Netquote Inc. v. Byrd

Filing 76

REPLY to 62 Counterclaim by Plaintiff Netquote Inc.. (Stark, David)

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Netquote Inc. v. Byrd Doc. 76 Case 1:07-cv-00630-DME-MEH Document 76 Filed 08/23/2007 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 07-cv-00630-DME-MEH NETQUOTE, INC., a Colorado corporation, Plaint iff, v. BRANDON BYRD, an internet user making use of the IP Addresses 64.136.27.226 and 64.136.26.227, and MOSTCHOICE.COM, INC., a Georgia corporation, Defendants. PLAINTIFF' REPLY TO AMENDED COUNTERCLAIM S Plaint iff NetQuote, Inc., (" etQuote", by and through counsel, Faegre & Benson LLP, N ) submit s this Reply to Defendant Mostchoice.com, Inc.' (" ostchoice" Amended sM ) Counterclaim in the above-captioned matter, and states as follows: Jurisdictional Allegations 1. Counterclaim. 2. NetQuote admits that Mostchoice is Georgia corporation. NetQuote is without NetQuote admits the allegations contained in Paragraph 1 of the Amended knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 2 of the Amended Counterclaim, and therefore denies the same. Dockets.Justia.com Case 1:07-cv-00630-DME-MEH Document 76 Filed 08/23/2007 Page 2 of 6 3. NetQuote is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 3 of the Amended Counterclaim, and therefore denies the same. 4. Counterclaim. 5. Paragraph 5 of the Amended Counterclaim calls for a legal conclusion as to which NetQuote admits the allegations contained in Paragraph 4 of the Amended no response is required. 6. Paragraph 6 of the Amended Counterclaim calls for a legal conclusion as to whch no response is required. 7. Counterclaim. 8. Paragraph 8 of the Amended Counterclaim calls for a legal conclusion as to which NetQuote denies the allegations contained in Paragraph 7 of the Amended no response is required. To the extent that a response is required, denied. Click Fraud 9. 22. No response is required to Paragraphs 9 through 22 of the Amended Counterclaim at this time because NetQuote is moving to dismiss the fraud claim for failure to stat e a claim. General Allegations Regarding Defamation and Tortious Interference 23. Counterclaim. NetQuote denies the allegations contained in Paragraph 23 of the Amended 2 Case 1:07-cv-00630-DME-MEH Document 76 Filed 08/23/2007 Page 3 of 6 24. NetQuote is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 24 of the Amended Counterclaim, and therefore denies the same. 25. NetQuote is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 25 of the Amended Counterclaim, and therefore denies the same. 26. Counterclaim. 27. Counterclaim. 28. Counterclaim. 29. Counterclaim. Defamation 30. NetQuote incorporates by reference its responses to Paragraphs 1 29 above as if NetQuote denies the allegations contained in Paragraph 29 of the Amended NetQuote denies the allegations contained in Paragraph 28 of the Amended NetQuote denies the allegations contained in Paragraph 27 of the Amended NetQuote denies the allegations contained in Paragraph 26 of the Amended fully set forth herein. 31. Counterclaim. 32. Counterclaim. 33. NetQuote denies the allegations contained in Paragraph 33 of the Amended NetQuote denies the allegations contained in Paragraph 32 of the Amended NetQuote denies the allegations contained in Paragraph 31 of the Amended 3 Case 1:07-cv-00630-DME-MEH Document 76 Filed 08/23/2007 Page 4 of 6 Counterclaim. Tortious Interference 34. NetQuote incorporates by reference its responses to Paragraphs 1 33 above as if fully set forth herein. 35. Counterclaim. 36. Counterclaim. 37. Counterclaim. Affirmative Defenses NetQuote states the following defenses to Mostchoice' allegations and Amended s Counterclaim. NetQuote has not knowingly or intentionally waived any applicable affirmative defenses and reserves the right to supplement or amend these defenses before trial. 1. 2. 3. 4. Amendment. 5. 6. Any alleged statements made, if made at all, are protected statements of opinion. Any alleged statements made, if made at all, are privileged statements of the Mostchoice' claim fails to state a claim upon which relief may be granted. s Mostchoice' claim may be barred because of the applicable statute of limitations. s Any alleged statements made, if made at all, were true. Any alleged statements made, if made at all, are protected by the First NetQuote denies the allegations contained in Paragraph 37 of the Amended NetQuote denies the allegations contained in Paragraph 36 of the Amended NetQuote denies the allegations contained in Paragraph 35 of the Amended allegat ions in pending legal proceedings. 4 Case 1:07-cv-00630-DME-MEH Document 76 Filed 08/23/2007 Page 5 of 6 7. 8. The conduct alleged, if it occurred, was not wrongful and improper. The conduct alleged, if it occurred, is privileged because Mostchoice and NetQuote are business competitors. 9. Mostchoice has failed to mitigate its damages, if any, as required by law and is therefore barred from recovery against NetQuote. 10. Any losses suffered or sustained by Mostchoice are the result of Mostchoice' s own negligence and/or lack of due diligence. Dated: August 23, 2007 Respect fully submitted, _/s David W. Stark_________________ David W. Stark FAEGRE & BENSON LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, Colorado 80203 Tel: (303) 607-3500 / Fax: (303) 607-3600 E-mail: dstark@faegre.com Daniel D. Williams Teresa Taylor Tate FAEGRE & BENSON LLP 1900 Fifteenth Street Boulder, Colorado 80302 Tel: (303) 447-7700 / Fax: (303) 447-7800 E-mail: dwilliams@faegre.com ttate@faegre.co m Attorneys for Plaintiff NetQuote Inc. 5 Case 1:07-cv-00630-DME-MEH Document 76 Filed 08/23/2007 Page 6 of 6 CERTIFICATE OF SERVICE I certify that on this 23rd day of August, 2007, I electronically filed the foregoing PLAINTIFF' REPLY TO AMENDED COUNTERCLAIM with the Clerk of Court using S the CM/ECF system, which will send notification of such filing to the following counsel of record: Ryan L. Isenberg, Esq. ISENBERG & HEWITT, P.C. 7000 Peachtree Dunwoody Road, Bldg 15, Suite 100 At lanta, GA 30328 ryan@isenberg-hewitt.com s/ Daniel D. Williams 6

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