Microsoft Corporation v. DHL Express (USA) Inc

Filing 2

ANSWER to 1 Complaint by DHL Express (USA) Inc.(Moynihan, James)

Microsoft Corporation v. DHL Express (USA) Inc

Doc. 2

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 ANSWER TO COMPLAINT -1No.: C08-1495 JCC 3. v. DHL EXPRESS (USA), Inc.,

THE HONORABLE JOHN C. COUGHENOUR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE MICROSOFT CORPORATION, Plaintiff, NO. C08-1495 JCC DHL EXPRESS (USA), INC'S ANSWER TO COMPLAINT

Defendant / Third-Party Plaintiff.

DHL EXPRESS (USA), Inc. ("DHL") by its attorneys, Bauer Moynihan & Johnson LLP, responds to the Complaint of Plaintiff Microsoft Corporation ("Microsoft" or "Plaintiff") upon information and belief as follows: JURISDICTION 1. DHL admits this action is within the Court's Admiralty jurisdiction but

otherwise is without knowledge and/or information sufficient to either admit or deny the allegations contained in paragraph 1 of the Complaint. 2. DHL is without knowledge and/or information sufficient to either admit or

deny the allegations contained in paragraph 2 of the Complaint. VENUE DHL is without knowledge and/or information sufficient to either admit or

deny the allegations contained in paragraph 3 of the Complaint.
ATTORNEYS AT LAW

BAUER MOYNIHAN & JOHNSON LLP
2101 FOURTH AVENUE, STE. 2400 SEATTLE, WASHINGTON 98121 TELEPHONE: [phone]

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 25 26 27

FIRST CLAIM FOR RELIEF 4. DHL is without knowledge and/or information sufficient to either admit or

deny the allegations contained in paragraph 4 of the Complaint. 5. Paragraph 5 of the Complaint contains conclusions of law to which no

response is required. To the extent a response is deemed required, DHL is without knowledge and/or information sufficient to either admit or deny the allegations contained in paragraph 5 of the Complaint. 6. DHL is without knowledge and/or information sufficient to either admit or

deny the allegations contained in paragraph 6 of the Complaint. 7. 8. 9. 10. 11. DHL denies the allegations contained in Paragraph 7 of the Complaint. DHL denies the allegations contained in Paragraph 8 of the Complaint. DHL denies the allegations contained in Paragraph 9 of the Complaint. DHL denies the allegations contained in Paragraph 10 of the Complaint. DHL denies Plaintiff's Prayer. SECOND CLAIM FOR RELIEF 12. DHL repeats and realleges its response to each of the Paragraphs above as if

set forth fully herein. 13. 14. 15. DHL denies the allegations contained in Paragraph 12 of the Complaint. DHL denies the allegations contained in Paragraph 13 of Plaintiff's Complaint. DHL denies Plaintiff's Prayer.

WHEREFORE, DHL requests judgment dismissing the Complaint with prejudice, an award of costs of suit and attorney fees, and for such other relief as the Court deems just.

ANSWER TO COMPLAINT -2No.: C08-1495 JCC

ATTORNEYS AT LAW

BAUER MOYNIHAN & JOHNSON LLP
2101 FOURTH AVENUE, STE. 2400 SEATTLE, WASHINGTON 98121 TELEPHONE: [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 25 26 27

AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE The Complaint fails to state causes of action or fails to state claims upon which relief can be granted as against DHL. SECOND AFFIRMATIVE DEFENSE The claims alleged in Complaint arose from the fault, neglect, negligence, and breach of express or implied contract of Third- Party Defendants CMA CGM, or CMA CGM (America) LLC, or BURLINGTON NORTHERN SANTA FE CORP or BNSF Railway Company, or other entities or a combination thereof for which DHL is not responsible. THIRD AFFIRMATIVE DEFENSE Plaintiffs' damages, if any, are subject to limitation by the United States Carriage of Goods by Sea Act of 1936, or other statutory enactment and therefore DHL is either without responsibility or its liability is limited by the $500 package limitation, one-year suit time limitation, or other statutory limitation of liability, for the loss or damage alleged in the Complaint. FOURTH AFFIRMATIVE DEFENSE Any loss or damage is subject to limitation by law, statute, contract, tariff, standard terms and conditions or otherwise. FIFTH AFFIRMATIVE DEFENSE Any loss or damage to the subject cargo was due to inherent vice, acts of the shipper, consignee or owner of the cargo, or other deficiencies for which DHL is not responsible.

