Gordon v. Virtumundo Inc et al

Filing 31

ANSWER to Amended Complaint by Virtumundo Inc, Adknowledge Inc, Scott Lynn. (Attachments: # 1 Certificate of Service)(Townsend, Roger)

Gordon v. Virtumundo Inc et al

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. VIRTUMUNDO, INC, a Delaware corporation d/b/a ADNOWLEDGEMAIL.COM; ADKNOWLEDGE, INC., a Delaware corporation, d/b/a ADKNOWLEDGEMAIL.COM; SCOTT LYNN, an individual; and JOHN DOES, 1-X, Defendants.

The Honorable John C. Coughenour

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE JAMES S. GORDON, Jr., a married individual, d/b/a `GORDONWORKS.COM'; OMNI INNOVATIONS, LLC, a Washington limited liability company; Plaintiff, No. CV06-0204JCC DEFENDANTS' ANSWER AND AFFIRMATIVE DEFENSES TO THE FIRST AMENDED COMPLAINT

Defendants VIRTUMUNDO, INC. ("Virtumundo"), ADKNOWLEDGE, INC. ("Adknowledge") and SCOTT LYNN ("Lynn")(collectively, "Defendants") answer Plaintiffs' First Amended Complaint ("FAC") and assert affirmative defenses as follows: I. ANSWER 1.1. Defendants are without knowledge and information sufficient to form a belief with respect to the veracity of the allegations contained in
505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

DEFTS' ANSWER - 1 (CV06-0204JCC)

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

Dockets.Justia.com

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Paragraph 1.1 of Plaintiffs' FAC, and therefore DENY the same. 1.2. Defendants are without knowledge and information sufficient to form a belief with respect to the veracity of the allegations contained in Paragraph 1.2 of Plaintiffs' FAC, and therefore DENY the same. 1.3. Defendants ADMIT that Adknowledge is a Delaware corporation and has its principal place of business in the state of Missouri. Defendants ADMIT that Virtumundo is a Delaware corporation and has its principal place of business in the state of Kansas. Defendants DENY all other allegations contained in Paragraph 1.3 of Plaintiffs' FAC. 1.4. Defendants ADMIT Scott Lynn is an individual and a resident of Kansas City, Missouri. Defendants ADMIT Scott Lynn is a director of Adknowledge. Defendants ADMIT Scott Lynn a shareholder in Virtumundo and Adknowledge. Defendants are without knowledge and information sufficient to form a belief with respect to the veracity of the following allegations and therefore DENY the same: "All acts and practices undertaken by Schran on behalf of Ascentive are and were for the benefit of his marital community." Defendants DENY all other allegations contained in Paragraph 1.4 of Plaintiffs' FAC. 1.5. 1.6. 2.1. Defendants ADMIT Lynn is a resident of Missouri. Defendants Defendants DENY the allegations contained in Paragraph 1.6 of Defendants ADMIT the Court has original jurisdiction over DENY all other allegations contained in Paragraph 1.5 of Plaintiffs' FAC. Plaintiffs' FAC. causes of action brought under the CAN-SPAM Act, 15 U.S.C. § 7701 et seq. ("CAN-SPAM"). Defendants DENY all other allegations contained in Paragraph 2.1 of Plaintiffs' FAC. 2.2. Defendants DENY the allegations contained in Paragraph 2.2 of Plaintiffs' FAC. DEFTS' ANSWER - 2 (CV06-0204JCC)
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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2.3.

Defendants ADMIT they send emails to persons who have

affirmatively indicated their desire to receive those emails. Defendants are without knowledge and information sufficient to form a belief with respect to the veracity of Plaintiffs' allegations that Defendants' emails "are received on computers and other electronic devices owned and maintained by residents of the State in the State", and therefore DENY the same. Defendants DENY all other allegations contained in Paragraph 2.3 of Plaintiffs' FAC. 2.4. Defendants ADMIT Plaintiffs' FAC contains various allegations, but provide those allegations speak for themselves; accordingly, Defendants DENY all other allegations contained in Paragraph 2.4 of Plaintiffs' FAC. 2.5. Defendants are without knowledge and information sufficient to form a belief with respect to the veracity of the allegations contained in Paragraph 2.5 of Plaintiffs' FAC, and therefore DENY the same. 2.6. Defendants provide the statutes cited in Paragraph 2.6 of Plaintiffs' FAC speak for themselves, and Plaintiffs' interpretation of those statutes is not a factual allegation which must be admitted or denied. Defendants DENY all allegations contained in Paragraph 2.6 of Plaintiffs' FAC. 3.1. Defendants incorporate their answers to Paragraphs 1.1 through 2.6 above as though fully stated herein. Defendants DENY any allegations contained in Paragraph 3.1 of Plaintiff's FAC. 3.2. Defendants DENY Plaintiff James S. Gordon, Jr. ("Gordon") is an interactive computer service pursuant to the statutes cited in Paragraph 3.2 of Plaintiffs' FAC or any other definition of "interactive computer service". Defendants are without knowledge and information sufficient to form a belief with respect to the veracity of the remaining allegations contained in Paragraph 3.2 of Plaintiffs' FAC, and therefore DENY the same. 3.3. Defendants DENY Plaintiff Omni Innovations, LLC ("Omni") is
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

