Hy Cite Corporation v. Badbusinessbureau.co, et al

Filing 46

Hy Cite Corporation v. Badbusinessbureau.co, et al

Doc. 46

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

Maria Crimi Speth, #012574 JABURG & WILK, P.C. 3200 North Central Avenue, Suite 2000 Phoenix, Arizona 85012 [phone] Attorneys for Defendant Xcentric Ventures

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Hy Cite Corporation, a Wisconsin Corporation; Plaintiff, v. badbusinessbureau.com, L.L.C., a St. Kitts/Nevis Corporation d/b/a/ badbusinessbureau.com and/or ripoffreport.com and/or badfusinessbureau.com/Rip-Off Report.com; Xcentric Ventures, LLC, an Arizona Limited Liability company d/b/a/ badfusinessbureau.com and/or ripoffreport.com and/or badbusinessbureau.com/Rip-Off Report.com; and Ed Magedson, an Arizona resident, Defendants.

Case No: CV04-2856 PHX EHC XCENTRIC VENTURES, LLC AND MAGEDSON'S ANSWER TO FIRST AMENDED COMPLAINT

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Defendant, Xcentric Ventures, LLC, ("Xcentric") and Ed Magdeson, answer the First Amended Complaint as follows: 1. Complaint. Defendants deny the allegations in Paragraph 1 of the First Amended

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

2. Complaint. 3.

Defendants deny the allegations in Paragraph 2 of the First Amended

Defendants lack knowledge or information sufficient to admit the allegation

in paragraph 3, and therefore deny it. 4. Complaint. 5. Defendants deny that Xcentric owns the website. Defendants admit the Defendants deny the allegations in Paragraph 4 of the First Amended

remaining allegations in Paragraph 5 of the First Amended Complaint. 6. Defendants admit that Magedson is a resident of Arizona, that he

incorporated and was a director of badbusinessbureau.org and that he was a member and founder of badbusinessbureau.com, llc. Defendants deny the remaining allegations in Paragraph 6 of the First Amended Complaint. 7. Complaint. 8. Defendants admit that the court has jurisdiction, and denies the remaining Defendants deny the allegations in Paragraph 7 of the First Amended

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allegations of Paragraph 8. 9. Complaint. 10. Defendants admit that Xcentric operates the website and denies the Defendants deny the allegations in Paragraph 9 of the First Amended

remaining allegations in Paragraph 10 of the First Amended Complaint. 11. Complaint. 12. Complaint. 13. Complaint. 14. Defendants admit that reports are submitted for free and that companies may Defendants admit the allegations in Paragraph 13 of the First Amended Defendants admit the allegations in Paragraph 12 of the First Amended Defendants admit the allegations in Paragraph 11 of the First Amended

submit rebuttals. Defendants deny the remaining allegations in Paragraph 14. 2
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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

15. Complaint. 16. Complaint. 17. Complaint. 18. Complaint. 19. Complaint. 20. Complaint. 21. Complaint. 22. Complaint. 23. Complaint. 24.

Defendants admit the allegations in Paragraph 15 of the First Amended

Defendants deny the allegations in Paragraph 16 of the First Amended

Defendants admit the allegations in Paragraph 17 of the First Amended

Defendants deny the allegations in Paragraph 18 of the First Amended

Defendants deny the allegations in Paragraph 19 of the First Amended

Defendants deny the allegations in Paragraph 20 of the First Amended

Defendants deny the allegations in Paragraph 21 of the First Amended

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Defendants admit the allegations in Paragraph 22 of the First Amended

Defendants deny the allegations in Paragraph 23 of the First Amended

Defendants lack knowledge or information sufficient to admit the allegation

in paragraph 24, and therefore deny it. 25. Defendants lack knowledge or information sufficient to admit the allegation

in paragraph 25, and therefore deny it. 26. Defendants lack knowledge or information sufficient to admit the allegation

in paragraph 26, and therefore deny it. 27. Defendants lack knowledge or information sufficient to admit the allegation

in paragraph 27, and therefore deny it. 28. Defendants lack knowledge or information sufficient to admit the allegation 3
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in paragraph 28, and therefore deny it.
Case 2:04-cv-02856-EHC Document 46 Filed 01/19/2006 Page 3 of 12

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

29.

