Anderson v. Domino's Pizza, Inc. et al

Filing 22

ANSWER to Complaint with JURY DEMAND, CROSSCLAIM against defendant Four Our Families, Inc. by Call-Em-All, LLC.(Dimock, Christina)

1

HONORABLE RONALD B. LEIGHTON

2
3
4
5
6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT TACOMA

7
8
9

CAROLYN ANDERSON,

10

Plaintiff,
v.

11
12
13

CIVIL ACTION NO.: C11-902-RBL
CALL-EM-ALL, LLC’S AMENDED
ANSWER TO AMENDED COMPLAINT

DOMINO’S PIZZA, INC., DOMINO’S
PIZZA, LLC, FOUR OUR FAMILIES,
INC. and CALL-EM-ALL, LLC,

14

Defendants.

15
16

Defendant CALL-EM-ALL, LLC (hereinafter, “CEA”), by and through the

17

undersigned attorneys of record, hereby answer Plaintiff CAROLYN ANDERSON’s

18

Amended Class Action Complaint For Damages, Injunctive And Declaratory Relief

19

(hereinafter, “Amended Complaint”) as follows:

20
I.

PARTIES, JURISDICTION, VENUE

21
22

1.1

CEA lacks knowledge and information to admit or deny the allegations

23

contained in Paragraph 1.1 of the Amended Complaint and thus denies same, putting

24

Plaintiff to her burden of proof for each and every allegation contained therein.

DEFENDANT CALL-EM-ALL, LLC’S AMENDED
ANSWER TO AMENDED COMPLAINT – Page 1
Case No. 11-902-RBL

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

1
2
3

1.2

CEA admits the allegations contained in the first sentence of Paragraph 1.2

of the Amended Complaint. With respect to the second sentence of Paragraph 1.2 of the
Amended Complaint, CEA respectfully refers the Court to the referenced website for an

4
accurate recitation of the contents thereof.
5
6

1.3

CEA lacks knowledge and information to admit or deny the allegations

7

contained in Paragraph 1.3 of the Amended Complaint and thus denies same, putting

8

Plaintiff to her burden of proof for each and every allegation contained therein.

9
10
11

1.4

CEA lacks knowledge and information to admit or deny the allegations

contained in Paragraph 1.4 of the Amended Complaint and thus denies same, putting
Plaintiff to her burden of proof for each and every allegation contained therein.

12
13

1.5

The allegations contained in Paragraph 1.5 of the Amended Complaint call

14

for a legal conclusion to which no response is required. To the extent a response is

15

required, CEA denies the allegations contained in Paragraph 1.5 of the Amended

16

Complaint.

17
18

II.
2.1

FACTS

CEA denies the allegations contained in Paragraph 2.1 of the Amended

19
Complaint.
20
21

2.2

CEA lacks knowledge and information to admit or deny the allegations

22

contained in Paragraph 2.2 of the Amended Complaint and thus denies same, putting

23

Plaintiff to her burden of proof for each and every allegation contained therein.

24

DEFENDANT CALL-EM-ALL, LLC’S AMENDED
ANSWER TO AMENDED COMPLAINT – Page 2
Case No. 11-902-RBL

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

1
2
3

2.3

CEA lacks knowledge and information to admit or deny the allegations

contained in Paragraph 2.3 of the Amended Complaint and thus denies same, putting
Plaintiff to her burden of proof for each and every allegation contained therein.

4
2.4

CEA denies the allegations contained in Paragraph 2.4 of the Amended

5
6

Complaint.
2.5

7

With respect to the other Defendants, CEA lacks knowledge and information

8

to admit or deny the allegations contained in Paragraph 2.5 of the Amended Complaint and

9

thus denies same, putting Plaintiff to her burden of proof for each and every allegation

10
11

contained therein. With respect to itself, CEA denies the allegations to the extent it alleges it
conducts its business in any manner other than in compliance with the law.

12
III.

13
3.1

14

CAUSES OF ACTION

With respect to the second sentence of Paragraph 3.1 of the Amended

15

Complaint, CEA realleges its responses to the foregoing paragraphs as if fully stated herein.

16

The second sentence of Paragraph 3.1 of the Amended Complaint requires no answer.

17
18

Count A. Violation of 47 U.S.C. 227(b)(1)(B) (National Class)
3.2

CEA denies the allegations contained in Paragraph 3.2 of the Amended Complaint.

3.3

CEA denies the allegations contained in Paragraph 3.3 of the Amended Complaint.

19
20
Count C. Violation of RCW 80.36.400 (Washington State Class)

21
22

3.4

CEA denies the allegations contained in Paragraph 3.4 of the Amended Complaint.

23

3.5

CEA denies the allegations contained in Paragraph 3.5 of the Amended Complaint.

