Omni Innovations LLC et al v. Smartbargains.com LP et al Doc.

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Case 2:06-cv-01129-JCC Document 15 Filed 02/22/2007 Page 1 of 5

1 The Honorable John C. Coughenour

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8 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
9 AT SEATTLE
10
OMNI INNOVATIONS, LLC, a NO. CV06-1129JCC
11 Washington limited liability company; and
JAMES S. GORDON JR.
12 ANSWER TO FIRST AMENDED
Plaintiffs, COMPLAINT
13
v.
14
SMARTBARGAINS.COM, LP, a
15 Delaware Limited Partnership;
16 Defendant.
17
18 Defendant SmartBargains.com, LP (“Defendant”) answers and asserts affirmative
19 defenses to Plaintiffs’ First Amended Complaint (the “FAC”), as follows:
20 I. ANSWER
21 1. Defendant is without knowledge and information sufficient to form a belief
22 with respect to the veracity of the allegations in Paragraph 1 of Plaintiffs’ FAC, and
23 therefore DENIES the same.
24 2. Defendant is without knowledge and information sufficient to form a belief
25 with respect to the veracity of the allegations in Paragraph 2 of Plaintiffs’ FAC, and
26 therefore DENIES the same.
27 3. Defendant ADMITS that Defendant is a Delaware limited partnership and
28 has its principal place of business in Boston, Massachusetts. Defendant DENIES all other

ANSWER TO FIRST AMENDED

COMPLAINT - 1 NEWMAN & NEWMAN, 505 Fifth Ave. S., Ste. 610
(CV06-1129JCC) ATTORNEYS AT LAW, LLP Seattle, Washington 98104
(206) 274-2800
Dockets.Justia.com
 Case 2:06-cv-01129-JCC Document 15 Filed 02/22/2007 Page 2 of 5

1 allegations contained in Paragraph 3 of Plaintiffs’ FAC.

2 4. Defendant provides the statutes cited in Paragraph 4 of Plaintiffs’ FAC
3 speak for themselves, and Plaintiffs’ interpretation of those statutes is not a factual
4 allegation which must be admitted or denied. Defendant DENIES all allegations
5 contained in Paragraph 4 of Plaintiffs’ FAC.
6 5. Defendant provides the statute cited in Paragraph 5 of Plaintiffs’ FAC
7 speaks for itself, and Plaintiffs’ interpretation of that statute is not a factual allegation
8 which must be admitted or denied. Defendant DENIES all allegations contained in
9 Paragraph 5 of Plaintiffs’ FAC.
10 6. Defendant provides the statute cited in Paragraph 6 of Plaintiffs’ FAC
11 speaks for itself, and Plaintiffs’ interpretation of that statute is not a factual allegation
12 which must be admitted or denied. Defendant DENIES all allegations contained in
13 Paragraph 6 of Plaintiffs’ FAC.
14 7. Defendant DENIES Plaintiff James S. Gordon, Jr. (“Gordon”) is an
15 interactive computer service pursuant to the statutes cited in Plaintiffs’ FAC or any other
16 definition of “interactive computer service”. Defendant is without knowledge and
17 information sufficient to form a belief with respect to the veracity of the remaining
18 allegations in Paragraph 8 of Plaintiffs’ FAC, and therefore DENIES the same.
19 8. Defendant DENIES Plaintiff Omni Innovations, LLC (“Omni”) is an
20 interactive computer service pursuant to the statutes cited in Plaintiffs’ FAC or any other
21 definition of “interactive computer service”. Defendant is without knowledge and
22 information sufficient to form a belief with respect to the veracity of the remaining
23 allegations in Paragraph 8 of Plaintiffs’ FAC, and therefore DENIES the same.
24 9. Defendant is without knowledge and information sufficient to form a belief
25 with respect to the veracity of the allegations in Paragraph 9 of Plaintiffs’ FAC, and
26 therefore DENIES the same.
27 10. Defendant DENIES all allegations contained in Paragraph 10 of Plaintiffs’
28 FAC.

ANSWER TO FIRST AMENDED

COMPLAINT - 2 NEWMAN & NEWMAN, 505 Fifth Ave. S., Ste. 610
(CV06-1129JCC) ATTORNEYS AT LAW, LLP Seattle, Washington 98104
(206) 274-2800
 Case 2:06-cv-01129-JCC Document 15 Filed 02/22/2007 Page 3 of 5

1 11. Defendant is without knowledge and information sufficient to form a belief

2 with respect to the veracity of the allegations in Paragraph 11 of Plaintiffs’ FAC, and
3 therefore DENIES the same.
4 12. Defendant is without knowledge and information sufficient to form a belief
5 with respect to the veracity of the allegations in Paragraph 12 of Plaintiffs’ FAC, and
6 therefore DENIES the same.
7 13. Defendant DENIES all allegations contained in Paragraph 13 of Plaintiffs’
8 FAC.
9 14. Defendant DENIES all allegations contained in Paragraph 14 of Plaintiffs’
10 FAC.
11 15. Defendant DENIES all allegations contained in Paragraph 15 of Plaintiffs’
12 FAC.
13 16. Defendant DENIES all allegations contained in Paragraph 16 of Plaintiffs’
14 FAC.
15 17. Defendant DENIES all allegations contained in Paragraph 17 of Plaintiffs’
16 FAC.
17 18. Defendant DENIES all allegations contained in Paragraph 18 of Plaintiffs’
18 FAC.
19 19. Defendant DENIES all allegations contained in Paragraph 19 of Plaintiffs’
20 FAC.
21 20. Defendant DENIES all allegations contained in Paragraph 20 of Plaintiffs’
22 FAC.
23 21. Defendant DENIES all allegations contained in Paragraph 21 of Plaintiffs’
24 FAC.
25 22. Defendant provides the section of Plaintiffs’ FAC titled “Request for
26 Relief” does not contain factual allegations which must be admitted or denied. Defendant
27 DENIES all allegations contained in the section of Plaintiffs’ FAC titled “Request for
28 Relief”, and further DENIES Plaintiffs are entitled to any of their requested relief.

