White et al v. West Publishing Corporation et al

Filing 40

ANSWER to 37 Amended Complaint,. Document filed by Reed Elsevier Inc..(Hough, James)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EDWARD L. WHITE, P.C.,
ECF CASE

Plaintiff,
Civil Action No. 12-CV-1340 (JSR)
v.
WEST PUBLISHING CORPORATION
d/b/a “West,” and REED ELSEVIER INC.
d/b/a LexisNexis,

DEFENDANT REED ELSEVIER
INC.’S ANSWER TO PLAINTIFF’S
AMENDED COMPLAINT

Defendants.

Defendant LexisNexis, a div. of Reed Elsevier Inc. (“LexisNexis”), by its
attorneys Morrison & Foerster LLP, answers the amended complaint of Plaintiff Edward
L. White, P.C. (“Plaintiff”), dated June 26, 2012, in the above-captioned action (the
“Amended Complaint”) as follows:
1.

Denies the allegations in Paragraph 1 of the Amended Complaint that

pertain to LexisNexis and denies knowledge or information sufficient to form a belief as
to the truth of the allegations in Paragraph 1 of the Amended Complaint that pertain to
Defendant West Publishing Corporation d/b/a “West” (“West”), except admits that
Plaintiff has filed an action against LexisNexis and West asserting a cause of action for
copyright infringement.
2.

Denies the allegations in Paragraph 2 of the Amended Complaint that

pertain to LexisNexis and denies knowledge or information sufficient to form a belief as
to the truth of the allegations in Paragraph 2 of the Amended Complaint that pertain to
West, except admits that LexisNexis offers electronic, searchable content that can be used
for legal research.

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3.

Avers that the allegations in Paragraph 3 of the Amended Complaint are

legal conclusions to which no response is required, but otherwise denies the allegations in
Paragraph 3 of the Amended Complaint.
4.

Denies knowledge or information sufficient to form a belief as to the truth

of the allegations in Paragraph 4 of the Amended Complaint, except admits that the two
documents identified in Paragraph 4 of the Amended Complaint have appeared on
LexisNexis’s service under the citations 2009 U.S. Dist. Ct. Motions LEXIS 79681 and
2010 U.S. Dist. Ct. Motions LEXIS 5166, respectively.
5.

Admits the allegations of Paragraph 5 of the Amended Complaint.

6.

Denies knowledge or information sufficient to form a belief as to the truth

of the allegations in Paragraph 6 of the Amended Complaint.
7.

Avers that the allegations in Paragraph 7 of the Amended Complaint are

legal conclusions to which no response is required.
8.

Avers that the allegations in Paragraph 8 of the Amended Complaint are

legal conclusions to which no response is required.
9.

Avers that the allegations in Paragraph 9 of the Amended Complaint are

legal conclusions to which no response is required.
10.

Admits the allegations in Paragraph 10 of the Amended Complaint that

pertain to LexisNexis, except denies knowledge or information sufficient to form a belief
as to the truth of the allegations in Paragraph 10 of the Amended Complaint that pertain
to West.
11.

Denies the allegations in Paragraph 11 of the Amended Complaint, and

denies knowledge or information sufficient to form a belief as to the truth of the

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allegations in Paragraph 11 of the Amended Complaint that pertain to West, except
admits that LexisNexis includes legal memoranda, briefs, motions, and other materials
authored by attorneys that have been filed with courts of record as part of the service
offered to its customers.
12.

Denies the allegations in Paragraph 12 of the Amended Complaint that

pertain to LexisNexis, and denies knowledge or information sufficient to form a belief as
to the truth of the allegations in Paragraph 12 of the Amended Complaint that pertain to
West, except admits that content that appears on LexisNexis’s service is text searchable
and LexisNexis includes images of certain content as part of its service.
13.