Defendants lack knowledge or information sufficient to admit the allegation

in paragraph 29, and therefore deny it. 30. Defendants lack knowledge or information sufficient to admit the allegation

in paragraph 30, and therefore deny it. 31. Defendants lack knowledge or information sufficient to admit the allegation

in paragraph 31, and therefore deny it. 32. Defendants lack knowledge or information sufficient to admit the allegation

in paragraph 32, and therefore deny it. 33. Complaint. 34. Defendants lack knowledge or information sufficient to admit the allegation Defendants deny the allegations in Paragraph 33 of the First Amended

in paragraph 34, and therefore deny it. 35. Defendants lack knowledge or information sufficient to admit the allegation

in paragraph 35, and therefore deny it. 36. Complaint. 37. Defendants lack knowledge or information sufficient to admit the allegation Defendants admit the allegations in Paragraph 36 of the First Amended

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in paragraph 37, and therefore deny it. 38. Defendants lack knowledge or information sufficient to admit the allegation

in paragraph 38, and therefore deny it. 39. Complaint. 40. Complaint. 41. Defendants lack knowledge or information sufficient to admit the allegation Defendants deny the allegations in Paragraph 40 of the First Amended Defendants admit the allegations in Paragraph 39 of the First Amended

in paragraph 41, and therefore deny it 42. Defendants lack knowledge or information sufficient to admit the allegation 4
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in paragraph 42, and therefore deny it.
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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

43. Complaint. 44. Complaint. 45. Complaint. 46. Complaint. 47. Complaint. 48. Complaint. 49. 50. 51. 52. Complaint. 53. 54. 55. 56. 57. Complaint. 58. Complaint. 59. Complaint.

Defendants admit the allegations in Paragraph 43 of the First Amended

Defendants admit the allegations in Paragraph 44 of the First Amended

Defendants deny the allegations in Paragraph 45 of the First Amended

Defendants admit the allegations in Paragraph 46 of the First Amended

Defendants admit the allegations in Paragraph 47 of the First Amended

Defendants admit the allegations in Paragraph 48 of the First Amended

The document cited speaks for itself. The document cited speaks for itself. The document cited speaks for itself Defendants admit the allegations in Paragraph 52 of the First Amended

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The document cited speaks for itself. The document cited speaks for itself. The document cited speaks for itself. The document cited speaks for itself. Defendants deny the allegations in Paragraph 57 of the First Amended

Defendants deny the allegations in Paragraph 58 of the First Amended

Defendants deny the allegations in Paragraph 59 of the First Amended

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

60. Complaint. 61. Complaint. 62. Complaint. 63. Complaint. 64. Complaint. 65. Complaint. 66. Complaint. 67. Complaint. 68. Complaint. 69. Complaint. 70. Complaint. 71. Complaint. 72. Complaint. 73.

Defendants deny the allegations in Paragraph 60 of the First Amended

Defendants deny the allegations in Paragraph 61 of the First Amended

Defendants deny the allegations in Paragraph 62 of the First Amended

Defendants deny the allegations in Paragraph 63 of the First Amended

Defendants deny the allegations in Paragraph 64 of the First Amended

Defendants deny the allegations in Paragraph 65 of the First Amended

Defendants deny the allegations in Paragraph 66 of the First Amended

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Defendants deny the allegations in Paragraph 67 of the First Amended

Defendants deny the allegations in Paragraph 68 of the First Amended

Defendants deny the allegations in Paragraph 69 of the First Amended

Defendants deny the allegations in Paragraph 70 of the First Amended

Defendants deny the allegations in Paragraph 71 of the First Amended

Defendants admit the allegations in Paragraph 72 of the First Amended

Defendants lack knowledge or information sufficient to admit the allegation 6

in paragraph 73, and therefore deny it.
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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

74. Complaint. 75.

Defendants deny the allegations in Paragraph 74 of the First Amended

Defendants lack knowledge or information sufficient to admit the allegation

in paragraph 75, and therefore deny it. 76. Defendants lack knowledge or information sufficient to admit the allegation

in paragraph 76, and therefore deny it. 77. Complaint. 78. Defendants lack knowledge or information sufficient to admit the allegation Defendants admit the allegations in Paragraph 77 of the First Amended

in paragraph 78, and therefore deny it. 79. Complaint. 80. Complaint. 81. Complaint. 82. Complaint. 83. Complaint. 84. Complaint. 85. 86. Complaint. 87. Complaint. 7
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Defendants deny the allegations in Paragraph 79 of the First Amended

Defendants deny the allegations in Paragraph 80 of the First Amended

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Defendants deny the allegations in Paragraph 81 of the First Amended

Defendants deny the allegations in Paragraph 82 of the First Amended

Defendants deny the allegations in Paragraph 83 of the First Amended

Defendants deny the allegations in Paragraph 84 of the First Amended

Defendants repeat and reallege each and every allegation of this answer. Defendants deny the allegations in Paragraph 86 of the First Amended

Defendants admit the allegations in Paragraph 87 of the First Amended

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

88. Complaint. 89. Complaint. 90. Complaint. 91. Complaint. 92. Complaint. 93. Complaint. 94. Complaint. 95. Complaint. 96. Complaint. 97. 98. Complaint. 99. Complaint. 100. Complaint. 101. Complaint.

