PhoneDog, LLC v. Kravitz

Filing 41

ANSWER to Counterclaim byPhoneDog, LLC. (Kirke, John) (Filed on 3/6/2012)

1
2
3
4
5

JOHN C. KIRKE, #175055
SOPHIA E.C. SCHWARTZ, #272915
DONAHUE GALLAGHER WOODS LLP
Attorneys at Law
1999 Harrison Street, 25th Floor
Oakland, California 94612-3520
P.O. Box 12979
Oakland, California 94604-2979
Telephone:
[phone]
Facsimile:
[phone]

6
7

Attorneys for Plaintiff and CounterDefendant
PHONEDOG, LLC

8
9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11
12

PHONEDOG, LLC, a Delaware
corporation,

ANSWER TO COUNTERCLAIM

13
14
15
16

CASE NO. 3:11-cv-03474-MEJ

Plaintiff,
[JURY TRIAL DEMANDED]
v.
NOAH KRAVITZ, an individual,
Defendant.

17
18

AND RELATED COUNTERCLAIM.

19
20
21
22
23
24
25
26
27
28
PHONEDOG’S ANSWER TO KRAVITZ’S COUNTERCLAIM

CASE NO. 11-03474MEJ

1

In answer to the Counterclaim ("Counterclaim") filed by NOAH KRAVITZ ("Kravitz")

2

on February 14, 2012, Plaintiff PHONEDOG, LLC ("PhoneDog"), by and through its attorney,

3

responds as follows:

4

The Parties

5

1.

Answering the allegations in paragraph 1 of the Counterclaim, PhoneDog lacks

6

sufficient information to admit or deny the allegations contained therein and on that basis denies

7

them.

8
9

2.

Answering the allegations contained in paragraph 2 of the Counterclaim,

PhoneDog admits that it is the plaintiff in this litigation. The remaining allegations of paragraph

10

2 state legal conclusions and as such do not require PhoneDog to answer.

11

PhoneDog is required to answer, PhoneDog denies the allegations contained therein.

12
13
14
15
16

Jurisdiction And Venue
3.

Answering the allegations in paragraph 3 of the Counterclaim, PhoneDog denies

the allegations contained therein.
4.

Answering the allegations in paragraph 4 of the Counterclaim, PhoneDog admits

the allegations contained therein.

17
18
19

Factual Background
5.

Answering the allegations in paragraph 5 of the Counterclaim, PhoneDog admits

the allegations contained therein.

20
21

To the extent

General Allegations
6.

Answering the allegations in paragraph 6 of the Counterclaim, PhoneDog admits

22

that Kravitz continued to contribute to PhoneDog for a number of years after April 2006 and held

23

the following titles at PhoneDog: Cell Phone Editor, Senior Editor and Editor-in-Chief.

24

PhoneDog admits that Kravitz was one of PhoneDog's most prominent and heavily trafficked

25

contributors. PhoneDog admits that it entered into an agreement with Kravitz effective June 1,

26

2008 ("Commission Agreement").

27

allegations contained in the said paragraph.

Except as so admitted, PhoneDog denies the remaining

28
-1PHONEDOG’S ANSWER TO KRAVITZ’S COUNTERCLAIM

CASE NO. 11-03474MEJ

1
2

7.

Answering the allegations in paragraph 7 of the Counterclaim, PhoneDog denies

the allegations contained therein.

3

8.

Answering the allegations in paragraph 8 of the Counterclaim, PhoneDog admits

4

that at all times Kravitz was paid on a 1099 basis- not with W-2s. PhoneDog is without sufficient

5

knowledge or information to form a belief as to the truth of the allegation that while Kravitz was

6

contributing to blog posts to PhoneDog and managing the work of other editors, Kravitz and a

7

friend spent a number of months working on a start-up venue and on that basis denies the

8

allegations. Except as so admitted, PhoneDog denies the remaining allegations contained in the

9

said paragraph.

10

9.

Answering the allegations in paragraph 9 of the Counterclaim, PhoneDog is

11

without sufficient knowledge or information to form a belief as to the truth of the allegations

12

contained in said paragraph, and on that basis denies them.