Denies the allegations in Paragraph 13 of the Amended Complaint that

pertain to LexisNexis and denies knowledge or information sufficient to form a belief as
to the truth of the allegations in Paragraph 13 of the Amended Complaint that pertain to
West, except admits that LexisNexis generally makes content available to its subscribers
for a fee, either as part of a subscription or a per-document charge.
14.

Admits that the statement alleged in Paragraph 14 of the Amended

Complaint, except for the term “database,” is contained on the LexisNexis website, and
avers that it is accessible at http://certsupport.lexisnexis.com/lexiscom/record.asp?ArticleID=lexiscom_finding_briefs&Print=1
15.

Denies knowledge or information sufficient to form a belief as to the truth

of the allegations in Paragraph 15 of the Amended Complaint.
16.

Denies the allegations in Paragraph 16 of the Amended Complaint that

pertain to LexisNexis, denies knowledge or information sufficient to form a belief as to
the truth of the allegations in Paragraph 16 of the Amended Complaint that pertain to

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West, and avers that LexisNexis’s Briefs, Pleadings and Motions product is available to a
single attorney at varying rates.
17.

Denies the allegations in Paragraph 17 of the Amended Complaint that

pertain to LexisNexis, denies knowledge or information sufficient to form a belief as to
the truth of the allegations in Paragraph 17 of the Amended Complaint that pertain to
West, and avers that, in addition to LexisNexis’s use of the Works, as that term is defined
in the Amended Complaint, being permitted as fair use, LexisNexis has an implied
license to use the Works.
18.

Denies the allegations in Paragraph 18 of the Amended Complaint that

pertain to LexisNexis, denies knowledge or information sufficient to form a belief as to
the truth of the allegations in Paragraph 18 of the Amended Complaint that pertain to
West.
19.

Denies the allegations in Paragraph 19 of the Amended Complaint that

pertain to LexisNexis and denies knowledge or information sufficient to form a belief as
to the truth of the allegations in Paragraph 19 of the Amended Complaint that pertain to
West.
20.

Avers that the allegations in Paragraph 20 of the Amended Complaint are

legal conclusions to which no response is required, but otherwise denies the allegations in
Paragraph 20 of the Amended Complaint that pertain to LexisNexis, except admits that
LexisNexis holds certain copyright rights, and denies knowledge or information
sufficient to form a belief as to the truth of the allegations in Paragraph 20 of the
Amended Complaint that pertain to West.

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21.

Avers that the allegations in Paragraph 21 of the Amended Complaint are

legal conclusions to which no response is required, but otherwise denies the allegations in
Paragraph 21 of the Amended Complaint that pertain to LexisNexis and denies
knowledge or information sufficient to form a belief as to the truth of the allegations in
Paragraph 21 of the Amended Complaint that pertain to West.
22.

LexisNexis repeats, reiterates, and realleges its responses to each of the

allegations in the foregoing paragraphs as if set forth in full herein.
23.

Avers that the allegations in Paragraph 23 of the Amended Complaint are

legal conclusions to which no response is required, but otherwise denies the allegations in
Paragraph 23 of the Amended Complaint that pertain to LexisNexis and denies
knowledge or information sufficient to form a belief as to the truth of the remaining
allegations in Paragraph 23 of the Amended Complaint.
24.

Avers that the allegations in Paragraph 24 of the Amended Complaint are

legal conclusions to which no response is required, but otherwise denies knowledge or
information sufficient to form a belief as to the truth of the allegations in Paragraph 24 of
the Amended Complaint.
25.

Avers that the allegations in Paragraph 25 of the Amended Complaint are

legal conclusions to which no response is required, but otherwise denies the allegations in
Paragraph 25 of the Amended Complaint that pertain to LexisNexis and denies
knowledge or information sufficient to form a belief as to the truth of the allegations in
Paragraph 25 of the Amended Complaint that pertain to West.
26.

Avers that the allegations in Paragraph 26 of the Amended Complaint are

legal conclusions to which no response is required, but otherwise denies the allegations in

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Paragraph 26 of the Amended Complaint that pertain to LexisNexis and denies
knowledge or information sufficient to form a belief as to the truth of the allegations in
Paragraph 26 of the Amended Complaint that pertain to West.
27.

