Responsive Pleading Toolkit: Answer Templates, Affirmative Defense Libraries, and Counterclaim Outlines

Summary. This toolkit collects annotated templates for the defendant's first pleading in federal court and for the plaintiff's response to it. It begins with an intake and deadline worksheet, an allegation-by-allegation response chart, a model federal answer, and a bank of response language for admissions, partial denials, lack-of-knowledge statements, documents, legal conclusions, capacity, and conditions precedent. Two affirmative defense libraries follow, one for general and commercial cases and one for patent, copyright, and trademark cases, each pairing model language with notes on when the defense is proper and what facts it needs. Counterclaim tools cover the compulsory counterclaim screen, declaratory judgment, trademark cancellation, contract and setoff claims, crossclaims, third-party complaints, the Rule 7.1 disclosure statement, and the jury demand. The toolkit closes with plaintiff-side tools (an admissions inventory, a deficient-answer letter, and a motion to strike outline), a motion for leave to amend, a Rule 12(c) motion outline, an FAQ, and practical takeaways.

Most bad answers are built from an old answer. Someone opens the last case's file, changes the caption, keeps the thirty defenses, and ships it on day 21. The templates below are meant to stop that: each one forces a decision (is this true, who confirmed it, what facts support this defense, does this claim have to be pleaded now) before it produces any text.

The short answer

• Start with facts, not forms. Templates 1 and 2 (the intake worksheet and the response chart) do the work that makes the answer accurate. The model answer in Template 3 only assembles it.
• Respond in the rule's language. Template 4 gives response sentences that use the three responses Fed. R. Civ. P. 8(b) allows and the particularity Fed. R. Civ. P. 9 requires for capacity and conditions precedent.
• Every defense in the libraries needs facts filled in. Templates 5 and 6 are built so that a bracket left empty is obvious. A defense you cannot fill in is a defense you should not plead, at least not yet.
• Counterclaims are a screening decision first. Template 7 sorts compulsory from permissive claims under Fed. R. Civ. P. 13 before Templates 8 through 10 draft them; Template 11 handles crossclaims and third-party claims.
• The plaintiff has tools too. Templates 13 through 15 turn the answer into admissions, a deficiency letter, and a targeted motion to strike; Template 17 outlines judgment on the pleadings for either side.

How to use this toolkit

Every template opens with three labels (purpose, owner, and when to use it), sets out the form itself, and ends with drafting commentary that explains the rule behind it. Capitalized text in brackets is information to fill in; lowercase text in brackets is optional or alternative wording. The sample entries use the two worked examples from Answering a Federal Complaint: Denials, Affirmative Defenses, Counterclaims, and Judgment on the Pleadings: Meridian Data Systems' copyright and license suit against Juniper Labs in the Northern District of California, and Harborline Holdings' trademark suit against Harbor Lane Coffee Co. in the District of Maine. For the order in which these decisions arise, use the Answer and Affirmative Defenses Checklist: A Practical Checklist; for the step-by-step drafting process, see Drafting an Answer and Affirmative Defenses: A Practical Guide.

Individuals answering without a lawyer can adapt Templates 3, 4, and 12. A corporation or LLC must answer through counsel. Rowland v. California Men's Colony, 506 U.S. 194 (1993).

Template 1: Intake and deadline worksheet

Purpose: capture, on the day of service, every fact that sets a deadline or changes the path. Owner: the responsible associate, reviewed by the supervising lawyer the same day. When to use: as soon as the complaint arrives, and again after any Rule 12 ruling or amended complaint.

Stipulation extending time to answer (adapt to local practice). Plaintiff [NAME] and Defendant [NAME], through counsel, stipulate that Defendant's time to answer, move, or otherwise respond to the Complaint is extended from [DATE] to [DATE]. This is the [first] extension sought; it does not alter any date set by the Court. Defendant does not waive, and expressly preserves, all defenses and objections, including those under Rule 12(b)(2)-(5). [IF REQUIRED: IT IS SO ORDERED.]

Drafting commentary. The deadline field must name the rule, because the rule tells the reviewer what assumptions were made: 21 days after service; 60 days after a waiver request was sent under Fed. R. Civ. P. 4(d); or 14 days after a Rule 12 ruling, Fed. R. Civ. P. 12(a)(4). Count under Fed. R. Civ. P. 6(a). A request after the deadline needs excusable neglect, Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), so get the stipulation signed and, where needed, entered before the deadline. The preservation sentence matters: a stipulation extending time is not a Rule 12 motion and does not by itself waive the Rule 12(h)(1) defenses, but saying so makes it harder to argue later that the defendant's conduct waived them. The arbitration row is there because litigating the merits can waive a right to arbitrate without any showing of prejudice. Morgan v. Sundance, Inc., 596 U.S. 411 (2022).

Template 2: Allegation response chart

Purpose: decide every response on the facts before anyone writes answer prose, and record who confirmed each one. Owner: the drafting lawyer; the client representative confirms each row. When to use: after collecting the documents and interviewing the people with knowledge.

Drafting commentary. The "what is true" column is where Rule 11 is satisfied: a denial must be "warranted on the evidence" or, if specifically identified, "reasonably based on belief or a lack of information." Fed. R. Civ. P. 11(b)(4). Split compound paragraphs here, not in the answer, because Rule 8(b)(4) requires the defendant to admit the part that is true and deny the rest. Build rows for headings, footnotes, unnumbered paragraphs, and the prayer, because anything not denied is admitted under Rule 8(b)(6). And remember what an admission costs: it is a judicial admission that binds the defendant for the rest of the case. Gibbs ex rel. Estate of Gibbs v. CIGNA Corp., 440 F.3d 571 (2d Cir. 2006). Keep the chart as attorney work product; it is the best record of why each response was made if the plaintiff later challenges one.

Template 3: Model federal answer

Purpose: a skeleton that puts every component of a federal answer in its conventional order. Owner: the drafting lawyer. When to use: after Template 2 is complete and the defenses and counterclaims are chosen.

UNITED STATES DISTRICT COURT

[NORTHERN] DISTRICT OF [CALIFORNIA]

[PLAINTIFF], Plaintiff [and Counterclaim-Defendant], v. [DEFENDANT], Defendant [and Counterclaim-Plaintiff].

Case No. [ ]

DEFENDANT [NAME]'S ANSWER, AFFIRMATIVE DEFENSES, [AND COUNTERCLAIMS] TO [THE FIRST AMENDED] COMPLAINT

[DEMAND FOR JURY TRIAL]

Defendant [NAME] ("[SHORT NAME]") answers the [Complaint] (ECF No. [ ]) of Plaintiff [NAME] as follows. The numbered paragraphs below correspond to the numbered paragraphs of the Complaint.

RESPONSES TO THE ALLEGATIONS OF THE COMPLAINT

1. [RESPONSE FROM TEMPLATE 4.]

[CONTINUE THROUGH THE LAST NUMBERED PARAGRAPH.]

Headings, footnotes, and unnumbered paragraphs. [SHORT NAME] denies any allegations contained in the Complaint's headings, subheadings, footnotes, images, and unnumbered paragraphs.

Prayer for relief. [SHORT NAME] denies that Plaintiff is entitled to any of the relief requested, or to any relief at all.

General denial. Except as expressly admitted above, [SHORT NAME] denies each allegation of the Complaint.

DEFENSES

[FIRST DEFENSE: FAILURE TO STATE A CLAIM; ANY PRESERVED RULE 12(b)(2)-(5) DEFENSE, WITH FACTS.]

AFFIRMATIVE DEFENSES

Without assuming any burden of proof it would not otherwise bear, [SHORT NAME] alleges the following defenses.

[SECOND DEFENSE AND FOLLOWING: FROM TEMPLATES 5 AND 6, EACH WITH FACTS.]

COUNTERCLAIMS

[PARTIES; JURISDICTION AND VENUE; FACTS; COUNTS; FROM TEMPLATES 8 THROUGH 10, NUMBERED AS A SEPARATE SEQUENCE.]

