If you are here, chances are you were NAMED AND SERVED as a defendant, and now you want to know what to do.
If you have not yet been named and served as a defendant, this information is not yet relevant. [Click here] to understand your options as a “John Doe” Defendant.
WALKTHROUGH: TABLE OF CONTENTS.
The purpose of this walk-through is to explain each topic that a “John Doe” defendant needs to be aware of.
Click on the “Go to the Top” link to return to the list of topics below:
- What happened? How am I now a defendant? (Was I “named and served?),
- Why am I the defendant? Did they sue me because I was the ISP account holder?,
- What if I was named as a defendant, but not yet served?
- What immediate procedural deadlines must I be aware of?,
- What are my options now that I have been served?
- LITIGATE the claims against me. This is fighting the lawsuit.
- SETTLE the claims against me now by paying them money.
- What happens if I just IGNORE this whole thing and decide not to file an answer with the court? (default judgement).
- What else must I be aware of (good and bad) now that I was served as a defendant?
- Settlement deadlines, and when to hire an attorney, and
- How do I hire YOU as my attorney? Will you take me as your client?
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WHAT HAPPENED.
Months ago, your internet service provider (ISP) sent a subpoena notification letter explaining that the account holder (or someone in your household) was accused of downloading one of more videos or films belonging to the person that filed the lawsuit. Chances are that whatever you or your attorney did until now, you were not successful.
- You might have filed a motion to quash attempting to stop the ISP from sharing your identity with the plaintiff attorney.
- You might have contacted the attorney and told him that you did not download the video(s) the company filing the lawsuit claims was (were) downloaded.
- You did not pay a settlement when the plaintiff attorney asked for one. (Whether their asking price was too high, or it was more than anyone could afford, or whether you correctly refused to settle because you did not do the download… you were named and served because you did not settle).
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There is also a high chance that the plaintiff attorney never called or contacted you at all. You knew about the lawsuit, but since nobody called, you thought that nothing needed to be done, or maybe the problem would have gone away on its own. You thought at least they would give notice or make some kind of threat that the party suing would “take this issue to trial” if they didn’t receive a specific settlement amount to settle the claims in this lawsuit (such requests happen regularly with Strike 3 Holdings LLC lawsuits). Now you are a named [and possibly served] defendant in the lawsuit.
WHY AM I THE DEFENDANT?
You are likely the named and served defendant because you are the subscriber on the ISP account.
The plaintiff attorneys [in theory] are supposed to do their due research before naming and serving the ISP account holder as a defendant, but they often jump to the assumption that the individual who pays the internet bill must have been the one who did the downloading.
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WHAT IF I WAS NAMED (AS A DEFENDANT ON THE COURT DOCKET) BUT NOT YET SERVED?
This is a funny question because I often ask if the person I am speaking to is asking if they could run out the back door if a process server knocks on their front door.
In short, if the plaintiff attorney amended the complaint on the docket and added you as a defendant, then you are considered to have been “named” as a defendant.
The plaintiff still must serve you with a copy of the summons and complaint to give you an opportunity to file an answer with the court. Without this (“service of process”), you wouldn’t have an opportunity to know you were involved in a lawsuit, and you wouldn’t have the opportunity to defend yourself.
In short, once you are “named” as a defendant, it is only a matter of time before you are “served” with the paperwork. The process server will probably knock on your door, or if the Federal Rules of Civil Procedure at the time allow it, he could “nail” the complaint to the door and “mail” a copy of it (a.k.a. “nail and mail”). [Other methods of service are available as well with a court order or permission from the judge, such as posting ads in a small local newspaper, etc., but really in this blog article, I am sure nobody cares how servers can serve papers on an accused defendant.]
If you are “named” as a defendant, it is only a matter of time before you are “served” by a process server. This usually happens within a few days. There is no reason to run away from them, and their job is to find you and serve you.
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WHAT IMMEDIATE PROCEDURAL DEADLINES MUST I BE AWARE OF?
Once you are named and served, a defendant generally has 21 days to file an answer with the court. This assumes that you were served by a human being and not by mail. If you were served by mail, you were technically asked to sign a “waiver of service” which gives a longer period of time to file an answer with the court.
[Think of the lawsuit as a game of “hot potato.” The plaintiff had 90 days after filing the lawsuit to name and serve you. When you were served as a defendant, the hot potato was thrown to you. Now you have 21 days to file an answer with the court, and doing so throws the hot potato back to the plaintiff attorney.]If you do not file an answer and instead choose to settle the claims against you (meaning, pay a settlement), remember, the plaintiff has not waived that 21 day deadline to file an answer with the court.
If you miss this deadline the plaintiff attorney could ask the court for a default judgment (meaning, if you do not answer in time, you lose the lawsuit).
