Zango Inc v. Mainstream Advertising

Filing 9

Zango Inc v. Mainstream Advertising

Doc. 9

Case 2:07-cv-00507-MJP

Document 9

Filed 06/21/2007

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THE HONORABLE MARSHA J. PECHMAN

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE Zango, Inc., f/k/a 180solutions, Inc., ) a Washington corporation, a/k/a MetricsDirect, ) ) Plaintiff, ) ) v. ) ) Mainstream Advertising, a California ) Corporation, ) ) Defendant. )

No. 07-CV-507 MJP PLAINTIFF ZANGO, INC.'S ANSWER AND AFFIRMATIVE DEFENSES TO DEFENDANT MAINSTREAM'S COUNTERCLAIM

COMES NOW plaintiff Zango, Inc. to admit, deny, and aver in response to defendant Mainstream Advertising's counterclaim as follows: ANSWER TO COUNTERCLAIM Plaintiff responds to paragraph 1 of the counterclaim by incorporating paragraphs

1-21 of its Complaint filed on April 6, 2007. 2. Answering paragraph 2, Plaintiff is without sufficient information either to admit or

deny the allegations in paragraph 2 and therefore it denies the same. Mainstream Advertising asserts in paragraph 9 of its answer to Plaintiff's Complaint that the alleged December 15, 2004 "Mainstream Advertising Contract" is attached to its answer as Exhibit A, but that document is not, in fact, attached as Exhibit A; it is this same alleged contract that is asserted as relevant in Counterclaim paragraph 2.
Harris & Moure
A Professional Limited Liability Corporation

PLAINTIFF ZANGO, INC.'S ANSWER AND AFFIRMATIVE DEFENSES TO DEFENDANT MAINSTREAM ADVERTISING'S COUNTERCLAIM - 1

720 Olive Way, Suite 1000 Seattle, WA 98101
Phone: [phone] Fax: [phone]

Dockets.Justia.com

Case 2:07-cv-00507-MJP

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3.

Answering paragraph 3, Plaintiff is without sufficient information either to admit or

deny the allegations in paragraph 3 and therefore it denies the same. 4. 5. Plaintiff denies the allegations in paragraph 4 of the Counterclaim. Answering paragraph 5, Plaintiff is without sufficient information either to admit

or deny the allegations in paragraph 5 and therefore it denies the same. 6. 7. Plaintiff denies the allegations in paragraph 6 of the Counterclaim. Plaintiff denies the allegations in paragraph 7 of the Counterclaim insofar as

those allegations purport to relate to Plaintiff. 8. Plaintiff responds to paragraph 1.1 of the Counterclaim by incorporating its

responses to paragraphs 1-7 of the Counterclaim. 9. 10. The allegations in paragraph 1.2 of the Counterclaim are denied. Plaintiff responds to paragraph 2.1 of the Counterclaim by incorporating its

responses to paragraphs 1-7 of the Counterclaim. 11. 12. The allegations in paragraph 2.2 of the counterclaim are denied. With regard to the unnumbered section "DEFENDANT'S PRAYER FOR

RELIEF" following paragraph 2.2 and prior to "DATED this 22nd day of May, 2007," Plaintiff denies the allegations contained therein and denies Defendant is entitled to any recovery of any damages whatsoever from Plaintiff. 13. Plaintiff specifically denies that Defendant has met the proof requirements to

prove any elements of its claims asserted in its Counterclaim and asserts that it has failed to establish by relevant credible evidence any of its alleged claims, damages, or right(s) to recovery herein. 14. Plaintiff denies any and all allegations of the Counterclaim direct against Plaintiff

that have not been otherwise specifically addressed above.

Harris & Moure
A Professional Limited Liability Corporation

PLAINTIFF ZANGO, INC.'S ANSWER AND AFFIRMATIVE DEFENSES TO DEFENDANT MAINSTREAM ADVERTISING'S COUNTERCLAIM - 2

720 Olive Way, Suite 1000 Seattle, WA 98101
Phone: [phone] Fax: [phone]

Case 2:07-cv-00507-MJP

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Filed 06/21/2007

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AFFIRMATIVE DEFENSES Failure to State a Claim. Mainstream fails to state a claim upon which relief may be

Failure to Mitigate. Mainstream failed to mitigate its damages, if any. Contributory/Comparative Negligence. Mainstream caused its own damages, if any. Counter Claimant's Breach. Mainstream breached the contract on which it is suing. Nonperformance of Condition Precedent. Mainstream has failed to show its

full/material compliance with the agreement(s) on which it is suing. 6. 7. 8. recovery. 9. 10. Plaintiff. Offset. To the extent that the Mainstream is entitled to damages, those damages Estoppel. Mainstream is estopped from asserting claims against Plaintiff. Waiver. Mainstream waived its right to assert the claims it is asserting against Consent. Mainstream consented to all/some of the actions about which it complains. Ratification. Mainstream ratified all/some actions of which it now complains. Unclean Hands. Mainstream's unclean hands, and/or other lack of equity, preclude its

should be offset by amounts owed to defendant. 12. Plaintiff reserves the right to assert additional affirmative defenses as factual support

is developed and discovery in this matter progresses.

Harris & Moure
A Professional Limited Liability Corporation

PLAINTIFF ZANGO, INC.'S ANSWER AND AFFIRMATIVE DEFENSES TO DEFENDANT MAINSTREAM ADVERTISING'S COUNTERCLAIM - 3

720 Olive Way, Suite 1000 Seattle, WA 98101
Phone: [phone] Fax: [phone]

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WHEREFORE, plaintiff Zango prays for relief as follows: 1. 2. That Defendant's counterclaim be dismissed with prejudice; That Plaintiff be awarded its costs in defense of Defendant's counterclaim, including

reasonable attorneys' fees, as allowed by law; 3. 4. That Plaintiff be awarded all of the relief sought in its Complaint; For such other and further relief as the Court deems just and equitable.

DATED this Thursday, June 14, 2007. HARRIS & MOURE, pllc

/s Charles P. Moure By_____________ Daniel P. Harris, WSBA # 16778 Charles P. Moure, WSBA # 23701

Harris & Moure
A Professional Limited Liability Corporation

PLAINTIFF ZANGO, INC.'S ANSWER AND AFFIRMATIVE DEFENSES TO DEFENDANT MAINSTREAM ADVERTISING'S COUNTERCLAIM - 4

720 Olive Way, Suite 1000 Seattle, WA 98101
Phone: [phone] Fax: [phone]

Case 2:07-cv-00507-MJP

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Filed 06/21/2007

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CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that service of plaintiff's Answer and Affirmative Defenses to Defendant Internet Brand's Counterclaim has been made this Thursday, June 21, 2007, by filing a copy of this pleading with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following counsel of record: Michael H. Ferring Daniel D. DeLue Ferring & DeLue LLP 600 Stewart Street, Suite 1115 Seattle, Washington 98101-1242 T. 206-508-3804 F. 206-508-3817

Signed at Seattle, Washington this Thursday, June 21, 2007. /s Charles P. Moure _________________________________ Charles P. Moure

Harris & Moure
A Professional Limited Liability Corporation

PLAINTIFF ZANGO, INC.'S ANSWER AND AFFIRMATIVE DEFENSES TO DEFENDANT MAINSTREAM ADVERTISING'S COUNTERCLAIM - 5

720 Olive Way, Suite 1000 Seattle, WA 98101
Phone: [phone] Fax: [phone]