Amiga Inc v. Hyperion VOF

Filing 110

Reply and Defenses ANSWER to 105 Answer to Amended Complaint, Counterclaim by Amiga Inc.(Cock, Lawrence)

Amiga Inc v. Hyperion VOF

Doc. 110

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AMIGA'S REPLY AND DEFENSES TO COUNTERCLAIMS - 1 Case No. CV07-0631RSM
CABLE, LANGENBACH, KINERK & BAUER, LLP
SUITE 3500 1000 SECOND AVENUE BUILDING SEATTLE, WASHINGTON 981041048 [phone]

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE AMIGA, INC., a Delaware corporation, Plaintiff, and HYPERION VOF, a Belgium corporation, Defendant. Comes now Plaintiff/Counterclaim Defendant, Amiga, Inc. ("Amiga"), as and for its Reply to and Defenses against the Counterclaims of Hyperion VOF ("Hyperion") contained in Hyperion's Answer to the Amended Complaint, Affirmative Defenses and Counterclaims (Dkt# 105) (the "Counterclaims"), and respectfully avers as follows. 1. Answering Paragraph 1 of the Counterclaims, admits that this Court has CAUSE NO. CV07-0631RSM AMIGA, INC.'S REPLY AND DEFENSES TO COUNTERCLAIMS

jurisdiction over this action, but denies that Hyperion correctly states the bases therefor. 2. Answering Paragraph 2 of the Counterclaims, admits that Hyperion has stipulated

to jurisdiction and venue in this District but denies that venue is proper in this District on the Counterclaims alleged by Hyperion and otherwise denies the allegations in Paragraph 2.

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 3. Answering Paragraph 3 of the Counterclaims, denies that Amiga "purports to be a

Delaware corporation" and avers that Amiga is a Delaware corporation. 4. Denies knowledge or information sufficient to form a belief as to the truth of the

allegations in Paragraph 4 of the Counterclaims. 5. 6. 7. 8. 9. 10. Admits the allegations in Paragraph 5 of the Counterclaims. Admits the allegations in Paragraph 6 of the Counterclaims. Denies the allegations in Paragraph 7 of the Counterclaims. Denies the allegations in Paragraph 8 of the Counterclaims. Denies the allegations in Paragraph 9 of the Counterclaims. Answering Paragraph 10 of the Counterclaims, states that it is impossible to

respond because the allegation assumes that Amiga Washington, as defined, was insolvent, and this assumption is not correct. 11. Answering Paragraph 11 of the Counterclaims, denies knowledge or information

sufficient to form a belief as to Hyperion's knowledge and denies so much of the allegations in Paragraph 11 as asserts that Amiga Washington was insolvent. 12. Answering Paragraph 12 of the Counterclaims, admits that there was an

agreement entered into on April 24, 2003 by Hyperion and Itec LLC, states that this agreement speaks for itself, and respectfully invites the Court's attention to that document for the complete terms thereof. 13. Denies the allegations in Paragraph 13 of the Counterclaims and avers that no

such consent was required. 14. Denies the allegations in Paragraph 14 of the Counterclaims and avers that no

such consent was required.
AMIGA'S REPLY AND DEFENSES TO COUNTERCLAIMS - 2 Case No. CV07-0631RSM
CABLE, LANGENBACH, KINERK & BAUER, LLP
SUITE 3500 1000 SECOND AVENUE BUILDING SEATTLE, WASHINGTON 981041048 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 15. 16. 17. 18. 19. 20. 21. 22. Denies the allegations in Paragraph 15 of the Counterclaims. Denies the allegations in Paragraph 16 of the Counterclaims. Denies the allegations in Paragraph 17 of the Counterclaims. Denies the allegations in Paragraph 18 of the Counterclaims. Denies the allegations in Paragraph 19 of the Counterclaims. Denies the allegations in Paragraph 20 of the Counterclaims. Denies the allegations in Paragraph 21 of the Counterclaims. Answering Paragraph 22 of the Counterclaims, states that the documents

referenced therein speak for themselves, respectfully invites the Court's attention to those documents for the complete terms thereof, and denies the remaining allegations in said Paragraph 22. 23. Answering Paragraph 23 of the Counterclaims, respectfully refers the Court to the

