Diary of a Copyright Infringement Lawsuit – 4 (Serving the Complaint)
[Note: Had a great time recently photographing wild horses with Mark Terrell of Wild Horses of Nevada Photography]
After you file your copyright infringement lawsuit with a federal district court, you then need to “serve” (give) a copy of the complaint and a summons on the defendant. You’ve probably have seen the process in movies where someone hands another some papers and says “you’ve been served.” Rule 4 of the Federal Rules of Civil Procedure provides the details of what’s required. The summons must:
(A) name the court and the parties;
(B) be directed to the defendant;
(C) state the name and address of the plaintiff’s attorney or — if unrepresented — of the plaintiff;
(D) state the time within which the defendant must appear and defend;
(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;
(F) be signed by the clerk; and
(G) bear the court’s seal.
Most district courts provide the form for the summons, such as the one here for the Central District Court of California. You must have the summons and the complaint served on the defendant within 120 days after you filed complaint unless you can show the court good reason for not getting it done. Any person who is at least 18 years old and is not a party may serve the summons and complaint. Many companies will serve the complaint for you for a fee of approximately $100.
In the alternative, you may request that the defendant waive service pursuant to Rule 4(d), which must:
(A) be in writing and be addressed:
(i) to the individual defendant; or
(ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to
receive service of process;
(B) name the court where the complaint was filed;
(C) be accompanied by a copy of the complaint, 2 copies of a waiver form, and a prepaid means for returning the form;
(D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service;
(E) state the date when the request is sent;
(F) give the defendant a reasonable time of at least 30 days after the request was sent — or at least 60 days if sent to the defendant outside any judicial district of the United States — to return the waiver; and
(G) be sent by first-class mail or other reliable means.
In return for waiving service, the defendant gets extra time to answer the complaint (60 days instead of 20). But if the defendant fails to waive service, then the defendant must pay the expenses you later incur to serve the defendant plus the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.
Next up: the defendant’s answer to your complaint.
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