The plaintiff attorney actually needs to ask the court to enter a default judgement against you (it does not happen automatically; he must present proof that he served you at your business or home property address), but still — your attorney needs to pay attention to this.
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…Once you file an answer (where you would be pleading several certain defenses), the plaintiff attorney does not need to do anything at this point (unless you filed a counterclaim against them), and the lawsuit action continues. The next step is probably a case management hearing where the judge will set deadlines for each side to gather their evidence to prove whether or not you did what they are claiming in the lawsuit.
WHAT ARE MY OPTIONS NOW THAT I WAS SERVED?
Option 1: Litigate
Option 1) File an answer with the clerk and proceed with litigation.
You or your attorney will likely appear at the case management hearing, and you will probably end up self-answering written questions under oath (an interrogatory) or showing up at a deposition (answering definite questions in person under oath). This process of gathering evidence is referred to as “discovery.”
This deposition is where they will take your testimony to prove whether [or not] it was you who did the download.
If you did not do the download, the plaintiff attorney will probably amend the complaint again and add the person they believe actually did the download. That person (your family member, spouse, child, visitor, or roommate) would go through the same process of being served, filing an answer with the court, and answering questions under oath as you did.
NOTE: If you are protecting a family member (e.g., if your 18+ child was home from college, and without your knowledge she or her friends downloaded the copyrighted videos), and you would like to settle on her behalf without involving your child in a lawsuit that could affect her future career prospects, there are ways of doing this.
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After the deposition, either your attorney or their attorney will file a motion for a summary judgement. It is here where you ask the court to dismiss the case [because the plaintiff attorney did not prove that you downloaded the movies, videos, or films]. Here, you would assert the plaintiff’s “failure to prove a claim.”
Alternatively, if the plaintiff attorney succeeded in getting you to admit that you downloaded their copyrighted files, after the deposition, the plaintiff attorney might file a summary judgement motion asking for the court to find you “guilty” of copyright infringement. They would do this because they now have your testimony under oath (from the deposition) that you admitted guilt to downloading or streaming their copyrighted movie or film without a license.
Option 2: Settle
Option 2) Settle the claims against you. If you are concerned that through the simple legal process described above that you will make a statement admitting guilt to copyright infringement (or the plaintiff attorney will learn that you actually did what they are asserting that you did), then you will be hiring an attorney to negotiate a settlement of the claims against you.
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Option 3: Default
Option 3) Doing nothing at this point will cause you to miss the deadline to file an answer. The plaintiff attorney will ask the court for a default judgement which means you just lost the case. At this point, you probably will end up with a judgement against you, so you will be asking a bankruptcy attorney in your state whether you can discharge a civil judgement for copyright infringement in bankruptcy.
WHAT ELSE MUST I BE AWARE OF (GOOD AND BAD) NOW THAT I AM SERVED?
The Negatives:
ANONYMITY: Once you are named as a defendant, your status as an “anonymous John Doe” defendant ends. Your name immediately shows up on the case docket (which means that shortly after, it will also show up on Google searches because there are many spiders which crawl the case dockets. Thus, your anonymity is lost).
SHORTENED DEADLINE: Once you are named and served, you no longer have months to take care of your lawsuit (as you did when you received the initial letter months ago from your ISP). You literally only have 21 days from the date you were served (or less, depending on how long it took you to find this page) for us to resolve the claims against you.
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YOUR DEADLINES ONLY: Referring back to the “hot potato” thought (above), once the plaintiff attorney names and serves you, there is absolutely nothing he needs to do to move this case forward. There is no requirement that he agrees to settle the claims against you, and there is no requirement that he dismisses the case against you before your 21-day obligation to file an answer elapses. This is why your attorney needs to be aware of the timelines so that he can push everything along without you missing any deadlines.
The Positives:
COMMITTED: By naming and serving you, the plaintiff attorney has set timelines in motion that will end the case one way or another. If you are setting the claims against you (or if the plaintiff attorney wants you to settle the claims against you), then all you can pay is what you have. If he is asking for more than you have, he cannot get it. Thus, we have significantly more LEVERAGE to negotiate lower-cost settlements than what we could have achieved before you were named and served.
QUICK RESOLUTION: These cases can sometimes last multiple months. The plaintiff attorney has 90 days to name and serve you, but he could have asked for a 90 day extension after that (and another 90 day extension again after that, and so on). Now that you were named and served, everything MUST move quickly to completion.
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SETTLEMENT DEADLINES & WHEN TO HIRE AN ATTORNEY
Now that you were named and served, EVERY DAY BECOMES VERY VALUABLE TO YOU regardless of whether you will be settling or fighting the claims against you in litigation.
Hire an attorney IMMEDIATELY so that we can immediately get started on your case. Again, every day counts here.
