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

Case 1:04-cv-01146-LTB-CBS Case 1:04-cv-01146-LTB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.: 04-cv-1146-LTB-CBS GARY S. COHEN Plaintiff, v. INFOLINK SCREENING SERVICES, INC., et al. Defendants.

DEFENDANT PHOENIX RESEARCH, INC.'S AMENDED ANSWER TO PLAINTIFF'S SECOND AMENDED COMPLAINT, CROSSCLAIM AGAINST DEFENDANT INFOLINK SCREENING SERVICES, INC., AND JURY DEMAND

Defendant, Phoenix Research, Inc. ("Phoenix"), by and through its attorneys, Snell & Wilmer, L.L.P., hereby answers Plaintiff Gary S. Cohen's Second Amended Complaint ("Complaint"), as follows: GENERAL ALLEGATIONS 1. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 1 of Plaintiff's Complaint, and therefore denies those allegations. 2. 3. 4. Phoenix admits the allegations contained in paragraph 2 of Plaintiff's Complaint. Phoenix admits the allegations contained in paragraph 3 of Plaintiff's Complaint. Phoenix admits the allegations contained in paragraph 4 of Plaintiff's Complaint.

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5.

Phoenix admits that Infolink Screening Services, Inc. ("Infolink") is in the

business of providing companies with employee background checks. Phoenix denies that it is in the business of providing companies with employee background checks. By way of further answer, Phoenix states that it is in the business of searching court records at the request of its customers. 6. Phoenix admits the allegations contained in paragraph 6 of Plaintiff's Complaint

as they relate to Infolink only. Phoenix denies the remaining allegations contained in paragraph 6 of Plaintiff's Complaint. 7. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 7 of Plaintiff's Complaint and therefore denies those allegations. 8. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 8 of Plaintiff's Complaint, and therefore denies those allegations. 9. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 9 of Plaintiff's Complaint, and therefore denies those allegations. 10. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 10 of Plaintiff's Complaint, and therefore denies those allegations.

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11.

Phoenix admits that Infolink hired Phoenix to provide specific court records for

specific jurisdictions as requested. Phoenix denies the remaining allegations in paragraph 11 of Plaintiff's Complaint. 12. Phoenix admits that on May 31, 2003, it forwarded the result of a court records

check that it was asked to perform in two specific jurisdictions. Phoenix denies the remaining allegations in paragraph 12 of Plaintiff's Complaint, including the allegation that it provided Infolink with Plaintiff's "criminal history." 13. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 13 of Plaintiff's Complaint, and therefore denies those allegations. 14. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 14 of Plaintiff's Complaint, and therefore denies those allegations. 15. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 15 of Plaintiff's Complaint, and therefore denies those allegations. 16. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 16 of Plaintiff's Complaint, and therefore denies those allegations. 17. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 17 of Plaintiff's Complaint, and therefore denies those allegations. 3

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18.

Phoenix admits that under the Fair Credit Reporting Act ("FCRA") the denial of

employment is considered an "adverse action." Phoenix denies the remaining allegations in paragraph 18 of Plaintiff's Complaint. 19. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 19 of Plaintiff's Complaint, and therefore denies those allegations. 20. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 20 of Plaintiff's Complaint, and therefore denies those allegations. 21. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 21 of Plaintiff's Complaint, and therefore denies those allegations. 22. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 22 of Plaintiff's Complaint, and therefore denies those allegations. 23. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 23 of Plaintiff's Complaint, and therefore denies those allegations. FIRST CLAIM FOR RELIEF (Negligent Noncompliance with FCRA by Defendant Infolink) 24. Phoenix incorporates by reference its responses to paragraphs 1 through 23 above,

as if fully rewritten herein. 4

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25. 26. 27. 28.

Phoenix admits the allegations contained in paragraph 25 of Plaintiff's Complaint. Phoenix admits the allegations contained in paragraph 26 of Plaintiff's Complaint. Phoenix admits the allegations contained in paragraph 27 of Plaintiff's Complaint. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 28 of Plaintiff's Complaint, and therefore denies those allegations. 29. Phoenix is without sufficient knowledge or information to admit or deny the

allegations contained in paragraph 29 of Plaintiff's Complaint, and therefore denies those allegations. 30. Paragraph 30 of Plaintiff's Complaint requires no response. SECOND CLAIM FOR RELIEF (Defendant Phoenix Did Not Negligently Fail to Comply with the FCRA) 31. Phoenix incorporates by reference its responses to paragraphs 1 through 30 above,

as if fully rewritten herein. 32. 33. 34. 35. 36. 37. Phoenix denies the allegations contained in paragraph 32 of Plaintiff's Complaint. Phoenix denies the allegations contained in paragraph 33 of Plaintiff's Complaint. Phoenix denies the allegations contained in paragraph 34 of Plaintiff's Complaint. Phoenix denies the allegations contained in paragraph 35 of Plaintiff's Complaint. Phoenix denies the allegations contained in paragraph 36 of Plaintiff's Complaint. Paragraph 37 of Plaintiff's Complaint requires no response.

