Impulse Marketing Group, Inc. v. National Small Business Alliance, Inc. et al

Filing 25

Impulse Marketing Group, Inc. v. National Small Business Alliance, Inc. et al

Doc. 25

Case 1:05-cv-07776-KMK

Document 25

Filed 02/17/2006

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------------- X : : IMPULSE MARKETING GROUP, INC., : 05 CV 7776 (KMK) : Plaintiff, : : REPLY TO AMENDED v. : COUNTERCLAIMS : NATIONAL SMALL BUSINESS ALLIANCE, INC. : and DIRECT CONTACT MEDIA, INC., : : Defendants. : ECF CASE -------------------------------------------------------------------- X Plaintiff Impulse Marketing Group, Inc. ("IMG" or "Plaintiff"), by its attorneys Klein, Zelman, Rothermel & Dichter, L.L.P., Reply to Defendant National Small Business Alliance, Inc.'s ("NSBA" or "Defendant") Amended Counterclaims as follows: PARTIES, JURISDICTION AND VENUE 1. Admits the allegations set forth in paragraph 1 of Defendant's Amended

Counterclaims. 2. Denies knowledge or information sufficient to form a belief as to the truth of the

allegation that "Counterplaintiff NSBA is incorporated in and has as its principal place of business Washington, D.C." as set forth in paragraph 2 of Defendant's Amended Counterclaims. Admit the allegation that "IMG and NSBA entered into an agreement under which both parties submitted to the jurisdiction of this Court."

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3.

The allegations contained in paragraph 3 of Defendant's Amended Counterclaims

call for conclusion of law to which no responsive pleading is required. To the extent that a response is required, Plaintiff denies same. 4. Denies that the amount of Defendant's Amended Counterclaims in controversy

exceeds Seventy Five Thousand Dollars ($75,000.00). 5. Admits the allegations set forth in paragraph 5 of Defendant's Amended

Counterclaims. BACKGROUND 6. The allegations set forth in paragraph 6 of Defendant's Amended Counterclaims

call for a conclusion of law to which no response is required. 7. Denies knowledge or information sufficient to form a belief as to the truth of the

allegation that "NSBA is a company that provides services primarily to small businesses" but admits the remaining allegation contained in paragraph 7 of Defendant's Amended Counterclaims. 8. No response is required as to the allegations set forth in paragraph 8 of

Defendant's Amended Counterclaims, as the Agreement speaks for itself. 9. Denies knowledge or information sufficient to form a belief as to the truth of the

allegation that "[B]ecause the field of commercial e-mails is heavily regulated by anti-`spam' laws and other unfair trade practice statutes, NSBA insisted on certain portions of the Agreement" as set forth in paragraph 9 of Defendants Amended Counterclaims except respectfully refers the Court to the Agreement for a full and accurate recitation of the terms thereof.
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10.

Plaintiff respectfully refers the Court to the Agreement for a full and accurate

recitation of the terms thereof. To the extent a response is required, Plaintiff denies same. 11. Denies knowledge or information sufficient to form a belief as to the truth of the

allegations set forth in paragraph 11 of Defendant's Amended Counterclaims. 12. Admit the allegations set forth in paragraph 12 of Defendant's Amended

Counterclaims. 13. Denies knowledge or information sufficient to form a belief as to the truth of the

allegations set forth in paragraph 13 of Defendant's Amended Counterclaims. 14. Denies the allegations set forth in paragraph 14 of Defendant's Amended

Counterclaims. 15. Denies the allegations set forth in paragraph 15 of Defendant's Amended

Counterclaims. 16. Denies the allegations set forth in paragraph 16 of Defendant's Amended

Counterclaims. 17. Denies the allegations set forth in paragraph 17 of Defendant's Amended

Counterclaims. 18. Denies the allegations set forth in paragraph 18 of Defendant's Amended

Counterclaims. 19. Denies the allegations set forth in paragraph 19 of Defendant's Amended

Counterclaims. 20. Denies the allegations set forth in paragraph 20 of Defendant's Amended

Counterclaims.
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21.

Denies the allegations set forth in paragraph 21 of Defendant's Amended

Counterclaims. FIRST AMENDED COUNTERCLAIM ­ BREACH OF CONTRACT 22. IMG repeats and reiterates each and every reply set forth in paragraphs 1 through

21 above, inclusive, as though set forth herein. 23. Counterclaim. 24. Counterclaim. 25. Counterclaim. SECOND AMENDED COUNTERCLAIM ­ BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 26. IMG repeats and reiterates each and every reply set forth in paragraphs 1 through Denies the allegations set forth in paragraph 25 of Defendant's First Amended Denies the allegations set forth in paragraph 24 of Defendant's First Amended Admits the allegations set forth in paragraph 23 of Defendant's First Amended

25 above, inclusive, as though set forth herein. 27. The allegations contained in paragraph 27 of Defendant's Second Amended

Counterclaim calls for conclusion of law to which no responsive pleading is required. 28. Counterclaim. 29. Counterclaim. THIRD AMENDED COUNTERCLAIM ­ LANHAM ACT FALSE ADVERTISING
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Denies the allegations set forth in paragraph 28 of Defendant's Second Amended

Denies the allegations set forth in paragraph 29 of Defendant's Amended Second

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30.