PRAYER FOR RELIEF

[SHORT NAME] asks the Court to (a) dismiss the Complaint with prejudice and enter judgment that Plaintiff take nothing; (b) enter judgment for [SHORT NAME] on its Counterclaims [SPECIFY DECLARATIONS AND DAMAGES]; (c) [declare this case exceptional and award fees under 35 U.S.C. § 285] [award fees under 17 U.S.C. § 505] [award fees under 15 U.S.C. § 1117(a) in an exceptional case]; (d) award costs; and (e) grant other relief the Court finds just.

DEMAND FOR JURY TRIAL

Under Rule 38, [SHORT NAME] demands a trial by jury on all issues so triable [in the Complaint and the Counterclaims].

Dated: [DATE] [SIGNATURE BLOCK: NAME, BAR NUMBER, FIRM, ADDRESS, EMAIL, TELEPHONE; COUNSEL FOR DEFENDANT]

[CERTIFICATE OF SERVICE]

Drafting commentary. Fed. R. Civ. P. 10 requires a caption with the court, title, file number, and Rule 7(a) designation, and numbered paragraphs limited where practicable to a single set of circumstances. Title the document so a reader knows who is answering which complaint, and add the counterclaim designations if you assert counterclaims. Separate "Defenses" (matters that preserve a position, such as failure to state a claim under Rule 12(h)(2)) from "Affirmative Defenses," and include the burden disclaimer so that listing a matter does not concede that the defendant must prove it. Keep any preliminary statement to a paragraph: Rule 8(d)(1) asks for allegations that are "simple, concise, and direct." Ask for fees on the right statutory basis: patent fees require an exceptional case, Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014), and copyright fees are available to prevailing defendants and plaintiffs alike, Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), with substantial weight on the objective reasonableness of the losing position. Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016). Omit any "reservation of the right to add defenses"; it does nothing.

Template 4: Response language bank

Purpose: sentences that respond in the words of Rules 8(b) and 9, so no one invents a fourth response. Owner: the drafting lawyer. When to use: while converting Template 2 into answer paragraphs; plaintiffs can use the same language to answer counterclaims.

(a) Full admission. Admitted.

(b) Partial admission. [SHORT NAME] admits that [TRUE FACT, STATED NARROWLY]. [SHORT NAME] denies the remaining allegations of paragraph [N].

(c) Document quoted or characterized. [SHORT NAME] admits that [the document attached to the Complaint as Exhibit A] is a copy of [the License Agreement dated DATE] and that paragraph [N] accurately quotes [section X] of it. [SHORT NAME] refers the Court to the [Agreement] for its complete terms and denies Plaintiff's characterization of it. [SHORT NAME] denies the remaining allegations of paragraph [N].

(d) Lack of knowledge. [SHORT NAME] lacks knowledge or information sufficient to form a belief about the truth of the allegations of paragraph [N] [concerning PLAINTIFF'S INTERNAL DEVELOPMENT HISTORY], and on that basis denies them.

(e) Public record, partly known. [SHORT NAME] admits that the public records of the [U.S. Copyright Office] list Registration No. [ ] for a work titled [TITLE] in Plaintiff's name. [SHORT NAME] lacks knowledge or information sufficient to form a belief about [the contents of the deposit copy and Plaintiff's chain of title], and on that basis denies those allegations. [SHORT NAME] denies the remaining allegations of paragraph [N].

(f) Legal conclusion. Paragraph [N] states legal conclusions to which no response is required. To the extent a response is required, [SHORT NAME] denies the allegations of paragraph [N].

(g) Allegation directed at another party. The allegations of paragraph [N] are directed at [OTHER DEFENDANT] and require no response from [SHORT NAME]. To the extent a response is required, [SHORT NAME] lacks knowledge or information sufficient to form a belief about their truth and on that basis denies them.

(h) Subject matter jurisdiction. [SHORT NAME] admits that Plaintiff purports to assert claims under [the Copyright Act, 17 U.S.C. § 101 et seq.] and that this Court has subject matter jurisdiction over claims arising under that Act. [SHORT NAME] denies that Plaintiff has stated a claim and denies the remaining allegations of paragraph [N].

(i) Personal jurisdiction contested. [SHORT NAME] denies that this Court has personal jurisdiction over it and preserves that defense as stated in the First Defense below.

(j) Venue not contested. For purposes of this action only, [SHORT NAME] does not contest venue in this District. [SHORT NAME] denies the remaining allegations of paragraph [N].

(k) Capacity (Rule 9(a)(2)). [SHORT NAME] specifically denies that Plaintiff [NAME], LLC has capacity to sue. [The Delaware Secretary of State cancelled Plaintiff's certificate of formation on DATE, and on information and belief it has not been revived.]

(l) Conditions precedent (Rule 9(c)). [SHORT NAME] denies that all conditions precedent have been performed. Section [9.3] of the [Agreement] permits termination only after [30 days' written notice identifying the claimed breach and an opportunity to cure]. Plaintiff did not send written notice under Section [9.3], and it purported to terminate by email on [DATE] without allowing any cure period.

(m) Damages. [SHORT NAME] denies that Plaintiff has been damaged in the amount alleged or in any amount.

(n) Averment of additional facts. [SHORT NAME] further avers that [FACT THE DEFENDANT WANTS IN THE RECORD, STATED IN ONE OR TWO SENTENCES].

Drafting commentary. Fed. R. Civ. P. 8(b) allows three responses and nothing else, a point Judge Shadur made for years in orders like King Vision Pay Per View, Ltd. v. J.C. Dimitri's Restaurant, Inc., 180 F.R.D. 332 (N.D. Ill. 1998), which rejected demands for "strict proof." Version (c) replaces "the document speaks for itself," which courts call "insufficient and contrary to the Federal Rules of Civil Procedure." State Farm Mutual Automobile Insurance Co. v. Riley, 199 F.R.D. 276 (N.D. Ill. 2001). Use version (d) only after reasonable inquiry and never for the client's own records. Version (h) admits jurisdictional facts that are true without conceding the merits; remember that parties cannot confer subject matter jurisdiction by admission. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982). Versions (k) and (l) exist because a general denial does not work for capacity or conditions precedent: a capacity defense not raised by specific denial is waived, Summers v. Interstate Tractor & Equipment Co., 466 F.2d 42 (9th Cir. 1972), and conditions precedent not denied with particularity are deemed satisfied. Jackson v. Seaboard Coast Line Railroad, 678 F.2d 992 (11th Cir. 1982). Use averments like (n) sparingly; they are the place for one or two facts the court should see early, not for argument.

Template 5: Affirmative defense library: general and commercial cases

Purpose: model language for the defenses that recur in commercial, contract, and tort cases, each written to carry its own facts. Owner: the drafting lawyer, with the client confirming the facts. When to use: after running the Fed. R. Civ. P. 8(c) list and the burden test against the case.

Number the defenses consecutively after the First Defense in Template 3. Each entry below has the model language, then a note on when it belongs.

Statute of limitations. Plaintiff's [COUNT] is barred in whole or in part by [STATUTE], which requires suit within [PERIOD] after the claim accrues. Plaintiff knew of [THE CONDUCT] no later than [DATE], when [FACT], and did not file this action until [DATE].

Note: Naming "the applicable statute of limitations" once sufficed in the Eighth Circuit, Zotos v. Lindbergh School District, 121 F.3d 356 (8th Cir. 1997), but naming the statute and the dates satisfies every circuit, including the Second Circuit's plausibility standard. GEOMC Co. v. Calmare Therapeutics Inc., 918 F.3d 92 (2d Cir. 2019).

Waiver. Plaintiff waived [THE RIGHT ASSERTED] by [ACCEPTING PAYMENT UNDER THE AMENDED TERMS FROM DATE THROUGH DATE WITHOUT OBJECTION], with knowledge of [THE FACTS IT NOW RELIES ON].

Estoppel. Plaintiff is estopped from asserting [CLAIM] because it [REPRESENTED, BY WORDS OR CONDUCT, THAT X] on [DATE]; [SHORT NAME] reasonably relied on that representation by [ACTION]; and [SHORT NAME] would be prejudiced if Plaintiff were permitted to [REVERSE COURSE].

