Suing a non-existent company

[michael_b]

CALIFORNIA

I filed paperwork to fight a patent suit against me as an individual. The suit also lists a company name, which isn't a company, it is a web-site where images are posted for viewing. For tax purposes, this will be the first year of sales and will be claimed on Form 1040; Schedule SE.

The problem is, I filed my answers and counter-claim listing myself and the company name they filed against. The judge ruled an individual can not represent a company and I need a lawyer. Since it isn't really a company, how can I get around this?

Thanks,

[justalayman]

the judge is right, if there is a company. If there is no company, then there would be no need to fight the suit, at least, on the part of the company.

[michael_b]

I understand the company part... BUT, there is not a company. ONLY a website. There was never a DBA filed, no phone number, no business bank account, no letterhead - and even the business cards only list the web-address.

How do I get the suit changed so it is against me only and remove the business so I can proceed? (I have legal assistance for the patent fight, but they aren't helpful with this little problem). Or should I just let a default judgement go against the company (which does not exist), and do file the paperwork for me as the individual?

[justalayman]

who received the summons and complaint for the "company" or is it that you and the company are simply listed on the complaint as co-defendants?

and who is listed as owner of the website?

[michael_b]

I was delivered the summons in person. The complaint lists the "company Name" an unknown entity and myself (an individual) and Does 1 thru 10. I am the sole site owner, registered just over 2 years ago.

Thanks.

Originally Posted by justalayman

who received the summons and complaint for the "company" or is it that you and the company are simply listed on the complaint as co-defendants?

and who is listed as owner of the website?

[justalayman]

If there is no company, what are they using as the company name when listed as a defendant?

[michael_b]

Can I list the web site here? They listed the website name as the name of the company on the complaint.

Originally Posted by justalayman

If there is no company, what are they using as the company name when listed as a defendant?

[justalayman]

you can if you want but there is really no need to.

I'm kind of at a loss as well. The only thing I can think of doing is filing a response as the owner of the website and state in your response that [url]www.xxxxxx.com[/url] is not a corporate entity but simply a website owned by you and as such, should be removed as a named defendant to the suit.

[divgradcurl]

Presumably in the original complaint the plaintiff alleged that the website was a California company, or other California business organization. In your answer, did you admit or deny this allegation?

If you admitted the allegation, then you will most likely want to amend your answer to deny that allegation. You may need to ask the court for permission; you can check with the clerk. If you need to file a motion for leave to amend, you can try and get the other side to agree to not oppose the motion, which will make things easier.

EDIT: You will also want to amend the answer to clearly state that you are answering for yourself, and no other entity. That will separate you from the fictional corporation, and will make it clear that you represent only yourself.

Once you have the answer amended, then you would ask the other side to dismiss their causes of action against the website "entity." Presumably they will want some sort of evidence that no company exists, perhaps will want you to stipulate in writing that any cause of action they could bring against the organization you will agree to be liable for (which is the case anyway if you are the sole proprietor behind the website). They can then file a motion to dismiss, which would be unopposed by you, and that should resolve the situation.

EDIT: If they refuse to dismiss the website, you will likely have to file a motion with the court to have the court recognize that the website is your alter-ego, so that you can go forward with your pro per defense.

But talk to the clerk at the court first, if he or she will talk to you. You may be able to do this informally, if the judge will allow it.

[michael_b]

Thanks for that info. In the original complaint I received, it had WEBSITE name, MYSELF and DOES 1-10 as the Defendant. In my response, I stated for each statement WEBSITE & MYSELF agree or deny, based on the allegation. (AGREE with my location. DENIED the infringement of patent).

The judge ruled that an individual can not represent a company and the answers submitted were valid ONLY for MYSELF, not the company (the website). The plaintiff's attorney allowed 14 days to get an attorney and file the answers to the complaint for the company.

Thanks a lot.

Originally Posted by divgradcurl

Presumably in the original complaint the plaintiff alleged that the website was a California company, or other California business organization. In your answer, did you admit or deny this allegation?

If you admitted the allegation, then you will most likely want to amend your answer to deny that allegation. You may need to ask the court for permission; you can check with the clerk. If you need to file a motion for leave to amend, you can try and get the other side to agree to not oppose the motion, which will make things easier.

EDIT: You will also want to amend the answer to clearly state that you are answering for yourself, and no other entity. That will separate you from the fictional corporation, and will make it clear that you represent only yourself.

Once you have the answer amended, then you would ask the other side to dismiss their causes of action against the website "entity." Presumably they will want some sort of evidence that no company exists, perhaps will want you to stipulate in writing that any cause of action they could bring against the organization you will agree to be liable for (which is the case anyway if you are the sole proprietor behind the website). They can then file a motion to dismiss, which would be unopposed by you, and that should resolve the situation.

EDIT: If they refuse to dismiss the website, you will likely have to file a motion with the court to have the court recognize that the website is your alter-ego, so that you can go forward with your pro per defense.

But talk to the clerk at the court first, if he or she will talk to you. You may be able to do this informally, if the judge will allow it.

[divgradcurl]

Originally Posted by michael_b

Thanks for that info. In the original complaint I received, it had WEBSITE name, MYSELF and DOES 1-10 as the Defendant. In my response, I stated for each statement WEBSITE & MYSELF agree or deny, based on the allegation. (AGREE with my location. DENIED the infringement of patent).

The judge ruled that an individual can not represent a company and the answers submitted were valid ONLY for MYSELF, not the company (the website). The plaintiff's attorney allowed 14 days to get an attorney and file the answers to the complaint for the company.

Thanks a lot.

The easiest way to resolve this would probably be an amended complaint, from you as an individual only, along with a dismissal of the website, if you can talk the plaintiff into agreeing to dismiss the website entity.

If you can't get the plaintiff to agree to dismiss, you will probably need to hire a lawyer to answer for the website, then figure out how to get the website dropped from the case. You don't want to have no answer filed on behalf of the website, as the plaintiff maybe will be able to obtain a default judgment against the website, which would just muddy up the process and make it more difficult to extricate the website in the future.