ANSWER TO COMPLAINT -3No.: C08-1495 JCC

ATTORNEYS AT LAW

BAUER MOYNIHAN & JOHNSON LLP
2101 FOURTH AVENUE, STE. 2400 SEATTLE, WASHINGTON 98121 TELEPHONE: [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 25 26 27

SIXTH AFFIRMATIVE DEFENSE If Plaintiff sustained any losses as alleged in the Complaint, said losses arose out of and were caused by risks, dangers and hazards, all of which were open, obvious and assumed by shipper, consignee or owners of the cargo. SEVENTH AFFIRMATIVE DEFENSE If Plaintiff sustained any loss or damages, as alleged in the Complaint, said damages were caused solely by the negligence of the shipper, consignee or owner of the cargo, their agents, servants or employees, and were not caused or contributed to in any manner by the alleged negligence, breach of express or implied contract or breach of warranty of DHL. EIGHTH AFFIRMATIVE DEFENSE Plaintiff and/or the shipper, consignee or owner of the cargo failed to take reasonable steps to minimize the alleged damages. NINTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred by the applicable statute of limitations and/or the doctrine of laches, or other applicable time limitation and the Complaint should be dismissed. TENTH AFFIRMATIVE DEFENSE Plaintiff is not the real party in interest and/or the proper party to assert this claim. ELEVENTH AFFIRMATIVE DEFENSE To the extent that the Plaintiff suffered any loss or damage as alleged in the Complaint, which is denied, that loss or damage occurred during a period of time when the goods were not under the care, custody or control of DHL. TWELFTH AFFIRMATIVE DEFENSE DHL is entitled to all defenses in the applicable contract.

ANSWER TO COMPLAINT -4No.: C08-1495 JCC

ATTORNEYS AT LAW

BAUER MOYNIHAN & JOHNSON LLP
2101 FOURTH AVENUE, STE. 2400 SEATTLE, WASHINGTON 98121 TELEPHONE: [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 25 26 27

THIRTEENTH AFFIRMATIVE DEFENSE Plaintiff's damages, if any, are subject to limitation by contract, bill(s) of lading, tariff, contract of carriage, or otherwise. FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff has failed to join one or more indispensable parties to the suit. FIFTEENTH AFFIRMATIVE DEFENSE Plaintiff failed to give written notice of loss or damage as and when required pursuant to COGSA and/or the terms of the contract. SIXTEENTH AFFIRMATIVE DEFENSE DHL acted reasonably and properly at all time and in accordance with the accepted practices of the industry. SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiff's alleged damages were caused and brought about by intervening and superseding causes and were not caused by Defendant or by a person for whom DHL is responsible. EIGHTEENTH AFFIRMATIVE DEFENSE Any loss suffered by Plaintiff was occasioned by parties over whom DHL had no control or responsibility or by events for which DHL has no responsibility. NINETEENTH AFFIRMATIVE DEFENSE DHL reserves the right to amend this pleading to reflect additional affirmative defenses as may be revealed though discovery and further pleadings. WHEREFORE, DHL demands judgment dismissing the Complaint with prejudice and with the award of costs and attorneys' fees and for such other relief as the Court deems proper. ANSWER TO COMPLAINT -5No.: C08-1495 JCC

ATTORNEYS AT LAW

BAUER MOYNIHAN & JOHNSON LLP
2101 FOURTH AVENUE, STE. 2400 SEATTLE, WASHINGTON 98121 TELEPHONE: [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 25 26 27

DATED this 15th day of October, 2008. BAUER MOYNIHAN & JOHNSON LLP /s/ James P. Moynihan James P. Moynihan WSBA No. 9358 Attorneys for Defendant DHL Express (USA), Inc. Bauer Moynihan & Johnson LLP 2101 Fourth Avenue, Suite 2400 Seattle, WA 98121 Telephone: [phone] Fax: [phone] E-mail: [e-mail]

DUANE MORRIS, LLP By: James W. Carbin, Esq. of counsel Attorneys for DHL Express (USA), Inc.

CERTIFICATE OF SERVICE I declare under penalty of perjury of the laws of the state of Washington that on October 15, 2008, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:

James F. Whitehead Law Offices of James Whitehead 2003 Western Ave, Suite 330 Seattle, WA 98121 Ph: [phone] Fax: [phone] /s/ Justin Fodness By: Justin Fodness E-mail: [e-mail] ANSWER TO COMPLAINT -6No.: C08-1495 JCC

_

ATTORNEYS AT LAW

BAUER MOYNIHAN & JOHNSON LLP
2101 FOURTH AVENUE, STE. 2400 SEATTLE, WASHINGTON 98121 TELEPHONE: [phone]