DEFTS' ANSWER - 3 (CV06-0204JCC)

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an interactive computer service pursuant to the statutes cited in Paragraph 3.3 of Plaintiffs' FAC or any other definition of "interactive computer service". Defendants are without knowledge and information sufficient to form a belief with respect to the veracity of the remaining allegations contained in Paragraph 3.3 of Plaintiffs' FAC, and therefore DENY the same. 3.4. Defendants are without knowledge and information sufficient to form a belief with respect to the veracity of the allegations contained in Paragraph 3.4 of Plaintiffs' FAC, and therefore DENY the same. 3.5. Defendants are without knowledge and information sufficient to form a belief with respect to the veracity of the allegations contained in Paragraph 3.5 of Plaintiffs' FAC, and therefore DENY the same. 3.6. 3.7. 4.1. Defendants DENY the allegations contained in Paragraph 3.6 of Defendants DENY the allegations contained in Paragraph 3.7 of FIRST ALLEGED CAUSE OF ACTION Plaintiffs' FAC. Plaintiffs' FAC. Defendants incorporate their answers to Paragraphs 1.1 through 3.7 of Plaintiffs' FAC as though fully stated herein. Defendants DENY any allegations contained in the unnumbered first paragraph of Section 4.1 of Plaintiffs' FAC. 4.1.1. Defendants DENY the allegations contained in Paragraph 4.1.1 of Plaintiffs' FAC. 4.1.2. Defendants DENY the allegations contained in Paragraph 4.1.2 of Plaintiffs' FAC. 4.1.3. Defendants DENY the allegations contained in Paragraph 4.1.3 of Plaintiffs' FAC. 4.1.4. Defendants DENY the allegations contained in Paragraph 4.1.4 of Plaintiffs' FAC. DEFTS' ANSWER - 4 (CV06-0204JCC)
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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4.1.5. Defendants DENY the allegations contained in Paragraph 4.1.5 of Plaintiffs' FAC. 4.1.6. Defendants DENY the allegations contained in the first "Paragraph 4.1.6" of Plaintiffs' FAC. 4.1.7. Defendants DENY the allegations contained in Paragraph 4.1.7 of Plaintiffs' FAC. 4.1.8. Defendants DENY the allegations contained in Paragraph 4.1.8 of Plaintiffs' FAC. 4.1.9. Defendants DENY the allegations contained in Paragraph 4.1.9 of Plaintiffs' FAC. 4.1.10. Defendants ADMIT Plaintiffs seek injunctive relief but DENY Plaintiffs are entitled to any such relief. Defendants DENY all other allegations contained in Paragraph 4.1.10 of Plaintiffs' FAC. 4.1.11. Defendants ADMIT Plaintiffs seek their "attorney fees and costs" but DENY Plaintiffs are entitled to them. Defendants DENY all other allegations contained in the second paragraph of Plaintiffs' FAC numbered "4.1.6". 4.2. SECOND AND THIRD ALLEGED CAUSES OF ACTION Defendants incorporate their answers to Paragraphs 1.1 through the second Paragraph "4.1.6 " of Plaintiffs' FAC as though fully stated herein. Defendants DENY any allegations contained in the unnumbered first paragraph of Section 4.2 of Plaintiffs' FAC. 4.2.1. Defendants provide the statutes cited in Paragraph 4.2.1 of Plaintiffs' FAC speak for themselves, and Plaintiffs' interpretation of those statutes is not a factual allegation which must be admitted or denied. Defendants DENY all allegations contained in Paragraph 4.2.1 of Plaintiffs' FAC. 4.2.2. Defendants DENY the allegations contained in Paragraph 4.2.2 of DEFTS' ANSWER - 5 (CV06-0204JCC)
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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Plaintiffs' FAC. 4.2.3. Defendants provide the statute cited in Paragraph 4.2.3 of Plaintiffs' FAC speaks for itself, and Plaintiffs' interpretation of that statute is not a factual allegation which must be admitted or denied. Defendants specifically DENY the following allegation: "Numerous emails sent by Defendants and received by Plaintiffs violated this provision of the CEMA", and further DENY all other allegations contained in Paragraph 4.2.3 of Plaintiffs' FAC. 4.2.4. Defendants DENY the allegations contained in Paragraph 4.2.4 of Plaintiffs' FAC. 4.2.5. Defendants DENY the allegations contained in Paragraph 4.2.5 of Plaintiffs' FAC. 4.2.6. Defendants DENY the allegations contained in the unnumbered final paragraph of Section 4.2 of Plaintiffs' FAC. 4.3. FOURTH ALLEGED CAUSE OF ACTION Defendants incorporate their answers to Paragraphs 1.1 through the unnumbered final paragraph of Section 4.2 of Plaintiffs' FAC as though fully stated herein. Defendants DENY any allegations contained in the unnumbered first paragraph of Section 4.3 of Plaintiffs' FAC. 4.3.1. Defendants provide the statutes cited in Paragraph 4.3.1 of Plaintiffs' FAC speak for themselves, and Plaintiffs' interpretation of those statutes is not a factual allegation which must be admitted or denied. Defendants DENY all allegations contained in Paragraph 4.3.1 of Plaintiffs' FAC. 4.3.2. Defendants DENY the allegations contained in Paragraph 4.3.2 of Plaintiffs' FAC. 5. Defendants provide Plaintiffs' jury demand is not a factual allegation which must be admitted or denied. Defendants DENY all DEFTS' ANSWER - 6 (CV06-0204JCC)
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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allegations contained in Paragraph 5 of Plaintiffs' FAC. II. AFFIRMATIVE DEFENSES Without admitting any allegations contained in Plaintiffs' FAC, Defendants assert the following affirmative defenses: 6.1. 6.2. 6.3. 6.4. 6.5. Plaintiffs are barred from obtaining any relief sought in the FAC Plaintiffs are barred from obtaining any relief because Plaintiffs Plaintiffs are barred from obtaining any relief because Plaintiffs Plaintiffs are barred from obtaining any relief sought in the FAC Plaintiffs are barred from obtaining any relief sought in the FAC because the FAC fails to state any claim upon which relief may be granted. failed to mitigate their alleged damages, if any. subscribed to receive commercial emails on which Plaintiffs base their FAC. by reason of their own unclean hands. because Plaintiffs failed to unsubscribe utilizing unsubscribe links in the emails or other means reasonably calculated to communicate to Defendants an intent to unsubscribe. 6.6. 6.7. Plaintiffs waived their claims. Plaintiffs are not entitled to damages from Defendants where