24

DEFENDANT CALL-EM-ALL, LLC’S AMENDED
ANSWER TO AMENDED COMPLAINT – Page 3
Case No. 11-902-RBL

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

1

Count D. Violation of RCW 19.86 (Washington State Class)

2
3

3.6

The allegations contained in Paragraph 3.6 of the Amended Complaint call

for a legal conclusion to which no response is required. To the extent a response is

4
required, CEA denies the allegations contained in Paragraph 3.6 of the Amended
5
6

Complaint.
3.7

7

CEA denies the allegations contained in the first sentence of Paragraph 3.7

8

of the Amended Complaint. The allegations contained in the second sentence of Paragraph

9

3.7 of the Amended Complaint call for a legal conclusion to which no response is required.

10
11

To the extent a response is required to the second sentence of Paragraph 3.7 of the
Amended Complaint, CEA denies same.

12
13

Count E. Declaratory Relief Under
The Washington Declaratory Judgment Act RCW 7.24.010 (Washington State Class)

14
15

3.8

CEA denies it used an automated dialing and announcement device to send a

pre-recorded message to the telephones of persons in Washington.

16
3.9

17

The allegations contained in Paragraph 3.9 of the Amended Complaint call

18

for a legal conclusion to which no response is required. To the extent a response is

19

required, CEA denies the allegations contained in Paragraph 3.9 of the Amended

20

Complaint.

21

IV.

22

4.1

CLASS ACTION ALLEGATIONS

CEA realleges its responses to the foregoing paragraphs as if fully stated

23
herein.
24

DEFENDANT CALL-EM-ALL, LLC’S AMENDED
ANSWER TO AMENDED COMPLAINT – Page 4
Case No. 11-902-RBL

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

1
2
3

4.2

CEA admits this action purports to be brought pursuant to CR 23(b)(2) and

admits Plaintiff seeks to represent National and Washington State classes. To the extent that
Paragraph 4.2 makes any factual allegations, CEA denies such allegations, denies that this

4
action may be maintained as a class action and denies that any allegations in Paragraph 4.2
5
6
7

are relevant to CEA.
4.3

CEA admits that the proposed classes likely have more than 100 members,

8

but denies that this action may be maintained as a class action. CEA lacks knowledge and

9

information to admit or deny the remaining allegations contained in Paragraph 4.3 of the

10
11

Amended Complaint and thus denies same, putting Plaintiff to her burden of proof for each
and every remaining allegation.

12
13

4.4

14

Complaint.

15

4.5

CEA denies the allegations contained in Paragraph 4.4 of the Amended

CEA denies it violated the two cited statutes and lacks knowledge and

16

information to admit or deny the remaining allegations contained in Paragraph 4.5 of the

17

Amended Complaint, and thus denies same, putting Plaintiff to her burden of proof for each

18

and every remaining allegation.

19
4.6

CEA lacks knowledge and information to admit or deny the allegations

20
21
22

contained in Paragraph 4.6 of the Amended Complaint and thus denies same, putting
Plaintiff to her burden of proof for each and every allegation contained therein.

23

4.7

24

CEA denies the allegations contained in Paragraph 4.7 of the Amended

Complaint.

DEFENDANT CALL-EM-ALL, LLC’S AMENDED
ANSWER TO AMENDED COMPLAINT – Page 5
Case No. 11-902-RBL

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

1

4.8

2

Complaint.

CEA denies the allegations contained in Paragraph 4.8 of the Amended

3

AFFIRMATIVE DEFENSES

4
1.

Plaintiff has failed to state a cause of action for which relief can be granted.

2.

Upon information and belief, the calls made to Plaintiff were not illegal.

3.

If Plaintiff’s allegations are found to be true, CEA has established and

5
6
7
8

implemented, with due care, reasonable practices and procedures to prevent and limit

9

telephone solicitations in violation of the regulations prescribed under 46 U.S.C. § 227.

10
11

4.

RCW 80.36.400 is preempted by the Telephone Consumer Protection Act,

47 U.S.C. § 227.

12
13
14
15
16
17

5.

To the extent Plaintiff suffered any damages at all, such damages resulted

from the conduct of parties other than CEA.
6.

CEA is not the legal cause or proximate cause of any damages that might

have been suffered by Plaintiff.
Plaintiff lacks standing to bring her claims.

8.

Plaintiff’s claims are barred because she failed to mitigate her damages.

9.

18

7.

Plaintiff’s claims against CEA are barred because at all times, CEA acted in

19
20
21
22
23
24

good faith, consistent with any applicable standard of care and /or lacked any duty to
Plaintiff.
10.

Plaintiff’s allegations lack sufficient particularity and/or detail, and

accordingly CEA seeks a more definite statement of her claims.

DEFENDANT CALL-EM-ALL, LLC’S AMENDED
ANSWER TO AMENDED COMPLAINT – Page 6
Case No. 11-902-RBL

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

1
2
3

11.

