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

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-WM-1146 (CBS) GARY S. COHEN, Plaintiff, v. INFOLINK SCREENING SERVICES, INC., a California corporation; and PHOENIX RESEARCH, INC., an Ohio corporation, Defendants.

DEFENDANT INFOLINK SCREENING SERVICES, INC'S ANSWER AND AFFIRMATIVE DEFENSES TO SECOND AMENDED COMPLAINT

Defendant Infolink Screening Services, Inc. ("Infolink"), by and through its attorneys, C. Todd Drake and Stephen J. Hensen of Tiemeier & Hensen, P.C., and by way of its answer and affirmative defenses to plaintiff Gary S. Cohen's ("Mr. Cohen") Second Amended Complaint ("Complaint"), hereby admits, denies and otherwise avers as follows: GENERAL ALLEGATIONS 1. Infolink is without knowledge or information sufficient to form a belief as

to the truth of the allegations of paragraph 1 of the Complaint, and therefore denies same. 2. Infolink affirmatively states that the allegations of paragraph 2 of the

Complaint constitute a legal conclusion and therefore no response is required. To the extent a response is deemed necessary, Infolink is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 2, and therefore denies same.

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3. 4.

Infolink admits the allegations of paragraph 3 of the Complaint. The allegations of paragraph 4 of the Complaint are directed at individuals

or entities other than Infolink and therefore no response is required. To the extent a response is deemed necessary, Infolink is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 4, and therefore denies same. 5. Infolink admits the allegations of paragraph 5 of the Complaint directed at

Infolink. The remaining allegations of paragraph 5 are directed at individuals or entities other than Infolink and therefore no response is required. To the extent a response is deemed necessary, Infolink is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 5, and therefore denies same. 6. Infolink affirmatively states that the allegations of paragraph 6 of the

Complaint constitute a legal conclusion and therefore no response is required. To the extent a response is deemed necessary, Infolink admits the allegations of paragraph 6. 7. Infolink is without knowledge or information sufficient to form a belief as

to the truth of the allegations of paragraphs 7 through 9 of the Complaint, and therefore denies same. 8. 9. Infolink admits the allegations of paragraph 10 of the Complaint. Infolink admits that it ordered a court file search through Phoenix

Research, Inc., and denies the remaining allegations of paragraph 11 of the Complaint. 10. Infolink admits that Phoenix Research, Inc. provided Infolink with a report

titled Criminal History Search and denies the remaining allegations of paragraph 12 of the Complaint.

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11.

Infolink admits that on or about June 9, 2003, it provided Gourmet Award

Foods with a report on plaintiff and denies the remaining allegations of paragraph 13 of the Complaint. 12. Infolink affirmatively states that the allegations of paragraph 14 of the

Complaint constitute a legal conclusion and therefore no response is required. To the extent a response is deemed necessary, Infolink is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 14, and therefore denies same. 13. Infolink admits that it provided a report to Gourmet Award Foods

indicating that plaintiff had been convicted of a misdemeanor in Jefferson County, Colorado, and that this information was based on information provided to Infolink from Phoenix Research, Inc. Infolink denies the remaining allegations of paragraphs 15 and 16 of the Complaint. 14. The allegations of paragraph 17 of the Complaint are directed at

individuals or entities other than Infolink and therefore no response is required. To the extent a response is deemed necessary, Infolink is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 17, and therefore denies same. 15. Infolink affirmatively states that the allegations of paragraph 18 of the

Complaint constitute a legal conclusion and therefore no response is required. To the extent a response is deemed necessary, Infolink is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 18, and therefore denies same.

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16.