Itec/KMOS Contract (as there defined), for the complete terms thereof, denies the implications that Hyperion purports to draw therefrom, and denies the remaining allegations in said Paragraph 23. 24. Denies the allegations in Paragraph 24 of the Counterclaims and states that all

requisite consents were obtained. 25. Answering Paragraph 25 of the Counterclaims, states that the document was

attached to the McEwen declaration in error, is not relevant hereto, does not purport to show what Hyperion claims it shows, and otherwise denies the remaining allegations in said Paragraph 28. 26. 27. Denies the allegations in Paragraph 26 of the Counterclaims. Denies the allegations in Paragraph 27 of the Counterclaims.
CABLE, LANGENBACH, KINERK & BAUER, LLP
SUITE 3500 1000 SECOND AVENUE BUILDING SEATTLE, WASHINGTON 981041048 [phone]

AMIGA'S REPLY AND DEFENSES TO COUNTERCLAIMS - 3 Case No. CV07-0631RSM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 28. 29. 30. 31. Denies the allegations in Paragraph 28 of the Counterclaims. Denies the allegations in Paragraph 29 of the Counterclaims. Admits the allegations in Paragraph 30 of the Counterclaims. Admits so much of Paragraph 31 of the Counterclaims as alleges that KMOS

merely changed its name to Amiga and that, as such, Amiga is KMOS, Inc.'s lawful successor, and denies the remaining allegations in said Paragraph 31. 32. Answering Paragraph 32 of the Counterclaims, states that it pleads a false

hypothetical to which no response is possible or required and otherwise denies the allegations contained in said Paragraph 35 of the Counterclaims. 33. Denies the allegations in Paragraph 33 of the Counterclaims insofar as they

pertain to Hyperion's prior and intended future conduct and insofar as said Paragraph 36 alleges that Amiga has no valid basis upon which to terminate the Licensing Agreement. 34. 35. 36. Denies the allegations in Paragraph 34 of the Counterclaims. Denies the allegations in Paragraph 35 of the Counterclaims. Denies the allegations in Paragraph 36 of the Counterclaims.

In response to Hyperion's purported "Cause No. 1", Amiga repeats and realleges its responses to Paragraphs 1-36 of the Counterclaims as if restated in full herein. 37. Answering Paragraph 37 of the Counterclaims, admits that Hyperion seeks a

declaratory judgment under the November 3, 2001 Agreement, but denies that it is entitled to the declaratory relief prayed for; to any part thereof; or to any other relief. 38. Denies the allegations in Paragraph 38 of the Counterclaims.

In response to Hyperion's purported "Cause No. 2", Amiga repeats and realleges its responses to Paragraphs 1-38 of the Counterclaims as if restated in full herein.
AMIGA'S REPLY AND DEFENSES TO COUNTERCLAIMS - 4 Case No. CV07-0631RSM
CABLE, LANGENBACH, KINERK & BAUER, LLP
SUITE 3500 1000 SECOND AVENUE BUILDING SEATTLE, WASHINGTON 981041048 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. Denies the allegations in Paragraph 39 of the Counterclaims. Denies the allegations in Paragraph 40 of the Counterclaims. Denies the allegations in Paragraph 41 of the Counterclaims. Denies the allegations in Paragraph 42 of the Counterclaims. Denies the allegations in Paragraph 43 of the Counterclaims. Denies the allegations in Paragraph 44 of the Counterclaims. Denies the allegations in Paragraph 45 of the Counterclaims. Denies the allegations in Paragraph 46 of the Counterclaims. Denies the allegations in Paragraph 47 of the Counterclaims. Answering Paragraph 48 of the Counterclaims, denies that Hyperion is entitled to

any other relief. In response to Hyperion's purported "Cause No. 3", Amiga repeats and realleges its responses to Paragraphs 1-48 of the Counterclaims as if restated in full herein. 49. Answering the allegations in Paragraph 49 of the Counterclaims, states that the

Itec/KMOS Contract was, in fact, entered into on October 10, 2003 and denies there remaining allegations in said Paragraph 49. 50. 51. 52. 53. Denies the allegations in Paragraph 50 of the Counterclaims. Denies the allegations in Paragraph 51 of the Counterclaims. Denies the allegations in Paragraph 52 of the Counterclaims. Answering Paragraph 53 of the Counterclaims, denies that Hyperion is entitled to

the relief sought, to any part thereof, or to any other relief. 54. Answering Paragraph 54 of the Counterclaims, denies that Hyperion is entitled to