CEA reserves the rights to amend this answer to assert additional affirmative

defenses as warranted by discovery
12.

CEA is not legally responsible for the calls at issue.

4
PRAYER FOR RELIEF
5
6
7
8
9
10
11

1.

CEA denies each and every prayer for relief requested in the Amended

Complaint.
2.

CEA is entitled to dismissal of each and every cause of action brought in the

Amended Complaint.
3.

CEA is entitled to judgment in its favor and to recover its attorney fees and

costs of suit as permitted by applicable law.

12
13
14

4.

CEA is entitled to any other or further relief which the Court deems fair and

equitable.

15

DEFENDANT CALL-EM-ALL, LLC’S CROSS CLAIMS

16

While denying any liability in this action, defendant CEA, by and through the

17
18

undersigned attorneys of record, hereby alleges that in the event the plaintiff and/or the
proposed class obtain a judgment against it, CEA is entitled to indemnification and/or

19
contribution from defendant FOUR OUR FAMILIES, INC. (hereinafter, “FOF”)
20
21

Accordingly, without admitting any liability whatsoever, CEA hereby demands, pursuant

22

to the parties’ agreement and any right provided by statute or common law, complete

23

indemnification and contribution.

24

Accordingly, CEA hereby asserts the following cross claims against FOF:

DEFENDANT CALL-EM-ALL, LLC’S AMENDED
ANSWER TO AMENDED COMPLAINT – Page 7
Case No. 11-902-RBL

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

1

ALLEGATIONS COMMON TO ALL CROSS CLAIMS

2
3

1.

CEA is a Texas corporation with its principal place of business located in

Frisco, Texas.

4
2.

FOF is a Washington corporation with its principal place of business

5
6

located in Tacoma, Washington.
3.

7

Plaintiff has filed an Amended Class Action Complaint For Damages,

8

Injunctive And Declaratory Relief (“the Amended Complaint”) in this case alleging that

9

the defendants have made illegal telephone calls in violation of 47 U.S.C. § 227(b)(1)(B)

10

and RCW 80.36.400.

11

4.

The Amended Complaint was the first pleading that named CEA as a

12
13

defendant.
5.

15
16
17
18
19
20
21
22

CEA and FOF have a contractual agreement that is included CEA’s Terms

6.

14

CEA’s Terms of Use, which were accepted by FOF, contained the

of Use.

following indemnification, defense, and hold harmless provision:
23. INDEMNIFICATION You agree to indemnify, defend and hold
harmless Call-Em-All, its officers, directors, owners, employees,
agents, other Service Providers, vendors or customers from and against
all losses, liabilities, expenses, damages and costs, including reasonable
attorneys' fees resulting from any violation of the User Agreement by
you or any harm you may cause to anyone. You agree and we reserve
the right, at your expense, to assume the exclusive defense and control
of any matter otherwise subject to indemnification by you.

23
24

DEFENDANT CALL-EM-ALL, LLC’S AMENDED
ANSWER TO AMENDED COMPLAINT – Page 8
Case No. 11-902-RBL

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

1
2
3

7.

CEA has notified FOF in writing that the Amended Complaint triggered

FOF’s indemnification, defense and hold harmless obligations under the above-referenced
portion of the parties’ agreement.

4
8.

FOF has failed to honor its obligations to indemnify, defend and hold CEA

5
6
7
8

harmless.
9.

and the putative class may ultimately be entitled to against CEA.

9
10
11

FOF is liable to CEA for contribution for any damages to which Plaintiff

FIRST COUNT
10.

CEA repeats, realleges and incorporates by reference herein each and every

allegation contained in the foregoing Paragraphs all as if set forth fully herein.

12
13
14
15
16
17
18

11.

FOF entered into an agreement with CEA which provides for contractual

indemnity in the event any wrongdoing causes damages to CEA.
12.

Pursuant to this agreement, FOF agreed to indemnify CEA for all losses,

liabilities, expenses, damages and costs, including reasonable attorneys' fees, incurred.
13.

This obligation was affirmatively agreed upon without objection by FOF,

and CEA acted upon such agreement in reliance.

19
14.

The quoted agreement gives rise to a contractual obligation on behalf of

20
21
22

FOF to fully indemnify and hold harmless CEA against the causes of action asserted by
against CEA by Carolyn Anderson and the putative class in this action.

23
24

DEFENDANT CALL-EM-ALL, LLC’S AMENDED
ANSWER TO AMENDED COMPLAINT – Page 9
Case No. 11-902-RBL

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

1
2
3

SECOND COUNT
15.

CEA repeats, realleges and incorporates by reference herein each and every

allegation contained in the foregoing Paragraphs all as if set forth fully herein.

4
16.

