Flowbee International, Inc. et al v. Google, Inc.

Filing 62

ANSWER TO COUNTERCLAIM byFlowbee Haircutter Limited Partnership, Flowbee International, Inc.. (Bright, David) (Filed on 6/17/2010)

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1 WATTS GUERRA CRAFT, L.L.P. David T. Bright (pro hac vice granted) 2 500 North Water Street, Suite 1200 Corpus Christi, Texas 78478 3 (361) 887-0500 Telephone (361) 887-0055 Telecopier 4 SMITH LILLIS PITHA LLP 5 Damien P. Lillis (Bar No. 191258) 400 Montgomery Street, Suite 501 6 San Francisco, California 94104 (415) 814-0411 Telephone 7 (415) 217-7011 Telecopier 8 Attorneys for Plaintiffs 9 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA § § § § § § § § § § § 11 FLOWBEE INTERNATIONAL, INC. and FLOWBEE HAIRCUTTER 12 LIMITED PARTNERSHIP, 13 14 v. 15 GOOGLE, INC., 16 17 18 19 20 Defendant. Plaintiffs, No. C 10-00668-WHA JURY TRIAL REQUESTED PLAINTIFFS/COUNTER-DEFENDANTS' ORIGINAL ANSWER TO COUNTER-PLAINTIFF'S COUNTERCLAIM Plaintiffs/Counter-Defendants Flowbee International, Inc. ("Flowbee Intl.") and 21 Flowbee Haircutter Limited Partnership ("Flowbee LP") (collectively "Flowbee") file this, 22 their Original Answer to the Counterclaim brought by Defendant/Counter-Plaintiff 23 Google, Inc. ("Google"). Unless specifically admitted, Flowbee denies each of the 24 allegations of Google's Counterclaim. 25 26 27 28 1. NATURE OF THE CASE Flowbee admits that Google purports to state claims based on breach of contract. Flowbee denies that Google's Counterclaim is meritorious. 1 2. Flowbee denies the allegations in the first sentence of paragraph 2, as the 2 subject contract does not pertain to the claims brought by Flowbee in the underlying suit. 3 Flowbee admits the remaining allegations in paragraph 2. 4 5 6 7 8 9 10 11 12 4. 5. 6. 3. Flowbee denies that it breached the subject contract and therefore denies that Google was forced to expend money and resources to seek transfer of this suit. Flowbee admits that Google is seeking recovery of damages that it alleges to have suffered. PARTIES Flowbee admits the allegations of paragraph 4. Flowbee admits the allegations of paragraph 5. Flowbee lacks knowledge or information sufficient to form a belief as to the 13 truth or falsity of the allegations of paragraph 6, and therefore denies the same. 14 15 16 17 18 7. JURISDICTION AND VENUE While Google purports to bring a claim against Flowbee under the laws of the State of California, Flowbee denies that the action is meritorious or that it is properly brought as a counterclaim in this action. Flowbee admits that the Court has jurisdiction 19 over this matter. 20 21 8. 9. Flowbee admits the allegations of paragraph 8. Flowbee admits that venue of Google's unmeritorious counterclaim is 22 proper in this district. 23 24 25 10. FACTUAL BACKGROUND Flowbee admits the allegations contained in the first sentence of paragraph 26 10. Flowbee lacks knowledge or information sufficient to form a belief as to the truth or 27 falsity of the remaining allegations of paragraph 10, and therefore denies the same. 28 2 1 11. Flowbee admits that an unrelated click-through contract drafted by Google 2 and agreed to by Flowbee contains the subject language. 3 12. Flowbee admits that an unrelated click-through contract drafted by Google 4 and agreed to by Flowbee contains the subject language. 5 6 7 8 9 10 11 13. 14. 15. 16. Flowbee admits the allegations contained in paragraph 13. Flowbee denies the allegations contained in paragraph 14. Flowbee admits the allegations contained in paragraph 15. Flowbee admits that the quoted language is contained within the Southern District of Texas Trial Court's Order. 17. Flowbee admits that the quoted language is contained within the Southern 12 District of Texas Trial Court's Order. 13 14 18. CAUSE OF ACTION Flowbee re-alleges and incorporates by reference paragraphs 1 through 17 15 of its Answer to Google's Counterclaim. 16 17 18 19 20 21 22 23 19. Flowbee admits that the click-through contract contains such a provision. Flowbee denies that the contract pertains to the claims that Flowbee has brought against Google in this action. 20. Flowbee lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations of paragraph 20, and therefore denies the same. 21. 22. Flowbee denies the allegations of paragraph 21. Flowbee denies that it breached the subject agreement. Flowbee lacks 24 knowledge or information sufficient to form a belief as to the truth or falsity of the 25 remaining allegations of paragraph 22, and therefore denies the same. 26 27 28 3 1 2 FURTHER ANSWER AND AFFIRMATIVE DEFENSES By way of further answer and as affirmative defense, Flowbee denies that it is 3 liable to Google on any of the counterclaims alleged and denies that Google is entitled to 4 damages, attorneys' fees, costs, pre-judgment interest or to any relief whatsoever. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 By: /s/ David T. Bright ______ David T. Bright (pro hac vice granted) Attorney at Law State Bar No. 02991490 Federal Bar No. 8628 and Damien P. Lillis State Bar No. 191258 SMITH LILLIS PITHA LLP 400 Montgomery Street, Suite 501 San Francisco, California 94104 (415) 814-0411 Telephone (415) 217-7011 Telecopier ATTORNEYS FOR PLAINTIFF 4. PRAYER WHEREFORE, Flowbee prays for Judgment on Google's Counterclaim as follows: 1. 2. 3. That Google take nothing by way of its Counterclaim; That the Counterclaim, and each and every purported claim for relief therein, be dismissed with prejudice; That Flowbee be awarded its costs of suit incurred herein, including attorneys' fees and expenses; and For such other and further relief as the Court deems just and proper. Respectfully submitted, David T. Bright Watts Law Firm, L.L.P. 500 North Water Street, Suite 1200 Corpus Christi, Texas 78401 (361) 887-0500 Telephone (361) 887-0055 Telecopier 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 DEMAND FOR JURY TRIAL Flowbee hereby demands a jury trial on all issues which can be heard by a jury. Respectfully submitted, David T. Bright Watts Law Firm, L.L.P. 500 North Water Street, Suite 1200 Corpus Christi, Texas 78401 (361) 887-0500 Telephone (361) 887-0055 Telecopier By: /s/ David T. Bright ______ David T. Bright (pro hac vice granted) Attorney at Law State Bar No. 02991490 Federal Bar No. 8628 and Damien P. Lillis State Bar No. 191258 SMITH LILLIS PITHA LLP 400 Montgomery Street, Suite 501 San Francisco, California 94104 (415) 814-0411 Telephone (415) 217-7011 Telecopier ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that on the 17th day of June, 2010, I electronically filed the 19 foregoing with the Clerk of Court for the U.S. District Court for the Northern District of California, using the CM/ECF system of the court, which will send notification of such 20 filing to the to individuals who have consented in writing to accept notification as service of this document by electronic means. 21 22 23 24 25 26 27 28 5 /s/ David T. Bright David T. Bright

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