Energy Automation Systems, Inc. v. Xcentric Ventures, LLC et al

Filing 56

ANSWER to Amended Complaint by Edward Magedson, Xcentric Ventures, LLC.(Speth, Maria)

Energy Automation Systems, Inc. v. Xcentric Ventures, LLC et al

Doc. 56

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

ENERGY AUTOMATION SYSTEMS, INC., ) ) Plaintiff, ) ) v. ) ) XCENTRIC VENTURES, LLC, d/b/a/ ) BADBUSINESS BUREAU and/or ) BADBUSINESSBUREAU.COM and/or ) RIP-OFF REPORT and/or ) RIPOFFREPORT.COM and EDWARD ) MAGEDSON a/k/a/ ED MAGEDSON, ) ) Defendants.

Civil Action No.: 3:06-cv-01079 Judge Aleta Trauger Magistrate Judge Juliet Griffin JURY DEMAND

ANSWER OF DEFENDANT XCENTRIC VENTURES, LLC AND EDWARD MAGEDSON Come now the Defendants, XCENTRIC VENTURES, LLC, ("Xcentric") and Edward Magedson, by Counsel and, for their Answer to the Complaint filed by the Plaintiff, states: 1. Defendants are without knowledge or information to form a belief as to the

truth of the allegations contained in Paragraph 1 of Plaintiff's Amended Complaint, and therefore deny the same. 2. Defendants admit the allegations contained in Paragraph 2 of Plaintiff's

Amended Complaint.

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3. Complaint. 4.

Defendants admit the allegations contained in Paragraph 3 of Plaintiff's Amended

Defendants admit that the Court has subject matter jurisdiction and deny the

remaining allegations of Paragraph 4 of Plaintiff's Amended Complaint. 5. Complaint. Defendants deny the allegations contained in Paragraph 5 of Plaintiff's Amended

6.

Defendants are without knowledge or information to form a belief as to the

truth of the allegations contained in Paragraph 6 of Plaintiff's Amended Complaint and, therefore, deny the same.
7. Defendants are without knowledge or information to form a belief as to the truth of

the allegations contained in Paragraph 7 of Plaintiff's Amended Complaint and, therefore, deny the same. 8. Defendants are without knowledge or information to form a belief as to the truth of

the allegations contained in Paragraph 8 of Plaintiff's Amended Complaint and, therefore, deny the same. 9. Defendants deny that the Website is a commercial and interactive website and admit

the remaining allegations of Paragraph 9 of Plaintiff's Amended Complaint. 10. Complaint. 11. Defendants deny the allegations contained in Paragraph 11 that they solicit companies Defendants deny the allegations contained in Paragraph 10 of Plaintiff's Amended

from any particular jurisdiction and further deny that Defendants have edited the reports directed at Tennessee companies. Defendants affirmatively allege that Defendants can not be treated as 2
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publishers of the reports that they did not create. Defendants admit the remainder of the allegations contained in Paragraph 11 of Plaintiff's Amended Complaint. 12. Defendants deny that they have solicited reports about any particular company and

affirmatively allege that Defendant cannot be treated as publishers of those reports. Defendants admit the remainder of the allegations contained in Paragraph 12 of Plaintiff's Amended Complaint. 13. Complaint. 14. Complaint. 15. Defendants admit that Energy Automation Systems, Inc. ("EASI") is listed as a "Top Defendants deny the allegations contained in Paragraph 14 of Plaintiff's Amended Defendants deny the allegations contained in Paragraph 13 of Plaintiff's Amended

Rip-Off Links". Defendants deny the remaining allegations contained in Paragraph 15 of Plaintiff's Amended Complaint. 16. Defendants admit the allegations contained in Paragraph 16 of Plaintiff's Amended

Complaint that they created the list of categories and deny that Defendants choose the category in which to list the report. Defendants deny the remaining allegations contained in Paragraph 16 of Plaintiff's Amended Complaint. 17. Complaint. 18. Defendants admit the allegations contained in Paragraph 18 of Plaintiff's Amended Defendants deny the allegations contained in Paragraph 17 of Plaintiff's Amended

Complaint that Defendants exercise editorial control over the website. Defendants deny the remaining allegations contained in Paragraph 18 of Plaintiff's Amended Complaint.

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19.

Defendants deny that they have the unique ability to verify whether complainants are

who they say they are and whether content created by third-party complainants is accurate and truthful and admit the remaining allegations contained in Paragraph 19 of Plaintiff's Amended Complaint. 20. Complaint. 21. Defendants deny that reports are false and misleading and deny that Defendant Ed Defendants admit the allegations contained in Paragraph 20 of Plaintiff's Amended

Magedson demanded payment but admit the remaining allegations contained in Paragraph 21 of Plaintiff's Amended Complaint. 22. Complaint. 23. Complaint. 24. Complaint. 25. herein. 26. Complaint. 27. Complaint. Defendants deny the allegations contained in Paragraph 27 of Plaintiff's Amended Defendants deny the allegations contained in Paragraph 26 of Plaintiff's Amended Defendants repeat and reallege every paragraph of this Answer as if fully set forth Defendants deny the allegations contained in Paragraph 24 of Plaintiff's Amended Defendants deny the allegations contained in Paragraph 23 of Plaintiff's Amended Defendants deny the allegations contained in Paragraph 22 of Plaintiff's Amended

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28.