IMG repeats and reiterates each and every reply set forth in paragraphs 1 through

29 above, inclusive, as though set forth herein. 31. Counterclaim. 32. Counterclaim. 33. Counterclaim. 34. Counterclaim. 35. Counterclaim. 36. Counterclaim. 37. Counterclaim. 38. Counterclaim. FOURTH AMENDED COUNTERCLAIM ­ LANHAM ACT UNFAIR COMPETITION 39. IMG repeats and reiterates each and every reply set forth in paragraphs 1 through Denies the allegations set forth in paragraph 38 of Defendant's Third Denies the allegations set forth in paragraph 37 of Defendant's Third Denies the allegations set forth in paragraph 36 of Defendant's Third Denies the allegations set forth in paragraph 35 of Defendant's Third Denies the allegations set forth in paragraph 34 of Defendant's Third Denies the allegations set forth in paragraph 33 of Defendant's Third Denies the allegations set forth in paragraph 32 of Defendant's Third Amended Denies the allegations set forth in paragraph 31 of Defendant's Third Amended

38 above, inclusive, as though set forth herein.

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40. Counterclaim. 41. Counterclaim. 42. Counterclaim. 43. Counterclaim. 44. Counterclaim. 45. Counterclaim.

Denies the allegations set forth in paragraph 40 of Defendant's Fourth Amended

Denies the allegations set forth in paragraph 41 of Defendant's Fourth Amended

Denies the allegations set forth in paragraph 42 of Defendant's Fourth Amended

Denies the allegations set forth in paragraph 43 of Defendant's Fourth Amended

Denies the allegations set forth in paragraph 44 of Defendant's Fourth Amended

Denies the allegations set forth in paragraph 45 of Defendant's Fourth Amended

FIFTH AMENDED COUNTERCLAIM ­ TORTIOUS INTERFERENCE WITH PROSPECTIVE BUSINESS RELATIONS 46. Defendant repeats and reiterates each and every reply set forth in paragraphs 1

through 45 above, inclusive, as though set forth herein. 47. Plaintiff respectfully refers the Court to the Agreement for a full and accurate

recitation of the terms thereof. To the extent a response is required, Plaintiff denies same. 48. Counterclaim. 49. Counterclaim.
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Denies the allegations set forth in paragraph 48 of Defendant's Fifth Amended

Denies the allegations set forth in paragraph 49 of Defendant's Fifth Amended

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50. Counterclaim. 51. Counterclaim. 52. Counterclaim. 53. Counterclaim.

Denies the allegations set forth in paragraph 50 of Defendant's Fifth Amended

Denies the allegations set forth in paragraph 51 of Defendant's Fifth Amended

Denies the allegations set forth in paragraph 52 of Defendant's Fifth Amended

Denies the allegations set forth in paragraph 53 of Defendant's Fifth Amended

SIXTH AMENDED COUNT1 ­ TORTIOUS INTERFERENCE WITH PROSPECTIVE BUSINESS RELATIONS 54. Defendant repeats and reiterates each and every reply set forth in paragraphs 1

through 53 above, inclusive, as though set forth herein. 55. Count. 56. Count. 57. Count. Denies the allegations set forth in paragraph 57 of Defendant's Sixth Amended Denies the allegations set forth in paragraph 56 of Defendant's Sixth Amended Denies the allegations set forth in paragraph 55 of Defendant's Sixth Amended

1 For Defendant's sixth, seventh, eighth, ninth, tenth, and eleventh Amended Counterclaims, Defendant uses the term "count" instead of "Counterclaim" in its headings.
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58. Count. 59. Count. 60. Count.

Denies the allegations set forth in paragraph 58 of Defendant's Sixth Amended

Denies the allegations set forth in paragraph 59 of Defendant's Sixth Amended

Denies the allegations set forth in paragraph 60 of Defendant's Sixth Amended

SEVENTH AMENDED COUNT ­ NEW YORK GENERAL BUSINESS LAW § 350 61. Defendant repeats and reiterates each and every reply set forth in paragraphs 1

through 60 above, inclusive, as though set forth herein. 62. Count. 63. Count. 64. Count. EIGHTH AMENDED COUNT ­ COMMON LAW TRADEMARK INFRINGEMENT 65. Defendant repeats and reiterates each and every reply set forth in paragraphs 1 Denies the allegations set forth in paragraph 64 of Defendant's Seventh Amended Denies the allegations set forth in paragraph 63 of Defendant's Seventh Amended Denies the allegations set forth in paragraph 62 of Defendant's Seventh Amended

through 64 above, inclusive, as though set forth herein. 66. Denies knowledge or information sufficient to form a belief as to the truth of the

allegations set forth in paragraph 66 of Defendant's Eighth Amended Count.