Laches (equitable claims only). Plaintiff's claims for [INJUNCTIVE AND OTHER EQUITABLE RELIEF] are barred by laches. Plaintiff knew of [CONDUCT] by [DATE], unreasonably delayed [N] years before suing, and during that delay [SHORT NAME] [INVESTED $ / EXPANDED TO N LOCATIONS / LOST WITNESSES OR RECORDS].

Release; accord and satisfaction; payment. Plaintiff's claims are barred by the [Settlement Agreement and Release dated DATE], in which Plaintiff released [SCOPE]. [Plaintiff accepted $[AMOUNT] tendered on DATE in full satisfaction of the disputed invoice.] [SHORT NAME] paid [AMOUNT] on [DATE].

Setoff and recoupment. Any recovery must be reduced by [$AMOUNT] Plaintiff owes [SHORT NAME] under [SECTION] of the [Agreement] for [SERVICE CREDITS / OVERPAYMENTS], as alleged in Counterclaim [N].

Failure to mitigate. Plaintiff failed to mitigate any damages by [DECLINING THE REPLACEMENT ORDER OFFERED ON DATE / CONTINUING TO INCUR X AFTER DATE].

Statute of frauds. The alleged [ORAL AGREEMENT TO X] is unenforceable under [STATUTE] because it [CANNOT BE PERFORMED WITHIN ONE YEAR / CONCERNS AN INTEREST IN LAND], and no writing signed by [SHORT NAME] contains its essential terms.

Unclean hands (equitable claims only). Plaintiff's claims for equitable relief are barred by unclean hands because [MISCONDUCT DIRECTLY RELATED TO THE MATTER IN SUIT, FOR EXAMPLE, BACKDATING THE NOTICE ON WHICH IT BASES TERMINATION].

Res judicata or collateral estoppel. Plaintiff's claims are barred by the judgment in [CASE, COURT, NUMBER], entered [DATE], which [ADJUDICATED / ARISES FROM THE SAME TRANSACTION AS] [ISSUE OR CLAIM].

Contractual limitation of liability. Any recovery is limited by Section [X] of the [Agreement], which [EXCLUDES CONSEQUENTIAL DAMAGES AND CAPS LIABILITY AT FEES PAID IN THE PRIOR 12 MONTHS].

Arbitration. Plaintiff's claims are subject to the arbitration provision in Section [X] of the [Agreement]. [SHORT NAME] [has moved / will move] to compel arbitration and stay this action.

Fraud or illegality (Rule 9(b)). The [Agreement] is unenforceable because [SPEAKER] represented on [DATE], in [MEDIUM], that [FALSE STATEMENT]; the statement was false because [FACT]; and [SHORT NAME] relied on it by [ACTION].

Notes on the rest of the library. Waiver is the intentional relinquishment of a known right, so plead the knowledge. Estoppel, laches, and unclean hands are developed in Understanding Equitable Defenses: A Comprehensive Guide to Laches, Acquiescence, Waiver, and Equitable Estoppel; unclean hands requires misconduct with an "immediate and necessary relation" to the matter in suit. Keystone Driller Co. v. General Excavator Co., 290 U.S. 240 (1933). Preclusion is the defendant's burden, Taylor v. Sturgell, 553 U.S. 880 (2008), and is ordinarily lost if not timely raised. Arbitration needs a motion under 9 U.S.C. § 3, not just this paragraph, and a stay is mandatory on request once the dispute is found arbitrable. Smith v. Spizzirri, 601 U.S. 472 (2024). Fraud must satisfy Rule 9(b) when pleaded as a defense just as it must when pleaded as a claim (Wright & Miller, Federal Practice and Procedure § 1297). Failure to mitigate, setoff, and contractual caps are often treated as affirmative defenses because they avoid rather than deny; plead them, because a matter the defendant must prove is one it can lose by omission. Winforge, Inc. v. Coachmen Industries, Inc., 691 F.3d 856 (7th Cir. 2012). And leave out what is not a defense: "no damages" and "no breach" are denials, and a defense with no facts is a Rule 11 certification you cannot support.

Template 6: Affirmative defense library: patent, copyright, and trademark cases

Purpose: model language for the defenses IP statutes create or reshape, with the facts each one needs. Owner: the IP litigator on the team. When to use: with Template 5, in any case pleading a patent, copyright, or trademark claim. The analysis behind each entry is in the companion article's section on defenses intellectual property defendants must plead.

Patent

Noninfringement (a denial, pleaded for notice). [SHORT NAME] does not infringe and has not infringed, directly or indirectly, literally or under the doctrine of equivalents, any valid and enforceable claim of the [’NNN] patent, including because the [ACCUSED PRODUCT] does not [PERFORM / CONTAIN] [CLAIM LIMITATION], as [EXPLAIN IN ONE SENTENCE].

Invalidity. The claims of the [’NNN] patent are invalid under one or more of 35 U.S.C. §§ 101, 102, 103, and 112, including because [claim 1 is anticipated by REFERENCE, published DATE, which discloses each limitation of the claim] [claim 1 would have been obvious over REFERENCE A in view of REFERENCE B].

Inequitable conduct (Rule 9(b)). [INDIVIDUAL], [the prosecuting attorney], knew of [REFERENCE] no later than [DATE], when [FACT SHOWING KNOWLEDGE]. [REFERENCE] discloses [LIMITATION] of claims [N], at [PAGE OR COLUMN AND LINE], the limitation the examiner identified as missing from the prior art in the [DATE] reasons for allowance. [INDIVIDUAL] did not disclose [REFERENCE] to the USPTO. Had the examiner known of it, claims [N] would not have issued. These facts, including [ADDITIONAL FACTS BEARING ON INTENT], support a reasonable inference that [INDIVIDUAL] withheld [REFERENCE] with the specific intent to deceive the USPTO.

Marking and notice. Any damages are limited by 35 U.S.C. § 287(a). Plaintiff [and its licensees] made and sold products that practice the [’NNN] patent, including [PRODUCTS], without marking them, and Plaintiff gave no actual notice of infringement before [DATE].

Six-year limit on damages. Plaintiff may not recover damages for any infringement committed more than six years before [the filing of the Complaint]. 35 U.S.C. § 286.

Exhaustion and license. Plaintiff's claims are barred to the extent they concern [COMPONENTS] sold by [PLAINTIFF OR ITS LICENSEE], whose authorized sale exhausted Plaintiff's patent rights in those items.

Equitable estoppel. Plaintiff is equitably estopped because, after [ACCUSING THE PRODUCT IN ITS LETTER OF DATE], it said nothing for [N] years, leading [SHORT NAME] reasonably to infer that Plaintiff would not sue; [SHORT NAME] relied on that silence by [INVESTMENT]; and it would be materially prejudiced if Plaintiff were allowed to proceed.

Prior commercial use. [SHORT NAME] commercially used the subject matter of claims [N], in good faith, in the United States, in [AN INTERNAL PROCESS] beginning [DATE], more than one year before [the effective filing date of the claimed invention] [or, if earlier, its qualifying public disclosure].

Notes. Pair the invalidity defense with a declaratory counterclaim (Template 8): the counterclaim survives a finding of noninfringement. Cardinal Chemical Co. v. Morton International, Inc., 508 U.S. 83 (1993). Invalidity must be proved by clear and convincing evidence, Microsoft Corp. v. i4i Ltd. Partnership, 564 U.S. 91 (2011), and the prior art must also be identified in a notice at least 30 days before trial under 35 U.S.C. § 282, in addition to local patent rule contentions. The inequitable conduct entry tracks the who, what, when, where, and how required by Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312 (Fed. Cir. 2009); at trial, intent must be the single most reasonable inference and the omission must be but-for material. Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011); Chisum on Patents § 19.03. For marking, identifying the unmarked products shifts to the patentee the burden of proving compliance with 35 U.S.C. § 287. Arctic Cat Inc. v. Bombardier Recreational Products Inc., 876 F.3d 1350 (Fed. Cir. 2017). Exhaustion follows any authorized sale, at home or abroad. Impression Products, Inc. v. Lexmark International, Inc., 581 U.S. 360 (2017). Do not plead laches against damages; equitable estoppel survives, SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 580 U.S. 328 (2017), on the elements of misleading conduct, reliance, and prejudice. A.C. Aukerman Co. v. R.L. Chaides Construction Co., 960 F.2d 1020 (Fed. Cir. 1992). The prior commercial use defense must be proved by clear and convincing evidence. 35 U.S.C. § 273. If inducement is alleged, deny knowledge and intent; a good-faith belief that the patent is invalid is not a defense to inducement. Commil USA, LLC v. Cisco Systems, Inc., 575 U.S. 632 (2015). The induced and contributory side of this is covered in the Indirect Infringement Toolkit: Knowledge Evidence, Direction or Control Proof, and Substantial Noninfringing Use Analyses.