Avers that the allegations in Paragraph 27 of the Amended Complaint are

legal conclusions to which no response is required, but otherwise denies the allegations in
Paragraph 27 of the Amended Complaint that pertain to LexisNexis and denies
knowledge or information sufficient to form a belief as to the truth of the allegations in
Paragraph 27 of the Amended Complaint that pertain to West.
28.

Avers that the allegations in Paragraph 28 of the Amended Complaint are

legal conclusions to which no response is required, but otherwise denies the allegations in
Paragraph 28 of the Amended Complaint that pertain to LexisNexis and denies
knowledge or information sufficient to form a belief as to the truth of the allegations in
Paragraph 28 of the Amended Complaint that pertain to West.
29.

LexisNexis repeats, reiterates, and realleges its responses to each of the

allegations in the foregoing paragraphs as if set forth in full herein.
30.

Denies the allegations in Paragraph 30 of the Amended Complaint that

pertain to LexisNexis and denies knowledge or information sufficient to form a belief as
to the truth of the allegations in Paragraph 30 of the Amended Complaint that pertain to
West.
31.

Avers that the allegations in Paragraph 31 of the Amended Complaint are

legal conclusions to which no response is required, but otherwise denies the allegations in
Paragraph 31 of the Amended Complaint that pertain to LexisNexis and denies

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knowledge or information sufficient to form a belief as to the truth of the allegations in
Paragraph 31 of the Amended Complaint that pertain to West.
32.

Avers that the allegations in Paragraph 32 of the Amended Complaint are

legal conclusions to which no response is required, but otherwise denies the allegations in
Paragraph 32 of the Amended Complaint that pertain to LexisNexis and denies
knowledge or information sufficient to form a belief as to the truth of the allegations in
Paragraph 32 of the Amended Complaint that pertain to West.
33.

Avers that the allegations in Paragraph 33 of the Amended Complaint are

legal conclusions to which no response is required, but otherwise denies the allegations in
Paragraph 33 of the Amended Complaint that pertain to LexisNexis and denies
knowledge or information sufficient to form a belief as to the truth of the allegations in
Paragraph 33 of the Amended Complaint that pertain to West.
34.

Avers that the allegations in Paragraph 34 of the Amended Complaint are

legal conclusions to which no response is required, but otherwise denies the allegations in
Paragraph 34 of the Amended Complaint that pertain to LexisNexis and denies
knowledge or information sufficient to form a belief as to the truth of the allegations in
Paragraph 34 of the Amended Complaint that pertain to West.
35.

Avers that the allegations in Paragraph 35 of the Amended Complaint are

legal conclusions to which no response is required, but otherwise denies the allegations in
Paragraph 35 of the Amended Complaint that pertain to LexisNexis and denies
knowledge or information sufficient to form a belief as to the truth of the allegations in
Paragraph 35 of the Amended Complaint that pertain to West.

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36.

LexisNexis repeats, reiterates, and realleges its responses to each of the

allegations in the foregoing paragraphs as if set forth in full herein.
37.

Avers that the allegations in Paragraph 37 of the Amended Complaint are

legal conclusions to which no response is required, but otherwise denies the allegations in
Paragraph 37 of the Amended Complaint that pertain to LexisNexis and denies
knowledge or information sufficient to form a belief as to the truth of the allegations in
Paragraph 37 of the Amended Complaint that pertain to West.
38.

Avers that the allegations in Paragraph 38 of the Amended Complaint are

legal conclusions to which no response is required, but otherwise denies the allegations in
Paragraph 38 of the Amended Complaint that pertain to LexisNexis and denies
knowledge or information sufficient to form a belief as to the truth of the allegations in
Paragraph 38 of the Amended Complaint that pertain to West.
AFFIRMATIVE DEFENSES
As and for its affirmative defenses, LexisNexis alleges as follows, without
assuming any burden of pleading or proof that would otherwise rest with Plaintiff, and
without waiving and hereby expressly reserving the right to assert any and all additional
defenses at such time and to such extent as discovery and factual developments establish
a basis therefore:
FIRST AFFIRMATIVE DEFENSE
39.

