Harris v. Blockbuster Inc

Filing 6

Original ANSWER to 5 Amended Complaint filed by Blockbuster Inc (tln)

Harris v. Blockbuster Inc

Doc. 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION CATHRYN ELAINE HARRIS, MARIO HERRERA, and MARYAM HOSSEINY on behalf of themselves and all others similarly situated, Plaint iffs, v. BLOCKBUSTER INC. Defendant. § § § § § § § § § § § §

CIVIL ACTION NO. 2:08-cv-00155

ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT BLOCKBUSTER INC. Subject to and without waiving its mot ion to transfer venue and mot ion to compel individual arbitration, Defendant Blockbuster Inc. ("Blockbuster" or "Defendant") files it s Original Answer and Affirmative Defenses to Plaint iffs' First Amended Complaint ("Co mplaint") as fo llows: I. ARBITRATION AND VENUE

Plaint iffs Cathryn Elaine Harris, Mario Herrera, and Maryam Hosseiny and Blockbuster are parties to a mandatory arbitration agreement requiring this dispute to be resolved by individual arbitration. In light of this agreement, Blockbuster seeks individual arbitration o f this matter under the Federal Arbitration Act. Blockbuster submits this Answer and Affirmat ive Defenses subject to and without waiving its right to compel individual arbitration under the Agreement. Subject to and without waiving its right to compel individual arbitrat ion of this matter, Blockbuster is filing contemporaneously herewit h a Motion to Transfer Venue to the United

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States District Court for the Northern District of Texas because this act ion has no connectio n with the Eastern District of Texas and it would be inconvenient for this act ion to proceed any further in this District. II. 1. ANSWER

The allegations contained in paragraph 1 of the Complaint are legal conclusio ns to

which a response is not required. To the extent a response is required, Defendant denies the allegat ions contained in paragraph 1 of the Complaint. 2. Wit h respect to the first sentence o f paragraph 2 of the Co mplaint, Defendant is

without sufficient knowledge or informat ion to form a belief as to the truth of the allegat ions contained therein, except that Defendant admit s that Harris is a user o f Blockbuster Online and believes that Harris is a Dallas Count y resident. Defendant denies all the remaining allegat ions contained in paragraph 2 of the Complaint. 3. Wit h respect to the first sentence o f paragraph 3 of the Co mplaint, Defendant is

without sufficient knowledge or informat ion to form a belief as to the truth of the allegat ions contained therein, except that Defendant believes that Herrera is a Dallas Count y resident. Defendant denies all the remaining allegat ions contained in paragraph 3 of the Complaint. 4. Wit h respect to the first sentence o f paragraph 4 of the Co mplaint, Defendant is

without sufficient knowledge or informat ion to form a belief as to the truth of the allegat ions contained therein, except that Defendant admits that Hosseiny is a user of Blockbuster Online and believes that Hosseiny is a Dallas County resident. Defendant denies all the remaining allegat ions contained in paragraph 4 of the Complaint.

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5.

Defendant admits that Blockbuster is a Delaware corporation. Defendant further

admits that it does business in Texas and that it has been served in this act ion. Otherwise, Defendant denies the allegat ions contained in paragraph 5 of the Complaint. 6. The allegations contained in paragraph 6 of the Complaint are legal conclusio ns to

which a response is not required. 7. 8. Defendant denies the allegat ions contained in paragraph 7 of the Complaint. Defendant is wit hout sufficient knowledge or information to form a belief as to Defendant is wit hout sufficient

the accuracy o f the quotations contained in paragraph 8.

knowledge or information to form a belief as to the truth of the remaining allegat ions contained in paragraph 8 of the Complaint. 9. The allegations contained in paragraph 9 of the Complaint are legal conclusio ns to

which a response is not required. To the extent a response is required, Defendant denies the allegat ions contained in paragraph 9 of the Complaint. 10. 11. Defendant admits the allegat ions contained in paragraph 10 of the Complaint. Defendant is wit hout sufficient knowledge or information to form a belief as to

the truth of the allegations contained in paragraph 11 of the Complaint. 12. Defendant admits the allegations contained in the first sentence of paragraph 12 of

the Co mplaint. Defendant is wit hout sufficient knowledge or informat ion to form a belief as to the remaining allegat ions contained in paragraph 12 of the Complaint. 13. Defendant is wit hout sufficient knowledge or information to form a belief as to

the truth of the allegations contained in paragraph 13 o f the Co mplaint, except that Defendant admits that Facebook issued a press release in November 2007 relat ing to Blockbuster.

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14.