any other relief.
AMIGA'S REPLY AND DEFENSES TO COUNTERCLAIMS - 5 Case No. CV07-0631RSM
CABLE, LANGENBACH, KINERK & BAUER, LLP
SUITE 3500 1000 SECOND AVENUE BUILDING SEATTLE, WASHINGTON 981041048 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 In response to Hyperion's purported "Cause No. 4", Amiga repeats and realleges its responses to Paragraphs 1-54 of the Counterclaims as if restated in full herein. 55. required. 56. 57. 58. Denies the allegations in Paragraph 56 of the Counterclaims. Denies the allegations in Paragraph 57 of the Counterclaims. Paragraph 58 is incomprehensible, and no responsive pleading can be framed Paragraph 55 contains an assertion of law to which no responsive pleading is

thereto. To the extent that it purports to allege that in discovery "additional breaches of contract by Amiga may be discovered", Amiga denies said allegation; to the extent that it purports to allege that in discovery "additional breaches of contract by Hyperion may be discovered", Amiga admits such allegation. 59. Answering Paragraph 59 of the Counterclaims, denies that Hyperion is entitled to

the relief there sought; to any part thereof; or to any other relief. In response to Hyperion's purported "Cause No. 5", Amiga repeats and realleges its responses to Paragraphs 1-59 of the Counterclaims as if restated in full herein. 60. Answering Paragraph 60 of the Counterclaims, denies that Amiga has made the

misrepresentations pled therein or any other misrepresentations. 61. 62. Denies the allegations in Paragraph 61 of the Counterclaims. Denies the allegations in Paragraph 62 of the Counterclaims.

In response to Hyperion's purported "Cause No. 6", Amiga repeats and realleges its responses to Paragraphs 1-62 of the Counterclaims as if restated in full herein. 63. 64. Denies the allegations in Paragraph 63 of the Counterclaims. Denies the allegations in Paragraph 64 of the Counterclaims.
CABLE, LANGENBACH, KINERK & BAUER, LLP
SUITE 3500 1000 SECOND AVENUE BUILDING SEATTLE, WASHINGTON 981041048 [phone]

AMIGA'S REPLY AND DEFENSES TO COUNTERCLAIMS - 6 Case No. CV07-0631RSM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 65. 66. 67. 68. 69. 70. Denies the allegations in Paragraph 65 of the Counterclaims. Denies the allegations in Paragraph 66 of the Counterclaims. Denies the allegations in Paragraph 67 of the Counterclaims. Denies the allegations in Paragraph 68 of the Counterclaims. Denies the allegations in Paragraph 69 of the Counterclaims. Admits so much of Paragraph 70 as alleges that Hyperion is asking the Court to

enjoin Amiga from continuing specified acts and to award Hyperion monetary damages, but denies that Hyperion is entitled to such relief to any part thereof, or to any other relief. In response to Hyperion's purported "Cause No. 7", Amiga repeats and realleges its responses to Paragraphs 1-70 of the Counterclaims as if restated in full herein. 71. 72. 73. Denies the allegations in Paragraph 71 of the Counterclaims. Denies the allegations in Paragraph 72 of the Counterclaims. Denies so much of Paragraph 73 as alleges that Amiga has engaged in acts

constituting a false designation of origin or that it has violated the Lanham Act or any other applicable law. In response to Hyperion's purported "Cause No. 8", Amiga repeats and realleges its responses to Paragraphs 1-73 of the Counterclaims as if restated in full herein. 74. Answering Paragraph 74 of the Counterclaims, states that said Paragraph 74

contains an assertion of law to which no responsive pleading is required and that the document referenced therein speaks for itself, and respectfully invites the Court's attention to that document for the complete terms thereof. 75. Answering Paragraph 75 of the Counterclaims, states that the document

referenced therein speaks for itself, and respectfully invites the Court's attention to that
AMIGA'S REPLY AND DEFENSES TO COUNTERCLAIMS - 7 Case No. CV07-0631RSM
CABLE, LANGENBACH, KINERK & BAUER, LLP
SUITE 3500 1000 SECOND AVENUE BUILDING SEATTLE, WASHINGTON 981041048 [phone]

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AMIGA'S REPLY AND DEFENSES TO COUNTERCLAIMS - 8 Case No. CV07-0631RSM
CABLE, LANGENBACH, KINERK & BAUER, LLP
SUITE 3500 1000 SECOND AVENUE BUILDING SEATTLE, WASHINGTON 981041048 [phone]

document for the complete terms thereof. 76. Denies the allegations in the first sentence of Paragraph 76 of the Counterclaims

that Amiga Washington breached numerous warranties and representations owed to Hyperion regarding Amiga Washington's ownership of and rights to the Software and states that the second sentence of said Paragraph 76 contains an erroneous assertion of law to which no responsive pleading is required. 77. Admits the allegations in the first sentence of Paragraph 77, but denies the

