Commencement of a U.S. Civil Lawsuit Pleadings, Jurisdiction and Venue July 18, 2016 Andre K. Cizmarik, Counsel IP Summer Academy 2016 Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 Overview of Litigating in the United States • Types of Courts • Pre-Complaint Investigation • Complaint – Filing of Complaint – with Court – Service of Complaint – on Defendant • Pre-Answer Motions • Answer – Responses – Affirmative Defenses – Counterclaims – Cross-claims • Discovery • Pre-Trial Motions • Trial • Appeal 2 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 Federal Courts in United States • United States Supreme Court (Highest Appellate Court) • United States Court of Appeals (Intermediate Appellate Court) • 13 Circuits throughout the United States, typically consisting of several states and/or U.S. territories – Law can be different in each Circuit until the Supreme Court speaks on the issue • Federal Circuit – handles appeals of patent cases, both arising from the district courts and from the International Trade Commission (ITC), as well as appeals from the Patent Trial and Appeal Board (PTAB); appeals from the Federal Circuit are heard by the Supreme Court, at the latter's discretion. • D.C. Circuit – handles appeals of some administrative agencies, e.g., Federal Communications Commission; does not handle patent appeals from the ITC. • United States District Courts (Trial Court) • One or more district courts in each of the 50 states, as well as the District of Columbia, Puerto Rico, U.S. Virgin Islands, Guam and the Northern Mariana Islands 3 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 Thirteen Federal Judicial Circuits 4 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 State Courts • Typically have the same structure as the federal courts: – State trial courts (lowest courts) – State appellate courts (intermediate appellate courts) – State courts of last resort (highest appellate courts) 5 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 State Courts (e.g., New York State Court) • Court of Appeals (Highest Appellate Court) • Appellate Divisions (Intermediate Appellate Court) – 4 Departments • Supreme Court – One trial court in each county 6 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 Comparison of Federal Courts vs. Massachusetts State Court Massachusetts Federal Courts Courts Highest Appellate Supreme Judicial Supreme Court Court Court Intermediate Court of Appeals Appeals Court Appellate Court Trial Court District Court District Court 7 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 Comparison of Federal Courts vs. New York State Courts New York State Federal Courts Courts Highest Appellate Supreme Court Court of Appeals Court Intermediate Court of Appeals Appellate Division Appellate Court Trial Court District Court Supreme Court 8 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 Chronology of Typical Civil Lawsuit Filed in the United States Service of Complaint Drafting of on Document Pre-Trial Complaint Defendants Discovery Motions Appeal Pre-Suit Filing Answer or Deposition Trial Investigation Complaint Pre-Answer Discovery by Plaintiff with Court Motion . Cases last 2-5 years or longer in district court . Cases can be settled at any point in the litigation . Cost of litigation may induce some defendants to consider settling even if there is a meritorious defense. 9 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 Pre-Complaint Investigation Rule 11 of the Federal Rules of Civil Procedure • Every submission shall be signed by at least one attorney of record… • An attorney is certifying that: – Lawsuit was not filed to harass the other side – Claims are non-frivolous – Allegations have factual support • Sanctions. If the Rule has been violated, the Court may impose sanctions of a monetary or non-monetary nature. • Rule 11 applies to all pleadings, motions or other papers filed throughout the course of the lawsuit. 10 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 What is “Frivolous”? • Liebeck v. McDonald’s Restaurant (1993) – notorious state court case that American public views as frivolous • Plaintiff sues McDonald’s because the hot coffee which she placed in her lap while in her car spilled and burned her • Jury awards compensatory damages of $200,000, which are reduced by 20% to $160,000 because of contributory negligence • old system of contributory negligence was harsh • If plaintiff was 1% responsible, defendant pays nothing • today – award is reduced by percentage of plaintiff’s negligence 11 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 What is "Frivolous"? • Jury awards punitive damages of $2.7 million, which trial judge reduced to $480,000 for total award of $640,000 – the case settled for an undisclosed amount • Remitter – take reduced amount or else there will be a new trial • The $2.7 million was suggested by plaintiff’s attorney – it was the equivalent of 2 days of worldwide coffee sales for McDonald’s • Is this a frivolous case under Rule 11? 12 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 What is "Frivolous"? • Plaintiff was 79 years old • The car was parked when spill occurred • Plaintiff was a passenger, not the driver • Plaintiff was wearing cotton sweatpants, which stuck to her skin when soaked with hot coffee • Plaintiff suffered 3rd degree burns over 6-16% of her body • Third degree burns are the most severe types of burns known as full thickness burns where the burn extends into deeper tissue • Hospitalized for 8 days • Had multiple skin grafts over 2 years 13 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 What is "Frivolous"? • Plaintiff made a settlement demand of $20,000, but McDonald’s offered only $800 • During discovery, it was established that McDonald’s required franchises to serve coffee at 180-190 ºF (82.2 – 87.8 ºC) • McDonald’s own documents showed that between 1982 and 1992, there were more than 700 complaints about the temperature of McDonald’s coffee – DOCUMENT PRESERVATION ISSUE • As a result of the McDonald’s case, almost every major fast food establishment and coffee franchise now places warnings on their coffee cups that say – “WARNING: THIS BEVERAGE MAY BE VERY HOT” – or words to that effect 14 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 What is "Frivolous"? 15 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 Examples of Warning Labels • Subway sandwich wrapper: “Caution: Toasted Subs May Be Extremely Hot.” • Marvel Costume company’s warning on its superhero character costumes: “This costume does not enable flight or super strength.” • For the toilet brush from Scrubbing Bubbles: “Do not use for personal hygiene.” • For the Rowenta Iron: “Do not iron clothes on body.” • For the Razor scooter: “This product moves when used.” • For Bialetti Casa Italiana’s nonstick pans: “Keep pet birds out of kitchen when using this product.” 16 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 Complaint • Parties • Jurisdiction: – Subject Matter Jurisdiction – is this the correct court to sue in given the cause of action? – Personal Jurisdiction – is this the correct state in which to sue this person/corporation?