SANDLER v. CALCAGNI et al

Filing 64

SANDLER v. CALCAGNI et al

Doc. 64

UNITED STATES DISTRICT COURT DISTRICT OF MAINE AT BANGOR

SHANA SANDLER, Plaintiff v. MIA CALCAGNI, RALPH CALCAGNI, MAUREEN CALCAGNI, PETER MARS, and BOOKSURGE, LLC, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 07-CV-00029-DBH

AMENDED ANSWER AND CROSS-CLAIM OF DEFENDANT BOOKSURGE, LLC TO SECOND AMENDED COMPLAINT OF PLAINTIFF SHANA SANDLER Defendant BOOKSURGE, LLC ( BookSurge ), through its attorneys, Kirkpatrick & Lockhart Preston Gates Ellis, LLP, answers the Amended Complaint of Plaintiff SHANA SANDLER ( Sandler ) as follows: 1. Answering Paragraph 1, BookSurge is without sufficient knowledge to answer the allegations contained in Paragraph 1 of the Amended Complaint, which shall have the effect of a denial. 2. Answering Paragraph 2, BookSurge is without sufficient knowledge to answer the allegations contained in Paragraph 2 of the Amended Complaint, which shall have the effect of a denial. 3. Answering Paragraph 3, BookSurge is without sufficient knowledge to answer the allegations contained in Paragraph 3 of the Amended Complaint, which shall have the effect of a denial.

Dockets.Justia.com

4. Answering Paragraph 4, BookSurge is without sufficient knowledge to answer the allegations contained in Paragraph 4 of the Amended Complaint, which shall have the effect of a denial. 5. Answering Paragraph 5, BookSurge denies the allegations contained therein. 6. Answering Paragraph 6, BookSurge is without sufficient knowledge to answer the allegations contained in Paragraph 6 of the Amended Complaint, which shall have the effect of a denial. 7. Answering Paragraph 7, BookSurge is without sufficient knowledge to answer the allegations contained in Paragraph 7 of the Amended Complaint, which shall have the effect of a denial. 8. Answering Paragraph 8, this paragraph contains no factual allegations requiring a responsive pleading. 9. Answering Paragraph 9, BookSurge is without sufficient knowledge to answer the allegations contained in Paragraph 9 of the Amended Complaint, which shall have the effect of a denial. 10. Answering Paragraph 10, BookSurge is without sufficient knowledge to answer the allegations contained in Paragraph 10 of the Amended Complaint, which shall have the effect of a denial. 11. Answering Paragraph 11, BookSurge is without sufficient knowledge to answer the allegations contained in Paragraph 11 of the Amended Complaint, which shall have the effect of a denial. 12. Answering Paragraph 12, BookSurge admits that it assisted in printing the book Help Us Get Mia; BookSurge denies all other allegations contained therein. 13. Answering Paragraph 13, BookSurge denies the same. 14. Answering Paragraph 14, BookSurge is without sufficient knowledge to answer the allegations contained in Paragraph 14 of the Amended Complaint, which shall have the effect of a denial. -2-

COUNT I INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS -- DEFENDANT MIA CALCAGNI 15. Answering Paragraph 15, BookSurge reincorporates its admissions and denials as set forth in paragraphs 1 through 14. 16. Answering Paragraph 16, BookSurge is without sufficient knowledge to answer the allegations contained in Paragraph 16 of the Amended Complaint, which shall have the effect of a denial. 17. Answering Paragraph 17, BookSurge is without sufficient knowledge to answer the allegations contained in Paragraph 17 of the Amended Complaint, which shall have the effect of a denial. 18. Answering Paragraph 18, BookSurge is without sufficient knowledge to answer the allegations contained in Paragraph 18 of the Amended Complaint, which shall have the effect of a denial. COUNT II ALL DEFENDANTS

LIBEL

19. Answering Paragraph 19, BookSurge reincorporates its admissions and denials as set forth in paragraphs 1 through 18. 20. Answering Paragraph 20, BookSurge admits that it assisted in printing the book Help Us Get Mia, but is without sufficient knowledge to answer the other allegations contained in Paragraph 20 of the Amended Complaint, which shall have the effect of a denial. 21. Answering Paragraph 21, BookSurge denies the same. 22. Answering Paragraph 22, BookSurge denies the same.

-3-

23. Answering Paragraph 23, BookSurge is without sufficient knowledge to answer the allegations contained in Paragraph 23 of the Amended Complaint, which shall have the effect of a denial. COUNT III LIBEL PER SE ALL DEFENDANTS 24. Answering Paragraph 24, BookSurge reincorporates its admissions and denials as set forth in paragraphs 1 through 23. 25. Answering Paragraph 25, BookSurge denies the same. 26. Answering Paragraph 26, BookSurge denies the same. COUNT IV FALSE LIGHT ALL DEFENDANTS 27. Answering Paragraph 27, BookSurge reincorporates its admissions and denials as set forth in paragraphs 1 through 26. 28. Answering Paragraph 28, BookSurge admits that it assisted in printing the book Help Us Get Mia, but is without sufficient knowledge to answer the other allegations contained in Paragraph 28 of the Amended Complaint, which shall have the effect of a denial. 29. Answering Paragraph 29, BookSurge denies the same. 30. Answering Paragraph 30, BookSurge denies the same. COUNT V PRIVATE FACTS ALL DEFENDANTS 31. Answering Paragraph 31, BookSurge reincorporates its admissions and denials as set forth in paragraphs 1 through 30. 32. Answering Paragraph 32, BookSurge admits that it assisted in printing the book Help Us Get Mia, but is without sufficient knowledge to answer the other allegations contained in Paragraph 32 of the Amended Complaint, which shall have the effect of a denial.

