Omni Innovations LLC v. Ascentive LLC et al

Filing 67

ANSWER to Amended Complaint by Defendants Ascentive LLC, Adam Schran. (Attachments: # 1 Certificate of Service)(Townsend, Roger)

Omni Innovations LLC v. Ascentive LLC et al

Doc. 67

Case 2:06-cv-01284-JCC

Document 67

Filed 02/22/2007

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1.

The Honorable Thomas S. Zilly

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE OMNI INNOVATIONS, LLC, a Washington limited liability company; Emily Abbey, an individual, Plaintiffs, v. ASCENTIVE, LLC, a Delaware limited liability company; ADAM SCHRAN, individually and as part of his marital community; JOHN DOES, I-X, Defendants. Defendants Ascentive, LLC ("Ascentive") and Adam Schran ("Schran") (together, "Defendants") answer and assert affirmative defenses to Plaintiffs' First Amended Complaint (the "FAC"), as follows: I. ANSWER Defendants are without knowledge and information sufficient to form a belief with respect to the veracity of the allegations in Paragraph 1 of Plaintiffs' FAC, and therefore DENY the same. 2. Defendants are without knowledge and information sufficient to form a belief with respect to the veracity of the allegations in Paragraph 2 of Plaintiffs' FAC, and therefore DENY the same. 3. Defendants ADMIT that Ascentive is a Delaware limited liability company
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

NO. 06-CV-01284 TSZ ANSWER TO FIRST AMENDED COMPLAINT

ANSWER TO FIRST AMENDED COMPLAINT (06-CV-01284 TSZ) - 1

Dockets.Justia.com

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and has its principal place of business in Philadelphia, Pennsylvania. Defendants DENY all other allegations contained in Paragraph 3 of Plaintiffs' FAC. 4. Defendants ADMIT that Schran is an officer of Ascentive and resides in the state of Pennsylvania. Defendants DENY all other allegations contained in Paragraph 4 of Plaintiffs' FAC. 5. Defendants provide the statutes cited in Paragraph 5 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 5 of Plaintiffs' FAC. 6. Defendants provide the statute cited in Paragraph 6 of Plaintiffs' FAC speaks for itself, and Plaintiffs' interpretation of that statute is not a factual allegation which must be admitted or denied. Defendants DENY all allegations contained in Paragraph 6 of Plaintiffs' FAC. 7. Defendants provide the statute cited in Paragraph 7 of Plaintiffs' FAC speaks for itself, and Plaintiffs' interpretation of that statute is not a factual allegation which must be admitted or denied. Defendants DENY all allegations contained in Paragraph 7 of Plaintiffs' FAC. 8. Defendants DENY Plaintiff Omni Innovations, LLC ("Omni") is an interactive computer service pursuant to the statutes cited in 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 in Paragraph 8 of Plaintiffs' FAC, and therefore DENY the same. 9. Defendants are without knowledge and information sufficient to form a belief with respect to the veracity of the allegations in Paragraph 9 of Plaintiffs' FAC, and therefore DENY the same. 10. FAC. 11. Defendants are without knowledge and information sufficient to form a
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

Defendants DENY all allegations contained in Paragraph 10 of Plaintiffs'

ANSWER TO FIRST AMENDED COMPLAINT (06-CV-01284 TSZ) - 2

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belief with respect to the veracity of the allegations in Paragraph 11 of Plaintiffs' FAC, and therefore DENY the same. 12. Defendants are without knowledge and information sufficient to form a belief with respect to the veracity of the allegations in Paragraph 12 of Plaintiffs' FAC, and therefore DENY the same. 13. FAC. 14. FAC. 15. FAC. 16. FAC. 17. FAC. 18. FAC. 19. FAC. 20. FAC. 21. Defendants provide the section of Plaintiffs' FAC titled "Request for Relief" does not contain factual allegations which must be admitted or denied. Defendants DENY all allegations contained in the section of Plaintiffs' FAC titled "Request for Relief", and further DENY Plaintiffs are entitled to any of their requested relief. II. AFFIRMATIVE DEFENSES Without admitting any of the allegations described in Plaintiffs' FAC, Defendants
ANSWER TO FIRST AMENDED COMPLAINT (06-CV-01284 TSZ) - 3
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

Defendants DENY all allegations contained in Paragraph 13 of Plaintiffs' Defendants DENY all allegations contained in Paragraph 14 of Plaintiffs' Defendants DENY all allegations contained in Paragraph 15 of Plaintiffs' Defendants DENY all allegations contained in Paragraph 16 of Plaintiffs' Defendants DENY all allegations contained in Paragraph 17 of Plaintiffs' Defendants DENY all allegations contained in Paragraph 18 of Plaintiffs' Defendants DENY all allegations contained in Paragraph 19 of Plaintiffs' Defendants DENY all allegations contained in Paragraph 20 of Plaintiffs'

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raise the following affirmative defenses: 1.1. 1.2. 1.3. 1.4. 1.5. Plaintiffs are barred from obtaining any relief sought in the FAC because Plaintiffs are barred from obtaining any relief because Plaintiffs failed to Plaintiffs are barred from obtaining any relief because Plaintiffs subscribed Plaintiffs are barred from obtaining any relief sought in the FAC by reason 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. mitigate their alleged damages, if any. to receive commercial emails on which Plaintiffs base their FAC. of their own unclean hands. Plaintiffs failed to unsubscribe utilizing unsubscribe links in the emails or other means reasonably calculated to communicate to Defendants an intent to unsubscribe. 1.6. 1.7. Defendants. 1.8. 1.9. Plaintiffs consented to all actions they complain about in their FAC, and Plaintiffs ratified and approved all actions they complain about in their therefore Plaintiffs are not entitled to any relief. FAC, and therefore Plaintiffs are not entitled to any relief. 1.10. Plaintiffs' claims, and each of them, are barred by the doctrine of estoppel. 1.11. Plaintiffs' claims, and each of them, are barred by the doctrine of laches. 1.12. 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. 1.13. Plaintiffs have failed to join one or more necessary and indispensable parties.
ANSWER TO FIRST AMENDED COMPLAINT (06-CV-01284 TSZ) - 4
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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

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1.14. Defendants established and implemented, with due care, commercially reasonable practices and procedures designed to effectively prevent the violations alleged in the FAC. 1.15. Defendants made commercially reasonable efforts to maintain compliance with their practices and procedures designed to effectively prevent the violations alleged in the FAC. 1.16. 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 request that this Court: 1. 2. 3. 4. DISMISS Plaintiffs' FAC against Defendants alleged herein; DENY Plaintiffs the relief they seek; GRANT Defendants their reasonable costs and attorneys' fees incurred in GRANT such other and further relief to Defendants as the Court shall deem

defending against Plaintiff's FAC; and just and equitable. DATED this 22nd day of February, 2007. Respectfully Submitted, NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP By:

Derek A. Newman, WSBA No. 26967 [e-mail] Roger M. Townsend, WSBA No. 25525 [e-mail] Attorneys for Defendants Ascentive, LLC and Adam Schran

ANSWER TO FIRST AMENDED COMPLAINT (06-CV-01284 TSZ) - 5

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]