Digital Envoy Inc., v. Google Inc.,

Filing 47

Digital Envoy Inc., v. Google Inc.,

Doc. 47

Case 5:04-cv-01497-RS

Document 47

Filed 11/03/2004

Page 1 of 6

1 P. CRAIG CARDON, Cal. Bar No. 168646 3 Four Embarcadero Center, 17th Floor 4 Telephone: 5

2 KENDALL M. BURTON, Cal. Bar No. 228720
San Francisco, California 94111-4106 415-434-9100 Facsimile: 415-434-3947

BRIAN R. BLACKMAN, Cal. Bar No. 196996

SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

6 TIMOTHY H. KRATZ (Admitted Pro Hac Vice) 7 MCGUIRE WOODS, L.L.P 8 Atlanta, Georgia 30309 9 Facsimile: 404.443.5751 11 12 13 14 DIGITAL ENVOY, INC., 15 16 18 19 20 22
Digital Envoy, Inc. ("Digital Envoy") answers the Counterclaims filed by Google, Inc. v. Plaintiff/Counterdefendant, Telephone: [phone] LUKE ANDERSON (Admitted Pro Hac Vice) 1170 Peachtree Street, N.E., Suite 2100

10 Attorneys for DIGITAL ENVOY, INC.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. C 04 01497 RS ANSWER TO COUNTERCLAIMS OF GOOGLE, INC. AND DEMAND FOR JURY TRIAL

17 GOOGLE, INC.,
Defendant/Counterclaimant.

21 ("Google") as follows:
1. In response to paragraph 1 of the Counterclaim, Digital Envoy states that the first

23 two sentences of the paragraph describe Google's requested relief and do not require a response 24 except that Digital Envoy denies Google is entitled to any relief. Digital Envoy denies the 25 allegations contained in the third and final sentence of the paragraph. 26 28
2. Digital Envoy admits the allegations contained in paragraph 2 of the Counterclaim

27 on information and belief.
3. Digital Envoy admits the allegations contained in paragraph 3 of the Counterclaim.

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ANSWER TO COUNTERCLAIMS OF GOOGLE, INC. Dockets.Justia.com

Case 5:04-cv-01497-RS

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4.

In response to paragraph 4 of the Counterclaim, Digital Envoy admits there is

2 diversity jurisdiction.
5. In response to paragraph 5 of the Counterclaim, Digital Envoy admits the

4 allegations contained in first sentence of the paragraph and denies the second sentence. 5 Accordingly, Digital Envoy admits that this District is an appropriate venue for this action. 6
6. In response to paragraph 6 of the Counterclaim, Digital Envoy denies the

7 description of Google's business is comprehensive of all of the businesses of Google, but 8 otherwise admits the allegations contained in this paragraph. 9
7. In response to paragraph 7 of the Counterclaim, Digital Envoy denies that there are

10 several companies offering technology capable of providing the information provided by Digital 11 Envoy. Digital Envoy further denies the implication that Digital Envoy's technology only 12 provides the geographic information noted or that the information only can be used to tailor 13 content of websites, to the extent such allegations are implied by this paragraph. Digital Envoy 14 otherwise admits the allegations contained in this paragraph. 15
8. In response to paragraph 8 of the Counterclaim, Digital Envoy denies Google's

16 characterization of the Agreement contained in the first sentence and accordingly denies the 17 allegations contained in the first sentence. Digital Envoy admits the allegations contained in 18 second sentence of this paragraph. 19
9. In response to paragraph 9 of the Counterclaim, Digital Envoy denies Google's

20 characterization of the Agreement contained in the first sentence and accordingly denies the 21 allegations contained in the first sentence. In response to the second sentence, Digital Envoy 22 admits that Google's monthly payments to Digital Envoy under the Agreement were originally 23 $3,000 and by amendment was raised to $8,000. 24
10. In response to paragraph 10 of the Counterclaim, Digital Envoy denies Google's

25 characterization of the Agreement and accordingly denies the allegations contained in this 26 paragraph. 27 28
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ANSWER TO COUNTERCLAIMS OF GOOGLE, INC.

Case 5:04-cv-01497-RS

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11.