13

10.

Answering the allegations in paragraph 10 of the Counterclaim, PhoneDog admits

14

that in December 2010, it issued Kravitz a check in the amount of approximately $8,261.64 and

15

admits that it cancelled the aforementioned check. PhoneDog admits that on June 8, 2011 Kravitz

16

filed suit against PhoneDog in the Superior Court of California, County of Alameda. Except as

17

so admitted, PhoneDog denies the remaining allegations contained in the said paragraph.

18

11.

Answering the allegations in paragraph 11 of the Counterclaim, PhoneDog admits

19

that it filed a lawsuit in this court on July 15, 2011. Except as so admitted, PhoneDog denies the

20

remaining allegations contained in the said paragraph.

21

12.

Answering the allegations in paragraph 12 of the Counterclaim, PhoneDog admits

22

that Federal Court litigation raises four claims against Kravitz. Except as so admitted, PhoneDog

23

denies the remaining allegations contained in the said paragraph.

24

///

25

///

26

///

27

///

28

///
-2PHONEDOG’S ANSWER TO KRAVITZ’S COUNTERCLAIM

CASE NO. 11-03474MEJ

1
2
3
4

The Twitter Account
13.

Answering the allegations in paragraph 13 of the Counterclaim, PhoneDog denies

the allegations contained therein.
14.

Answering the allegations in paragraph 14 of the Counterclaim, PhoneDog admits

5

that Kravitz's tweets had the effect of driving traffic to PhoneDog's website. PhoneDog denies

6

that under the Commission Agreement Kravitz was entitled to 15% of the revenue generated from

7

all sources applicable to Kravitz. As to remaining allegations of paragraph 14, PhoneDog is

8

without sufficient knowledge or information to form a belief as to the truth of the allegations

9

contained in said paragraph, and on that basis denies them.

10

15.

Answering the allegations in paragraph 15 of the Counterclaim, PhoneDog admits

11

that the identity of the Account's followers was public information accessible to PhoneDog and

12

anyone else with access to Twitter. PhoneDog admits that all of Kravitz's tweets were publicly

13

available. Except as so admitted, PhoneDog denies the remaining allegations contained in the said

14

paragraph.

15

16.

Answering the allegations in paragraph 16 of the Counterclaim, PhoneDog denies

16

that the Account does not belong to either Kravitz or PhoneDog and that Kravitz is the individual

17

with the right to use the Services under the Terms. As to the remaining allegations of paragraph

18

16, PhoneDog is without sufficient knowledge or information to form a belief as to the truth of

19

the allegations contained in said paragraph, and on that basis denies them.

20

17.

Answering the allegations in paragraph 17 of the Counterclaim, PhoneDog is

21

without sufficient knowledge or information to form a belief as to the truth of the allegations

22

contained in said paragraph, and on that basis denies them.

23
24

Use Of The Account By Kravitz
18.

Answering the allegations in paragraph 18 of the Counterclaim, PhoneDog admits

25

that when Kravitz began using the Account, it did not have many followers. As to the remaining

26

allegations of paragraph 18, PhoneDog is without sufficient knowledge or information to form a

27

belief as to the truth of the allegations contained in said paragraph, and on the basis denies them.

28
-3PHONEDOG’S ANSWER TO KRAVITZ’S COUNTERCLAIM

CASE NO. 11-03474MEJ

1

19.

Answering the allegations in paragraph 19 of the Counterclaim, PhoneDog admits

2

that in October 2010, Kravitz resigned from PhoneDog. PhoneDog admits that Kravitz changed

3

the handle of the Account from @PhoneDog_Noah to @noahkravitz. PhoneDog admits that

4

when a Twitter handle changes, the user that followed the account under its previous handle

5

automatically continues following the account on its new handle.

6

PhoneDog denies the remaining allegations contained in the said paragraph.

7
8
9
10
11

20.

Except as so admitted,

Answering the allegations in paragraph 20 of the Counterclaim, PhoneDog denies

the allegations contained therein.
21.

Answering the allegations in paragraph 21 of the Counterclaim, denies the

allegations contained therein.
22.