CEA is entitled to statutory indemnity and contribution from FOF pursuant

5
6

to RCWA 4.22.040 and/or Tex. Civ. Prac. & Rem. Code Ann. § 33.015.
THIRD COUNT

7
8
9
10
11

17.

CEA repeats, realleges and incorporates by reference herein each and every

allegation contained in the foregoing Paragraphs all as if set forth fully herein.
18.

Should CEA incur any liability as a result of the claims in this action, the

law implies, by virtue of the nature of the relationship between CEA and FOF, a

12
13

requirement that FOF discharge any such liability to CEA.
FOURTH COUNT

14
15
16
17
18

19.

CEA repeats, realleges and incorporates by reference herein each and every

allegation contained in the foregoing Paragraphs all as if set forth fully herein.
20.

FOF is liable to CEA under a common law duty of indemnity in the event it

causes any damages to CEA.

19
21.

In the event that CEA is determined to be required to discharge any

20
21
22
23
24

obligation that FOF could or might owe to the Plaintiff or the putative class, then Calais
entitled to common law indemnity.
WHEREFORE, CEA respectfully request that this Court enter judgment in its
favor against FOF and in the alternative:

DEFENDANT CALL-EM-ALL, LLC’S AMENDED
ANSWER TO AMENDED COMPLAINT – Page 10
Case No. 11-902-RBL

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

1
2
3

A.

Directing that FOF fully indemnify and hold CEA harmless from and

against any judgments or damages awarded in favor of Plaintiff and the putative class
against CEA in this action under any equitable or legal theory.

4
B.

Directing that FOF make contribution to CEA from and against any

5
6
7
8
9
10
11
12

judgments or damages to which Plaintiff and the putative class may be entitled to from
CEA in this action.
C.

Further awarding CEA its attorneys’ fees and costs expended in defense of

this action and in prosecution of its cross claims, as well as any other and further relief as
the Court deems just and proper in this matter.
DEMAND FOR TRIAL BY JURY
CEA hereby demands trial by jury on the issues raised herein.

13
14

Dated: September 21 2011

15

Respectfully submitted,

16

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP

17
18
19
20
21
22
23
24

/s/ Christina N. Dimock_______________
By: Kelly P. Corr, WSBA No. 555
Anthony Todaro, WSBA No. 30391
Christina Dimock, WSBA No. 40159
1001 4th Ave., Suite 3900
Seattle, WA 98154-1051
[e-mail]
[e-mail]
[e-mail]
Tel. [phone]
Fax. [phone]

DEFENDANT CALL-EM-ALL, LLC’S AMENDED
ANSWER TO AMENDED COMPLAINT – Page 11
Case No. 11-902-RBL

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

1
2
3
4
5
6
7
8
9
10
11

OLSHAN GRUNDMAN FROME
ROSENZWEIG & WOLOSKY LLP

/s/ Scott Shaffer_______________________
Andrew B. Lustigman (admitted Pro Hac
Vice)
Scott Shaffer (admitted Pro Hac Vice)
Park Avenue Tower
65 East 55th Street
New York, New York 10022
[e-mail]
[e-mail]
Tel. [phone]
Fax. [phone]
ATTORNEYS FOR
DEFENDANT CALL-EM-ALL, LLC

12
13
14
15
16
17
18
19
20
21
22
23
24

DEFENDANT CALL-EM-ALL, LLC’S AMENDED
ANSWER TO AMENDED COMPLAINT – Page 12
Case No. 11-902-RBL

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

1
2
3

CERTIFICATE OF SERVICE
The undersigned hereby certifies as follows:
I am employed at Corr Cronin Michelson Baumgardner & Preece LLP, attorneys of

4
record for Defendant Call-Em-All, LLC herein.
5
6

I hereby certify that on this date, I electronically filed the attached foregoing with

7

the Clerk of the Court using the CM/ECF system, which will send notification of such

8

filing to the following persons:

9

Kim Williams
Rob Williamson
Williamson & Williams
17253 Agate St. NE
Bainbridge Island, WA 98110
Attorneys for Plaintiffs

10
11
12
13
14
15

David M. Soderland
Dunlap & Soderland, P.S.
901 Fifth Avenue, Suite 3003
Seattle, WA 98164
Attorneys for Domino’s Pizza, LLC

Nelson C. Fraley II
Faubion, Reeder, Fraley & Cook, P.S.
5920 – 100th St. SW #25
Lakewood, WA 98499
Attorneys for Defendant Four Our Families, Inc.

16
17
18
19

I declare under penalty of perjury under the laws of the state of Washington
that the foregoing is true and correct.
DATED: September 21, 2011 at Seattle, Washington.

20
21
22

/s/ Heidi M. Powell
Heidi M. Powell

23
24

DEFENDANT CALL-EM-ALL, LLC’S AMENDED
ANSWER TO AMENDED COMPLAINT – Page 13
Case No. 11-902-RBL

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]