Free Answer to Amended Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00002-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
L.J. ZUCCA, INC.,

: Civil Action no.: i :07-cv-00002
Plaintiff,

: Removed from Chancery Cour ALLEN BROS. WHOLESALE DISTRIBUTORS, : New Castle County, Delaware INC.; COOPER-BOOTH WHOLESALE : C.A. No. 2572-N COMPANY; EBY-BROWN COMPANY, LLC; WESTERN SKIER, L TD, f.k/a KLEIN CANDY CO,LP, JURY TRIAL DEMANDED
Defendants.

ANSWER OF EBY-BROWN COMPANY, LLC
Defendant, Eby-Brown Company, LLC, by an through its undersigned counsel, hereby answers
the First Amended Verified Complaint of

Plaintiff, LJ. Zucca, Inc., and states as follows:

PRELIMINARY STATEMENT
The allegations of this paragraph state legal conclusions to which no response is required. To the
extent that a response is required, Answering Defendant, Eby-Brown Company, LLC, denies the
allegations of

this paragraph.

THE PARTIES
1.

Admitted.

2.
truth of

This defendant is without knowledge or information sufficient to form a belief as to the
the Amended Complaint.

the allegations contained in paragraph two of

3.
truth of

This defendant is without knowledge or information sufficient to form a belief as to the
the Amended Complaint.

the allegations contained in paragraph three of

4.
5.
truth of

Admitted.

This defendant is without knowledge or information sufficient to form a belief as to the
the Amended Complaint.

the allegations contained in paragraph five of

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6.

Admitted with respect to defendant Eby-Brown Company, LLC. Answering Defendant is

without knowledge or information suffcient to form a belief as to the truth of the allegations directed to
defendants other than the Answering Defendant and, therefore, said allegations are denied.

JURISDICTION AND VENUE
7.

Answering Defendant, Eby-Brown Company, LLC, admits only that the United States

District Court for the District of Delaware has subject matter jurisdiction over this case and controversy.

Answering Defendant Eby-Brown Company, LLC, is without knowledge or information suffcient to
form a belief as to the truth of the remaining allegations of this paragraph and therefore said allegations
are denied.

FACTUAL BACKGROUND
8.

Paragraph 8 purports to state law plaintiff claims is applicable to this matter. As such, no

answer is required. To the extent an answer is required, denied.
9.

Paragraph 9 purports to state law plaintiff claims is applicable to this matter. As such, no

answer is required. To the extent an answer is required, denied.
10.

Paragraph 10 purports to state law plaintiff claims is applicable to this matter. As such, no

answer is required. To the extent an answer is required, denied.
11.

Paragraph 11 purports to state law plaintiff claims is applicable to this matter. As such, no

answer is required. To the extent an answer is required, denied.
12.
Denied as to this defendant.

This defendant is without knowledge or information

sufficient to form a belief as to the truth of the balance of the allegations contained in paragraph 12 of the
Amended Complaint.
13.
truth of

This defendant is without knowledge or information sufficient to form a belief as to the
the allegations contained in paragraph 13 of

the balance of

the Amended Complaint.

14.
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Denied.
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ALLEGATIONS AGAINST INDIVIDUAL DEFENDANTS
15.
16.

Denied.

States that the allegations in paragraph 16 are directed to a party other than the Answering

Defendant. To the extent a responsive pleading might be required to the allegations set forth in said

paragraph, the Answering Defendant denies knowledge or information sufficient to form a belief as to the
truth of said allegations.
17.

States that the allegations in paragraph 17 are directed to a part other than the Answering

Defendant. To the extent a responsive pleading might be required to the allegations set forth in said

paragraph, the Answering Defendant denies knowledge or information sufficient to form a belief as to the
truth of said allegations.
18.

States that the allegations in paragraph 18 are directed to a part other than the Answering

Defendant. To the extent a responsive pleading might be required to the allegations set forth in said

paragraph, the Answering Defendant denies knowledge or information suffcient to form a belief as to the
truth of said allegations.
19.

States that the allegations in paragraph 19 are directed to a part other than the Answering

Defendant. To the extent a responsive pleading might be required to the allegations set forth in said

paragraph, the Answering Defendant denies knowledge or information sufficient to form a belief as to the
truth of said allegations.
20.

States that the allegations in paragraph 20 are directed to a part other than the Answering

Defendant. To the extent a responsive pleading might be required to the allegations set forth in said

paragraph, the Answering Defendant denies knowledge or information sufficient to form a belief as to the
truth of said allegations.

21.

States that the allegations in paragraph 21 are directed to a party other than the Answering

Defendant. To the extent a responsive pleading might be required to the allegations set forth in said
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paragraph, the Answering Defendant denies knowledge or information suffcient to form a belief as to the
truth of said allegations.
22.

States that the allegations in paragraph 22 are directed to a part other than the Answering

Defendant. To the extent a responsive pleading might be required to the allegations set forth in said

paragraph, the Answering Defendant denies knowledge or information sufficient to form a belief as to the
truth of said allegations.
23. 24. 25. 26.

Denied that Eby-Brown Company, LLC, has unlawfully rebated to any Delaware retailer.
Denied. Denied. Denied.

27.

States that the allegations in paragraph 27 are directed to a part other than the Answering

Defendant. To the extent a responsive pleading might be required to the allegations set forth in said

paragraph, the Answering Defendant denies knowledge or information sufficient to form a belief as to the
truth of said allegations.

28.

States that the allegations in paragraph 28 are directed to a part other than the Answering

Defendant. To the extent a responsive pleading might be required to the allegations set forth in said

paragraph, the Answering Defendant denies knowledge or information sufficient to form a belief as to the
truth of said allegations.
29.