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67. Count. 68. Count. 69. Count.

Denies the allegations set forth in paragraph 67 of Defendant's Eight Amended

Denies the allegations set forth in paragraph 68 of Defendant's Eighth Amended

Denies the allegations set forth in paragraph 69 of Defendant's Eighth Amended

NINTH AMENDED COUNT ­ COMMON LAW UNFAIR COMPETITION 70. Defendant repeats and reiterates each and every reply set forth in paragraphs 1

through 69 above, inclusive, as though set forth herein. 71. Count. TENTH AMENDED COUNT ­ MISAPPROPRIATION 72. Defendant repeats and reiterates each and every reply set forth in paragraphs 1 Denies the allegations set forth in paragraph 71 of Defendant's Ninth Amended

through 71 above, inclusive, as though set forth herein. 73. Count. 74. Count. ELEVENTH AMENDED COUNT ­ UNJUST ENRICHMENT 75. Defendant repeats and reiterates each and every reply set forth in paragraphs 1 Denies the allegations set forth in paragraph 74 of Defendant's Tenth Amended Denies the allegations set forth in paragraph 73 of Defendant's Tenth Amended

through 74 above, inclusive, as though set forth herein.

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76.

Denies the allegations set forth in paragraph 76 of Defendant's Eleventh

Amended Count. 77. Denies the allegations set forth in paragraph 77 of Defendant's Eleventh

Amended Count. 78. Denies the allegations set forth in paragraph 78 of Defendant's Eleventh

Amended Count. 79. Denies the allegations set forth in paragraph 79 of Defendant's Eleventh

Amended Count. AFFIRMATIVE DEFENSES TO DEFENDANT'S AMENDED COUNTERCLAIMS Without admitting any of the allegations of Defendant's Amended Counterclaims, IMG alleges as follows: FIRST AFFIRMATIVE DEFENSE Defendant's Amended Counterclaims fail to state a cause of action or to state a claim upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE Defendant's Amended Counterclaims are barred in whole or in part by the doctrine of unclean hands. THIRD AFFIRMATIVE DEFENSE Defendant's Amended Counterclaims are barred in whole or in part by the doctrine of estoppel. FOURTH AFFIRMATIVE DEFENSE Defendant's Amended Counterclaims are barred in whole or in part by the doctrine of
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laches. FIFTH AFFIRMATIVE DEFENSE Defendant's Amended Counterclaims are barred in whole or in part by the doctrine of waiver. SIXTH AFFIRMATIVE DEFENSE Defendant's Amended Counterclaims are barred, in whole or in part, by the doctrine of fair use. SEVENTH AFFIRMATIVE DEFENSE Defendant's Amended Counterclaims are barred, in whole or in part, because Defendant consented to permit IMG to use its name in commercial use. EIGHTH AFFIRMATIVE DEFENSE Defendant's Amended Counterclaims are barred, in whole or in part, because Defendant failed to mitigate its damages. To the extent that IMG violated the Lanham Act, which IMG has denied hereinabove, NSBA, inter alia, refused to cooperate with IMG to determine the identity of the third-party affiliate allegedly infringing upon NSBA's trademark. NINTH AFFIRMATIVE DEFENSE Defendant's Amended Counterclaims are barred, in whole or in part, because of Defendant's own material breaches. TENTH AFFIRMATIVE DEFENSE Defendant's Amended Counterclaims are barred, in whole or in part, because of Defendant's own intentional, culpable conduct.

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ELEVENTH AFFIRMATIVE DEFENSE Defendant's Amended Counterclaims are barred by specific provisions of the Agreement(s). WHEREFORE, IMG prays that the Court: 1. for IMG; 2. 3. 4. Deny any injunctive or equitable relief sought by Defendant; Award IMG its reasonable attorney's fees, disbursements, and costs; and Grant IMG such other and further relief as the Court may deem just and proper. Dismiss Defendant's Amended Counterclaims with prejudice and enter judgment

Dated: New York, New York February 17, 2006 KLEIN, ZELMAN, ROTHERMEL & DICHTER, L.L.P. By: ___s/_______________________________________ Sean A. Moynihan (SM-5129) Peter J. Glantz (PG-1063) 485 Madison Avenue New York, New York 10022 [phone] Attorneys for Plaintiff Impulse Marketing Group, Inc.

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