The US legal system is home to some of the world’s most sophisticated commercial courts. For any international company, understanding how to navigate this high-stakes environment is essential. This post is part of our series, “Navigating US Civil Litigation,” designed to provide clear, practical insights for global companies who may not be familiar with the complexities of litigating in the United States. In this post, we explain the process around how a lawsuit is initiated in the US.
How a US Lawsuit Begins
A US lawsuit begins with a formal written document called the “complaint.” This is the document that outlines a plaintiff’s legal claims and demands a specific remedy, which is typically monetary damages, but can include injunctive relief—a court order compelling or preventing a specific action. A complaint need not include evidence and is simply a set of allegations. The time for exchanging evidence and actually proving a case comes much later in the process.
The complaint must meet certain “pleading standards,” meaning it must describe the basis for the claims with a specific level of detail. Failure to do so can create an early opportunity for a defendant to have the case dismissed. In courts of limited jurisdiction, like federal courts, the complaint must also explain why that specific court has the power, or jurisdiction, to hear the case. And plaintiffs may also file a class action complaint, where they seek to represent a much larger group of similarly affected individuals.
While the process for filing complaints are governed by the rules of the specific court in which the lawsuit begins, these rules generally require that court filings be based on a good-faith belief in their factual and legal basis. Before filing a complaint, an attorney must conduct a reasonable investigation to confirm its claims have (or are likely to have) evidentiary support. The rules provide for sanctions, including monetary penalties, for attorneys—including non-US attorneys—who fail to comply. Unlike in many other jurisdictions, these court filings are generally available to the public.
Notifying the Defendant: Service of Process
Once filed with the court, the complaint does not legally obligate a defendant to do anything. The plaintiff must first formally notify the defendant of the lawsuit through a procedure called “service of process.” This involves delivering the complaint along with a summons—an official notice from the court that a lawsuit has been filed and that there are consequences for failing to timely respond. A plaintiff generally has a limited time to complete this step (often 90 days under the federal rules, for example). Proper service is essential to establish the jurisdiction of the court over the defendant.
The rules governing service are strict and vary by jurisdiction. Methods of service can include personal delivery, mail, and in some cases, email or social media. For a corporation within the US, this typically means delivering the documents to an officer, managing agent, registered agent, or another agent authorized by law to receive service. To streamline this, a plaintiff may also ask a defendant to waive the requirement of formal service.
Serving a non-US corporation presents distinct challenges. If the company has an officer present in the US—even temporarily for a business conference—they can potentially be served there so long as the court has a separate basis for jurisdiction over the company. However, this method of service cannot be used to create jurisdiction where it does not otherwise exist.
If service must occur abroad, it is governed by internationally agreed-upon means, most commonly the Hague Service Convention. If no international agreement applies, other methods may be used, but only if they are reasonably calculated to give notice and are not prohibited by the foreign country’s laws. Personal service on a non-US corporation outside the US is generally not permitted.
The Takeaway
A US lawsuit begins with filing a complaint which must meet certain pleading standards. Proper service of the complaint is integral to establishing the court’s power, or jurisdiction, over a defendant. A failure to comply with these rules can result in the dismissal of the entire case. For a foreign company, receiving a summons triggers important legal deadlines. An effective defense begins with two immediate actions: assessing the validity of service and analyzing the allegations in the complaint.
Want to know more? Freshfields has written a Guide to US Civil Litigation with non-lawyers and global clients in mind. You can request a copy here.