Infolink admits that Plaintiff contacted Infolink for the first time on or

about July 14, 2003 and disputed the accuracy of information contained in Infolink's report. Infolink denies the remaining allegations of paragraphs 19 and 20 of the Complaint. 17. Infolink admits that after Plaintiff disputed the accuracy of information

contained in Infolink's report, Infolink contacted Gourmet Award Foods and advised the company that Infolink was issuing an amended report. Infolink denies the remaining allegations of paragraph 21 of the Complaint. 18. Infolink admits that after Plaintiff disputed the accuracy of information

contained in Infolink's report, Infolink issued an amended report to Gourmet Award Foods. Infolink affirmatively states that the amended report is a document which speaks for itself. Infolink denies the remaining allegations of paragraph 22 of the Complaint. 16. The allegations of paragraph 23 of the Complaint are directed at

individuals or entities other than Infolink and therefore no response is required. To the extent a response is deemed necessary, Infolink denies that a copy of anything was attached to the Complaint. Infolink is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 23, and therefore denies same. FIRST CLAIM FOR RELIEF (Negligent Noncompliance with FCRA by Defendant Infolink) 17. Infolink incorporates by reference its responses to the allegations set forth

in paragraphs 1-23 of the Complaint.

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18.

Infolink admits that it had certain duties under the Fair Credit Reporting

Act ("FCRA"), 15 U.S.C. § 1681 et seq. and denies the remaining allegations of paragraphs 25 through 27 of the Complaint. 19. Complaint. SECOND CLAIM FOR RELIEF (Negligent Noncompliance with FCRA by Defendant Phoenix) 20. Infolink incorporates by reference its responses to the allegations set forth Infolink denies the allegations of paragraphs 28 through 30 of the

in paragraphs 1-30 of the Complaint. 21. The allegations of paragraphs 32 through 37 of the Complaint are directed

at individuals or entities other than Infolink and therefore no response is required. To the extent a response is deemed necessary, Infolink is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraphs 32 through 37, and therefore denies same. THIRD CLAIM FOR RELIEF (Negligence of Defendant Phoenix) 22. Infolink incorporates by reference its responses to the allegations set forth

in paragraphs 1-37 of the Complaint. 23. The allegations of paragraphs 39 through 44 of the Complaint are directed

at individuals or entities other than Infolink and therefore no response is required. To the extent a response is deemed necessary, Infolink is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraphs 39 through 44, and therefore denies same.

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24.

Infolink denies all allegations of the Complaint not specifically admitted

herein, including the allegations, if any, of the Wherefore clause. AFFIRMATIVE DEFENSES Having fully set forth its answer to the Complaint, Infolink hereby submits the following affirmative defenses: A. B. C. The Complaint fails to state a claim upon which relief can be granted. Mr. Cohen has failed to mitigate his damages, if any. Mr. Cohen may not be the real party in interest with respect to all or a part

of his claimed damages. D. Mr. Cohen's claims for damages are a result of the acts or omissions of

third persons or entities over which Infolink had no control, nor right of control and for whose actions Infolink is not responsible. E. Mr. Cohen's claims are barred because any act or omission by Infolink

was not the proximate cause of the damages and injuries, if any, to Mr. Cohen. F. Mr. Cohen's claims may be barred or diminished by virtue of his own

comparative negligence. G. Mr. Cohen is hereby notified that although any wrongdoing is expressly

denied, any judgment of liability of Infolink is limited to the degree of negligence or fault, if any, attributable to Infolink. H. Mr. Cohen's claims are subject to reduction to the extent of any collateral

source payments. I. Mr. Cohen's claims are frivolous and groundless, thereby entitling

Infolink to an award of attorney fees and costs.

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J.

Infolink 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, Infolink respectfully requests that judgment enter in its favor and against Mr. Cohen on all claims, that the Complaint be dismissed with prejudice and that Infolink be awarded its attorney fees, costs and such other and further relief as is just and proper. DATED this 22nd day of June, 2005. Respectfully submitted, TIEMEIER & HENSEN, P.C.

_______________________________ C. Todd Drake Stephen J. Hensen 1515 Arapahoe Street, Suite 1300 Denver CO 80202 Telephone: 303-572-1515 Attorneys for Defendant Infolink Screening Services, Inc.

CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 22nd day of June, 2005, he served a true and correct copy of the foregoing upon the below-noted individuals by depositing a copy in the United States Mail, postage prepaid thereon, addressed as follows: Marc F. Bendinelli, Esq. Bendinelli Law Office, P.C. 11184 Huron Street, Suite 10 Denver, CO 80234

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