Plaintiffs have already been compensated by another entity for alleged damages allegedly caused by Defendants. 6.8. 6.9. Plaintiffs consented to all actions they complain about in their Plaintiffs ratified and approved all actions they complain about in FAC, and therefore Plaintiffs are not entitled to any relief. their FAC, and therefore Plaintiffs are not entitled to any relief. 6.10. Plaintiffs' claims, and each of them, are barred by the doctrine of estoppel. 6.11. Plaintiffs' claims, and each of them, are barred by the doctrine of DEFTS' ANSWER - 7 (CV06-0204JCC)
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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laches. 6.12. The damages alleged in Plaintiffs' FAC, if any, were not caused by Defendants, or any of them; rather, any damages suffered by Plaintiffs were caused by one or more third parties whose activities were not approved, ratified, or controlled by any Defendant. 6.13. Plaintiffs have failed to join one or more necessary and indispensable parties. 6.14. Defendants established and implemented, with due care, commercially reasonable practices and procedures designed to effectively prevent the violations alleged in the FAC. 6.15. Defendants made commercially reasonable efforts to maintain compliance with their practices and procedures designed to effectively prevent the violations alleged in the FAC. 6.16. To the extent any action by Defendants violate CAN-SPAM, Defendants, each of them, acted without actual knowledge, or knowledge fairly implied on the basis of objective circumstances, of the act or omission that constitutes the violation. III. PRAYER FOR RELIEF WHEREFORE, Defendants VIRTUMUNDO, INC., ADKNOWLEDGE, INC. and SCOTT LYNN respectfully request that the Court enter judgment against Plaintiffs JAMES S. GORDON, Jr. and OMNI INNOVATIONS, LLC, and in favor of Defendants, as follows: 1. Judgment Dismissing Plaintiffs' Claims. That the Court enter a judgment dismissing Plaintiffs' claims against Defendants alleged in the FAC and denying Plaintiffs' requested relief. 2. Attorneys' Fees and Costs. That the Court award Defendants their reasonable attorneys' fees and costs incurred in defending this lawsuit. DEFTS' ANSWER - 8 (CV06-0204JCC)
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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3.

Other Equitable Relief. That the Court grant such other and

further relief to Defendants as the Court shall deem just and equitable. DATED this 29th day of August, 2006. Respectfully Submitted, NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

By:

Derek A. Newman, WSBA No. 26967 Roger M. Townsend, WSBA No. 25525 Attorneys for Defendants VIRTUMUNDO, INC., ADKNOWLEDGE, INC. and SCOTT LYNN

DEFTS' ANSWER - 9 (CV06-0204JCC)

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

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