Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Filing 769

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Motion Picture Association of America v. CrystalTech Web Hosting Inc. Doc. 769 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PHILIP G. MAY, ESQ. (AZ Bar No. 009764) COLLINS, MAY, POTENZA, BARAN & GILLESPIE, P.C. Chase Tower, Suite 2200 201 N. Central Avenue Phoenix, AZ 85004-0022 Telephone: (602)252-1900 Facsimile: (602)252-1114 E-mail: pmay@cmpbglaw.com Attorney for Third Party Defendant IN THE UNITED STATE DISTRICT COURT FOR THE DISTRICT OF ARIZONA VICTORIA SNIVELY, an adult individual, Plaintiff, vs. MARLENE IMIRZIAN & ASSOCIATES, LLC, an Arizona Corporation; JOHN and JANE DOES I-X, Defendants. ____________________________________ MARLENE IMIRZIAN & ASSOCIATES, LLC, an Arizona Corporation; JOHN and JANE DOES I-X, Counterclaimant, vs. VICTORIA SNIVELY, and KEITH BOWERS, husband and wife, Counterdefendant, _____________________________________ MARLENE IMIRZIAN & ASSOCIATES, LLC, an Arizona Corporation; JOHN and JANE DOES I-X, Third Party Plaintiff, vs. PAY-TECH, INC., an Arizona corporation, Third Party Defendant. Case No.: 2:09-CV-02096-MHM ANSWER OF THIRD PARTY DEFEDANT (Assigned to the Hon. Mary H. Murguia) Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Third-Party Defendant Pay-Tech ("Defendant Pay-Tech"), for its answer admits, denies and alleges as follows. 1. In answer to paragraph 1, Defendant Pay-Tech Tech lacks information sufficient to form a belief as to the truth of the allegations contained therein, and therefore denies the same. 2. In answer to paragraph 2, Defendant Pay-Tech admits the allegations contained therein. 3. In answer to paragraph 3, Defendant Pay-Tech admits the allegations contained therein. ALLEGATIONS COMMON TO ALL COUNTS 4. In answer to paragraph 4, Defendant Pay-Tech admits that Third Party Plaintiff Marlene Imirzian & Associates, LLC ("MIAA") performs architectural work in Arizona. Defendant Pay-Tech lacks information sufficient to form a belief as to the truth of the remaining allegations contained therein, and therefore denies the same. 5. In answer to paragraph 5, Defendant Pay-Tech denies that MIAA "leases" most of its employees through Pay-Tech. Defendant Pay-Tech lacks information sufficient to form a belief as to the truth of the remaining allegations contained therein, and therefore denies the same. 6. In answer to paragraph 6, Defendant Pay-Tech denies the allegations contained therein. Pat-Tech affirmatively alleges that the term "lease" is technically incorrect. 7. In answer to paragraph 7, Defendant Pay-Tech admits that Snively's employment began in or about January, 2005. Defendant Pay-Tech lacks information sufficient to form a belief as to the truth of the remaining allegations contained therein, and therefore denies the same. 8. In answer to paragraph 8, Defendant Pay-Tech lacks information sufficient to form a belief as to the truth of the allegations contained therein, and therefore denies the same. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 same. same. 9. In answer to paragraph 9, Defendant Pay-Tech lacks information sufficient to form a belief as to the truth of the allegations contained therein, and therefore denies the 10. In answer to paragraph 10, Defendant Pay-Tech lacks information sufficient to form a belief as to the truth of the allegations contained therein, and therefore denies the 11. In answer to paragraph 11, Defendant Pay-Tech admits that MIAA informed Pay-Tech in or about July, 2008 that Snively was planning to take maternity leave and that it advised MIAA that MIAA was required to grant leave under FMLA and that Snively was a qualified employee as that term is defined in FMLA. Defendant Pay-Tech lacks information sufficient to form a belief as to the truth of the remaining allegations contained therein, and therefore denies the same. 12. In answer to paragraph 12, Defendant Pay-Tech admits that MIAA asked whether Snively's employment could be terminated if MIAA did not have enough work to employ her. Defendant Pay-Tech also admits that it advised MIAA that under such circumstances, MIAA could legally terminate an employee on FMLA leave. Defendant Pay-Tech lacks information sufficient to form a belief as to the truth of the remaining allegations contained therein, and therefore denies the same. 13. In answer to paragraph 13, Defendant Pay-Tech admits the allegations contained therein. 