Omni Innovations LLC et al v. BMG Music Publishing NA Inc et al

Filing 16

ANSWER to Amended Complaint by BMG Columbia House Inc. (Attachments: # 1 Certificate of Service)(Townsend, Roger)

Omni Innovations LLC et al v. BMG Music Publishing NA Inc et al

Doc. 16

Case 2:06-cv-01350-JCC

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The Honorable John C. Coughenour

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE OMNI INNOVATIONS, LLC, a Washington limited liability company; and JAMES S. GORDON, JR., a married individual, Plaintiffs, v. BMG COLUMBIA HOUSE, INC., a New York corporation; and JOHN DOES, 1-X, Defendants. No. 06-cv-01350-JCC DEFENDANT BMG COLUMBIA HOUSE, INC.'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT

Defendant, BMG Columbia House, Inc. ("Defendant") answers and asserts affirmative defenses to Plaintiffs' Second Amended Complaint (the "SAC"), as follows:

I. ANSWER 1. Defendant is without knowledge and information sufficient to form a belief with

respect to the veracity of the allegations in Paragraph 1 of Plaintiffs' SAC, and therefore DENIES the same. 2. Defendant is without knowledge and information sufficient to form a belief with

respect to the veracity of the allegations in Paragraph 2 of Plaintiffs' SAC, and therefore DENIES the same. 3. Defendant ADMITS that Defendant is a corporation incorporated pursuant to the
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

DEF. BMG COLUMBIA HOUSE, INC.'S ANSWER TO PLS.' SECOND AM. COMPL. [06-cv-01350-JCC] - 1

Dockets.Justia.com

Case 2:06-cv-01350-JCC

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laws of the State of Delaware and has its principal place of business in New York, New York. Defendant DENIES all other allegations contained in Paragraph 3 of Plaintiffs' SAC. 4. Defendant provides the statutes cited in Paragraph 4 of Plaintiffs' SAC speak for

themselves, and Plaintiffs' interpretation of those statutes is not a factual allegation which must be admitted or denied. Defendant DENIES all allegations contained in Paragraph 4 of Plaintiffs' SAC. 5. Defendant provides the statute cited in Paragraph 5 of Plaintiffs' SAC speaks for

itself, and Plaintiffs' interpretation of that statute is not a factual allegation which must be admitted or denied. Defendant DENIES all allegations contained in Paragraph 5 of Plaintiffs' SAC. 6. Defendant provides the statute cited in Paragraph 6 of Plaintiffs' SAC speaks for

itself, and Plaintiffs' interpretation of that statute is not a factual allegation which must be admitted or denied. Defendant DENIES all allegations contained in Paragraph 6 of Plaintiffs' SAC. 7. Defendant DENIES Plaintiff James S. Gordon, Jr. ("Gordon") is an interactive

computer service or Internet access service. Defendant is without knowledge and information sufficient to form a belief with respect to the veracity of the remaining allegations in Paragraph 8 of Plaintiffs' SAC, and therefore DENIES the same. 8. Defendant DENIES Plaintiff Omni Innovations, LLC ("Omni") is an interactive

computer service or Internet access service. Defendant is without knowledge and information sufficient to form a belief with respect to the veracity of the remaining allegations in Paragraph 8 of Plaintiffs' SAC, and therefore DENIES the same. 9. Defendant is without knowledge and information sufficient to form a belief with

respect to the veracity of the allegations in Paragraph 9 of Plaintiffs' SAC, and therefore DENIES the same. 10. 11. Defendant DENIES all allegations contained in Paragraph 10 of Plaintiffs' SAC. Defendant is without knowledge and information sufficient to form a belief with
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

DEF. BMG COLUMBIA HOUSE, INC.'S ANSWER TO PLS.' SECOND AM. COMPL. [06-cv-01350-JCC] - 2

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respect to the veracity of the allegations in Paragraph 11 of Plaintiffs' SAC, and therefore DENIES the same. 12. Defendant is without knowledge and information sufficient to form a belief with

