Gucci America, Inc. v. Frontline Processing Corporation et al

Filing 54

ANSWER to Complaint. Document filed by Durango Merchant Services LLC.(Wengrovsky, Todd)

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Gucci America, Inc. v. Frontline Processing Corporation et al Doc. 54 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK GUCCI AMERICA, INC., Plaintiff, v. FRONTLINE PROCESSING CORPORATION; WOODFOREST NATIONAL BANK; DURANGO MERCHANT SERVICES LLC d/b/a NATIONAL BANKCARD SYSTEMS OF DURANGO; ABC COMPANIES; and JOHN DOES, Defendants. : : : : : : : : : : : : x Civil Action No. 09-6925-HB District Judge Harold Baer, Jr. DEFENDANT DURANGO MERCHANT SERVICES, LLC.'S ANSWER Defendant Durango Merchant Services, LLC., by its attorney, Todd Wengrovsky, for its Answer and Defenses, states as follows: "NATURE OF ACTION" SECTION OF COMPLAINT 1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 2. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 3. Defendant admits that the statement was listed on Defendant's website, but is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph of the Complaint, and on that basis denies the remaining allegations of this paragraph of the Complaint. 1 Dockets.Justia.com 4. Defendant denies each and every allegation of this paragraph of the Complaint. 5. Defendant admits the allegations of this paragraph of the Complaint. 6. Defendant admits the allegations of this paragraph of the Complaint. 7. Defendant denies each and every allegation of this paragraph of the Complaint, with the further clarification that Defendant Durango Merchant Services, LLC. does not process credit card transactions. 8. Defendant denies each and every allegation of this paragraph of the Complaint. 9. Defendant denies each and every allegation of this paragraph of the Complaint. 10. Defendant denies each and every allegation of this paragraph of the Complaint. "PARTIES" SECTION OF COMPLAINT 11. Defendant admits the allegations of this paragraph of the Complaint. 12. Defendant admits the allegations of this paragraph of the Complaint. 13. Defendant admits the allegations of this paragraph of the Complaint. 14. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 15. Defendant admits the allegations of this paragraph of the Complaint. 16. Defendant admits the allegations of this paragraph of the Complaint. 17. Defendant denies each and every allegation of this paragraph of the Complaint. 18. Defendant denies each and every allegation of this paragraph of the Complaint. 2 "JURISDICTION AND VENUE" SECTION OF COMPLAINT 19. Defendant admits the allegations of this paragraph of the Complaint. 20. Defendant admits the allegations of this paragraph of the Complaint. 21. Defendant denies each and every allegation of this paragraph of the Complaint. 22. Defendant denies each and every allegation of this paragraph of the Complaint. 23. Defendant denies each and every allegation of this paragraph of the Complaint. "FACTUAL BACKGROUND" SECTION OF COMPLAINT 24. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 25. Defendant admits the allegations of this paragraph of the Complaint. 26. Defendant admits the allegations of this paragraph of the Complaint. 27. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 28. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 29. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 3 30. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 31. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 32. Defendant admits the allegations of this paragraph of the Complaint. 33. Defendant admits the allegations of this paragraph of the Complaint. 34. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 35. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 36. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 37. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 38. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations 4 of this paragraph of the Complaint. 39. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 40. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 41. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 42. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 43. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 44. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 45. Defendant denies each and every allegation of this paragraph of the Complaint. 46. Defendant denies each and every allegation of this paragraph of the Complaint. 47. Defendant denies each and every allegation of this paragraph of the Complaint. 5 48. Defendant admits the allegations of this paragraph of the Complaint. 49. Defendant admits the allegations of this paragraph of the Complaint, with the comment that all Internet or telephone transactions are considered "high risk" due to the lack of in-person customer signature and actual swipe of the customer's credit card. 50. Defendant admits the authenticity of the document identified in this paragraph of the Complaint, but clarifies that there was no processing agreement between the merchant and Durango. Because Durango is a broker, any agreements for credit card processing services would be between the merchant and credit card processing banks. 51. Defendant admits the allegation of this paragraph of the Complaint that Durango assisted Laurette, but denies the allegation that Durango did so "for the purpose of processing payments for Counterfeit Products." 52. Defendant admits that the e-mails were produced, but denies all remaining allegations of this paragraph of the Complaint. 53. Defendant admits the allegations of this paragraph of the Complaint. 54. Defendant admits the allegations of this paragraph of the Complaint. 55. Defendant admits the allegations of this paragraph of the Complaint. 56. Defendant denies each and every allegation of this paragraph of the Complaint, with the further comment that Durango is not an agent that is authorized to act on behalf of Frontline. 57. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 58. Defendant admits the allegations of this paragraph of the Complaint. 6 59. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 60. Defendant admits the allegations of this paragraph of the Complaint. 61. Defendant admits the allegations of this paragraph of the Complaint. 62. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 63. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 64. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 65. Defendant admits the allegations of this paragraph of the Complaint. 66. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 67. Defendant admits the allegations of this paragraph of the Complaint. 68. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 7 69. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 70. Defendant admits the allegations of this paragraph of the Complaint. 71. Defendant admits the allegations of this paragraph of the Complaint. 72. Defendant denies that it acted as Woodforest's agent, and admits the remaining allegations of this paragraph of the Complaint. 73. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 74. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 75. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 76. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 77. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 8 78. Defendant admits the allegations of this paragraph of the Complaint. 79. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 80. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 81. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 82. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 83. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 84. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 85. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 9 86. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 87. Defendant denies each and every allegation of this paragraph of the Complaint. 88. Defendant admits the allegations of this paragraph of the Complaint. 89. Defendant admits that the statements appeared on Defendant's website, and denies the remaining allegations of this paragraph of the Complaint. 90. Defendant denies each and every allegation of this paragraph of the Complaint. "FIRST CAUSE OF ACTION" SECTION OF COMPLAINT 91. Defendants repeat and incorporate by reference its replies in Paragraphs 1 through 90 herein inclusive. 92. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 93. Defendant denies each and every allegation of this paragraph of the Complaint. 94. Defendant denies each and every allegation of this paragraph of the Complaint. 95. Defendant denies each and every allegation of this paragraph of the Complaint. 96. Defendant denies each and every allegation of this paragraph of the Complaint. "SECOND CAUSE OF ACTION" SECTION OF COMPLAINT 97. Defendants repeat and incorporate by reference its replies in Paragraphs 1 through 96 herein 10 inclusive. 98. Defendant denies each and every allegation of this paragraph of the Complaint. 99. Defendant denies each and every allegation of this paragraph of the Complaint. 100. Defendant denies each and every allegation of this paragraph of the Complaint. 101. Defendant denies each and every allegation of this paragraph of the Complaint. 102. Defendant denies each and every allegation of this paragraph of the Complaint. "THIRD CAUSE OF ACTION" SECTION OF COMPLAINT 103. Defendants repeat and incorporate by reference its replies in Paragraphs 1 through 102 herein inclusive. 104. Defendant admits the allegations of this paragraph of the Complaint. 105. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Complaint, and on that basis denies the allegations of this paragraph of the Complaint. 106. Defendant denies each and every allegation of this paragraph of the Complaint. 107. Defendant denies each and every allegation of this paragraph of the Complaint. 108. Defendant denies each and every allegation of this paragraph of the Complaint. 109. Defendant denies each and every allegation of this paragraph of the Complaint. 110. Defendant denies each and every allegation of this paragraph of the Complaint. 111. Defendant denies each and every allegation of this paragraph of the Complaint. 112. Defendant denies each and every allegation of this paragraph of the Complaint. 113. Defendant denies each and every allegation of this paragraph of the Complaint. 11 114. Defendant denies each and every allegation of this paragraph of the Complaint. "FOURTH CAUSE OF ACTION" SECTION OF COMPLAINT 115. Defendants repeat and incorporate by reference its replies in Paragraphs 1 through 114 herein inclusive. 116. Defendant denies each and every allegation of this paragraph of the Complaint. 117. Defendant denies each and every allegation of this paragraph of the Complaint. 118. Defendant denies each and every allegation of this paragraph of the Complaint. 119. Defendant denies each and every allegation of this paragraph of the Complaint. 120. Defendant denies each and every allegation of this paragraph of the Complaint. 121. Defendant denies each and every allegation of this paragraph of the Complaint. 122. Defendant denies each and every allegation of this paragraph of the Complaint. 123. Defendant denies each and every allegation of this paragraph of the Complaint. 124. Defendant denies each and every allegation of this paragraph of the Complaint. "FIFTH CAUSE OF ACTION" SECTION OF COMPLAINT 125. Defendants repeat and incorporate by reference its replies in Paragraphs 1 through 124 herein inclusive. 126. Defendant denies each and every allegation of this paragraph of the Complaint. "SIXTH CAUSE OF ACTION" SECTION OF COMPLAINT 127. Defendants repeat and incorporate by reference its replies in Paragraphs 1 through 126 12 herein inclusive. 128. Defendant denies each and every allegation of this paragraph of the Complaint. DEFENDANTS' AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE The Complaint fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE Plaintiffs can not demonstrate injury, impact or damage as a result of any actions by Defendants. THIRD AFFIRMATIVE DEFENSE Defendants had no knowledge that any of their activities constituted infringement and thus their actions were innocent. WHEREFORE, Defendant Durango Merchant Services, LLC. respectfully requests this Court to grant judgment in its favor, order all claims of the complaint dismissed with prejudice, award Defendant all costs, expenses, disbursements and fees incurred herein, including reasonable attorneys' fees, and such other, further and different relief as the Court may deem just and proper. 13 Dated: Calverton, New York. July 7, 2010 . /s/ Todd Wengrovsky Todd Wengrovsky - TW4823 Law Offices of Todd Wengrovsky, PLLC. 285 Southfield Road, Box 585 Calverton, NY 11933 Tel (631) 727-3400 Attorney for Defendant Durango Merchant Services, LLC. 14

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