An easy W for Nintendo if there is no defence, but hurdles remain.
Nintendo’s legal battle against Switch pirate Jesse Keighin has hit another snag. The gaming giant is trying to sue him for allegedly streaming pirated, pre-release Nintendo games — but before they can move forward, they need to prove he’s actually been served the lawsuit.
Chris Brandrick
We reported on this case back in December, and since then a court has granted Nintendo the right to serve Keighin through alternative methods.
Because Nintendo's lawyers at Jenner & Block had been unable to serve papers to the evasive Keighin directly, Nintendo was granted the right to deliver their legal documents via either his mother, grandmother, or partner. In addition to contacting family members, Nintendo's representatives are said to have also sent mail to two known physical addresses and fired off an email to his last known inbox.
Despite these efforts Nintendo's case still can't progress however. Recent court filings seen by overkill show how the company is now pushing for a default judgement in the case — this means they would automatically win due to Keighin's avoidance, lack of engagement, and resulting lack of defence.
Requesting such a default is a fairly typical course of action when the defendant is avoiding service.
On January 24, Nintendo officially asked the court to rule in their favour for such a default ruling. However, on January 27th, this request was denied. Nintendo's request was squashed for a couple of reasons — primarily because they hadn’t provided enough formal proof that Keighin had actually been properly served (even though they had outlined their attempts so far). The court needs solid evidence that he has been officially notified of the lawsuit.
Keighin very much is aware of the suit, seemingly posting online with knowledge of the impending action — however, a court needs something more than just a screenshot of a tweet — be that a signed receipt, delivery confirmation, or a sworn statement from someone who physically handed over the papers. On January 29, Nintendo filed new documents outlining exactly how they served Keighin, in an effort to convince the court that he has been properly notified of the litigation.
However, that wasn't the only roadblock for Nintendo — U.S. law also has protections in place for active-duty service members. Under the Servicemembers Civil Relief Act (SCRA), soldiers, marines, and other active-duty members receive legal protections, including safeguards against default judgments while they are serving.
Now, we don't know either way if Keighin was or is in the military, but Nintendo will need to check and confirm as much via an affidavit. Until that point, the court cannot issue the default judgement Nintendo is seeking.
Once the missing paperwork is submitted, the court should be able to approve this judgment, giving Nintendo the win by default, allowing the Switch maker to move forward with legal penalties — unless Keighin suddenly decides to show up and fight back — although considering his evasion up to this point, that seems somewhat unlikely.
Nintendo looks to be just a couple of filings away from securing a legal victory — one that could leave Keighin facing serious financial consequences.