Answering the allegations in paragraph 22 of the Counterclaim, PhoneDog is

12

without sufficient knowledge or information to form a belief as to the truth of the allegation that

13

Kravitz has sent almost 27,000 tweets, and on that basis denies the allegation. PhoneDog denies

14

the remaining allegations of paragraph 22.

15
16
17
18
19
20
21
22

PhoneDog's Amended Complaint
23.

Answering the allegations of paragraph 23 of the Counterclaim, PhoneDog admits

the allegations contained therein.
24.

Answering the allegations of paragraph 24 of the Counterclaim, PhoneDog admits

the allegations contained therein.
25.

Answering the allegations of paragraph 25 of the Counterclaim, PhoneDog denies

the allegations contained therein.
26.

Answering the allegations of paragraph 26 of the Counterclaim, paragraph 26

23

states a legal conclusion and as such does not require PhoneDog to answer. To the extent

24

PhoneDog is required to answer, PhoneDog denies the allegations contained therein.

25
26
27
28
-4PHONEDOG’S ANSWER TO KRAVITZ’S COUNTERCLAIM

CASE NO. 11-03474MEJ

1

COUNT ONE

2

Declaratory Judgment that—Subject to the Rights Retained by Twitter—Kravitz has all
Rights to and Interest in the Services

3
4

27.

Answering the allegations of paragraph 27 of the Counterclaim, PhoneDog

5

realleges and reincorporates by reference as if set forth in full herein its answers to paragraphs 1

6

through 26.

7

28.

Answering the allegations of paragraph 28 of the Counterclaim, paragraph 28

8

states a legal conclusion and as such does not require PhoneDog to answer. To the extent

9

PhoneDog is required to answer, PhoneDog denies the allegations contained therein.

10

29.

Answering the allegations of paragraph 29 of the Counterclaim, paragraph 29

11

states a legal conclusion and as such does not require PhoneDog to answer. To the extent

12

PhoneDog is required to answer, PhoneDog denies the allegations contained therein.

13
14
15
16

30.

Answering the allegations of paragraph 30 of the Counterclaim, PhoneDog denies

the allegations contained therein.
31.

Answering the allegations of paragraph 31 of the Counterclaim, PhoneDog denies

the allegations contained therein.

17

COUNT TWO

18

Promissory Estoppel

19

32.

Answering the allegations of paragraph 32 of the Counterclaim, PhoneDog

20

realleges and reincorporates by reference as if set forth in full herein its answers to paragraphs 1

21

through 31.

22
23
24
25
26
27

33.

Answering the allegations of paragraph 33 of the Counterclaim, PhoneDog denies

the allegations contained therein.
34.

Answering the allegations of paragraph 34 of the Counterclaim, PhoneDog denies

the allegations contained therein.
35.

Answering the allegations of paragraph 35 of the Counterclaim, PhoneDog denies

the allegations contained therein.

28
-5PHONEDOG’S ANSWER TO KRAVITZ’S COUNTERCLAIM

CASE NO. 11-03474MEJ

1
2

36.

Answering the allegations of paragraph 36 of the Counterclaim, PhoneDog denies

the allegations contained therein.

3

COUNT THREE

4

False Promise (Fraud)

5

37.

Answering the allegations of paragraph 37 of the Counterclaim, PhoneDog

6

realleges and reincorporates by reference as if set forth in full herein its answers to paragraphs 1

7

through 36.

8
9
10
11
12
13

38.

Answering the allegations of paragraph 38 of the Counterclaim, PhoneDog denies

the allegations contained therein.
39.

Answering the allegations of paragraph 39 of the Counterclaim, PhoneDog denies

the allegations contained therein.
40.

Answering the allegations of paragraph 40 of the Counterclaim, PhoneDog denies

the allegations contained therein.

14

COUNT FOUR

15

Negligent Misrepresentation

16

41.

Answering the allegations of paragraph 41 of the Counterclaim, PhoneDog

17

realleges and reincorporates by reference as if set forth in full herein its answers to paragraphs 1

18

through 40.

19
20
21
22
23
24

42.

