Diary of a Copyright Infringement Lawsuit – 5 (The Defendant’s Answer)
Now that you’ve filed your copyright infringement lawsuit and have served the defendant (or the defendant has waived service), the defendant must now answer or otherwise respond to the complaint. Rule 12 of the Federal Rules of Civil Procedure provides the timing for the defendant’s response:
(a) (1) Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:
(A) A defendant must serve an answer:
(i) within 21 days after being served with the summons and complaint; or
(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.
Rule 8 of the Federal Rules of Civil Procedure requires the defendant to respond to each allegation in the Complaint in its Answer. Specifically, it provides:
In responding to a pleading, a party must:
(1) (A) state in short and plain terms its defenses to each claim asserted against it; and
(B) admit or deny the allegations asserted against it by an opposing party.
If the defendant denies part of an allegation in the Complaint, the defendant must deny only part of the allegation must admit the part that is true and deny the rest. If the defendant lacks knowledge or information sufficient to form a belief about the truth of an allegation, the defendant must state so, which has the same effect as denying the allegation. If the defendant fails to deny the allegation, it is deemed to be admitted if a responsive pleading is required and the allegation is not denied.
The defendant must assert certain “affirmative defenses” in the Answer or the defendant waives them:
- accord and satisfaction;
- arbitration and award;
- assumption of risk;
- contributory negligence;
- failure of consideration;
- injury by fellow servant;
- res judicata;
- statute of frauds;
- statute of limitations; and
Instead of filing an Answer, the defendant may file a motion to dismiss that will be discussed more fully in a future blog entry. But either in the Answer or by a motion to dismiss, the defendant must assert the following defenses or they waived, too:
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
The Answer in the Friedman v. Guetta provides an example as to how a Complaint is answered. Note that Guetta responds to each allegation in the Complaint by the numbered paragraph. For instance, in paragraph 1, Friedman alleges that “This is a clear liability copyright infringement case, wherein Defendants, engaged in advertising activity, including but limiting to . . . .” Guetta responds by asserting that “Defendant denies the averments in paragraph 1 of the Complaint.” In paragraph 2, Friedman alleges that “This Court has federal question jurisdiction uner 28 U.S. C. §§ 1331, 1338(a). Guetta admitted “that Plaintiff purports to bring this action under the Copyright Act, 17 U.S.C. § 101, et seq., and as a result of such allegations, jurisdiction lies before this court.” Guetta responds similarly to each paragraph of the Complaint, according to Rule 8 referred to above.
Guetta included his Affirmative Defenses in his Answer on pages 4-5, including laches, estoppel, waiver, and license. Guetta also included a counterclaim against Friedman beginning on page 6. Counterclaims are claims that could be made by a separate complaint or are brought into a lawsuit between the parties for judicial economy. Pursuant to Rule 13 of the Federal Rules of Civil Procedure, certain counterclaims must be asserted in a lawsuit:
A pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim:
(A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and
(B) does not require adding another party over whom the court cannot acquire jurisdiction.
Otherwise, a pleading may state as a counterclaim against an opposing party any claim that is not compulsory.
Once the defendant files its answer, the battle begins.Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!