EEOC v. Blockbuster Inc.

Filing 49

ANSWER to 38 Third Party Complaint by Venturi Staffing Partners. (Attachments: # 1 Exhibit Exhibit No. 1)(Hemmendinger, Eric)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
v.
BLOCKBUSTER INC.,
Defendant and Third-Party
Plaintiff
v.
VENTURI STAFFING PARTNERS,
Third-Party Defendant.

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Case No. RWT-07-CV-2612
[Judge Roger W. Titus]
[Magistrate Judge Charles B. Day]

ANSWER OF THIRD-PARTY
DEFENDANT VENTURI STAFFING
PARTNERS TO THIRD-PARTY
COMPLAINT

For its Answer to the Third-Party Complaint, Third-Party Defendant Venturi Staffing
Partners (“Venturi”) states as follows:
THE PARTIES
1.

Venturi admits that Blockbuster, Inc. ("Blockbuster") is a Delaware corporation

and that Blockbuster operated a Distribution Center in Gaithersburg, Maryland (the
"Gaithersburg facility"). Venturi is without knowledge or information sufficient to form a belief
as to whether Blockbuster currently operates a Distribution Center in Gaithersburg.
Accordingly, this allegation is denied.
2.

Venturi admits that it is a Delaware corporation and that Venturi has done

business in the State of Maryland and in other jurisdictions. Venturi is without knowledge or

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information sufficient to form a belief as to whether it "was continuously doing business in the
State of Maryland" during "all relevant times." Accordingly, this allegation is denied.
JURISDICTION AND VENUE
3.

Venturi incorporates by reference its responses to Paragraphs 1-2 of the Third-

Party Complaint.
4.

Paragraph 4 of the Third-Party Complaint states a legal conclusion to which no

response is required. To the extent that a response is deemed necessary, Venturi denies the
allegations contained in Paragraph 4 of the Third-Party Complaint.
5.

Paragraph 5 of the Third-Party Complaint states a legal conclusion to which no

response is required. To the extent that a response is deemed necessary, Venturi denies the
allegations contained in Paragraph 5 of the Third-Party Complaint.
6.

Paragraph 6 of the Third-Party Complaint states a legal conclusion to which no

response is required. To the extent that a response is deemed necessary, Venturi denies the
allegations contained in Paragraph 6 of the Third-Party Complaint.
7.

Paragraph 7 of the Third-Party Complaint states a legal conclusion to which no

response is required. To the extent that a response is deemed necessary, Venturi denies the
allegations contained in Paragraph 7 of the Third-Party Complaint.
BACKGROUND
8.

Venturi incorporates by reference its responses to Paragraphs 1-7 of the Third-

Party Complaint.
9.

Venturi is without knowledge or information sufficient to form a belief as to the

truth of the allegations in Paragraph 9. Accordingly, these allegations are denied.

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10.

Venturi admits that it entered into a Services Agreement ("Agreement") with

Blockbuster with an effective date of June 1, 2004. A true and accurate copy of portions of the
Agreement is attached hereto as Exhibit 1 (with confidential and trade secret information
redacted to the extent not currently pertinent to the case). The Agreement is a document in
writing that speaks for itself and any characterization thereof in Paragraph 10 of the Third-Party
Complaint is denied.
11.

Venturi denies the allegations contained in Paragraph 11 of the Third-Party

Complaint. Venturi specifically denies that Blockbuster satisfied the condition precedent for
indemnification established by section 9.5 of the Agreement, which required Blockbuster to
timely and properly inform Venturi of any claim or proceeding against Blockbuster that may be
covered under the purported indemnity obligations of the Agreement.
12.

Venturi is without knowledge or information sufficient to form a belief as to the

truth of the allegations in Paragraph 12 of the Third-Party Complaint. Accordingly, these
allegations are denied.
13.

Venturi admits the allegations contained in Paragraph 13 of the Third-Party

Complaint.
14.

Paragraph 14 of the Third-Party Complaint states a legal conclusion to which no

responsive pleading is required. Venturi is without knowledge or information sufficient to form
a belief as to the meaning of "[a]t all times relevant to this lawsuit." To the extent that a response
is deemed necessary, Venturi denies the allegations contained in Paragraph 14 of the Third-Party
Complaint.

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15.