Answering the allegations in paragraph 42 of the Counterclaim, PhoneDog denies

the allegations contained therein.
43.

Answering the allegations of paragraph 43 of the Counterclaim, PhoneDog denies

the allegations contained therein.
44.

Answering the allegations of paragraph 44 of the Counterclaim, PhoneDog denies

the allegations contained therein.

25
26
27
28
-6PHONEDOG’S ANSWER TO KRAVITZ’S COUNTERCLAIM

CASE NO. 11-03474MEJ

1

COUNT FIVE

2

Unauthorized Use of Likeness in Violation of Cal. Civ. Code § 3344 and Cal. Bus. & Prof.
Code § 17200 et seq.

3
4

45.

Answering the allegations of paragraph 45 of the Counterclaim, PhoneDog

5

realleges and reincorporates by reference as if set forth in full herein its answers to paragraphs 1

6

through 44.

7
8
9
10
11
12
13

46.

Answering the allegations of paragraph 46 of the Counterclaim, PhoneDog denies

the allegations contained therein.
47.

Answering the allegations of paragraph 47 of the Counterclaim, PhoneDog denies

the allegations contained therein.
48.

Answering the allegations of paragraph 48 of the Counterclaim, PhoneDog denies

the allegations contained therein.
PRAYER FOR RELIEF

14

These paragraphs set forth the statement of relief requested by Kravitz to which no

15

response is required. PhoneDog denies that Kravitz is entitled to any of the requested relief and

16

denies any allegations contained in the Prayer for Relief to which a response is required.

17
18
19

AFFIRMATIVE DEFENSES
As and for separate and distinct affirmative defenses to the Counterclaim, PhoneDog
alleges as to all of the allegations contained in the Counterclaim:

20

FIRST AFFIRMATIVE DEFENSE

21

(Attorneys' Fees Barred)

22

As and for a separate and distinct defense to Kravitz's Counterclaim, and to each claim for

23

relief contained therein, PhoneDog alleges that Kravitz is precluded from recovering attorneys'

24

fees from PhoneDog under the applicable provisions of law.

25

SECOND AFFIRMATIVE DEFENSE

26

(Failure to State a Claim)

27
28

All of Kravitz's claims fail to state facts sufficient to constitute a claim for relief for which
relief may be granted against PhoneDog.
-7PHONEDOG’S ANSWER TO KRAVITZ’S COUNTERCLAIM

CASE NO. 11-03474MEJ

1

THIRD AFFIRMATIVE DEFENSE

2

(Additional Affirmative Defenses)

3
4

PhoneDog reserve the right to assert additional affirmative defenses in the event that
additional defenses become apparent during the course of this litigation.

5

FOURTH AFFIRMATIVE DEFENSE

6

(Unclean Hands)

7

Kravitz comes to this Court with unclean hands and is therefore barred from recovery.

8

FIFTH AFFIRMATIVE DEFENSE

9

(Speculative Damages)

10
11

The damages, if any, claimed by Kravitz are wholly speculative and are not susceptible to
determination.

12

SIXTH AFFIRMATIVE DEFENSE

13

(Breach of Contract)

14

As and for a separate and distinct defense to Kravitz's Counterclaim, and to each cause of

15

action contained therein, PhoneDog alleges that each of Kravitz's claims are barred because

16

Kravitz substantially and materially breached the contract between the parties prior to the

17

commencement of this action, which conduct extinguishes the right to maintain the instant action.

18

SEVENTH AFFIRMATIVE DEFENSE

19

(Business Justification/Privilege)

20

The conduct complained of in Kravitz's Counterclaim was a just and proper exercise of

21

management discretion undertaken for a fair and honest reason regulated by good faith under the

22

circumstances then existing, and undertaken by PhoneDog in a manner in which it believed in

23

good faith that it was justified and/or privileged to act.