The Amended Complaint fails, in whole or in part, to state a claim against

LexisNexis upon which relief may be granted.

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SECOND AFFIRMATIVE DEFENSE
40.

LexisNexis has an implied license to use the Works, as that term is defined

in the Amended Complaint.
THIRD AFFIRMATIVE DEFENSE
41.

The relief sought in the Amended Complaint is barred by the doctrine of

fair use.
FOURTH AFFIRMATIVE DEFENSE
42.

LexisNexis’s use of the Works, as that term is defined in the Amended

Complaint, is permitted pursuant to public policy.
FIFTH AFFIRMATIVE DEFENSE
43.

The relief sought in the Amended Complaint is barred to the extent that

Plaintiff is not the legal or beneficial owner of the copyrights in the Works, as that term is
defined in the Amended Complaint.
SIXTH AFFIRMATIVE DEFENSE
44.

The relief sought in the Amended Complaint is barred, in whole or in part,

by the applicable statute of limitations.
SEVENTH AFFIRMATIVE DEFENSE
45.

The relief sought in the Amended Complaint is barred to the extent that

the Works, as that term is defined in the Amended Complaint, are not protected by
copyright law.
EIGHTH AFFIRMATIVE DEFENSE
46.

The relief sought in the Amended Complaint is barred, in whole or in part,

by the doctrine of laches.

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NINTH AFFIRMATIVE DEFENSE
47.

The relief sought in the Amended Complaint is barred, in whole or in part,

by the doctrines of waiver and/or equitable estoppel.
TENTH AFFIRMATIVE DEFENSE
48.

The relief sought in the Amended Complaint is barred, in whole or in part,

by the doctrine of unclean hands.
ELEVENTH AFFIRMATIVE DEFENSE
49.

The relief sought in the Amended Complaint is barred, in whole or in part,

to the extent that LexisNexis’s use of the Works, as that term is defined in the Amended
Complaint, was licensed or otherwise authorized.
TWELFTH AFFIRMATIVE DEFENSE
50.

The relief sought in the Amended Complaint is barred, in whole or in part,

because Plaintiff has not suffered any damages or harm.
THIRTEENTH AFFIRMATIVE DEFENSE
51.

The relief sought in the Amended Complaint is barred, in whole or in part,

because Plaintiff has failed to mitigate damages, if any.
FOURTEENTH AFFIRMATIVE DEFENSE
52.

The prayer for statutory damages and attorneys’ fees is barred to the extent

that the alleged copyrights do not meet the registration requirements of 17 U.S.C.
§ 412(2).
FIFTEENTH AFFIRMATIVE DEFENSE
53.

The injunctive relief sought by Plaintiff is barred, in whole or in part,

because Plaintiff has available an adequate remedy at law.

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PRAYER FOR RELIEF
WHEREFORE, LexisNexis respectfully requests as follows:
A.

That judgment be entered in favor of LexisNexis and against Plaintiff;

B.

That the Amended Complaint be dismissed with prejudice;

C.

That LexisNexis be awarded its costs of suit herein incurred;

D.

That LexisNexis be awarded its expenses, including reasonable attorneys’

fees; and
E.

For such other and further relief as the Court may deem just and proper.

Dated: July 13, 2012

MORRISON & FOERSTER LLP
/s/ James E. Hough
James E. Hough
Craig B. Whitney
1290 Avenue of the Americas
New York, NY 10104
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
James F. McCabe (admitted pro hac vice)
Paul Goldstein (admitted pro hac vice)
425 Market Street
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant
LexisNexis, a div. of REED ELSEVIER INC.

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