States that the allegations in paragraph 29 are directed to a part other than the Answering

Defendant. To the extent a responsive pleading might be required to the allegations set forth in said

paragraph, the Answering Defendant denies knowledge or information sufficient to form a belief as to the
truth of said allegations.
30.

States that the allegations in paragraph 30 are directed to a part other than the Answering

Defendant. To the extent a responsive pleading might be required to the allegations set forth in said
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paragraph, the Answering Defendant denies knowledge or information suffcient to form a belief as to the
truth of said allegations.

COUNT I (Violations of the Delaware Unfair Cigarette Sales Act)
(Al!ainst AII Defendants)
Answering defendant repeats and realleges its response to each and every allegation
the Amended Complaint.

31.

incorporated by reference in paragraph 31 of

32. 33.
34.

Denied. Denied.
Denied.

COUNT II (Tortious Interference with Existing Contracts) (Al!ainst AII Defendants)
35.

Answering defendant repeats and realleges its response to each and every allegation
the Amended Complaint.

incorporated by reference in paragraph 35 of

36.

Denied as to this defendant.

This defendant is without knowledge or information
the allegations contained in paragraph 36 of

suffcient to form a belief as to the truth of

the balance of

the

Amended Complaint.
37. 38.

Denied. Denied. Denied. Denied.
Denied. Denied.

39.

40. 41. 42.

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COUNT III (Tortious Interference with Prospective Economic Advantage) (Al!ainst AII Defendants)
43.

Answering defendant repeats and realleges its response to each and every allegations
the Amended Complaint.

incorporated by reference in paragraph 43 of

44.

Denied as to this defendant.

This defendant is without knowledge or information

sufficient to form a belief as to the truth of the balance of the allegations contained in paragraph 44 of the
Amended Complaint.
45. 46. 47. 48. 49.
50.

Denied.

Denied.
Denied. Denied.

Denied. Denied.

COUNT IV (Unfair Competition)
51.

Answering defendant repeats and realleges its response to each and every allegation
the Amended Complaint.

incorporated by reference in paragraph 51 of

52. 53.
54.

Denied. Denied.

Denied.

COUNT V

(Injunction)
55.

Answering defendant repeats and realleges its response to each and every allegation
the Amended Complaint.

incorporated by reference in paragraph 55 of

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56. 57. 58. 59. 60.

Denied. Denied. Denied. Denied.
Denied.
WHEREFORE, defendant, Eby-Brown Company, LLC, demands judgment in its favor,

61.

dismissal of plaintiffs First Amended Verified Complaint with prejudice, and award of attorneys' fees
and costs, and such other relief as the Court deems just and proper.

ADDITIONAL DEFENSES
1.
PlaintiffLJ. Zucca, Inc.'s claims are barred in whole or in part by the doctrine of

unclean

hands.
2.
3.

PlaintiffL.J. Zucca, Inc.'s claims are barred in whole or in part by the doctrine oflaches.

Plaintiff L.J. Zucca, Inc.'s claims are barred in whole or in part by the statutes of

limitation/repose.
4.
5.

PlaintiffL.J. Zucca, Inc.'s claims are barred in whole or in part for failure to state a claim.

Plaintiff L.J. Zucca, Inc.'s claims are barred in whole or in part by the doctrine of

estoppel.
6.
PlaintiffLJ. Zucca, Inc.'s claims are barred in whole or in part by the doctrine of

waiver.

7.

Plaintiff L.J. Zucca, Inc.'s claims are barred in whole or in part by the doctrine res

judicata and/or issue preclusion.

8.
c. § 2605.

The Delaware Unfair Cigarette Sales Act is inapplicable for the reasons set forth in 6 DeL.

9.

The Delaware Unfair Cigarette Sales Act is preempted by federal

law.

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10.

The Delaware Unfair Cigarette Sales Act is unconstitutional under the Delaware

Constitution.

PRICKETT, JONES & ELLIOTT, P.A.

BY:~~~
DAVID E. BRA (LD. No. 201)
1310 King Street P. O. Box 1328 Wilmington, DE 19899 (302) 888-6514 Attorneys for Defendant

EBY-BROWN COMPAN, LLC

DATE: Februar 15,2007

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CERTIFICATE OF SERVICE
I hereby certify that on February 15,2007, I electronically fied the ANSWER OF EBY BROWN COMPANY, LLC with the Clerk of Cour using CM/CF which wil send notification of
such fiing(s) to the following:

Kimberly Michele Large Michael F. Bonkowski Saul Ewing LLP 222 Delaware Avenue, #1200 P.O. Box 1266 Wilmington, DE 19899
Attorneys for Plaintif

David Kyle Sheppard Blank Rome LLP 1201 North Market Street, Suite 800 Wilmington, DE 19801-4226 Attorney for Defendant Cooper-Booth Wholesale Company
James W. Semple Matthew F. Lintner David J. Soldo Morris James LLP 500 Delaware Avenue, Suite 1500 P.O. Box 2306 Wilmington, DE 19899 Attorneys for Defendant Allen Bros. Wholesale
Distributions, Inc.

David S. Eagle, Esquire Klehr, Harrison, Harvey, Branburg & Ellers 919 Market Street, Suite 1000 Wilmington, DE 19801
Attorneys for Defendant Klein Candy Co. LP

~~

DAVID E. BRAND (LD. 2òT)
Prickett, Jones & Ellott, P .A.

1310 King Street Wilmington, DE 19801 (302) 888-6500 de brand~prickett.com

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