In response to paragraph 11 of the Counterclaim, Digital Envoy admits that Google

2 has met its payment obligations under the Agreement, but otherwise denies the allegations 3 contained in this paragraph. 4 6 8 10 12 14 16
12. Digital Envoy denies the allegations contained in paragraph 12 of the

5 Counterclaim.
13. Digital Envoy denies the allegations contained in paragraph 13 of the

7 Counterclaim.
14. Digital Envoy denies the allegations contained in paragraph 14 of the

9 Counterclaim.
15. Digital Envoy denies the allegations contained in paragraph 15 of the

11 Counterclaim, except that it admits filing a lawsuit against Google on March 29, 2004.
16. In response to paragraph 16 of the Counterclaim, Digital Envoy incorporates its

13 responses to paragraphs 1 through 15 of the Counterclaim.
17. Digital Envoy admits the allegations contained in paragraph 17 of the

15 Counterclaim.
18. In response to paragraph 18 of the Counterclaim, Digital Envoy admits that Google

17 has met its payment obligations under the Agreement, but otherwise denies the allegations 18 contained in this paragraph. 19 21 23 25
19. Digital Envoy denies the allegations contained in paragraph 19 of the

20 Counterclaim.
20. Digital Envoy denies the allegations contained in paragraph 20 of the

22 Counterclaim.
21. In response to paragraph 21 of the Counterclaim, Digital Envoy incorporates its

24 responses to paragraphs 1 through 20 of the Counterclaim.
22. In response to paragraph 22 of the Counterclaim, Digital Envoy denies the

26 allegations contained in the first two sentences of the paragraph and admits the allegations 27 contained in the last two sentences. 28
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ANSWER TO COUNTERCLAIMS OF GOOGLE, INC.

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23.

In response to paragraph 23 of the Counterclaim, Digital Envoy states that the

2 paragraph describes Google's requested relief and does not require a response except that Digital 3 Envoy denied Google is entitled to any relief. 4 5 7 9 11 13 15 17 /// 18 19 20 21 /// 22 23 24 25 /// 26 27 28 ///
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AFFIRMATIVE DEFENSES 24. First Affirmative Defense Some or all of plaintiff's claims for relief fail to state a

6 claim upon which relief can be granted.
25. Second Affirmative Defense: Some or all of plaintiff's claims for relief are barred

8 by waiver.
26. Third Affirmative Defense: Some or all of plaintiff's claims for relief are barred

10 by estoppel.
27. Fourth Affirmative Defense: Some or all of plaintiff's claims for relief are barred

12 by laches.
28. Fifth Affirmative Defense: Some or all of plaintiff's claims for relief are barred

14 by the doctrine of unclean hands.
29. Sixth Affirmative Defense: Some or all of plaintiff's claims are barred by

16 plaintiff's failure to mitigate its damages.

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ANSWER TO COUNTERCLAIMS OF GOOGLE, INC.

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30.

PRAYER WHEREFORE, Digital Envoy respectfully prays that the Court dismiss these

3 Counterclaims, or in the alternative enter judgment in favor of Digital Envoy and against Google, 4 for its costs and for such other relief as deemed just and proper. 5 6 DATED: November 3, 2004 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

By

-sP. CRAIG CARDON BRIAN R. BLACKMAN TIMOTHY H. KRATZ (Admitted Pro Hac Vice) LUKE ANDERSON (Admitted Pro Hac Vice ) MCGUIRE WOODS, L.L.P 1170 Peachtree Street, N.E., Suite 2100 Atlanta, Georgia 30309 Telephone: [phone] Facsimile: 404.443.5751 Attorneys for DIGITAL ENVOY, INC.

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ANSWER TO COUNTERCLAIMS OF GOOGLE, INC.

Case 5:04-cv-01497-RS

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JURY TRIAL DEMAND Plaintiff/Counter defendant Digital Envo y, Inc. demands trial by jury on these

3 Counterclaims as to all issues so triable. 4 DATED: November 3, 2004 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

By

-sP. CRAIG CARDON BRIAN R. BLACKMAN TIMOTHY H. KRATZ (Pro Hac Vice To Be Applied For) LUKE ANDERSON (Pro Hac Vice To Be Applied For) MCGUIRE WOODS, L.L.P 1170 Peachtree Street, N.E., Suite 2100 Atlanta, Georgia 30309 Telephone: [phone] Facsimile: 404.443.5751 Attorneys for DIGITAL ENVOY, INC.

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ANSWER TO COUNTERCLAIMS OF GOOGLE, INC.