Defendants deny that Defendants' conduct is unlawful and Defendants are without

knowledge or information to form a belief as to the truth of the remaining allegations contained in Paragraph 28 of Plaintiff's Amended Complaint and, therefore, deny the same. 29. Complaint. 30. herein. 31. Complaint. 32. Complaint. 33. Complaint. 34. herein. 35. Complaint. 36. Complaint. 37. Complaint. Defendants deny the allegations contained in Paragraph 37 of Plaintiff's Amended Defendants deny the allegations contained in Paragraph 36 of Plaintiff's Amended Defendants deny the allegations contained in Paragraph 35 of Plaintiff's Amended Defendants repeat and reallege every paragraph of this Answer as if fully set forth Defendants deny the allegations contained in Paragraph 33 of Plaintiff's Amended Defendants deny the allegations contained in Paragraph 32 of Plaintiff's Amended Defendants deny the allegations contained in Paragraph 31 of Plaintiff's Amended Defendants repeat and reallege every paragraph of this Answer as if fully set forth Defendants deny the allegations contained in Paragraph 29 of Plaintiff's Amended

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38. Complaint. 39. herein. 40. Complaint. 41. Complaint. 42. Complaint. 43.

Defendants deny the allegations contained in Paragraph 38 of Plaintiff's Amended

Defendants repeat and reallege every paragraph of this Answer as if fully set forth

Defendants deny the allegations contained in Paragraph 40 of Plaintiff's Amended

Defendants deny the allegations contained in Paragraph 41 of Plaintiff's Amended

Defendants admit the allegations contained in Paragraph 42 of Plaintiff's Amended

Defendants deny that the statements were false and admit the remaining allegations

contained in Paragraph 42 of Plaintiff's Amended Complaint. 44. Compliant. 45. Complaint. 46. Complaint. Defendants deny the allegations contained in Paragraph 46 of Plaintiff's Amended Defendants deny the allegations contained in Paragraph 45 of Plaintiff's Amended Defendants deny the allegations contained in Paragraph 44 of Plaintiff's Amended

FIRST AFFIRMATIVE DEFENSE 47.
All averments of material fact contained in the Complaint which are not

specifically admitted in this Answer are denied. SECOND AFFIRMATIVE DEFENSE
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48.

Count I of the Complaint fails to state a cause of action against either of the

Defendants for which relief may be granted. THIRD AFFIRMATIVE DEFENSE 49. Count II of the Complaint fails to state a cause of action against either of the

Defendants for which relief may be granted. FOURTH AFFIRMATIVE DEFENSE 50. Count III of the Complaint fails to state a cause of action against either of the

Defendants for which relief may be granted. FIFTH AFFIRMATIVE DEFENSE 51. Count IV of the Complaint fails to state a cause of action against either of the

Defendants for which relief may be granted. SIXTH AFFIRMATIVE DEFENSE 52. The Defendant Xcentric does not reside in the State of Tennessee, has never

resided in Tennessee, and has never engaged in any business transactions within the State of Tennessee. Therefore, this Court lacks jurisdiction over the Defendant Xcentric. SEVENTH AFFIRMATIVE DEFENSE 53. The Defendant Edward Magedson does not reside in the State of Tennessee,

has never resided in Tennessee, and has never engaged in any business transactions within the State of Tennessee. Therefore, this Court lacks jurisdiction over the Defendant Edward Magedson.

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EIGHTH AFFIRMATIVE DEFENSE 54. The Defendant Xcentric is protected by the Communication Decency Act; 47

U.S.C. § 230 (the "CDA") and may not be treated as a publisher or author of the statements regarding EASI. NINTH AFFIRMATIVE DEFENSE 55. The substantive content of all statements on the websites on which the Plaintiff

bases its claims were authored by third parties. TENTH AFFIRMATIVE DEFENSE 56. The authors of all statements placed on the website(s) at issue in this action

were solely responsible for selecting the headings and categories on the website in which the statements were placed. ELEVENTH AFFIRMATIVE DEFENSE 57. The only actions taken by any employee or representative of Xcentric as to any

statement submitted by third parties were to remove objectionable language and private information, as contemplated by, and in full compliance with the provisions of the CDA. WHEREFORE, the Defendants Xcentric Ventures, LLC and Edward Magedson, pray: 1. 2. That the Court dismiss the Complaint filed by EASI, Inc.; That Edward Magedson and Xcentric be awarded their costs in this action,

including reasonable attorneys' fees;

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3. 4.

For a trial by jury on all issues so triable; and For such other and different relief to which Defendants Magedson and Xcentric

may be entitled under the law. Respectfully,

s/Maria Crimi Speth Maria Crimi Speth JABURG & WILK PC 3200 North Central Avenue Suite 2000 Phoenix, Arizona 85012 [phone]

s/William J. Shreffler James A. Freeman, III William J. Shreffler James A. Freeman & Associates, P.C. P O Box 40222 2804 Columbine Place Nashville, TN 37204 [phone] Attorneys for Defendants Xcentric Ventures, LLC and Edward Magedson

CERTIFICATE OF SERVICE I hereby certify that on July 11, 2007, a true and exact copy of the foregoing document has been filed electronically. Notice of this filing will be sent by operation of the Court's
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electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by postage prepaid U.S. Mail. Parties may access this filing through the Court's electronic filing system. Timothy l. Warnock John R. Jacobson William L. Campbell, Jr. W. Russell Taber, III Bowen Riley Warnock & Jacobson, P.C. 1906 West End Avenue Nashville, TN 37203
_s/Debra Gower

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