Venturi admits that Express Personnel hired temporary contractors and assigned

them to the Gaithersburg facility. Venturi denies the remaining allegations in Paragraph 15 of
the Third-Party Complaint.
16.

Venturi admits that the Charging Parties were hired by Express Personnel and

assigned to the Gaithersburg facility by Express Personnel. Venturi is without knowledge or
information sufficient to form a belief as to the truth of the remaining allegations in Paragraph
16. Accordingly, these allegations are denied.
17.

Paragraph 17 of the Third-Party Complaint states a legal conclusion to which no

responsive pleading is required. To the extent that a response is deemed necessary, Venturi
denies the allegations contained in Paragraph 17 of the Third-Party Complaint.
18.

Paragraph 18 of the Third-Party Complaint states a legal conclusion to which no

responsive pleading is required. To the extent that a response is deemed necessary, Venturi
admits that Express Personnel was a statutory employer of the Charging Parties. Venturi is
without knowledge or information sufficient to form a belief as to the truth of the allegation that
Express Personnel was a statutory employer of the alleged class members. Accordingly, Venturi
denies this allegation. To the extent the allegations in Paragraph 18 are intended to allege or
imply that no other entity was also a statutory employer of the Charging Parties and the alleged
class members, the allegations are denied.
19.

Venturi admits that Express Personnel was responsible for the wages, taxes, and

insurance, and other employment obligations of its employees, including the Charging Parties.
Venturi is without knowledge or information sufficient to form a belief as to the truth of the
allegation that Express Personnel was responsible for the wages, taxes, and insurance, and other

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employment obligations of the alleged class members. Accordingly, Venturi denies this
allegation. Venturi denies all other allegations in Paragraph 19 of the Third-Party Complaint not
specifically admitted in the first sentence of this response to Paragraph 19.
20.

Venturi is without knowledge or information sufficient to form a belief as to the

truth of the allegations in Paragraph 20 of the Third-Party Complaint. Accordingly, these
allegations are denied.
21.

Venturi admits that Express Personnel's office manager, Cynthia "Cinnie" Brown,

took a role in some of the administration and working arrangements of the temporary personnel
assigned to the Gaithersburg facility. Venturi denies all other allegations in Paragraph 21 of the
Third-Party Complaint.
22.

Venturi admits that, as part of her duties, Ms. Brown would have received,

processed, and investigated employee concerns and complaints, including complaints of sexual,
racial and national origin, and retaliatory harassment and discipline brought to her attention.
Venturi denies all other allegations in Paragraph 22 of the Third-Party Complaint.
23.

Venturi admits that Express Personnel was responsible, as warranted, for

discipline and termination of employment of its employees who were assigned to the
Gaithersburg facility. Venturi denies all other allegations in Paragraph 23 of the Third-Party
Complaint.
24.

Venturi admits the allegations contained in Paragraph 24 of the Third-Party

Complaint.
25.

Venturi admits that Plaintiff EEOC filed a complaint against Blockbuster on or

about September 26, 2007. The EEOC's complaint is a document in writing that speaks for itself

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and any characterization thereof in Paragraph 25 of the Third-Party Complaint is denied.
Blockbuster's response to the EEOC's complaint is contained in Blockbuster's answer to the
complaint, which is a document in writing that speaks for itself and any characterization thereof
in Paragraph 25 of the Third-Party Complaint is denied.
26.

Venturi admits the allegations contained in Paragraph 26 of the Third-Party

Complaint.
27.

Venturi admits the allegations contained in Paragraph 27 of the Third-Party

Complaint.
28.

Venturi admits that Blockbuster did not receive indemnification from Venturi

based on the EEOC's claims. Venturi denies the remaining allegations in Paragraph 28 of the
Third-Party Complaint. Venturi specifically denies that Blockbuster satisfied the condition
precedent for indemnification established by section 9.5 of the Agreement, which required
Blockbuster to timely and properly inform Venturi of any claim or proceeding against
Blockbuster that may be covered under the purported indemnity obligations of the Agreement.
COUNT ONE - INDEMNIFICATION
29.

Venturi incorporates by reference its responses to Paragraphs 1-28 of the Third-

Party Complaint.
30.

Venturi denies the allegations contained in Paragraph 30 of the Third-Party

Complaint.
31.

