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  "The only thing necessary for the triumph of evil is for good men to do nothing"
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Last updated March 22, 2009

Their Answer To Your Complaint

When you read their answer you may initially get depressed. This is normal. Sit down, read it again. Begin listing what is not true and what you must combat. After a while you will see all is not lost. Soon you will realize where their case is weak.

Usually the opposing side will deny, deny, deny. We've even seen them deny the sun rises in the morning (kidding but close). When they counter-claim, pay close attention to what they say and do not say. This area can give you a clue as the what they are doing. Certain counter claims in an answer are mandatory which means they cannot raise those issues later.

The lawyer for Alex Grey filed a federal lawsuit alleging copyright infringement but failed to establish in his complaint that his client held a properly registered federal copyright. Before someone can claim copyright infringement in court they must first show the court they have that copyright registered with the U.S. Copyright Office. Failure to do so will result in the complaint being dismissed or the claim disallowed. See also Copyright Registration.

We mention this as an example of what you need to look for. When Chalk & Vermilion Fine Arts & Sevenarts answered our complaint they did not counterclaim for copyright infringement. In fact, they did not counterclaim at all. Why not? We think it was because they could not prove to the court they had a valid copyright. Things like this can be used to predict your opponent's strategy.

Don't accept anything quoted by the other side at face value. Remember, corporate lawyers lie for a living. They will quote court cases improperly or out of context because they can. They don't expect you to find out. We have caught several lawyers in case quote lies as well as down-right lies to the court by misrepresentation. Check everything out when they cite references.


Generally the answer must be filed with the court within 20 days after they have been served with the complaint. If you send a request to `waive formal service, and they agree to accept service by mail (no reason to refuse actually), they then have 60 days from the date the request was sent within which to answer. If the defendant brings a pre-answer F.R.C.P. 12 motion to dismiss the complaint but does not prevail, he/she has 10 days after the court denies the motion in which to serve the answer.

In the answer, they state in short and plain terms their defenses to each claim asserted, and admits or denies each count of your complaint. FRCP 8(b) The defendant may make various kinds of denials of the truth of your allegations. Many times they will simply deny, deny, deny, not saying anything much. Anything they do not deny from the complaint is considered to be fact by the court from that point forward.

They may raise affirmative defenses which you must treat as counterclaims.

If they counter claim, you get to reply to the counter claims. When you reply you refute their allegations and deny their counter-claims, much the same way they denied yours. If the counterclaim is one which the defendant is required to plead, it is called a compulsory counterclaim. If it is one which the defendant has the option of pleading or not, it is called a permissive counterclaim. A counterclaim is compulsory if it "arises out of the transaction or occurrence that is the subject matter of the [plaintiff's] claim...." FRCP 13(a). Failure of the defendant to make a compulsory counterclaim bars him/her from making that claim later.

We are not lawyers nor have we received any significant assistance from any lawyers beyond our appeal to the Tenth District, which we won. The information presented here is based upon our experiences in federal court defending and prosecuting claims of trademark infringement and copyright infringement. It is presented to prepare you for what lies ahead should you end up in court. This outline is for those sellers who are thinking about representing themselves, pro se, in a court action. A business cannot represent themselves in federal court but individuals and unincorporated business can. The court rules and the federal rules are written by lawyers for lawyers. We try to put them into plain English here. These pages are not a complete analysis of everything that can happen. These are intended a guide and starting point. Always consult competent legal help.

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