LEGAL OPINION
Dear XXXX,
This is the legal opinion pertaining your intention to institute a suit against the Chinese seller and pray for a restraining order against the said seller’s account. Accordingly, I have provided my response in numbered sections per your list of questions.
- Whether you are qualified to file a lawsuit in the XXX
Yes. Since your Copyright is registered in the XXX, you have a legal right to bring a lawsuit against the seller. The law provides that a legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.
Next, XXX federal courts have jurisdiction to hear and determine your case. In the United States, the federal courts have recognized an important mechanism for acquiring jurisdiction over foreign defendants known as the “effects doctrine”. Briefly, the effects doctrine says that if the effects of extraterritorial behavior adversely affect commerce or harm citizens within the United States, then jurisdiction in a U.S. court is permissible. In your case, the seller’s action affects commerce within the U.S. because it infringes on your copyright which is registered in the U.S.
- Whether you have to appear in court if Defendant fails to respond to the lawsuit.
It depends on the judge. In law, when a Defendant fails to appear in court, a default judgment is entered against the Defendant. Obtaining a default judgment is a three-step process. First, you should obtain from the Court an entry of the Defendant’s default. Next, you should file a Motion for Entry of Default Judgment. The motion will request the entry of a default judgment in your favor. Lastly, you will be required to Submit a Proposed Default Judgment. It is in this last step where the Court may decide to hold a prove-up hearing to determine the appropriate amount of damages or to establish the truth of an allegation by evidence.
It follows; the judge may request for a hearing before granting the default judgment. In that case, you may make a motion to the Court for a virtual hearing, if you will not be able to be physically present in the Court.
- The Conditions for your appearing in Court.
When granting default judgments, the court may conduct hearings if it needs to:
- conduct an accounting;
- determine the amount of damages;
- establish the truth of any allegation by evidence; or
- investigate any other matter.
There is no legal provision that limits hearings to be physical. It follows; you may move the Court with a motion to grant you leave to have a virtual hearing. In the motion, you may give the Court reasons why you may not be able to make it physically to the Court for the hearing.
- The consequence of both Parties failing to appear in Court.
If both you and the Defendant fail to appear in Court for the hearing, the judge can dismiss the case with prejudice. This will prevent you from filing another case against the defendant for the same cause.
You should note that dismissal with prejudice means that you will never be allowed to bring the claim again in Court. So, it behooves you to make all attempts to ensure you avail yourself for the hearing (either virtually or physically).
- Whether it is possible for you to retain a lawyer to enter appearance for you.
Yes, a lawyer could represent you for a single appearance, but he/she may have to file a “substitution of attorney” or “notice of limited scope representation” before doing so (depends on the court).
Also, it depends on the judge. Some judges will not allow attorneys to appear for parties, even at one hearing, unless that attorney is counsel of record (represented you from the onset of the case).
The best option for you is that the attorney files either a “substitution of attorney” or “notice of limited scope representation” to the Court before entering appearance for you.
- Whether you can file the lawsuit in Illinois, and the requirements for doing so.
In your circumstance, you may file your case under any federal court in Illinois. The basis on which you will claim the Court’s jurisdiction is the “effects doctrine” as I already mentioned above.
On the requirements for e-filing, it is worth noting that all Federal Courts now allow e-filing. However, the law permits each federal court in Illinois to have its own rules for e-filing. It follows; the rules differ from court to court. Please let me know which District in Illinois you want to file the case, so I tell you the rules thereat.
- Whether a temporary restraining order may be filed together with a complaint, and the proofs needed to establish a string case.
Yes. The law allows litigants to file TROs any time within the case.
To obtain a TRO, you must convince the judge that you will suffer immediate irreparable injury unless the order is issued. If the judge is convinced that a temporary restraining order is necessary, he or she may issue the order immediately, without informing the Defendant and without holding a hearing.
The Court will use the following factors to consider your request for a TRO:
- If it clearly appears from specific facts shown by an affidavit or by verified complaint that immediate and irreparable injury, loss, or damage will result to you before the adverse party or that party’s attorney can be heard in opposition, and
- If you certify to the court your efforts, if any, which have been made to notify the Defendant of their error and the reasons supporting the claim that notice should not be required.
- The method for notifying the Defendant of the lawsuit.
The 1965 Hague Convention on the Service Abroad of Judicial Documents in Civil or Commercial Matters provides a method of serving court documents to a foreign defendant (“the Convention”).
The Convention provides a means for serving court documents. Accordingly, the prototypical Hague Convention mode of service is service through a “Central Authority.” Under this procedure, court papers are transmitted from the originating state to a government or judicial official designated by the state in which the defendant is located. The Central Authority then becomes responsible for serving process on the foreign defendant and, once this is done, will officially certify that service has been completed. Although Central Authority service has the benefit of certainty, it has some perceived drawbacks. Service often takes several months, possibly longer. Some countries require plaintiffs to furnish full translations of all documents to be served. For these and other reasons, plaintiffs often seek to bypass the Central Authorities in favor of other options.
The Hague Convention provides various modes of process service of documents such as by postal channel or by diplomatic/consular agents, judicial officers, officials, or other competent persons. These provisions may or not be allowed by member countries as a valid mode of serving the documents in their territory. Unfortunately, in China, formal process service under the Hague Convention is the only method of process service legally recognized by China.
It follows; to make a service to the Chinese Defendant through the Convention, you have to observe the following:
- The service documents must be translated into Chinese. The translation must be accurate but does not need to be notarized or certified.
- A case summary must also be translated.
- You must cite a service authority from U.S. federal law, also translated.
- You must provide a summary of any information known about the person to be served – name, address, telephone number, relatives name and addresses, ID number, work location, etc. You should provide as much information as possible about the Subject, including any known phone numbers and the numbers of any known relatives.
- Whether the lawsuit should be against the Defendant personally, or against his Amazon store.
You should only sue the Defendant alone. The Courts have previously failed to recognize liability of online marketplaces for copyright claims. In Milo & Gabby v. Amazon, the court made a seminal decision and held that Amazon could not be held liable for Amazon seller’s listings that infringed on other peoples’ copyrights because Amazon was not themselves “offering for sale” the infringing products.
- Whether it is easy to retract an online lawsuit after entering a settlement.
It is easy to withdraw a lawsuit. All you have to do is to download and fill a form from the Court. The form will notify the Court of your option to withdraw the case. The form must be served on the defendant in accordance with the rules of the court. When service is complete, file the original and one copy of the proof of service form to let the court know the Defendant is aware of your request. The clerk will keep the original and return the copy to you for your records. This completes the withdrawal process – your case is now officially dismissed.
You should note that you must indicate whether you want the court to dismiss the case “without prejudice” or “with prejudice”. If you reach an agreement with the Defendant and have not yet been paid in full, you can choose dismissal without prejudice so that you can file a claim again if the defendant fails to make payments.
- Whether I can draft a reconciliation contract.
Yes, I can draft a reconciliation contract for you. Just place an order.
Regards! And all the best, XXXX
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