Copyright

Fair use. [SHORT NAME]'s use of [PORTION OF THE WORK] is a fair use under 17 U.S.C. § 107. The use [served a different purpose: EXPLAIN]; [the work is factual / functional: EXPLAIN]; [SHORT NAME] used only [AMOUNT], which was needed to [PURPOSE]; and the use does not substitute for the work in any market Plaintiff serves or is likely to develop, because [FACT].

License (express or implied). [SHORT NAME]'s use was licensed under [Section 2.1 of the License Agreement dated DATE], which was never validly terminated because [REASON]. [In addition, Plaintiff impliedly licensed the use by (CREATING AND DELIVERING THE WORK AT SHORT NAME'S REQUEST, INTENDING THAT IT COPY AND DISTRIBUTE IT) (TELLING SHORT NAME ON DATE TO "KEEP THE CONNECTOR LIVE").]

Covenant, not condition. To the extent [SHORT NAME] did not [PAY ON TIME / COMPLY WITH A USE LIMIT], those terms are contractual covenants, not conditions of the license grant, and their breach gives rise at most to a claim for breach of contract.

First sale. [SHORT NAME] lawfully acquired the copies it [RESOLD / LENT], which were lawfully made, and was entitled to dispose of them without Plaintiff's authority. 17 U.S.C. § 109(a).

Limitations. Plaintiff's claims are barred to the extent they rest on acts occurring more than three years before [DATE], when Plaintiff [KNEW / SHOULD HAVE KNOWN] of them because [FACT]. 17 U.S.C. § 507(b).

Registration-based limits. Plaintiff may not recover statutory damages or attorney's fees because the alleged infringement began on [DATE], after the work was first published on [DATE] and before the effective date of its registration on [DATE], and the work was not registered within three months after first publication. 17 U.S.C. § 412. [For an unpublished work: the alleged infringement began before the effective date of registration.] [Plaintiff filed suit before the Copyright Office registered or refused the work.]

Inaccurate registration. Registration No. [ ] includes information the applicant knew was inaccurate, namely [FACT], and the Register would have refused registration had she known it, as [SHORT NAME] will ask the Court to confirm under 17 U.S.C. § 411(b)(2).

Preemption. Plaintiff's [unjust enrichment / conversion] claim is preempted by 17 U.S.C. § 301 because it seeks to protect rights equivalent to the exclusive rights of copyright in a work within its subject matter.

Innocent infringement. Any statutory damages should be reduced because [SHORT NAME] was not aware and had no reason to believe that its acts constituted infringement, as shown by [FACT].

Notes. Fair use is the defendant's burden. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). Plead purpose facts that track Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), and for software interfaces, Google LLC v. Oracle America, Inc., 593 U.S. 1 (2021). Implied license follows from creating a work at another's request and handing it over intending that it be copied and distributed. Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990). Whether a term is a covenant or a condition decides whether the plaintiff has a copyright claim at all. Graham v. James, 144 F.3d 229 (2d Cir. 1998); MDY Industries, LLC v. Blizzard Entertainment, Inc., 629 F.3d 928 (9th Cir. 2010). First sale reaches copies lawfully made abroad. Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519 (2013). Laches cannot bar damages within the three-year period, Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), and a timely claim carries no separate three-year damages cap. Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024). The registration prerequisite is satisfied only when the Office acts, Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019), and an inaccuracy defeats a registration only if the applicant knew of it. Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (2022). Contract claims with an extra element generally escape preemption. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996). The innocent-infringer reduction to as little as $200 under 17 U.S.C. § 504(c) is unavailable when a proper copyright notice appeared on the published copies the defendant accessed. 17 U.S.C. § 401(d). Lack of originality, Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), and lack of substantial similarity are denials of the plaintiff's case; list them under "Defenses" for notice, not as affirmative defenses. Nimmer on Copyright § 13.05 is the standard treatise discussion of fair use. For the plaintiff's view of the same issues, see the Copyright Infringement Litigation Toolkit: Similarity Charts, Expert Reports, and Filtration Analyses.

Trademark

Descriptive fair use. [SHORT NAME] uses the words [TERM] otherwise than as a mark, only to describe [ITS GOODS' CHARACTERISTIC], fairly and in good faith. 15 U.S.C. § 1115(b)(4). [SHORT NAME]'s own mark, [MARK], appears prominently on the same packaging.

Nominative fair use. [SHORT NAME] uses Plaintiff's mark only to identify Plaintiff's [PRODUCTS] in describing [SHORT NAME]'s [COMPATIBLE PRODUCTS / REPAIR SERVICES]; uses only as much of the mark as needed; and does nothing to suggest sponsorship or endorsement.

Prior use and priority. [SHORT NAME] has used [MARK] continuously in [TERRITORY] since [DATE], before Plaintiff's [FILING DATE / FIRST USE], [and its rights in that area are preserved by 15 U.S.C. § 1115(b)(5)].

Laches and acquiescence. Plaintiff knew of [SHORT NAME]'s use no later than [DATE], when [ITS FOUNDER VISITED AND REVIEWED THE CAFE ONLINE], said nothing for [N] years, and during that time [SHORT NAME] [OPENED TWO LOCATIONS AND SPENT $ ON SIGNAGE].

Abandonment. Plaintiff abandoned [MARK] for [GOODS] by discontinuing use from [DATE] to [DATE] with intent not to resume use; nonuse for three consecutive years is prima facie evidence of abandonment.

Genericness or descriptiveness. [TERM] is the generic name for [GOODS] to the relevant public, as shown by [DICTIONARY, COMPETITOR, AND MEDIA USE]. [For an unregistered or contestable mark: TERM is merely descriptive and has not acquired distinctiveness.]

Fraud on the USPTO (Rule 9(b)). In the [Statement of Use filed DATE], [SIGNATORY] declared, in a verified statement, that [MARK] was in use in commerce for [SERVICES]. That statement was false because [FACT]. [SIGNATORY] knew it was false because [FACT] and made it to obtain the registration, which the USPTO would not have issued for those services without it.

Genuine goods. [SHORT NAME] resells genuine [PLAINTIFF] products, unaltered and in their original packaging, [with the disclosure that it is not an authorized dealer].

Preclusion from a Board decision. Plaintiff's claim is precluded by the final decision of the Trademark Trial and Appeal Board in [PROCEEDING NO.], entered [DATE], which decided likelihood of confusion between the same marks for materially the same uses.

Notes. An incontestable registration is subject only to the defenses listed in 15 U.S.C. § 1115(b), and it cannot be challenged as merely descriptive. Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189 (1985). A descriptive fair use defendant has no burden to negate confusion. KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111 (2004). Nominative fair use is not an affirmative defense in the Ninth Circuit, which uses it in place of the usual confusion factors, Toyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171 (9th Cir. 2010), but pleading it costs nothing. An expressive-work defense does not reach a use of the term as a mark for the defendant's own goods. Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023). The abandonment presumption is in 15 U.S.C. § 1127. Genericness turns on consumer understanding, not on a per se rule. U.S. Patent & Trademark Office v. Booking.com B.V., 591 U.S. 549 (2020). Fraud requires a knowingly false, material representation made with intent to deceive. In re Bose Corp., 580 F.3d 1240 (Fed. Cir. 2009). Laches in the Ninth Circuit is measured against the analogous state limitations period. Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829 (9th Cir. 2002). A reseller may use the true mark on genuine goods, and even on repaired or reconditioned goods if it fully discloses their condition. Champion Spark Plug Co. v. Sanders, 331 U.S. 125 (1947). Board decisions can preclude when the usages adjudicated are materially the same. B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. 138 (2015). McCarthy on Trademarks and Unfair Competition ch. 31 covers each of these defenses. For fair use in depth, see the Trademark Fair Use Toolkit: Nominative Use Guidelines, Comparative Advertising Clearance, and Defense Briefing.