ANSWER TO FIRST AMENDED

COMPLAINT - 3 NEWMAN & NEWMAN, 505 Fifth Ave. S., Ste. 610
(CV06-1129JCC) ATTORNEYS AT LAW, LLP Seattle, Washington 98104
(206) 274-2800
 Case 2:06-cv-01129-JCC Document 15 Filed 02/22/2007 Page 4 of 5

1 II. AFFIRMATIVE DEFENSES

2 Without admitting any of the allegations described in Plaintiffs’ FAC, Defendant
3 raises the following affirmative defenses:
4 1.1. Plaintiffs are barred from obtaining any relief sought in the FAC because
5 the FAC fails to state any claim upon which relief may be granted.
6 1.2. Plaintiffs are barred from obtaining any relief because Plaintiffs failed to
7 mitigate their alleged damages, if any.
8 1.3. Plaintiffs are barred from obtaining any relief because Plaintiffs subscribed
9 to receive commercial emails on which Plaintiffs base their FAC.
10 1.4. Plaintiffs are barred from obtaining any relief sought in the FAC by reason
11 of their own unclean hands.
12 1.5. Plaintiffs are barred from obtaining any relief sought in the FAC because
13 Plaintiffs failed to unsubscribe utilizing unsubscribe links in the emails or other means
14 reasonably calculated to communicate to Defendant an intent to unsubscribe.
15 1.6. Plaintiffs waived their claims.
16 1.7. Plaintiffs are not entitled to damages from Defendant where Plaintiffs have
17 already been compensated by another entity for alleged damages allegedly caused by
18 Defendant.
19 1.8. Plaintiffs consented to all actions they complain about in their FAC, and
20 therefore Plaintiffs are not entitled to any relief.
21 1.9. Plaintiffs ratified and approved all actions they complain about in their
22 FAC, and therefore Plaintiffs are not entitled to any relief.
23 1.10. Plaintiffs’ claims, and each of them, are barred by the doctrine of estoppel.
24 1.11. Plaintiffs’ claims, and each of them, are barred by the doctrine of laches.
25 1.12. The damages alleged in Plaintiffs’ FAC, if any, were not caused by
26 Defendant; rather, any damages suffered by Plaintiffs were caused by one or more third
27 parties whose activities were not approved, ratified, or controlled by Defendant.
28 1.13. Plaintiffs have failed to join one or more necessary and indispensable

ANSWER TO FIRST AMENDED

COMPLAINT - 4 NEWMAN & NEWMAN, 505 Fifth Ave. S., Ste. 610
(CV06-1129JCC) ATTORNEYS AT LAW, LLP Seattle, Washington 98104
(206) 274-2800
 Case 2:06-cv-01129-JCC Document 15 Filed 02/22/2007 Page 5 of 5

1 parties.
2 1.14. Defendant established and implemented, with due care, commercially
3 reasonable practices and procedures designed to effectively prevent the violations alleged
4 in the FAC.
5 1.15. Defendant made commercially reasonable efforts to maintain compliance
6 with their practices and procedures designed to effectively prevent the violations alleged
7 in the FAC.
8 1.16. To the extent any action by Defendant violates CAN-SPAM, Defendant
9 acted without actual knowledge, or knowledge fairly implied on the basis of objective
10 circumstances, of the act or omission that constitutes the violation.
11
12 III. PRAYER FOR RELIEF
13 WHEREFORE, Defendant requests that this Court:
14 1. DISMISS Plaintiffs’ FAC against Defendant alleged herein;
15 2. DENY Plaintiffs the relief they seek;
16 3. GRANT Defendant its reasonable costs and attorneys’ fees incurred in
17 defending against Plaintiff’s FAC; and
18 4. GRANT such other and further relief to Defendant as the Court shall deem
19 just and equitable.
20 DATED this 22nd day of February, 2007.
21
Respectfully Submitted,
22
NEWMAN & NEWMAN,
23 ATTORNEYS AT LAW, LLP
24
25 By:
Derek A. Newman, WSBA No. 26967
26 derek@newmanlaw.com
Roger M. Townsend, WSBA No. 25525
27 roger@newmanlaw.com
28 Attorneys for SMARTBARGAINS.COM, LP

ANSWER TO FIRST AMENDED

COMPLAINT - 5 NEWMAN & NEWMAN, 505 Fifth Ave. S., Ste. 610
(CV06-1129JCC) ATTORNEYS AT LAW, LLP Seattle, Washington 98104
(206) 274-2800