-4-

33. Answering Paragraph 33, BookSurge denies the same. 34. Answering Paragraph 34, BookSurge denies the same. COUNT VI PUNITIVE DAMAGES ALL DEFENDANTS 35. Answering Paragraph 35, BookSurge reincorporates its admissions and denials as set forth in paragraphs 1 through 34. 36. Answering Paragraph 36, BookSurge is without sufficient knowledge to answer the allegations contained in Paragraph 36 of the Amended Complaint regarding the actions or motivations of Mia Calcagni and the other Defendants, which shall have the effect of a denial; BookSurge denies all other allegations contained therein. 37. Answering Paragraph 37, BookSurge denies the same. AFFIRMATIVE DEFENSES Without assuming the burden of proof as to any affirmative defense, which burden BookSurge expressly disclaims, BookSurge states as affirmative defenses the following: 1. granted. 2. Insufficiency of Service of Process. Sandler s claims are barred by the Failure to State a Claim. Sandler has failed to state a claim for which relief can be

insufficiency of service of process. 3. 4. Privileges and Immunities. Sandler s claims are barred by one or more privileges. Truth. Sandler s claims are barred to the extent that the allegedly defamatory

statements are true. 5. Constitutional Bar. Sandler s claims are barred by the provisions of the

Constitutions of the United States and the State of Maine. 6. Failure to Mitigate Damages. Sandler s damages, if any, are reduced or barred by

her failure to mitigate damages.

-5-

7.

Comparative Fault/Negligence. To the extent that Sandler s claims are or may be

recognized under negligence principles, they are reduced by her own comparative fault or negligence. 8. Conduct of Third Parties. Sandler s claims were caused by the conduct of one or

more third parties not under the control of BookSurge. 9. Waiver, Laches and Estoppel. Sandler s claims are barred by her own conduct,

including acts constituting waiver, laches and/or estoppel. 10. Failure to Plead with Particularity. Sandler s claims are barred by her failure to

identify any allegedly libelous statements. 11. limitations. 12. Fault. Sandler s claims for actual, presumed and/or punitive damages are reduced Statute of Limitations. Sandler s claims are barred by applicable statutes of

or barred by the lack of requisite fault of BookSurge. 13. Protected Opinion. Sandler s claims are barred to the extent that the allegedly

defamatory statements are protected statements of opinion. CROSS-CLAIM FOR INDEMNITY AGAINST DEFENDANTS RALPH AND MAUREEN CALCAGNI BY BOOKSURGE, LLC 1. Cross-claimant BookSurge, LLC, now known as On Demand Publishing, LLC, is

a Delaware limited liability company. 2. Defendants Ralph and Maureen Calcagni established an on-line account through

BookSurge for the printing of a book entitled Help Us Get Mia. 3. The first page of all BookSurge on-line accounts includes the following notation:

Note: By using the BookSurge GPS, you consent to all terms and conditions set forth in the agreement. Click here to view your agreement.

-6-

4.

Attached as Exhibit A is a true and correct copy of the BookSurge Author

Publishing Agreement linked to the first page of all BookSurge on-line accounts. 5. In the Author Publishing Agreement, the Author warrants that the WORK is

not defamatory or obscene, or in any other way illegal . For the purposes of the Author Publishing Agreement, Ralph and Maureen Calcagni are the Author and BookSurge is the Publisher . 6. The Author Publishing Agreement includes an Indemnification Clause, in which

the AUTHOR agrees to fully indemnify, defend and hold harmless the PUBLISHER and its AFFILIATES from and against any losses, lost profits, damages, liabilities, judgments, awards, decrees, settlements, or expenses (including without limitation, reasonable attorney s fees and court costs) arising from, connected with, or by reason of any breach or alleged breach of any of the representations and warranties set forth above . . . . 7. To the extent that BookSurge is found liable for any of the claims asserted against

BookSurge by Sandler, Ralph and Maureen Calcagni are bound to indemnify BookSurge and its Affiliates for any judgments, costs or attorneys fees resulting from this suit.

-7-

REQUEST FOR RELIEF WHEREFORE, BookSurge prays for the following relief: 1. 2. 3. Sandler s Second Amended Complaint be dismissed with prejudice; BookSurge s Cross-claim be ruled on in favor of BookSurge; BookSurge be awarded its costs and reasonable attorneys fees under all

applicable statutes, court rules and recognized grounds of equity; and 4. and equitable. BOOKSURGE, LLC By its attorneys, /s/ Steven P. Wright Steven P. Wright (ME BBO# 009473) Kirkpatrick & Lockhart Preston Gates Ellis LLP State Street Financial Center One Lincoln Street Boston, MA 02111-2950 Stephen A. Smith (Pro Hac Vice) Matthew J. Segal (Pro Hac Vice) Kirkpatrick & Lockhart Preston Gates Ellis LLP 925 Fourth Avenue, Suite 2900 Seattle, Washington 98104-1158 October 29, 2007 BookSurge be awarded such other and further relief as the Court may deem just

-8-

CERTIFICATE OF SERVICE I hereby certify that on October 29, 2007, I electronically filed the Amended Answer and Cross-Claim of Defendant BookSurge, LLC to Second Amended Complaint of Plaintiff Shana Sandler with the Clerk of Court using the CM/ECF system which will send notification of such filings to the following counsel of record: Bernard J. Kubetz, Esq. Eaton Peabody 80 Exchange Street P.O. Box 1210 Bangor, ME 04401-1210 Bruce Mallonee, Esq. Rudman & Winchell, LLC 84 Harlow Street P.O. Box 1401 Bangor, ME 04402-1401 J. William Druary, Jr., Esq. Marden, Dubord, Bernier & Stevens 44 Elm Street P.O. Box 708 Waterville, ME 04903

/s/ Steven P. Wright Steven P. Wright

-9-