Intellectual Property Law

Sometimes It Pays to Be Pro Se

By Michael Atkins

Can you imagine if an attorney tried this?

In Microsoft Corp. v. Marturano, Microsoft sued John Marturano, d/b/a J & T Computers and Parts, in the Eastern District of California for allegedly distributing counterfeit and infringing software despite Microsoft’s requests that he cease and desist from such conduct.

Mr. Marturano, proceeding pro se, timely filed an answer.

In July 2007, Microsoft served Mr. Marturano with interrogatories and requests for production of documents. However, its requests were returned as undeliverable. After repeated attempts to locate the defendant, in November 2007 Microsoft filed a motion to strike his answer and for an order of default. Mr. Marturano did not oppose the motion.

The court held a hearing in December 2007. Mr. Marturano did not appear. From July to December 2007, Microsoft and the court both tried to contact him but were unable to do so. The magistrate judge then issued findings and recommendations that the defendant’s answer be stricken and default be entered against him. In February 2008, the district court judge adopted the magistrate’s findings and recommendations, and found the defendant to be in default.

In March, Microsoft filed a motion for default judgment and permanent injunction. Mr. Marturano still did not respond. However, he showed up at the hearing in April. The magistrate judge then denied Microsoft’s motion and instructed the defendant that he could file a motion to set aside the default.

Mr. Marturano did so. On July 1, the magistrate judge granted the defendant’s motion and vacated his findings and recommendations recommending that default be entered and the defendant’s answer be stricken.

The case is now back to square one. While Mr. Marturano may have had good reason to disappear for six months, this is a difficult result for a party that followed the rules and deserves quick and efficient justice as much as anyone else. One year has now elapsed since Microsoft served its discovery requests, and it presumably still does not have the basic information it requested. Nor does it have anything to show for the motions it brought and hearings it attended stemming from the defendant’s failure to follow the rules and participate in the case.

The case cite is Microsoft Corp. v. Marturano, No. 06-1747 (E.D. Calif.) (Austin, M.J.).

Full post as published by Seattle Trademark Lawyer on July 10, 2008 (boomark / email).