Template 7: Compulsory counterclaim screening memo

Purpose: decide, claim by claim, what must be pleaded now, what may be, and what should wait. Owner: the supervising lawyer, with client sign-off on any claim not pleaded. When to use: before drafting counterclaims, and again before any amendment deadline.

Memo outline. (1) Question: which claims Juniper must assert in its answer. (2) Rule: a claim is compulsory if it "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim" and needs no party beyond the court's reach. (3) Tests in this circuit: [LOGICAL RELATIONSHIP; SAME ISSUES; SAME EVIDENCE; RES JUDICATA]. (4) Application, claim by claim, using the table. (5) Exceptions and contract clauses (pending actions, forum selection). (6) Jurisdiction for each permissive claim. (7) Recommendation and client decision, with the date and the name of the person who approved it.

Drafting commentary. The rule is Fed. R. Civ. P. 13(a), and "transaction" turns on logical relationship rather than immediacy. Moore v. New York Cotton Exchange, 270 U.S. 593 (1926). The Third Circuit asks whether separate trials would duplicate effort and whether the claims are offshoots of the same controversy, Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631 (3d Cir. 1961); the Fourth Circuit asks four questions without requiring a yes to all of them. Painter v. Harvey, 863 F.2d 329 (4th Cir. 1988). The cost of guessing wrong is a bar: "[a] counterclaim which is compulsory but is not brought is thereafter barred." Baker v. Gold Seal Liquors, Inc., 417 U.S. 467 (1974). For permissive claims, several circuits read 28 U.S.C. § 1367 to reach any claim within the same Article III case, Global NAPs, Inc. v. Verizon New England Inc., 603 F.3d 71 (1st Cir. 2010), measured by the "common nucleus of operative fact." United Mine Workers v. Gibbs, 383 U.S. 715 (1966). A forum selection clause can change the analysis. Publicis Communication v. True North Communications Inc., 132 F.3d 363 (7th Cir. 1997). Get written client sign-off on every claim not pleaded; this memo is the record that the omission was a decision. See 6 Wright & Miller, Federal Practice and Procedure §§ 1409-1417.

Template 8: Declaratory judgment counterclaim outline

Purpose: convert the defendant's positions into claims that survive even if the plaintiff dismisses or loses. Owner: the drafting lawyer. When to use: in IP and license disputes where a declaration does work the defenses cannot.

COUNTERCLAIMS

Parties. 1-2. [COUNTERCLAIM-PLAINTIFF: NAME, ENTITY TYPE, STATE, PRINCIPAL PLACE OF BUSINESS.] [COUNTERCLAIM-DEFENDANT: SAME.]

Jurisdiction and venue. 3. These counterclaims arise under [the Patent Act / the Copyright Act] and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202; the Court has jurisdiction under 28 U.S.C. §§ 1331 and 1338(a), and supplemental jurisdiction over the state-law counterclaims under 28 U.S.C. § 1367. 4. An actual controversy exists because Plaintiff has sued [SHORT NAME] for infringement of [the ’NNN patent / the Atlas SDK copyright] and alleges that [SHORT NAME]'s license was terminated. 5. Venue is proper because Plaintiff chose this forum.

Facts. 6-[N]. [THE LICENSE; THE PAYMENT DISPUTE; THE NOTICE-AND-CURE CLAUSE; THE TERMINATION EMAIL; THE ACCUSED PRODUCT; ONE SENTENCE PER FACT.]

Count I: Declaratory judgment of noninfringement. [SHORT NAME] has not infringed [EACH ASSERTED PATENT OR WORK, IN A SEPARATE COUNT FOR EACH PATENT], because [LICENSED / NO ACCUSED ELEMENT X].

Count II: Declaratory judgment of invalidity. The claims of the ’NNN patent [ASSERTED AGAINST SHORT NAME] are invalid under [SECTIONS], because [FACTS FROM TEMPLATE 6].

Count III: Declaratory judgment regarding the license. The payment terms of Section [4] are covenants, not conditions of the grant in Section [2.1]; Plaintiff's purported termination on [DATE] was ineffective under Section [9.3]; and the license remains in force.

Prayer. Declarations as stated; [fees under 35 U.S.C. § 285 / 17 U.S.C. § 505]; costs; other relief.

Drafting commentary. A declaratory counterclaim needs an actual controversy under 28 U.S.C. § 2201, judged under all the circumstances, MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), and the infringement suit itself usually supplies one for the asserted patents and claims. Limit invalidity counts to what is asserted, or plead facts showing a controversy over the rest. Some courts dismiss "mirror image" declaratory counterclaims as redundant in ordinary contract cases, but in patent cases the invalidity counterclaim does independent work: it survives an affirmance of noninfringement. Cardinal Chemical Co. v. Morton International, Inc., 508 U.S. 83 (1993). A plaintiff can try to moot declaratory counterclaims with a broad, unconditional covenant not to sue. Already, LLC v. Nike, Inc., 568 U.S. 85 (2013). Remember the appellate consequence: a compulsory counterclaim arising under the patent laws sends the appeal to the Federal Circuit. 28 U.S.C. § 1295(a)(1). Further relief based on a declaration is available under 28 U.S.C. § 2202. The Declaratory Relief Toolkit: Complaints, Jurisdictional Briefing, and Discretionary Dismissal has more on jurisdiction and discretion.

Template 9: Trademark cancellation counterclaim outline

Purpose: put the plaintiff's registration at risk in the same case, before the grounds expire. Owner: the trademark litigator. When to use: whenever the complaint asserts a registered mark; immediately if the registration is approaching its fifth anniversary.

Count [ ]: Cancellation of U.S. Registration No. [ ] (15 U.S.C. §§ 1119, 1064).

[N]. Plaintiff's Registration No. [ ] for [MARK] issued on [DATE], less than five years before these counterclaims were filed.

[N]. [SHORT NAME] has used [ITS MARK] continuously for [GOODS OR SERVICES] in [TERRITORY] since [DATE], before Plaintiff's [filing date / claimed first use].

[N]. Plaintiff has sued [SHORT NAME] for infringement and seeks to bar its use of [ITS MARK]; [SHORT NAME] is damaged by the registration's continued presence on the register.

[N]. Priority and likelihood of confusion (pleaded in the alternative). If, as Plaintiff alleges, the marks are likely to cause confusion, Plaintiff's registration should be cancelled under 15 U.S.C. § 1052(d) because [SHORT NAME]'s prior use creates that confusion.

[N]. Partial cancellation for nonuse. Plaintiff [did not use / has not used] [MARK] in commerce for [CAFE SERVICES] [when it filed its statement of use on DATE] [for three consecutive years, from DATE, with intent not to resume], and the registration should be restricted by deleting those services.

[N]. [Fraud, pleaded only with Rule 9(b) facts and evidence of intent.]

Relief. An order under 15 U.S.C. § 1119 directing the Director of the USPTO to cancel Registration No. [ ] [in whole] [as to CAFE SERVICES], certified to the Director.

Drafting commentary. In "any action involving a registered mark" the court may order cancellation in whole or in part, 15 U.S.C. § 1119, on the grounds and within the time limits of 15 U.S.C. § 1064: priority and likelihood of confusion under 15 U.S.C. § 1052 are available only during the registration's first five years, while genericness, functionality, abandonment, and fraud remain available after that, including against a registration that has become incontestable under 15 U.S.C. § 1065. A defendant that has been sued on the registration has an obvious interest in cancelling it; the statutory entitlement to seek cancellation follows the zone-of-interests and proximate-cause framework of Lexmark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298 (Fed. Cir. 2020). Section 1119 is not an independent source of jurisdiction, so pair the count with an independent claim (a section 1125(a) claim as senior user, or declaratory noninfringement) to protect it from a covenant-not-to-sue mootness argument. A registration procured by a knowingly false declaration also supports damages. 15 U.S.C. § 1120. For grounds, evidence, and Board practice, see Trademark Cancellation in Federal Litigation: A Practical Guide and the Register-Clearing Toolkit: Nonuse Investigations, Petition Templates, and Post-Registration Audit Responses.

