SANDLER v. CALCAGNI et al

Filing 80

SANDLER v. CALCAGNI et al

Doc. 80

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.

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Case No. 07-CV-00029-GZS

REPLY OF DEFENDANT BOOKSURGE, LLC TO CROSSCLAIM OF RALPH CALCAGNI AND MAUREEN CALCAGNI Defendant BOOKSURGE, LLC ( BookSurge ), through its attorneys, Kirkpatrick & Lockhart Preston Gates Ellis, LLP, answers the Crossclaim filed against it by Defendants Ralph Calcagni and Maureen Calcagni as follows: 1. Answering Paragraph 1 of the Crossclaim, BookSurge is without sufficient

knowledge to answer the allegations contained in Paragraph 1 of the Crossclaim, which shall have the effect of a denial. 2. 3. 4. 5. Answering Paragraph 2 of the Crossclaim, BookSurge denies the same. Answering Paragraph 3 of the Crossclaim, BookSurge admits the same. Answering Paragraph 4 of the Crossclaim, BookSurge admits the same. Answering Paragaph 5 of the Crossclaim, BookSurge denies the same.

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Answering Paragraph 6 of the Crossclaim, 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. Failure to State a Claim. Defendants Ralph Calcagni and Maureen Calcagni s

Crossclaim fails to state a claim upon which relief may be granted. 2. Failure to Mitigate Damages. Defendants Ralph Calcagni and Maureen Calcagni s

damages, if any, are reduced or barred by their failure to mitigate damages. 3. Waiver, Laches and Estoppel. Defendants Ralph Calcagni and Maureen Calcagni s

Crossclaim is barred by their own conduct, including acts constituting waiver, laches and/or estoppel. 4. Statute of Limitations. Defendants Ralph Calcagni and Maureen Calcagni s

Crossclaim is barred by applicable statutes of limitations. 5. Untimely Filed. Defendants Ralph Calcagni and Maureen Calcagni s November 9,

2007 Crossclaim is untimely because the Court s August 14, 2007 Scheduling Order set October 30, 2007 as the deadline for filing amended pleadings. 6. Unclean Hands. Defendants Mia Calcagni, Ralph Calcagni and Maureen Calcagni

have unclean hands and are not entitled to the relief requested in the November 9, 2007 Crossclaim. 7. BookSurge incorporates the affirmative defenses set forth in response to the Second

Amended Complaint filed against it by Shana Sandler as if fully set forth herein.

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REQUEST FOR RELIEF WHEREFORE, BookSurge prays for the following relief: 1. prejudice; 2. Booksurge be awarded its costs and reasonable attorneys fees under all applicable Defendants Ralph Calcagni and Maureen Calcagni s Crossclaim be dismissed with

statutes, court rules and recognized grounds of equity; and 3. equitable. BookSurge be awarded such other and further relief as the Court may deem just and

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) Kari Vander Stoep (Pro Hac Vice) Kirkpatrick & Lockhart Preston Gates Ellis LLP 925 Fourth Avenue, Suite 2900 Seattle, Washington 98104-1158 December 28, 2007

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CERTIFICATE OF SERVICE I hereby certify that on December 28, 2007, I electronically filed the Reply of Defendant BookSurge, LLC to Crossclaim of Ralph Calcagni and Maureen Calcagni 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

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