time may result in the court dismissing a case.

Responding To The Complaint


After being served with the complaint and summons a defendant must respond to the complaint, or else have a default judgment entered against them. Due to the complexity of intellectual property litigation, it is not unusual for a plaintiff and defendant to agree as a matter of courtesy to an extension of time to respond to the complaint. This allows the defendant time to retain litigation counsel, investigate the matter, and prepare an appropriate response to the complaint.


A defendant may choose to initially respond to the complaint by filing an answer. An answer contains a written response to each of the allegations in the complaint, either admitting the allegation, denying it, or claiming insufficient information to provide a response. The answer will also usually contain one or more affirmative defenses. Such affirmative defenses typically include an attack on the validity and/or enforceability of the intellectual property right being asserted. The answer may also be coupled with a counterclaim where the defendant sues the plaintiff and asks the court for a declaration that the plaintiff’s alleged intellectual property rights have not been not been infringed, are invalid, and/or is unenforceable. The defendant will almost always ask for its attorney’s fees and costs and other appropriate relief.


Instead of filing an answer to the complaint, it is also not uncommon for defendant to first file a motion attacking the complaint on one or more procedural or substantive grounds. A defendant may attack the complaint as being filed in the wrong court and ask to have the complaint either dismissed or moved to a different court. The defendant may also attack the sufficiency of the service of the complaint on defendant, or the sufficiency of the allegations in the complaint, and move to dismiss the lawsuit. The plaintiff will have to oppose the defendant’s motion by filing its own opposition papers. Depending upon the type of motion(s) filed by the defendant, there can be significant expense fighting such motions. If the defendant who files a motion is not successful in getting the case dismissed, then the defendant will be required to file an answer.

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2.  Pleadings


Filing The Complaint


Assuming that the pre-filing investigation supports the filing of a lawsuit against a defendant, the next step is the preparation and filing with the court of a document called a complaint. Any person or company that is part of a lawsuit is referred to as a party to the lawsuit. A party who files a lawsuit is called a plaintiff. A party who is being sued is called a defendant. The complaint sets forth the basic information about the lawsuit, such as the names and locations of the parties involved, the causes of action (e.g. patent infringement), the factual bases for the causes of action, why the court has jurisdiction over the dispute, whether a jury trial is requested, and the relief demanded.


Once the complaint has been prepared and signed by the plaintiff, or most commonly the plaintiff’s attorney, it will be filed with a court at a location chosen by the plaintiff. Every state has at least one U.S. federal court, which are the courts that have jurisdiction over lawsuits with U.S. federal intellectual property law claims (e.g. patent, trademark, and copyright). States with large populations may be divided into districts, with each district having at least one federal court. There are rules for determining which federal court a complaint may be filed in. The rules are based upon such things as where the accused defendant resides and where the acts that form the basis of the complaint occurred. Sometimes, depending upon the particular facts, the rules allow a choice as to where a complaint may be filed. The choice may be made by the plaintiff based upon a number of considerations including convenience, cost, time to trial, etc. . . .


At the time of filing the complaint a filing fee must be paid to the court clerk. When the complaint is filed with the court clerk, it is assigned randomly to one of the court judges at the particular federal court and given a case number.


The court clerk will then issue a summons;. The summons is a document addressed to the defendant that informs the defendant of the lawsuit, and summons the defendant to respond to the complaint within a prescribed period of time after being served. The expense of preparing and filing a complaint varies with the complexity of the complaint.


Serving The Complaint


In order to make a defendant subject to a lawsuit the plaintiff must arrange for proper service of the complaint and summons on the defendant. This is part of the due process requirement of the U.S. legal system. Service of a complaint usually involves hiring a professional process server to personally serve the complaint and summons. Once this is done, the process server completes a proof of service; document where he attests under oath to having served the accused defendant. This proof of service is filed with the court.


Sometimes service of the complaint is simple and inexpensive. For example, sometimes the defendant is a local corporation who has an assigned agent for receiving complaints and summonses. Other times it can be very expensive. A plaintiff has a limited time from the time he filed the complaint to serve all of the defendants. Failure to serve the complaint on time may result in the court dismissing a case.

Responding To The Complaint


After being served with the complaint and summons a defendant must respond to the complaint, or else have a default judgment entered against them. Due to the complexity of intellectual property litigation, it is not unusual for a plaintiff and defendant to agree as a matter of courtesy to an extension of time to respond to the complaint. This allows the defendant time to retain litigation counsel, investigate the matter, and prepare an appropriate response to the complaint.


A defendant may choose to initially respond to the complaint by filing an answer. An answer contains a written response to each of the allegations in the complaint, either admitting the allegation, denying it, or claiming insufficient information to provide a response. The answer will also usually contain one or more affirmative defenses. Such affirmative defenses typically include an attack on the validity and/or enforceability of the intellectual property right being asserted. The answer may also be coupled with a counterclaim where the defendant sues the plaintiff and asks the court for a declaration that the plaintiff’s alleged intellectual property rights have not been not been infringed, are invalid, and/or is unenforceable. The defendant will almost always ask for its attorney’s fees and costs and other appropriate relief.


Instead of filing an answer to the complaint, it is also not uncommon for defendant to first file a motion attacking the complaint on one or more procedural or substantive grounds. A defendant may attack the complaint as being filed in the wrong court and ask to have the complaint either dismissed or moved to a different court. The defendant may also attack the sufficiency of the service of the complaint on defendant, or the sufficiency of the allegations in the complaint, and move to dismiss the lawsuit. The plaintiff will have to oppose the defendant’s motion by filing its own opposition papers. Depending upon the type of motion(s) filed by the defendant, there can be significant expense fighting such motions. If the defendant who files a motion is not successful in getting the case dismissed, then the defendant will be required to file an answer.

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