respect to the veracity of the allegations in Paragraph 12 of Plaintiffs' SAC, and therefore DENIES the same. 13. 14. 15. 16. 17. 18. 19. 20. 21. Defendant DENIES all allegations contained in Paragraph 13 of Plaintiffs' SAC. Defendant DENIES all allegations contained in Paragraph 14 of Plaintiffs' SAC. Defendant DENIES all allegations contained in Paragraph 15 of Plaintiffs' SAC. Defendant DENIES all allegations contained in Paragraph 16 of Plaintiffs' SAC. Defendant DENIES all allegations contained in Paragraph 17 of Plaintiffs' SAC. Defendant DENIES all allegations contained in Paragraph 18 of Plaintiffs' SAC. Defendant DENIES all allegations contained in Paragraph 19 of Plaintiffs' SAC. Defendant DENIES all allegations contained in Paragraph 20 of Plaintiffs' SAC. Defendant provides the section of Plaintiffs' SAC titled "Request for Relief" does

not contain factual allegations which must be admitted or denied. Defendant DENIES all allegations contained in the section of Plaintiffs' SAC titled "Request for Relief", and further DENIES Plaintiffs are entitled to any of their requested relief.

II. AFFIRMATIVE DEFENSES Without admitting any of the allegations described in Plaintiffs' SAC, Defendant raises the following affirmative defenses: 1.1. Plaintiffs are barred from obtaining any relief sought in the SAC because the SAC

fails to state any claim upon which relief may be granted. 1.2. Plaintiffs are barred from obtaining any relief because Plaintiffs failed to mitigate

their alleged damages, if any. 1.3. Plaintiffs are barred from obtaining any relief because Plaintiffs subscribed to

receive commercial emails on which Plaintiffs base their SAC. 1.4. Plaintiffs are barred from obtaining any relief sought in the SAC by reason of their
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

DEF. BMG COLUMBIA HOUSE, INC.'S ANSWER TO PLS.' SECOND AM. COMPL. [06-cv-01350-JCC] - 3

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own unclean hands. 1.5. Plaintiffs are barred from obtaining any relief sought in the SAC because Plaintiffs

failed to unsubscribe utilizing unsubscribe links in the emails or other means reasonably calculated to communicate to Defendant an intent to unsubscribe. 1.6. 1.7. Plaintiffs waived their claims. Plaintiffs are not entitled to damages from Defendant where Plaintiffs have already

been compensated by another entity for alleged damages allegedly caused by Defendant. 1.8. Plaintiffs consented to all actions they complain about in their SAC, and therefore

Plaintiffs are not entitled to any relief. 1.9. Plaintiffs ratified and approved all actions they complain about in their SAC, 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' SAC, if any, were not caused by Defendant; rather, any damages suffered by Plaintiffs were caused by one or more third parties whose activities were not approved, ratified, or controlled by Defendant. 1.13. Plaintiffs have failed to join one or more necessary and indispensable parties. 1.14. Defendant established and implemented, with due care, commercially reasonable practices and procedures designed to effectively prevent the violations alleged in the SAC. 1.15. Defendant made commercially reasonable efforts to maintain compliance with their practices and procedures designed to effectively prevent the violations alleged in the SAC. 1.16. To the extent any action by Defendant violates CAN-SPAM, Defendant acted without actual knowledge, or knowledge fairly implied on the basis of objective circumstances, of the act or omission that constitutes the violation.

DEF. BMG COLUMBIA HOUSE, INC.'S ANSWER TO PLS.' SECOND AM. COMPL. [06-cv-01350-JCC] - 4

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

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

Case 2:06-cv-01350-JCC

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DEF. BMG COLUMBIA HOUSE, INC.'S ANSWER TO PLS.' SECOND AM. COMPL. [06-cv-01350-JCC] - 5
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

III. PRAYER FOR RELIEF WHEREFORE, Defendant requests that this Court: 1. 2. 3. DISMISS Plaintiffs' SAC against Defendant alleged herein; DENY Plaintiffs the relief they seek; GRANT Defendant its reasonable costs and attorneys' fees incurred in defending

against Plaintiff's SAC; and 4. GRANT such other and further relief to Defendant as the Court shall deem just and

equitable. DATED this 16th day of April, 2007. Respectfully Submitted, NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

BY:

Roger M. Townsend, WSBA No. 25525 [e-mail] Derek A. Newman, WSBA No. 26967 [e-mail] 505 Fifth Avenue South, Suite 610 Seattle, Washington 98104 Phone: [phone] Fax: [phone] -andHANLY CONROY BIERSTEIN SHERIDAN FISHER & HAYES, LLP

BY:

/s/ Steven M. Hayes Steven M. Hayes (pro hac vice pending) [e-mail] Attorneys for Defendant BMG Columbia House, Inc.