You always hope the other side defaults

During litigation, you presume the other side is going to fight as aggressively as you are to win. However, on occasion, you may come across another party who folds almost immediately or shortly after the litigation begins. This can be optimal, although how optimal may depend on the reason behind the default.

A default judgment is typically issued by a court in North Dakota or in any jurisdiction because of the failure of one of the parties to respond to either the filing of a complaint, which begins most litigation or at a later step in the process.

In a recent patent infringement case, the manufacturer Nestle sued a company that it believed was infringing on its Nespresso coffee pod system. Nestle filed a complaint alleging this infringement and the infringing entity failed to respond to raise any defense.

This led the court to issue a default judgment, which allowed all of Nestlé's requests. This is because the claims were all uncontested and by failing to file a response, the court had nothing beyond the claims made in Nestlé's complaint to base any order upon.

This is why you always want to respond to any lawsuit, no matter how frivolous you think the claims asserted may be. Failure to timely respond could make you legally responsible for satisfying whatever "relief" the other party requested.

Courts have no means of discerning the "truth" except by that information which the parties provide. In an adversary process like that of American courts, each side is expected to "prove" its arguments and its case. Failing to respond will likely bring a very unfavorable default judgment.

While you may be able to have that decision set aside, it may be difficult and expensive as a court will wonder why you failed to defend your rights and sat on your hands in the first instance.

Source:, "Nespresso Elbows Out Coffee-Pod Pretender," Adam Klasfeld, June 3, 2016

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