24

EIGHTH AFFIRMATIVE DEFENSE

25

(Business Necessity)

26

Kravitz's Counterclaim as a whole, and each and every cause of action alleged therein, is

27

barred in whole or in part because any and all actions taken by PhoneDog were justified by

28

business necessity and were for legitimate non-discriminatory business reasons.
-8PHONEDOG’S ANSWER TO KRAVITZ’S COUNTERCLAIM

CASE NO. 11-03474MEJ

1

NINTH AFFIRMATIVE DEFENSE

2

(Consent of Kravitz)

3
4

Kravitz acknowledged, ratified, consented to, and acquiesced in the alleged acts or
omissions, if any, of PhoneDog thus barring Kravitz from any relief as prayed for herein.

5

TENTH AFFIRMATIVE DEFENSE

6

(Estoppel)

7
8

Kravitz is, by virtue of his own inequitable conduct, estopped from recovery on all of the
Causes of Action of the Counterclaim, and each of them.

9

ELEVENTH AFFIRMATIVE DEFENSE

10

(Failure to Mitigate)

11

As and for a separate and distinct defense to Kravitz's Counterclaim, and to each cause of

12

action contained therein, PhoneDog alleges that, on information and belief, Kravitz's alleged

13

injuries, if any there were, were aggravated by Kravitz's failure to use reasonable diligence to

14

mitigate them.

15

TWELFTH AFFIRMATIVE DEFENSE

16

(Fraud/Misrepresentation)

17

As and for a separate and distinct defense to Kravitz's Counterclaim, and to each cause of

18

action contained therein, PhoneDog alleges that each of Kravitz's claims is barred because the

19

incidents, if any, which are the subject of Kravitz's Counterclaim were procured by the fraud and

20

misrepresentations by Kravitz, thereby voiding any obligations allegedly owed by PhoneDog to

21

Plaintiff.

22

THIRTEENTH AFFIRMATIVE DEFENSE

23

(Laches)

24

The claims asserted in Kravitz's Counterclaim, and each of them, are barred by laches.

25

FOURTEENTH AFFIRMATIVE DEFENSE

26

(Lack of Justifiable Reliance)

27
28

Kravitz's third cause of action for intentional misrepresentation and fourth cause of action
for negligent misrepresentation are barred due to a lack of justifiable reliance by Kravitz.
-9PHONEDOG’S ANSWER TO KRAVITZ’S COUNTERCLAIM

CASE NO. 11-03474MEJ

1

FIFTEENTH AFFIRMATIVE DEFENSE

2

(No False Promise)

3
4

Kravitz's Counterclaim is barred because PhoneDog made no promises to Kravitz with the
concurrent intent to defraud Kravitz.

5

SIXTEENTH AFFIRMATIVE DEFENSE

6

(Set-Off)

7

As a proximate result of the wrongful acts of Kravitz, PhoneDog has suffered damage in

8

an amount equal to or in excess of the amounts claimed by Kravitz herein, which damage bars

9

Plaintiff's recovery on the third, fourth and fifth Causes of Action of the Counterclaim, and each

10

of them.

11

SEVENTEENTH AFFIRMATIVE DEFENSE

12

(Lack of Subject Matter Jurisdiction)

13

Kravitz's claims are barred because, based on the allegations in Kravitz's Counterclaim,

14

the amount in controversy here is less than $75,000 and therefore, this Court does not have

15

subject matter jurisdiction under 28 U.S.C. § 1332(a).

16

EIGHTEENTH AFFIRMATIVE DEFENSE

17

(Waiver)

18

The claims for relief are barred by Kravitz's prior waiver of the claims alleged therein.

19

NINETEENTH AFFIRMATIVE DEFENSE

20

(Willful Misconduct)

21

Kravitz was, at all times and places set forth in each of the claims for relief of the

22

Counterclaim, guilty of willful misconduct in and about the matters alleged therein, which willful

23

misconduct bars Kravitz from recovery on each claim for relief in the Counterclaim.

24

TWENTIETH AFFIRMATIVE DEFENSE

25

(Statute of Limitations)

26
27

PhoneDog affirmatively alleges that each claim for relief in the Counterclaim is barred by
the applicable statute of limitations.

28
-10PHONEDOG’S ANSWER TO KRAVITZ’S COUNTERCLAIM

CASE NO. 11-03474MEJ