If you cannot get an immediate appointment with our law firm:
- Schedule the earliest appointment possible on our calendar. Then,
- Send me an e-mail — urgent@cashmanlawfirm.com.
- a) Let me know that you have been named and served.
b) Let me know what dates and times I can speak to you.
c) Let me know that you would like to move your scheduled phone consultation to as early a time as possible.
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If you are paying to settle the claims against you, we will want settlement negotiations to be completed BEFORE you will need to file an answer with the court.
If the settlement process does not complete before the 21 days deadline has passed, it is our recommendation that you file an answer with the court (think “hot potato” to keep the lawsuit moving ahead without you risking a default judgement against you).
Be prepared that we will be asking for your settlement payment to be paid before the 21 days have elapsed. [This is not required, but I wanted you to be prepared for this].
If you are choosing to litigate, remember, you have 21 days to file an answer with the court, or else you risk having a default judgement ordered against you (meaning, you lost the lawsuit).
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HOW DO I HIRE YOU AS MY ATTORNEY?
To hire me as your attorney, schedule a phone consultation so that we can speak about your case. I will happily answer any questions you still have. We will also speak about how much we cost, and I will provide you an estimate of how much it will cost you based on how you want to proceed.
For our phone consultation:
I do not charge for the phone consultation, but I do ask that you respect my time constraints.
There is NO EXPECTATION that you will be a client of mine once we speak (I do not take every person I speak to as a client).
My ONLY goal is to give you exactly the answers you need (which are not always the answers you want).
I have nothing wrong with giving you answers that you don’t like, even if that causes you to decide not to retain our law firm’s services. I prefer that if and when you retain me, you know exactly what you are agreeing to, and that you know [as much as possible] the outcome we will be achieving on your behalf.
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Can I tell you about my circumstances before setting up the free phone consultation?
YES. Before setting up an appointment, if you want to contact me first to tell me about your particular circumstances, you can:
1) Send me an e-mail at info@cashmanlawfirm.com,
2) Fill out a form on any page of our website (I see, read, and respond to each one of these), or
3) Send a text message to 713-364-3476. This is our law firm’s phone number, but it also works to receive text messages (obviously let me know who you are when you send me a text message).
VOICEMAILS: With these lawsuits, I often get too many phone calls at a time for it to be efficient to answer each call. End result: many calls will go into voicemail.
As someone who was named and served, I DO NOT WANT YOU TO LEAVE A VOICEMAIL because it might be days before I even see it (I see e-mails and contact forms immediately as soon as they are sent).
Rather, send me an e-mail at info@cashmanlawfirm.com, or set up a time for us to speak.
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FAQ (RECAP):
How was I named and served as a defendant in a copyright infringement lawsuit?
Months ago, your internet service provider (ISP) sent you a letter telling you that were were accused of downloading one of more videos or films belonging to the person that sued you. Chances are that whatever you or your attorney did until now, you were not successful.
Can I be named and served if the plaintiff attorney never called me?
Yes. The plaintiff attorney can name and serve you whenever he wants to. There is no requirement that he contact you before he names and serves you.
Why was I the one who was named and served as a defendant?
You were the one who was named and served as a defendant because you were the subscriber on the ISP account. Plaintiff attorneys are supposed to do their research before naming and serving you as a defendant, but they often jump to the assumption that since you pay the internet bill, you must have been the one who infringed his client’s copyrights.
What if I was named as a defendant but not served?
If the plaintiff attorney named you as a defendant, then he still must serve you with a copy of the complaint. Without service of process, you wouldn’t have an opportunity to know you were involved in a lawsuit nor could you defend yourself in court.
Once named and served, what deadlines do I have?
Once named and served, a defendant generally has 21 day deadline to file an answer with the court. This assumes that you were served by a human being and not by mail. If you were served by mail, you were asked to sign a “waiver of service” which gives you a longer period of time to file an answer with the court.
What if I miss the deadline to file an answer with the court?
If you miss this deadline to file an answer with the court, the plaintiff attorney could ask the court for a default judgement (meaning, if you do not answer in time, you lose the lawsuit). The plaintiff attorney actually needs to ask the court for the default judgement (it does not happen automatically).
What are my options once I am served?
Once you are named and served, your options are 1) to file an answer with the court and proceed with litigation, 2) settle the claims against you, or 3) do nothing and default (this is the same as losing the lawsuit).
What happens if I miss the deadline to file an answer with the court?
If you miss the deadline to file an answer with the court, the plaintiff attorney will ask the court for a default judgement which means you just lost the case.
Am I still anonymous once I am named and served?
No. Once you are named and served, you are no longer anonymous. The plaintiff attorney amended the complaint to name you as the defendant. Court records are public which means that even if you win the lawsuit, the world can still know you were involved in the lawsuit.
NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together. That being said, please do not state anything incriminating about your case when using this form, or more practically, in any e-mail.
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