Defendant is wit hout sufficient knowledge or information to form a belief as to

the truth of the allegations contained in paragraph 14 o f the Co mplaint, except that Defendant admits that the Beacon system is designed to permit businesses to communicate with their customers. 15. 16. 17. Defendant denies the allegat ions contained in paragraph 15 of the Complaint. Defendant denies the allegat ions contained in paragraph 16 of the Complaint. Defendant is wit hout sufficient knowledge or information to form a belief as to

the truth of the allegat ions contained in paragraph 17 of the Complaint, but Defendant admits that Facebook issued a press release in December 2007 about its Beacon feature. 18. Defendant is wit hout sufficient knowledge or information to form a belief as to

the accuracy o f the quotation contained in paragraph 18 o f the Co mplaint. Defendant denies the remaining allegations contained in paragraph 18 of the Complaint. 19. Defendant admit s that users o f Facebook have to give their express consent to

send the beacon summaries to friends. Defendant further admits that Facebook made changes to their Beacon system on or before November 29, 2007, and users of Facebook have to give their express consent to send the beacon summaries to friends. Defendant denies the remaining allegat ions contained in paragraph 19 of the Complaint. 20. 21. 22. Defendant denies the allegat ions contained in paragraph 20 of the Complaint. Defendant denies the allegat ions contained in paragraph 21 of the Complaint. Defendant admits that the quote contained in paragraph 22 was included in a press

release of Facebook. Defendant denies any remaining allegat ions in paragraph 22. 23. 24. Defendant denies the allegat ions contained in paragraph 23 of the Complaint. Defendant denies the allegat ions contained in paragraph 24 of the Complaint.

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25. 26. 27. 28. 29.

Defendant denies the allegat ions contained in paragraph 25 of the Complaint. Defendant denies the allegat ions contained in paragraph 26 of the Complaint. Defendant denies the allegat ions contained in paragraph 27 of the Complaint. Defendant denies the allegat ions contained in paragraph 28 of the Complaint. The allegat ions contained in paragraph 29 are legal conclusio ns to which a

response is not required. To the extent a response is required, Defendant denies the allegations but admit s that it operates a website where members can rent or purchase DVDs. 30. 31. 32. Defendant denies the allegat ions contained in paragraph 30 of the Complaint. Defendant denies the allegat ions contained in paragraph 31 of the Complaint. The allegat ions contained in paragraph 32 o f the Complaint are legal conclusio ns

to which a response is not required. To the extent a response is required, Defendant denies the allegat ions contained in paragraph 32 of the Complaint. 33. The allegat ions contained in paragraph 33 o f the Complaint are legal conclusio ns

to which a response is not required. To the extent a response is required, Defendant denies the allegat ions contained in paragraph 33 of the Complaint. 34. The allegat ions contained in paragraph 34 o f the Complaint are legal conclusio ns

to which a response is not required. To the extent a response is required, Defendant denies the allegat ions contained in paragraph 34 of the Complaint. 35. The allegat ions contained in paragraph 35 o f the Complaint are legal conclusio ns

to which a response is not required. To the extent a response is required, Defendant denies the allegat ions contained in paragraph 35 of the Complaint.

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36.

The allegat ions contained in paragraph 36 o f the Complaint are legal conclusio ns

to which a response is not required. To the extent a response is required, Defendant denies the allegat ions contained in paragraph 36 of the Complaint. 37. 38. 39. 40. Defendant denies the allegat ions contained in paragraph 37 of the Complaint. Defendant denies the allegat ions contained in paragraph 38 of the Complaint. Defendant denies the allegat ions contained in paragraph 39 of the Complaint. Defendant denies any and all allegat ions contained in Plaint iffs' demand for relie f

contained in the Co mplaint and requests that Plaint iffs take nothing in this suit and that this matter be dismissed with prejudice, with costs and fees awarded to Defendant. III. DEFENDANT'S AFFIRMATIVE DEFENSES

Wit hout assuming the burden of proof as to the fo llowing (other than any burden imposed by law) and subject to and wit hout waiving its right to compel individual arbitrat ion, Defendant further asserts: 1. Plaint iffs' claims are barred because they are covered by a mandatory arbitration

agreement, which requires individual arbitration and prohibits part icipat ion in a class act ion or class-wide arbitrat ion. 2. Plaint iffs' Co mplaint, and each count thereof, fails to state a claim upon which

relief may be granted. 3. Plaint iffs' claims are barred by the provisions of 18 U.S.C. § 2710(b)(2)(A)

because each alleged disclosure of informat ion, if any, was made to the consumer. 4. Plaint iffs' claims are barred by the provisions of 18 U.S.C. § 2710(b)(2)(E)

because each alleged disclo sure of informat ion, if any, was made in the ordinary course of business.

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5.