14. In answer to paragraph 14, Defendant Pay-Tech lacks information sufficient to form a belief as to the truth of the allegations contained therein, and therefore denies the same. 15. In answer to paragraph 15, Defendant Pay-Tech lacks information sufficient to form a belief as to the truth of the allegations contained therein, and therefore denies the same. 16. In answer to paragraph 16, Defendant Pay-Tech Tech lacks information sufficient to form a belief as to the truth of the allegations contained therein, and therefore 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 denies the same. Defendant Pay-Tech affirmatively alleges that MIAA did terminate Snively's employment. 17. In answer to paragraph 17, Defendant Pay-Tech admits the allegations contained therein. COUNT ONE (Negligence) 18. Defendant Pay-Tech incorporates its answers set forth in paragraphs 1 17 above as fully set forth herein. 19. In answer to paragraph 19, Defendant Pay-Tech denies the allegations contained therein. 20. In answer to paragraph 20, Defendant Pay-Tech lacks information sufficient to form a belief as to the truth of the allegations contained therein, and therefore denies the same. 21. In answer to paragraph 21, Defendant Pay-Tech denies the allegations contained therein. 22. In answer to paragraph 22, Defendant Pay-Tech denies the allegations contained therein. COUNT TWO (Breach of Contract) 23. Defendant Pay-Tech incorporates its answers set forth in paragraphs 1 22 above as fully set forth herein. 24. In answer to paragraph 24, Defendant Pay-Tech denies the allegations contained therein. Defendant Pay-Tech affirmatively alleges that there is a binding written contract, the terms of which speak for themselves. 25. In answer to paragraph 25, Defendant Pay-Tech denies the allegations contained therein. 26. In answer to paragraph 26, Defendant Pay-Tech denies the allegations contained therein. 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27. In answer to paragraph 27, Defendant Pay-Tech denies the allegations contained therein. 28. In answer to paragraph 28, Defendant Pay-Tech denies the allegations contained therein. 29. In answer to paragraph 29, Defendant Pay-Tech denies the allegations contained therein. 30. In answer to paragraph 30, Defendant Pay-Tech denies the allegations contained therein. 31. Defendant Pay-Tech denies each and every allegation in the Third Party Complaint not specifically admitted herein. 32. 33. Defendant Pay-Tech alleges that MIAA failed to mitigate its damages. The contract between MIAA and Defendant Pay-Tech has enforceable provisions limiting Defendant Pay-Tech's liability. 34. Defendant Pay-Tech further alleges that Plaintiff's claims are subject to the affirmative defenses of assumption of the risk, contributory negligence, waiver, unclean hands and estoppel. 35. Defendant Pay-Tech is entitled to recover its reasonable attorneys fees pursuant to A.R.S. 12-341.01 and the terms of the contract. DATED this 15th day of December, 2009. Collins, May, Potenza, Baran & Gillespie, P.C. /s/ Philip G. May (#009764) Philip G. May, Esq. 201 N. Central Ave., Suite 2210 Phoenix, AZ 85004-0022 Attorney for Third Party Defendant 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 /s/ Renee Gonzales 2511-002 CERTIFICATE OF SERVICE I hereby certify that on December 15, 2009, I electronically transmitted the foregoing document(s) to the Clerk's Office using the CM/ECF System for filing and a transmittal of a Notice of Electronic Filing to the following registrants: Michelle Kunzman Gillespie, Shields, & Associates, P.A. 7319 N. Sixteenth Street, Suite 100 Phoenix, AZ 85020-5262 Attorney for Plaintiffs Gregory L. Miles Davis Miles, PLLC 560 W. Brown Road, Third Floor P.O. Box 15070 Mesa, AZ 85211-3070 Attorney for Defendant and Third Party Plaintiff 6

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