allegations in the second sentence of said Paragraph 77 because the petitioners in the referenced Belgium proceeding do not allege that the (pre-OS 4.0) "Software," as defined in the Agreement, infringes any patent, copyright or other intellectual property right of theirs or any other person anywhere in the world. 78. Denies the allegations in Paragraph 78 of the Counterclaims because Amiga does

not allege that the (pre-OS 4.0) "Software," as defined in the Agreement, infringes any patent, copyright or other intellectual property right of itself or any other person anywhere in the world. 79. Answering Paragraph 79 of the Counterclaims, denies that Hyperion is entitled to

the relief there sought; to any part thereof; or to any other relief. In response to Hyperion's Prayer for Relief, denies that Hyperion is entitled to any of the relief prayed for; to any part thereof; or to any other relief. DEFENSES IN AND FOR A FIRST DEFENSE 80. The Counterclaims, and each purported "Cause of Action" contained therein,

separately and collectively fail to state a claim upon which relief can be based.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 88. 22 Hyperion's trademark rights in a country other than the United States, it is seeking relief that is 23 beyond the Court's jurisdiction to award. 24
AMIGA'S REPLY AND DEFENSES TO COUNTERCLAIMS - 9 Case No. CV07-0631RSM
CABLE, LANGENBACH, KINERK & BAUER, LLP
SUITE 3500 1000 SECOND AVENUE BUILDING SEATTLE, WASHINGTON 981041048 [phone]

IN AND FOR A SECOND DEFENSE 81. Hyperion lacks standing to bring the claims alleged in the Counterclaims. IN AND FOR A THIRD DEFENSE 82. Hyperion has failed to join Amiga One Partners and Eyetech Group, Ltd., each of

whom is a necessary and/or indispensable party to the Counterclaims. IN AND FOR A FOURTH DEFENSE 83. All or part of Hyperion's Counterclaims are barred by the applicable statutes of

limitation and/or the doctrine of laches. IN AND FOR A FIFTH DEFENSE 84. All or part of Hyperion's Counterclaims are barred by the doctrines of waiver,

estoppel, ratification, acquiescence, novation and/or like doctrines. IN AND FOR A SIXTH DEFENSE 85. Amiga pleads the defense of payment. IN AND FOR A SEVENTH DEFENSE 86. All or part of Hyperion's Counterclaims are barred by its prior, material breach of

the agreements alleged in its Counterclaims. IN AND FOR AN EIGHTH DEFENSE 87. hands. IN AND FOR A NINTH DEFENSE To the extent that Hyperion is asking this Court to enter relief respecting All or part of Hyperion's Counterclaims are barred by the doctrine of unclean

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 96. 23 real party in interest. 24
AMIGA'S REPLY AND DEFENSES TO COUNTERCLAIMS - 10 Case No. CV07-0631RSM
CABLE, LANGENBACH, KINERK & BAUER, LLP
SUITE 3500 1000 SECOND AVENUE BUILDING SEATTLE, WASHINGTON 981041048 [phone]

IN AND FOR A TENTH DEFENSE 89. To the extent that Hyperion purports to plead a fraud claim, it has failed to plead

it with the specificity required by R.9(b), Fed. R. Civ. Pro. IN AND FOR AN ELEVENTH DEFENSE 90. To the extent that Hyperion is claiming rights under any agreement, it has failed

to plead that it has performed all of its obligations thereunder. IN AND FOR A TWELFTH DEFENSE 91. All or part of Hyperion's Counterclaims are barred by Hyperion's failure to

satisfy contractual conditions precedent to the assertion of Hyperion's claims in this lawsuit. IN AND FOR A THIRTEENTH DEFENSE 92. Hyperion has failed to mitigate its damages, if any, and to the extent of its failure

to mitigate, any damages awarded to Hyperion should be reduced accordingly. IN AND FOR A FOURTEENTH DEFENSE 93. All or part of Hyperion's Counterclaims are barred by Hyperion's fault. IN AND FOR A FIFTEENTH DEFENSE 94. All or part of Hyperion's Counterclaims are barred by Hyperion's failure to

provide reasonable and adequate notice under the agreements alleged in its Counterclaims. IN AND FOR A SIXTEENTH DEFENSE 95. All or part of Hyperion's Counterclaims are barred by frustration of performance,

prevention, impossibility and/or impracticability. IN AND FOR A SEVENTEENTH DEFENSE All or part of Hyperion's Counterclaims are barred because Hyperion is not the