Template 10: Contract, setoff, and recoupment counterclaim outline

Purpose: recover what the plaintiff owes under the same deal, and keep it in the case as an offset if nothing else. Owner: the drafting lawyer. When to use: in license, supply, services, and distribution disputes.

Count [ ]: Breach of contract.

[N]. Section [7.2] of the [Agreement] obligates Plaintiff to issue service credits of [FORMULA] when monthly uptime falls below [99.5%].

[N]. Uptime fell below that level in [MONTHS], entitling [SHORT NAME] to credits totaling $[96,000], which [SHORT NAME] requested in writing on [DATE].

[N]. [SHORT NAME] performed its obligations under the Agreement [except as excused by Plaintiff's breach].

[N]. Plaintiff refused to issue the credits, breaching Section [7.2], and [SHORT NAME] has been damaged in the amount of $[96,000], plus interest.

Setoff and recoupment. [SHORT NAME] is entitled to set off and recoup the amounts alleged in this Count against any amount found owing to Plaintiff.

Drafting commentary. A claim under the same agreement is usually compulsory under Rule 13(a), so the screening memo (Template 7) will normally say "plead now." Recoupment, which arises from the same transaction as the plaintiff's claim, is available defensively in many states even when an independent claim would be time-barred; setoff, which may arise from a different transaction, generally is not. Check the governing law. Plead the elements and the facts, not just the legal label; a claim is not dismissed for an imperfect statement of the legal theory. Johnson v. City of Shelby, 574 U.S. 10 (2014). If the plaintiff's complaint alleges that all conditions precedent occurred, deny with particularity in the answer (Template 4(l)) and plead the same facts here so the two parts of the pleading tell one story. A damages counterclaim carries a jury right, so add it to the jury demand.

Template 11: Crossclaim and third-party complaint outline

Purpose: bring in the people who should share or bear the liability. Owner: the drafting lawyer. When to use: before the answer is filed, so the third-party complaint can go out within 14 days without leave.

Third-party complaint (Rule 14). Caption adds "[DEFENDANT], Third-Party Plaintiff, v. [NONPARTY], Third-Party Defendant." (1) Parties and jurisdiction. (2) The claim against the defendant, summarized, with the complaint attached. (3) The relationship that makes the nonparty liable to the defendant: [INDEMNITY CLAUSE IN SECTION X OF THE SUPPLY AGREEMENT DATED DATE] [CONTRIBUTION UNDER STATE LAW]. (4) Count: the third-party defendant "is or may be liable to" [DEFENDANT] for all or part of any judgment for Plaintiff. (5) Prayer: indemnity, contribution, defense costs. Serve with a summons.

Crossclaim (Rule 13(g)). Within the answer, after the counterclaims: "[DEFENDANT] asserts the following crossclaim against Codefendant [NAME], which arises out of the transaction that is the subject matter of the Complaint." Counts for contractual indemnity and contribution; prayer.

Drafting commentary. A defendant may implead "a nonparty who is or may be liable to it for all or part of the claim against it," without leave if it files within 14 days after serving its original answer. Fed. R. Civ. P. 14(a)(1). Liability must run to the defendant: Rule 14 cannot be used to tell the plaintiff that someone else is the right defendant. Crossclaims against coparties are permitted, not required, and may seek a determination that the coparty is liable for all or part of the claim. Fed. R. Civ. P. 13(g). In cases resting only on diversity, section 1367(b) limits claims by plaintiffs against persons joined under Rule 14, so check jurisdiction before assuming the plaintiff can sue the newcomer directly. 6 Wright & Miller, Federal Practice and Procedure §§ 1441-1465. In IP cases, the common third-party defendants are suppliers who warranted noninfringement, contractors who wrote the accused code, and licensors who promised indemnity; the Insurance Coverage Toolkit: Placing, Tendering, and Litigating Claims covers the tender letters that should accompany them.

Template 12: Rule 7.1 disclosure statement and jury demand

Purpose: two short papers that are easy to forget and costly to miss. Owner: the drafting lawyer, with the client's corporate secretary for ownership facts. When to use: with the first filing; the jury demand within 14 days after the last pleading on each issue.

RULE 7.1 DISCLOSURE STATEMENT. Under Fed. R. Civ. P. 7.1(a)(1), [DEFENDANT] states that [its parent corporation is PARENT, and no publicly held corporation owns 10% or more of its stock] [it has no parent corporation and no publicly held corporation owns 10% or more of its stock]. [Under Rule 7.1(a)(2), because jurisdiction is based on diversity, [DEFENDANT], LLC states that its citizenship is attributed from its members: (a) [NAME], an individual domiciled in [STATE]; (b) [MEMBER], LLC, whose members are [NAME], domiciled in [STATE], and [ENTITY], a corporation incorporated in [STATE] with its principal place of business in [STATE].] [DEFENDANT] will promptly supplement this statement if the information changes.

DEMAND FOR JURY TRIAL. Under Fed. R. Civ. P. 38(b), [PARTY] demands a trial by jury on all issues triable of right by a jury [on the following issues only: (1) ... (2) ...]. [CERTIFICATE OF SERVICE.]

Drafting commentary. Fed. R. Civ. P. 7.1 requires the corporate statement from every nongovernmental corporate party and, since December 1, 2022, a citizenship statement from every party in a diversity case, filed with the first appearance, pleading, or motion and supplemented when the information changes. Trace LLC and partnership members through every layer, because unincorporated entities take the citizenship of each member. Carden v. Arkoma Associates, 494 U.S. 185 (1990); Americold Realty Trust v. ConAgra Foods, Inc., 577 U.S. 378 (2016). For the jury demand, Fed. R. Civ. P. 38 requires service within 14 days after the last pleading directed to the issue and filing under Rule 5(d); a demand that does not specify issues covers all issues triable to a jury. Relief from a missed deadline under Fed. R. Civ. P. 39(b) is narrow, and in the Ninth Circuit unavailable for mere inadvertence. Pacific Fisheries Corp. v. HIH Casualty & General Insurance, Ltd., 239 F.3d 1000 (9th Cir. 2001). An amended pleading revives the right only for new issues. Lutz v. Glendale Union High School, 403 F.3d 1061 (9th Cir. 2005). Whether to demand a jury at all is a strategy question; in trademark cases, see Bench Trial vs. Jury Trial Issues in Trademark Litigation: A Practical Guide.

Template 13: Admissions inventory (plaintiff)

Purpose: turn the answer into a map of what is no longer in dispute and what still has to be proved. Owner: the plaintiff's associate, reviewed by the trial lawyer. When to use: the week the answer arrives, and again after any amended answer.

Drafting commentary. Admissions in an answer are judicial admissions that bind the defendant in this case, American Title Insurance Co. v. Lacelaw Corp., 861 F.2d 224 (9th Cir. 1988), and in a different case the same statements are admissible as an opposing party's statement under Fed. R. Evid. 801(d)(2). The "still to prove" column drives the discovery plan and later requests for admission under Fed. R. Civ. P. 36. Mark every allegation the answer skipped: under Rule 8(b)(6) it is admitted, unless it concerns the amount of damages. A column of admitted elements plus a column of legally insufficient defenses is the outline of a Rule 12(c) motion (Template 17).

Template 14: Deficient-answer meet-and-confer letter

Purpose: get a compliant answer without motion practice, and build the record if motion practice becomes necessary. Owner: plaintiff's counsel. When to use: within a few days after the answer is served, early enough to leave time for a Rule 12(f) motion inside the 21-day window.