Venturi admits that it subcontracted with Express Personnel. Venturi denies the

remaining allegations contained in Paragraph 31 of the Third-Party Complaint.

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32.

Venturi denies the allegations contained in Paragraph 32 of the Third-Party

Complaint. Venturi specifically denies that Blockbuster satisfied the condition precedent for
indemnification established by section 9.5 of the Agreement, which required Blockbuster to
timely and properly inform Venturi of any claim or proceeding against Blockbuster that may be
covered under the purported indemnity obligations of the Agreement.
33.

Venturi denies the allegations contained in Paragraph 33 of the Third-Party

Complaint.
Plaintiff’s WHEREFORE Paragraph and Prayer for Relief do not contain any factual
allegations to which Venturi is required to respond; however, Venturi denies that Blockbuster is
entitled to any relief whatsoever.
Venturi denies each and every allegation of the Third-Party Complaint that is not
specifically admitted herein.
DEFENSES
Further answering and by way of defense, Venturi answers Blockbuster's Third-Party
Complaint as follows:
FIRST DEFENSE
Blockbuster's Third-Party Complaint fails to state a claim upon which relief can be
granted.
SECOND DEFENSE
Blockbuster's claim is barred because the contractual provision upon which it is based is
unenforceable because it violates public policy and/or the Fair Notice Doctrine.

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THIRD DEFENSE
Blockbuster's claim is barred pursuant to the doctrines of estoppel, waiver, laches, and
unclean hands.
FOURTH DEFENSE
Blockbuster claim is barred by Blockbuster's failing to have met conditions precedent, as
reflected in Exhibit 1, including but not limited to the condition precedent of timely and proper
notice set forth in section 9.5 of the Agreement.
FIFTH DEFENSE
All or part of Blockbuster's claim is barred by applicable statutes of limitations.
SIXTH DEFENSE
This Court lacks jurisdiction to adjudicate Blockbuster's claim and/or venue is improper.
SEVENTH DEFENSE
Blockbuster's claim is moot.
EIGHTH DEFENSE
Blockbuster's claim is not ripe.
NINTH DEFENSE
Blockbuster may have failed to join one or more indispensable parties.
TENTH DEFENSE
Blockbuster has failed to mitigate and/or reasonably avoid the consequences of any
damages for which indemnification is sought.

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ELEVENTH DEFENSE
Venturi's obligations, if any, are limited by the existence of other entities' obligations of
indemnification or insurance.
TWELFTH DEFENSE
Venturi is entitled to a setoff of amounts owed to and/or received by Blockbuster in
connection with the controversy at issue.
THIRTEENTH DEFENSE
Blockbuster's claim is barred by its failure to attach the contract at issue (even in redacted
form, so as not to reveal confidential information).
FOURTEENTH DEFENSE
Blockbuster's claim fails to state a real controversy or justiciable issue.
FIFTEENTH DEFENSE
Blockbuster's claim is barred by its material breach of the Agreement.
SIXTEENTH DEFENSE
Venturi reserves the right to supplement its Answer with additional defenses.

Respectfully submitted,

/s/ Eric Hemmendinger
Eric Hemmendinger (Bar No. 02050)
Shawe & Rosenthal, LLP
20 S. Charles Street, 11th Floor
Baltimore, MD 21201
Phone: [phone]
Fax: [phone]

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Deborah R. Lydon (Ohio Bar #0013322)
Michael J. Mott (Ohio Bar #0083404)
Dinsmore & Shohl LLP
Suite 1900
255 East Fifth Street
Cincinnati, OH 45202
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
Attorneys for Third-Party Defendant Venturi
Staffing Partners
CERTIFICATE OF SERVICE
I hereby certify that on January 16, 2009, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system which will send notification of such filing to the
following:
Debra Michele Lawrence, Esq.
Ronald L. Phillips, Esq.
Equal Employment Opportunity Commission
City Crescent Building
10 South Howard Street
Third Floor
Baltimore, MD 21201
Jacqueline H. McNair, Esq.
Equal Employment Opportunity Commission
801 Market Street
Penthouse Suite 1300
Philadelphia, PA 19107
Grace E. Speights, Esq.
Lexer I. Quamie, Esq.
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Avenue, NW
Washington, DC 20004
/s/ Eric Hemmendinger
1597597_2

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