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AMIGA'S REPLY AND DEFENSES TO COUNTERCLAIMS - 11 Case No. CV07-0631RSM
CABLE, LANGENBACH, KINERK & BAUER, LLP
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IN AND FOR AN EIGHTEENTH DEFENSE 97. With respect to Cause Nos. 2 and/or 3 of Hyperion's Counterclaims, all

transferees acted in good faith and gave reasonably equivalent value or value for all assets received. IN AND FOR A NINETEENTH DEFENSE 98. With respect to Cause Nos. 2 and/or 3 of Hyperion's Counterclaims, the transfers

resulted from the enforcement of a security interest in compliance with Article 9A of Title 62A RCW and is therefore not voidable under RCW 19.41.041(a)(2) or 19.40.051. IN AND FOR A TWENTIETH DEFENSE 99. With respect to Cause Nos. 2 and/or 3 of Hyperion's Counterclaims, Amiga, Inc.,

a Washington Corporation, was not insolvent at the time of the transfers and did not become insolvent as a result of the transfers complained of. IN AND FOR A TWENTY-FIRST DEFENSE 100. With respect to Cause Nos. 2 and/or 3 of Hyperion's Counterclaims, any injury

which Hyperion may have suffered can be adequately redressed by an award of damages. IN AND FOR A TWENTY-SECOND DEFENSE 101. With respect to Cause Nos. 2 and/or 3 of Hyperion's Counterclaims, Hyperion has

failed to allege that statutory remedies are insufficient and/or that the relief it seeks is justified. IN AND FOR A TWENTY-THIRD DEFENSE 102. With respect to Cause Nos. 2 and/or 3 of Hyperion's Counterclaims, Amiga is

entitled to have any damages award against it reduced to the extent of the value it gave in the transfers at issue.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 c) WHEREFORE, Plaintiff/Counterclaim Defendant Amiga, Inc. demands judgment as follows: a) b) Dismissing Hyperion's Counterclaims and each Cause of Action therein; Awarding Amiga fees and expenses in bringing this suit as permitted by the parties' contract and equity; and For such other further relief as this Court deems appropriate.

DATED this the 2nd day of July, 2008. CABLE, LANGENBACH, KINERK & BAUER, LLP _/s/ Lawrence R Cock___________________ Lawrence R. Cock, WSBA No. 20326 CABLE, LANGENBACH, KINERK & BAUER, LLP 1000 Second Avenue Suite 3500 Seattle, WA 98104 Telephone: [phone] Facsimile: 206-292-0494 [e-mail] _/s/ Lance Gotthoffer____________________ Lance Gotthoffer (Pro Hac Vice), NYSBA No. 1088186 Jeffrey M. Tamarin, (Pro Hac Vice), NYSBA No. 1935071 REED SMITH LLP 599 Lexington Avenue New York, NY 10022 Telephone: [phone] Facsimile: 212-521-5450 [e-mail] [e-mail] _/s/ Kenneth J. Philpot____________________ Kenneth J. Philpot (Pro Hac Vice), NYSBA No. 62401 REED SMITH LLP Two Embarcadero Center, Suite 2000 San Francisco, CA 94111-3922 Telephone: [phone] Facsimile: 415-391-8269 [e-mail] Attorneys for Plaintiff/Counterclaim Defendant Amiga, Inc.
AMIGA'S REPLY AND DEFENSES TO COUNTERCLAIMS - 12 Case No. CV07-0631RSM
CABLE, LANGENBACH, KINERK & BAUER, LLP
SUITE 3500 1000 SECOND AVENUE BUILDING SEATTLE, WASHINGTON 981041048 [phone]

1 2 3 4 5 6 7 8 9 Additionally, I caused the foregoing to be delivered by legal messenger to William A. Kinsel at 10 the address identified above. 11 12 13 14 15 16 17 18 19 20 21 22 23 24
AMIGA'S REPLY AND DEFENSES TO COUNTERCLAIMS - 13 Case No. CV07-0631RSM
CABLE, LANGENBACH, KINERK & BAUER, LLP
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CERTIFICATE OF SERVICE

I hereby certify that on July 3, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: William A. Kinsel Law Offices of William A. Kinsel, PLLC Market Place Tower 2025 First Avenue, Suite 440 Seattle, WA 98121

s/ Lawrence R. Cock Lawrence R. Cock, WSBA No. 20326 Attorney for Plaintiff/Counterclaim Defendant CABLE, LANGENBACH, KINERK & BAUER, LLP Suite 3500, 1000 Second Avenue Building Seattle, Washington 98104-1048 [phone] phone [phone] facsimile [e-mail]