Defendants deny the allegations in Paragraph 88 of the First Amended

Defendants deny the allegations in Paragraph 89 of the First Amended

Defendants deny the allegations in Paragraph 90 of the First Amended

Defendants deny the allegations in Paragraph 91 of the First Amended

Defendants deny the allegations in Paragraph 92 of the First Amended

Defendants deny the allegations in Paragraph 93 of the First Amended

Defendants deny the allegations in Paragraph 94 of the First Amended

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Defendants deny the allegations in Paragraph 95 of the First Amended

Defendants deny the allegations in Paragraph 96 of the First Amended

Defendants repeat and reallege each and every allegation of this answer. Defendants deny the allegations in Paragraph 98 of the First Amended

Defendants deny the allegations in Paragraph 99 of the First Amended

Defendants deny the allegations in Paragraph 100 of the First Amended

Defendants deny the allegations in Paragraph 101 of the First Amended

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

102.

Defendants lack knowledge or information sufficient to admit the allegation

in paragraph 102, and therefore deny it. 103. Complaint. 104. Complaint. 105. Complaint. 106. Complaint. 107. 108. Complaint. 109. Complaint. 110. Complaint. 111. Complaint. 112. 113. Complaint. 114. Complaint. 115. Complaint. 116. Complaint. 9
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Defendants deny the allegations in Paragraph 103 of the First Amended

Defendants deny the allegations in Paragraph 104 of the First Amended

Defendants deny the allegations in Paragraph 105 of the First Amended

Defendants deny the allegations in Paragraph 106 of the First Amended

Defendants repeat and reallege each and every allegation of this answer. Defendants deny the allegations in Paragraph 108 of the First Amended

Defendants deny the allegations in Paragraph 109 of the First Amended

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Defendants deny the allegations in Paragraph 110 of the First Amended

Defendants deny the allegations in Paragraph 111 of the First Amended

Defendants repeat and reallege each and every allegation of this answer. Defendants deny the allegations in Paragraph 113 of the First Amended

Defendants deny the allegations in Paragraph 114 of the First Amended

Defendants deny the allegations in Paragraph 115 of the First Amended

Defendants deny the allegations in Paragraph 116 of the First Amended

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

117.

In answer to paragraph 117 Defendants state that this claim has been

dismissed and does not require an answer. 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. Complaint. 128. Complaint. 129. 130. Complaint. 131. Complaint. 132. Complaint. 133. Complaint. 134. Defendants affirmatively allege that any fact not expressly admitted in this Defendants deny the allegations in Paragraph 133 of the First Amended Defendants deny the allegations in Paragraph 132 of the First Amended Defendants deny the allegations in Paragraph 131 of the First Amended Defendants repeat and reallege each and every allegation of this answer. Defendants deny the allegations in Paragraph 130 of the First Amended Defendants deny the allegations in Paragraph 128 of the First Amended Defendants repeat and reallege each and every allegation of this answer. Defendants deny the allegations in Paragraph 127 of the First Amended

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Answer is denied. Affirmative Defenses Defendant asserts the following affirmative defenses: 10
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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

135.

The causes of action fail to state a claim upon which relief can be granted as

against Defendant because the claims are barred by the Communications Decency Act, 47 USC §230. 136. It is unconstitutional to issue injunctive relief against Defendant and such

action constitutes a prior restraint on speech. 137. 138. 139. Plaintiff incurred no damages. Plaintiff failed to mitigate its damages. The damages complained of were proximately caused in whole or in part by

the negligence of Plaintiff and/or a third party. 140. Additional facts may be revealed in the course of future investigation and

discovery which may support additional affirmative defenses. 141. Accordingly, in order to preserve all such defenses, Defendant hereby

alleges and incorporates all available affirmative defenses, including but not limited to the following: failure to state a claim as to which relief can be granted, estoppel, waiver, laches and, unclean hands. Defendant/Counterclaimant reserves the right to amend his Answer upon revelation of more definitive facts by Plaintiff and/or upon more discovery and investigation of this matter.

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Wherefore, having fully answered the Complaint, Defendant prays for judgment against Plaintiff as follows. A. That Plaintiff take nothing by reason of its Complaint, that judgment

be rendered in favor of the Defendant; B. of this action; and C. For such other and further relief as this court deems just and proper. That Defendant be awarded his costs of suit incurred in the defense

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

DATED this 19th day of January, 2006.

JABURG & WILK, P.C.

Maria Crimi Speth Attorneys for Defendants

Copy of the foregoing mailed this ___________ day of January 20, 2006, to: John C. Scheller MICHAEL BEST & FRIEDRICH, LLP One South Pinckney Street Suite 700 Madison, WI 53701-1806 Attorneys (pro hac vice) for Plaintiff Don Bivens Michael K. Dana MEYER, HENDRICKS & BIVENS, P.A. 3003 North Central Avenue Suite 1200 Phoenix, Arizona 85012-2915 Attorneys for Plaintiff

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