Plaint iffs' claims are barred because the alleged disclosure, if any, did not contain

personally ident ifiable informat ion as defined under applicable law. 6. Plaint iffs' claims are barred by the provisio ns of 18 U.S.C. § 2710(b)(2)(B)

because each alleged disclosure of informat ion, if any, was made with Plaint iff's consent. 7. Plaint iffs' claims are barred in who le or in part by the provisio ns of 18 U.S.C.

§ 2710(b)(2)(D). 8. Plaint iffs' claims are barred because 18 U.S.C. § 2710(a)(4) and § 2710(b)(1) are

not applicable to the conduct of Defendant as alleged by Plaint iff. 9. Plaint iffs' claims are barred because the alleged disclosure, if any, was not made

knowingly as defined under applicable law. 10. Plaint iffs' claims are barred by the doctrines o f estoppel and waiver. Plaint iffs'

claims are also barred because Plaint iffs consented to or invited any alleged disclosure o f informat ion. 11. Plaint iffs' own conduct, and/or the conduct of other persons caused the damages

that Plaint iffs seek to recover from Defendant. Accordingly, Defendant cannot be held liable under any circumstances, or, alternat ively, Plaint iffs' damages, if any, must be reduced by the amount of damages caused by Plaint iffs' own intent ional and negligent conduct and/or the conduct of others. 12. 13. 14. Plaint iffs' claims are barred by the doctrine of ratificat ion. Plaint iffs' claims are barred by the doctrine of unclean hands. Plaint iffs' claims are barred because applicat ion of 18 U.S.C. § 2710 in this case

would vio late Blockbuster's rights to free speech and its right to communicate to its customers.

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15.

Plaint iffs may not recover under 18 U.S.C. § 2710 because Plaint iffs did not

suffer actual damages. Plaint iffs' claims are barred because they have not suffered any injury by reason of any act alleged to have been co mmitted by Defendant. 16. Plaint iffs may not recover liquidated damages under 18 U.S.C. § 2710(c)(2)(A)

because such damages would const itute a penalt y. 17. Plaint iffs' claims for damages are in contravent ion of Defendants' rights under

the United States and state constitutions, including, but not limited to, the Due Process Clause o f the United States Const itution. 18. The damages that Plaint iffs seek would be disproportionate to the harm alleged or

suffered by Plaint iffs and excessive and would violate Defendants' rights under the due process clauses o f the United States and applicable state constitutions. Addit ionally, Plaint iffs' request for annihilat ing liquidated damages vio lates Defendant's const itutional rights under the United States Constitution and applicable state constitutions. 19. 20. Plaint iffs failed to mit igate their alleged damages. Plaint iffs cannot recover liquidated damages or punit ive damages under

applicable law. In addit io n or in the alternat ive, Plaint iffs' claims for liquidated damages or exemplary damages are subject to the limitat ions and requirements of applicable state laws, including, for example, Chapter 41 of the Texas Civil Practice and Remedies Code. Plaint iffs ' claims for liquidated damages or exemplary damages are in contravention of Defendant's rights under the United States and state constitutions. Also, with respect to Plaint iffs' demand for certain damages, Defendant specifically incorporates by reference any and all standards or limitations regarding the determinat ion and recovery of damages that appear in the fo llowing opinio ns, amo ng others: State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); BMW

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of N. Am. v. Gore, 517 U.S. 559 (1996). In addit ion, the same t ypes o f limits that apply to Plaint iffs' claims for punit ive damages should be applied to Plaint iffs' claims for non-pecuniar y or non-economic damages. 21. Blockbuster has not completed its invest igat ion and discovery regarding the facts

and claims asserted by Plaint iffs. Accordingly, Blockbuster reserves the right to assert addit ional defenses as necessary based on its ongoing invest igation and discovery.

IV.

PRAYER

WHEREFORE, Defendant denies that Plaint iffs are entit led to any relief whatsoever and respectfully requests (a) that Plaint iffs take nothing by their act ion; (b) that this Court dismiss Plaint iffs' claims with prejudice; (c) that this Court assess costs and fees against Plaint iffs; and (d) that this Court award such other and further relief to which it may be just ly entit led.

Respect fully submitted,

/s/ Michael L. Raiff __________________________ Michael L. Raiff State Bar No. 00784803 Frank C. Brame State Bar No. 24031874 Vinson & Elkins L.L.P. 2001 Ross Avenue, Suite 3700 Dallas, Texas 75201 214.220.7705 214.999.7705 (fax) [e-mail] m ATTORNEYS FOR DEFENDANT BLOCKBUSTER INC.

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Original Answer and Affirmat ive Defenses of Blockbuster Inc. was served by ECF on the 17th day of June, 2008 on counsel o f record for Plaint iffs.

/s/ Michael L. Raiff __________________________ Michael L. Raiff

1399413_2.DOC

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