The Case Against Roxor: A Brief Overview of Civil Litigation

by Lost_Sage, 1 June 05

by Shane Dizon, J.D., U.C. Hastings College of the Law ’05

The good folks at DDR Freak asked me to give the community the lay of the land concerning Konami’s recently filed suit against Roxor in federal court. I’ll leave the nitty-gritty details of intellectual property law to subsequent experts, but I wanted to give everyone a big picture overview of how civil litigation works in this case.

As of Now: The Complaint

The complaint is what starts a lawsuit. It alleges:

• Who is suing whom
• Why the court has the power to hear the case in terms of what (subject matter jurisdiction) and where (personal jurisdiction and venue)
• What facts are being alleged
• Why those facts give rise to civil suit
• What relief the plaintiff is requesting

In federal court, all that is required of a complaint is enough to put a defendant on notice. A complaint does not lay out every detail of a plaintiff’s entire case.

So let’s apply that here.

• Konami’s complaint names Roxor as a defendant.
• It says suit is proper in federal district court (think a superior court, but on the federal side) in two ways. First, both a federal question is being resolved (federal trademark law) and diversity of citizenship exists (Konami is Japanese; Roxor is Texan). Second, the Eastern District of Texas has jurisdiction over the person (Roxor, a corporation, is treated as a person) and proper venue, because that is where Roxor is headquartered and where a substantial part of the “bad stuff” supposedly happened.
• Konami alleges the facts that give rise to what it believes to be the right to sue. So it talks about itself, the defendant, and the actions it thinks took place. Again, they might not all be found true, if the court gets around to deciding it.
• Konami then lists all the portions of federal and state law that, given the facts, comprise its suit. Here, both federal and Texas state law protect intellectual property.
• Lastly, Konami asks for relief. In this case, Konami is asking for basic money damages to compensate their loss, punitive damages, attorneys’ fees, and an injunction. We’ll talk about remedies a little later in the article.

What Might Come Later: The Answer, Amendments, Discovery, Or If We’re All Lucky, Settlement

The Answer

So the plaintiff’s first communication is the complaint, which is filed with the court and served on the defendant. The defendant has a certain amount of time to reply to the complaint, by filing an answer with the court.

The answer is a mirror image of the complaint. It admits (rarely) and/or denies all the allegations made, and it raises any applicable defenses the defendant might have. The defendant may, for the first time, also ask the court to dismiss the case for any reason it thinks proper. Finally, if the defendant believes he can sue plaintiff right back under the law, he usually brings factual allegations of his own and alleges counterclaims.

Again, Roxor has not filed its answer yet. (Which partially explains its silence in the matter.) So it will be curious to see what they say.


Both parties can amend their pleadings (the complaints, answers, and other briefs the court might ask them to file). So again, don’t look at the complaint as set in stone. Konami may pull back on claims it can’t prove or doesn’t want to pursue via discovery. If the suit goes forward, Roxor may stipulate to admit to a few allegations that it may have denied generally in its answer. Parts of the complaint can be dismissed as well so they are no longer part of the suit.


Discovery is the heart of a civil lawsuit. It is where you find out everything about the other side you need to build your case for trial. Discovery is the blue-collar side of civil law – not what you saw on “The Practice.” There are many tools available to parties – initial disclosure (tell the other side what you plan to use), depositions and subpoenas (sit a person down out of court and question him), interrogatories (form questions), inspecting premises and records, among others.

Because discovery is so time-consuming, nit-picky, and detail-oriented, if the parties really want to settle, they will do it before discovery kicks into high gear. This is where legal fees can go nuts (those of you that saw “A Civil Action” can relate) and cut into recovery.


Courts are very, very clogged. They like when parties settle. They expect parties to try to do so. As I mentioned in earlier form posts, mediation, negotiation, dispute resolution are all the rage in civil litigation because they keep parties away from court.

An important think to reemphasize: a settlement is a contract. B pays A (and/or B promises to do or not do certain things), and A drops the lawsuit (asks the court to dismiss it with prejudice, meaning it can’t be brought again). Since the contract is a private agreement, its terms do not need to be disclosed. And as a contract, it is not an action of the court.

You can imagine what a potential settlement would be: Roxor pays Konami a certain sum of money damages, could add some royalties, and promises not to sell the ITG1 kits, and Konami drops its lawsuit, never to bring it again.

What If They Don’t Settle: Trial, Remedies


If you think discovery is expensive, trial is even more so. Firms will multiply their hourly rates for work done in trial, so besides the time drag, there is a huge money drag. Trial is much as you see it on TV – opening statements, presentation of evidence, witnesses, cross-examination, the occasional motions and/or objections, and closing statements. Everything accumulated in discovery builds a case for trial.

Just like on the criminal side, you can, in some cases, request a jury trial in civil cases. If no jury trial is demanded, then the judge not only polices the whole case, she decides it.

One thing to remember: the standard of proof in civil cases is lower than it is in criminal cases. In criminal law, “beyond a reasonable doubt” is the standard because the liberty interest of the individual being indicted is so high. In civil law, the standard is generally “preponderance of the evidence,” also known as “more likely than not,” but better phrased as 50+ percent.


Again, the court may grant all or none of the requested remedies. After a party is found liable or not liable, essentially a mini-trial of sorts begins on the measure of the damages.

Money damages are generally compensatory in nature. In civil law, the fiction is that money can put the person back where he was before the harm. So the court awards however much money it thinks will do that.

Punitive damages are thrown in by some laws to punish particularly bad conduct. We see an example of that here: the Lanham Act punishes certain IP violations found to be deliberate and willful by multiplying the damage award by 3.

Attorneys’ fees are likewise available to the prevailing plaintiff under some laws. Admittedly, this is a huge coup for the plaintiff’s firm if they get it.

Finally, injunctions are orders by the court to private parties to behave a certain way. The court “tells” the party to do something or to stop doing something, under penalty of contempt. Injunctions are supposed to “fix” what money cannot.

That’s precisely what we have here: What do you think Konami would most like for Roxor to do? Pay up? Not really. It wants Roxor to stop doing what it’s been doing. That’s why you have an injunction in the prayer for relief.


I hope this article has been a good overview of the civil litigation process and how it touches on the Konami-Roxor case. I will keep you posted on developments in the progress of suit as they become public.

Again, I’d like to thank those of you who have already contributed your enlightened discussion to this very interesting issue in the DDR community. We all benefit by intelligent discourse on the subject, regardless of our own passions. And it’s my hope that you understand even just a little bit more about how the civil law process works in our country as a result.