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THIRD CLAIM FOR RELIEF (Defendant Phoenix Was Not Negligent) 38. Phoenix incorporates by reference its responses to paragraphs 1 through 37 above,

as if fully rewritten herein. 39. 40. 41. 42. 43. 44. Phoenix denies the allegations contained in paragraph 39 of Plaintiff's Complaint. Phoenix denies the allegations contained in paragraph 40 of Plaintiff's Complaint. Phoenix denies the allegations contained in paragraph 41 of Plaintiff's Complaint. Phoenix denies the allegations contained in paragraph 42 of Plaintiff's Complaint. Phoenix denies the allegations contained in paragraph 43 of Plaintiff's Complaint. Paragraph 44 of Plaintiff's Complaint requires no response. AFFIRMATIVE DEFENSES 1. and/or laches. 2. be granted. 3. 4. Plaintiff has failed to mitigate his damages, if any. Any damages suffered by Plaintiff are the result of the acts or omissions of a third Plaintiff's Complaint fails to state a claim against Phoenix upon which relief may Plaintiff's Complaint is barred by the doctrines of estoppel, waiver, acquiescence

party over which Phoenix had no control or responsibility. 5. Plaintiff's claims against Phoenix are barred because any act or omission by

Phoenix was not the proximate cause of the damages and injuries alleged by Plaintiff. 6. 7. Plaintiff has failed to join all necessary and indispensable parties to this action. Plaintiff's claims are barred by his own negligence and/or misconduct. 6

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8.

Phoenix reserves the right to plead additional affirmative defenses based on

information learned during the course of discovery or otherwise. WHEREFORE, having fully set forth its Answer and Affirmative Defenses Phoenix respectfully requests judgment in its favor and against Plaintiff on all claims, that the Complaint be dismissed with prejudice and that Phoenix be awarded its attorney fees, costs, and any such other relief as is proper. CROSS CLAIM AGAINST INFOLINK For its Cross Claim against Infolink, Phoenix states as follows: 1. Phoenix restates all averments, admissions, denials and statements made in its

responses to paragraphs 1-44 of Plaintiff's Complain as if fully rewritten herein. 2. Infolink hired Phoenix to check court records in two jurisdictions in Colorado to

see if there were any records related to a Gary S. Cohen. 3. Infolink did not provide Phoenix with the name of the company requesting such

information concerning Plaintiff. 4. Plaintiff. FIRST CLAIM FOR RELIEF (Negligence of Infolink) 5. When Infolink was informed that Plaintiff disputed the result of Infolink's report, Infolink never provided Phoenix with the address or telephone number of

Infolink had a duty under FCRA 15 U.S.C. § 1681i (a)2 (A) to inform Phoenix of Plaintiff's challenge.

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6.

Infolink negligently failed to inform Phoenix of Plaintiff's challenge as required

under the FCRA. 7. Infolink's negligent failure resulted in damages to Phoenix. SECOND CLAIM FOR RELIEF (Deceit Based on Fraud of Infolink) 8. When Infolink was informed that Plaintiff disputed the result of Infolink's report,

Infolink had a duty under FCRA 15 U.S.C. § 1681i (a)2 (A) to inform Phoenix of Plaintiff's challenge. 9. Infolink willfully failed to inform Phoenix of Plaintiff's challenge as required

under the FCRA. 10. Plaintiff's challenge was material because, had Phoenix known about it, Phoenix

could have exercised its rights under the FCRA to investigate and, if necessary, cure any errors that may have existed in its report. 11. Infolink concealed the report from Phoenix willfully, and as such intended to give

Phoenix the false impression that no challenge had been made to reporting related to Phoenix's work. 12. Phoenix did not take further action with respect to its work for Infolink regarding

Gary S. Cohen, relying on the assumption that its report to Infolink was acceptable and had not been challenged. 13. 14. Phoenix's reliance was justified. Phoenix's reliance resulted in damages to Phoenix.

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THIRD CLAIM FOR RELIEF (Indemnification by Infolink) 15. When Infolink was informed that Plaintiff disputed the result of Infolink's report,

Infolink had a duty under FCRA 15 U.S.C. § 1681i (a)2 (A) to inform Phoenix of Plaintiff's challenge. 16. Infolink willfully failed to inform Phoenix of Plaintiff's challenge as required

under the FCRA. 17. 18. Infolink's conduct is the primary cause of damages, if any, to Plaintiff. Any losses incurred by Phoenix in this matter were incurred as a result of acting

on Infolink's behalf. 19. If Phoenix is found liable to Plaintiff, which liability Phoenix expressly denies,

then Phoenix demands indemnification from Infolink to the extent Phoenix's liability. 20. liability. WHEREFORE, Phoenix respectfully requests judgment in its favor against Infolink, or in the alternative indemnification and/or contribution from Infolink for any determined liability of Phoenix to Plaintiff, and that Phoenix recover its costs, attorney fees, and all further relief to which it may be entitled. PHOENIX HEREBY DEMANDS A TRIAL TO A JURY ON ALL ISSUES SO TRIABLE. Alternatively, Phoenix demands contribution from Infolink to the extent of its

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DATED this 1st day of February, 2006. Respectfully submitted,

Kyle Seedorf Snell & Wilmer, L.L.P. 1200 Seventeenth Street, Suite 1900 Tabor Center Denver, CO 80202 Telephone: (303) 634-2000 Facsimile: (303) 634-2020 E-mail: [email protected] Attorneys for Defendant Phoenix Research, Inc.

Defendant's Address: 100 Liming Farm Road P.O. Box 589 Mt. Orab, OH 45154

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CERTIFICATE OF SERVICE I hereby certify that on the 1st day of February, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following at their registered e-mail addresses: Marc F. Bendinelli BENDINELLI LAW OFFICE, P.C. 11184 Huron St., Suite 10 Northglenn, CO 80234 Fax: (303) 940-9933 Attorney for Plaintiff, Gary S. Cohen C. Todd Drake Stephen J. Hensen TIEMEIER & HENSEN, P.C. 1515 Arapahoe Street, Suite 1300 Denver, CO 802020 Fax: (303) 623-1734 Attorneys for Defendant, Infolink Screening Services, Inc. And I hereby certify that I have mailed or served the document or paper to the following nonCM/ECF participants in the manner indicated by the non-participant's name: None

s/Rosemary Mitchell

91432

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