[DATE]

By email

[DEFENSE COUNSEL]

Re: [CASE], No. [ ]: Deficiencies in [DEFENDANT]'s Answer (ECF No. [ ])

Dear [NAME]:

We write under [LOCAL RULE / THE COURT'S STANDING ORDER] about the Answer served on [DATE]. We ask that [DEFENDANT] serve an amended answer by [DATE] curing the following.

1. Responses that neither admit nor deny. Paragraphs [N, N] respond that a document "speaks for itself." Rule 8(b) permits only admissions, denials, and statements of lack of knowledge, and courts reject this formulation. Please admit or deny each allegation.

2. Lack of knowledge about [DEFENDANT]'s own records. Paragraphs [N, N] plead lack of knowledge about [DEFENDANT]'s own [contracts / website / sales]. Rule 8(b)(5) is available only after reasonable inquiry.

3. Unanswered allegations. The Answer does not respond to [the headings / paragraph N / footnote N]. Under Rule 8(b)(6), we will treat those allegations as admitted unless the amended answer responds to them.

4. Conditions precedent. Paragraph [N] denies generally that conditions precedent occurred. Rule 9(c) requires a denial "with particularity." Please identify each condition [DEFENDANT] contends was not satisfied.

5. Affirmative defenses without facts. Defenses [N, N, N] state only the name of a doctrine. Please plead the facts on which each rests or withdraw it. [IF IN THE SECOND CIRCUIT: affirmative defenses must be plausible in context under GEOMC.]

6. Reservation of rights. Defense [N] reserves the right to add defenses. It is not a defense, and we ask that it be withdrawn.

Because Rule 12(f)(2) requires any motion to strike within 21 days after service of the Answer, we will file one on [DATE] directed to items 5 and 6 unless we have your response by [DATE]. We are available to confer by telephone on [DATES].

Sincerely, [NAME]

Drafting commentary. The authorities behind the letter are Fed. R. Civ. P. 8(b), King Vision, and State Farm v. Riley for the response problems, Rule 9(c) and Jackson for conditions precedent, and Lane v. Page for the reservation of rights. Keep the letter short and specific: a judge who later reads it should see a reasonable request, not a lecture. The 21-day deadline for a motion to strike does not pause while the parties talk, so calendar it before sending the letter; many judges also require a conference before any Rule 12 motion. Items 1 through 4 rarely need a motion at all, because the remedy (deemed admissions or an order to replead) can be requested later; items 5 and 6 are the ones with a deadline.

Template 15: Motion to strike affirmative defenses, and the opposition

Purpose: remove defenses that would expand discovery or shift burdens, or defend them. Owner: plaintiff's counsel for the motion; defense counsel for the opposition. When to use: the motion within 21 days after service of the answer; the opposition on the local briefing schedule.

Motion outline. (1) Introduction: the defenses challenged and the relief (strike, with or without leave to amend), in three sentences. (2) Background: the complaint, the answer, and the conferral. (3) Standard: Rule 12(f) permits striking "an insufficient defense"; state the circuit's pleading standard for defenses. (4) Argument by category: (a) defenses pleaded with no facts; (b) defenses unavailable as a matter of law on the claims pleaded (for example, laches against copyright damages within the limitations period, or contributory negligence against an intentional tort); (c) non-defenses and reservations of rights. (5) Prejudice: the discovery each defense would open. (6) Relief and a proposed order.

Opposition outline. (1) Motions to strike are disfavored and striking is a drastic remedy. (2) The defenses give fair notice [or are plausible in context, considering the 21 days available to answer and the facts within the plaintiff's control]. (3) A mislabeled denial is harmless, and Rule 8(c)(2) treats a misdesignated defense as properly designated. (4) The plaintiff identifies no prejudice. (5) Alternatively, leave to amend should be granted. (6) Rule 12(f) is not a vehicle for deciding disputed legal questions on the merits.

Drafting commentary. The rule is Fed. R. Civ. P. 12(f); the motion must come within 21 days after service of the answer. Pick the standard: plausibility, applied in context, in the Second Circuit, GEOMC; fair notice in the Fifth, Woodfield v. Bowman, 193 F.3d 354 (5th Cir. 1999), and the Ninth, Kohler v. Flava Enterprises, Inc., 779 F.3d 1016 (9th Cir. 2015); and in the Seventh, defenses are pleadings subject to the pleading rules, and when motions to strike "remove unnecessary clutter from the case, they serve to expedite, not delay." Heller Financial, Inc. v. Midwhey Powder Co., 883 F.2d 1286 (7th Cir. 1989). Courts elsewhere split. Compare Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647 (D. Kan. 2009), and HCRI TRS Acquirer, LLC v. Iwer, 708 F. Supp. 2d 687 (N.D. Ohio 2010), with Lane v. Page, 272 F.R.D. 581 (D.N.M. 2011). Immaterial matter has "no essential or important relationship to the claim for relief or the defenses being plead[ed]." Fantasy, Inc. v. Fogerty, 984 F.2d 1524 (9th Cir. 1993). The opposition's best authorities are the disfavored-motion line, Kohler v. Staples the Office Superstore, LLC, 291 F.R.D. 464 (S.D. Cal. 2013) (mislabeled defenses are not legally insufficient), and Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970 (9th Cir. 2010) (Rule 12(f) does not authorize striking a claim for damages on the ground that it is barred as a matter of law, a reason courts give for leaving legal disputes to dispositive motions). Wright & Miller, Federal Practice and Procedure § 1380, surveys the practice. For the motion practice around it, see the Motion Practice Toolkit: Dispositive, Discovery, and In Limine Motions.

Template 16: Motion for leave to amend the answer

Purpose: add a defense or counterclaim that discovery uncovered, before the court treats it as forfeited. Owner: defense counsel. When to use: promptly after the new facts surface, and before the scheduling order's amendment deadline if at all possible.

Outline. (1) Relief: leave to file the attached First Amended Answer, which adds [DEFENSE / COUNTERCLAIM]. (2) Timing: the motion is [before / after] the [DATE] deadline for amending pleadings. (3) Standard: leave is freely given when justice so requires; [if after the deadline: good cause under Rule 16(b)(4), which turns on diligence, comes first]. (4) Diligence: [SHORT NAME] learned of [FACT] on [DATE] from [DEPOSITION / PRODUCTION] and moved [N] days later. (5) No prejudice: discovery remains open until [DATE]; the new matter requires [little / no] additional discovery; Plaintiff has known of the issue since [DATE]. (6) Not futile: the proposed pleading states the defense with facts. (7) Exhibits: the proposed amended answer and, where the local rules require it, a redline.

Drafting commentary. Leave under Fed. R. Civ. P. 15(a)(2) is denied only for undue delay, bad faith or dilatory motive, repeated failure to cure, undue prejudice, or futility. Foman v. Davis, 371 U.S. 178 (1962). After the scheduling order's deadline, the defendant must first show good cause under Fed. R. Civ. P. 16(b)(4), and carelessness is not good cause. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992); Leary v. Daeschner, 349 F.3d 888 (6th Cir. 2003). The notice point carries weight: the purpose of Rule 8(c) is to give fair warning that a line of defense will be pursued, Williams v. Ashland Engineering Co., 45 F.3d 588 (1st Cir. 1995), and courts allow late defenses that cause no unfair prejudice. Ahmad v. Furlong, 435 F.3d 1196 (10th Cir. 2006). Do not count on that forgiveness; the D.C. Circuit requires the defense to appear in a responsive pleading before it is raised in a dispositive motion. Harris v. Secretary, U.S. Department of Veterans Affairs, 126 F.3d 339 (D.C. Cir. 1997). Amendment cannot revive a personal jurisdiction, venue, process, or service objection waived under Rule 12(h)(1), except within the as-of-course window.

Template 17: Rule 12(c) motion outline (either side)

Purpose: win on the pleadings when the facts that matter are admitted or the defense appears on the face of the complaint. Owner: the moving party's counsel. When to use: after the pleadings close, early enough not to delay trial, and after any required pre-motion letter.

