The party filing first often gets the home court advantage. That is, they get to litigate at a federal courthouse nearby while the other party has to travel to
another city to appear in court. This is a distinct advantage against small companies and Work At Home Mothers ("WAHM") and other individuals
who lack the deep pockets to fight these cases with an attorney.
If you have been sued, there are two main considerations. Has the case been recently filed or have you just discovered a default judgment against you?
A default judgment was entered because you failed to appear or failed to respond to a court date and/or order.
Courts do not like default judgments and eagerly look for reasons set them aside. If the other side failed to inform you that you were being sued, that is
grounds for having the judgment set aside. You would need to file a motion to set aside under rule 59 or rule 60 of the
F.R.C.P. The other side has the burden of proving you were served in a proper and timely manner. Absent physical
proof of service the court will generally accept your affidavit stating you were not served.
Once you have been served the clock for an answer begin ticking. Be careful to meet any court deadlines. Keep your response on subject, meaning do not
whine about how unfair it all is and how the other side is picking on you, etc. The court doesn't care. Stick to the facts. And do not assume anything stated or quoted
by the other side's corporate lawyer is fact. Check everything. Corporate lawyer routinely lie to the courts and will just as easily lie to you.
F.R.C.P. Rule 12(b)
F.R.C.P. Rule 12(b) can be used at any time before a response is filed. In effect it is an early motion to dismiss because the law suit
lacks legal basis, jurisdiction, or whatever else you can locate to use. If you file one, treat it as you would a motion for summary judgment and include declarations
(affidavits) and proof (if available) to support your claims. Be thorough. Courts cannot read your mind nor will they assume what you want to do. You may not win
the motion to dismiss but it puts the other side on the defensive and increases their legal bills. Their response will give some idea of what evidence they have early
on in the case. It is important to remember that you must file F.R.C.P. Rule 12(b) motions before you answer the complaint. If you file an
F.R.C.P. Rule 12(b) motion challanging juridiction, or one that will dismiss the case, you do not have to answer the complaint until ten days after the court has
ruled on the motion. This can give you an additional month to ninty days in which to answer (depending upon how fast the judge rules, etc).
The first thing to confirm is jurisdiction. Just because the other side filed a lawsuit does not mean the court in which the suit was
filed has jurisdiction to hear the case. For example, Darlene Seymour,
General Counsel for Continental Enterprises, just loves to file
federal lawsuits in state court. State courts lack the jurisdiction to hear any federal claims. So we would immediately file a
Rule 12(b)(2) Motion To Dismiss citing a general lack of jurisdiction over person. The party filing must also establish
either personal or general jurisdiction otherwise they have to sue in your home state. If they do not cite a specific jurisdictional basis immediately file
a Rule 12(b)(2) Motion To Dismiss. You must present a basis for this (and any other) motion so make sure you research it and put together a solid argument.
For example, Darlene likes to make a general statement about jusidiction not giving any specifics. Your motion would require her to cite specifics which you could
then dispute. Such as, most states do not consider typical on-line auction sales to confer personal jurisdiction which she will allege as her basis.
If you live in the same state or conduct business in the same state as your opponent there's little you can do. Doing business in the same state does not mean
having sold someone something by way of an eBay auction or even an internet sale. Many state do not regard these contacts to be enough to qualify as doing
business in the state. Darlene Seymour, attorney for Continental Enterprises, likes to cite a flimsy jurisdictional basis for her claims in her state court filings
by claiming the other side was doing business in the state but never states how.
Personal jurisdiction is where you have availed yourself of the rights and protections of the laws of the state in which you are being sued. This means you
have to direct your actions specifically at that forum or at some individuals in that state.
Subject Matter Jurisdiction
Our favorite again, Continental Enterprises, has filed several lawsuits in state court for their client Heineken, stating alleged
violation of Indiana Trademark Statutes. Except, when we look online for the registered Heineken trademarks in Indiana, we find that are none. The four applications
filed in October 2006 were rejected by the State of Indiana on October 16, 2006 and have never been resubmitted. As such, the state court claims for
trademark infringement are invalid and subject to a Rule 12(b)(1) Motion To Dismiss for a lack of Subject Matter Jurisdiction..
Always check to see if their claims are valid.
Likewise, we have seen flimsy copyright infringement filings. Before someone can file a federal copyright law suit they must have a valid copyright registered with
the US Copyright Office. Filing for a copyright is not enough. They must have the copyright registered.
Failure To State A Claim Upon Which relief Can Be Granted
Rule 12(b)(6), failure to state a claim is often used. For example, you get sued for calling another person a "butt-head" on your web site. That's protected speech
under the First Amendment because you are stating your opinion and therefore your butt-head opponent cannot be granted relief under the law.
You will deny everything except who you are. Do not say anything that will help their case. By emoting you only go on the record for their benefit.
Once you answer they will get to file a reply.