Miller v. Facebook, Inc. et al

Filing 73

ANSWER TO COUNTERCLAIM byDaniel M. Miller. (Hancock, Brian) (Filed on 8/30/2010)

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D. GILL SPERLEIN (172887) THE LAW OFFICE OF D. GILL SPERLEIN 584 Castro Street, Suite 879 San Francisco, California 94114 Telephone: [phone] Facsimile: [phone] [e-mail] DOUGLAS L. BRIDGES (pro hac vice) HENINGER GARRISON DAVIS, LLC 1 Glenlake Parkway, Suite 700 Atlanta, Georgia 30328 Telephone: [phone] Facsimile: [phone] [e-mail] BRIAN D. HANCOCK (pro hac vice) HENINGER GARRISON DAVIS, LLC 2224 1st Avenue North Birmingham, Alabama 35203 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Plaintiff, DANIEL M. MILLER UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: CV-10-264 (WHA)

DANIEL M. MILLER, Plaintiff, vs. FACEBOOK, INC. and YAO WEI YEO, Defendants.

PLAINTIFF'S ANSWER TO DEFENDANT FACEBOOK, INC.'S COUNTERCLAIMS Judge: Honorable William H. Alsup

PLAINTIFF'S ANSWER TO DEFENDANT FACEBOOK, INC.'S COUNTERCLAIMS CV-10-264 (WHA) P age |1

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Pursuant to Rules 8 and 12 of the Federal Rules of Civil Procedure, Plaintiff Daniel M. Miller ("Plaintiff") hereby Answers the Counterclaims asserted against him by Defendant Facebook, Inc. (Dkt. No. 71): ANSWER 1. Plaintiff specifically admits to Averments 3, 11, and 13 and denies all other

averments and allegations in Facebook's Counterclaims and demands strict proof thereof. AFFIRMATIVE DEFENSES Further answering Facebook's Counterclaims, the Plaintiff asserts the following defenses and reserves the right to amend his Answer with additional defenses as further information is obtained: 2. action. 3. 4. 5. 6. 7. 8. Each of Facebook's claims are barred by the doctrine of estoppel. Each of Facebook's claims are barred by failure of consideration. Each of Facebook's claims are barred by fraud. Each of Facebook's claims are barred by the doctrine of waiver. Each of Facebook's claims are barred by the doctrine of unclean hands. Each of Facebook's claims are barred by this Court's lack of subject matter Each of Facebook's claims fails to state facts sufficient to constitute a cause of

jurisdiction over said claims. 9. claims. Each of Facebook's claims are barred as this Court is an improper venue for said

PLAINTIFF'S ANSWER TO DEFENDANT FACEBOOK, INC.'S COUNTERCLAIMS CV-10-264 (WHA) P age |2

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10.

Each of Facebook's claims are barred, in whole or in part, by contractual

limitations on liability in the event the Court adjudges that there is a legal, valid and enforceable contract that is the subject of said claims. 11. 12. 13. Each of Facebook's claims are barred by the doctrine of laches. Each of FAcebook's claims are barred by the doctrine of mistake. The alleged contract that Facebook seeks to enforce against the Plaintiff is illegal,

invalid, and unenforceable. 14. Each of Facebook's claims are barred because Facebook has not pursued said

claims in good faith. 15. Each of Facebook's claims are barred for failing to join indispensable parties. PRAYER FOR RELIEF In addition to the relief requested in Plaintiff's Second Amended Complaint, the Plaintiff respectfully requests a judgment against Facebook as follows: A. That Facebook's Counterclaims be dismissed with prejudice and that Facebook

take nothing by way of its Counterclaims; B. action; C. That the Court award Plaintiff's costs and attorneys' fees incurred in defending An entry of judgment in favor of Plaintiff and against Facebook on all causes of

against these Counterclaims; D. Any and all further relief for Plaintiff as the Court may deem just and proper.

PLAINTIFF'S ANSWER TO DEFENDANT FACEBOOK, INC.'S COUNTERCLAIMS CV-10-264 (WHA) P age |3

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Dated: August 30, 2010

Respectfully submitted,

s/ Brian D. Hancock BRIAN D. HANCOCK (pro hac vice) HENINGER GARRISON DAVIS, LLC 2224 1st Avenue North Birmingham, Alabama, 35203 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] ATTORNEY FOR PLAINTIFF

PLAINTIFF'S ANSWER TO DEFENDANT FACEBOOK, INC.'S COUNTERCLAIMS CV-10-264 (WHA) P age |4