Outline. (1) Introduction: the dispositive point and the relief, in three sentences. (2) Posture: the complaint, the answer (and any answer to counterclaims) were filed on [DATES]; the pleadings are closed. (3) Standard: the same as Rule 12(b)(6); the non-movant's well-pleaded allegations are accepted as true, and the movant's allegations that were denied are taken as false. (4) Record: the pleadings, their exhibits, documents incorporated by reference, and matters subject to judicial notice; nothing else. (5) Argument. Defendant's version: an element is missing; or the complaint itself establishes [the limitations defense / the license]; or the claim fails on a pure question of law. Plaintiff's version: the answer admits [EACH ELEMENT, BY PARAGRAPH], and each pleaded defense fails as a matter of law. (6) Relief: judgment on [COUNTS]; for a plaintiff, a schedule for proving the amount of damages, which silence does not admit. (7) Proposed order.

Drafting commentary. The pleadings close when the complaint and answer are filed and any counterclaim is answered. Doe v. United States, 419 F.3d 1058 (9th Cir. 2005). The standard mirrors Rule 12(b)(6), Hayden v. Paterson, 594 F.3d 150 (2d Cir. 2010); Cafasso v. General Dynamics C4 Systems, Inc., 637 F.3d 1047 (9th Cir. 2011), and the interaction of the two pleadings is explained in Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542 (9th Cir. 1990), where the plaintiff won on the pleadings. Stay within the record a court may consider, Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007), or the motion converts to summary judgment under Rule 12(d). A defendant can use Rule 12(c) for a failure-to-state-a-claim argument it left out of an earlier Rule 12 motion, Leyse v. Bank of America National Ass'n, 804 F.3d 316 (3d Cir. 2015), and for an affirmative defense the complaint itself establishes. Jones v. Bock, 549 U.S. 199 (2007). For what happens to these issues later, see Summary Judgment Under Rule 56: Winning and Surviving Before Trial and the Post-Trial Toolkit: Rule 50 Renewals, New Trial Briefs, and Remittitur Analyses.

Frequently asked questions

Can I reuse an answer from a similar case? Reuse its structure, not its content. Every response must rest on this client's facts, and every defense on facts you can state. The form answer with thirty defenses is the one plaintiffs move to strike.

Should the answer include a preliminary statement? A short one is acceptable in most courts and useful when the court should see one framing fact early. Keep it to a paragraph; Rule 8(d)(1) asks for allegations that are simple, concise, and direct, and some judges strike argumentative preambles.

The plaintiff amended the complaint. Do I re-plead everything? Yes. Treat the answer to the amended complaint as complete, restating every defense and counterclaim you still assert, and file it within the later of the time left on the original deadline or 14 days after service of the amendment. Courts disagree about whether you may add new counterclaims or defenses that the amendment did not invite, so seek a stipulation or leave if the additions go beyond the changes the plaintiff made.

How do I answer an allegation that quotes a statute or a case? Use Template 4(f): say that it states a legal conclusion, and deny it to the extent a response is required. If it quotes a statute accurately, you can admit the quotation and deny the conclusion drawn from it.

Can my answer be used against my client in another lawsuit? Yes, as an opposing party's statement under Federal Rule of Evidence 801(d)(2), although in another case it is evidence the client may try to explain rather than a binding judicial admission. That is one more reason to admit precisely.

What should a plaintiff do with an answer full of boilerplate? Send Template 14 within days, move to strike only the defenses that matter (Template 15), and serve contention interrogatories asking for the facts behind the rest under Fed. R. Civ. P. 33.

I am an individual without a lawyer. Which templates matter most? Templates 3, 4, and 12. Courts read filings by self-represented parties liberally, Erickson v. Pardus, 551 U.S. 89 (2007), but the deadlines are the same. See the Self-Represented Litigant Toolkit: Forms, Filings, Hearings, and Collection.

Practical takeaways

• Fill in the intake worksheet and the response chart before writing a word of the answer; the facts decide the responses.
• Use only Rule 8(b)'s three responses, with the language bank's versions for documents, legal conclusions, capacity, and conditions precedent.
• Plead each affirmative defense with the facts its template calls for, and drop any defense whose brackets you cannot fill.
• Screen every potential counterclaim in writing; plead the compulsory ones now, and pair IP defenses with declaratory and cancellation counterclaims.
• File the Rule 7.1 statement with the answer, demand a jury on time, and implead within 14 days.
• Plaintiffs: inventory the admissions, send the deficiency letter early, and keep motions to strike for defenses that change the case.

This document is general information, not legal advice for any particular situation; the law changes, and the facts matter.

Related Documents

Companion documents in this series

• Answering a Federal Complaint: Denials, Affirmative Defenses, Counterclaims, and Judgment on the Pleadings: the analysis behind these templates, with both worked examples in full.
• Drafting an Answer and Affirmative Defenses: A Practical Guide: the step-by-step process in which these templates are used.
• Answer and Affirmative Defenses Checklist: A Practical Checklist: every deadline, response, defense, and counterclaim decision in order.

Related Articles and Guides

• Motions to Dismiss Under Rule 12: A Practical Guide for Plaintiffs and Defendants: the alternative to answering.
• Drafting a Complaint That Survives a Motion to Dismiss: the pleading standard counterclaims must also meet.
• Declaratory Judgment Actions: Jurisdiction, Discretion, and the Race to the Courthouse: when a declaratory counterclaim presents a live controversy.
• Trademark Cancellation in Federal Litigation: A Practical Guide: grounds and procedure behind Template 9.
• Understanding Equitable Defenses: A Comprehensive Guide to Laches, Acquiescence, Waiver, and Equitable Estoppel: the elements behind the equitable entries in Template 5.
• Rule 11 and Inherent-Power Sanctions: The Safe Harbor, Fee Awards, and Attorney Conduct: the certification every response and defense carries.
• Summary Judgment Under Rule 56: Winning and Surviving Before Trial: where pleaded defenses are tested on evidence.
• Bench Trial vs. Jury Trial Issues in Trademark Litigation: A Practical Guide: deciding whether to use Template 12's jury demand.

Related Checklists

• Rule 11 Sanctions and Safe Harbor Checklist: A Practical Checklist: testing each denial and defense before signing.
• Declaratory Judgment Checklist: A Practical Checklist: jurisdiction and discretion for Template 8.
• Petitioning to Cancel a Trademark Registration: A Practical Checklist: grounds and timing for Template 9.
• Indirect Patent Infringement Claim Checklist: A Practical Checklist: the knowledge and intent issues behind inducement defenses.
• Post-Trial Motion Checklist: A Practical Checklist: preserving issues first framed in the pleadings.

Related Toolkits

• Civil Procedure Toolkit: Pleadings, Jurisdiction, Preclusion, and Deadlines: the broader procedural framework.
• Federal Civil Litigation Toolkit: A Roadmap and Resource Guide: where the answer fits in a federal case.
• Motion Practice Toolkit: Dispositive, Discovery, and In Limine Motions: briefing Templates 15 through 17.
• Declaratory Relief Toolkit: Complaints, Jurisdictional Briefing, and Discretionary Dismissal: more declaratory pleading forms.
• Trademark Fair Use Toolkit: Nominative Use Guidelines, Comparative Advertising Clearance, and Defense Briefing: briefing the fair use defenses in Template 6.
• Copyright Infringement Litigation Toolkit: Similarity Charts, Expert Reports, and Filtration Analyses: the plaintiff's proof that the copyright defenses answer.
• Indirect Infringement Toolkit: Knowledge Evidence, Direction or Control Proof, and Substantial Noninfringing Use Analyses: evidence for and against induced and contributory infringement.
• Register-Clearing Toolkit: Nonuse Investigations, Petition Templates, and Post-Registration Audit Responses: nonuse investigations that support partial cancellation.
• Post-Trial Toolkit: Rule 50 Renewals, New Trial Briefs, and Remittitur Analyses: where issues framed in the pleadings end up.
• Insurance Coverage Toolkit: Placing, Tendering, and Litigating Claims: tenders that accompany the answer and any third-party complaint.
• Self-Represented Litigant Toolkit: Forms, Filings, Hearings, and Collection: practical help for individuals answering without a lawyer.