Free Answer to Complaint - District Court of California - California

Case 3:08-cv-01208-JLS-CAB

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Filed 07/14/2008

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BRANN fAdmitted Pro Hac Vicel pbrann@brann law.com STACY O. STITHAM lAdmitted Pro Hac Vicel sstitham@brann I aw.com BRANN & ISAACSON 184 Main Street P.O. Box 3070 Lewiston, ME 04243-3070 Telephone: (2O7) 786-3566 Facsimile: QO7\ 783-9325
PETER J.

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WILLIAM N. KAMMER [SBN 53848] wkam [email protected] ALTSON L. PTVONKA [SBN 1s6974 [email protected] SOLOMON WARD SEIDENWURM & SMITH, 401 B Street, Suite 1200 San Diego, California 92101 Telephone: (61 9) 231-0303 Facsimile: (619) 231 -47 55
Attorneys for Defendant COLDWATER CREEK INC.

LLP

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CAL¡FORNIA

16 SUSAN E. MASSEY, 17 Plaintiff,
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CASE NO. 08 CV 1208 JLS (CAB) ANSWER

19 COLDWATER CREEK INC.,

AND DEMAND FOR IURY TRIAL
Defendant.

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25 Pursuant to Federal Rules of Civil Procedure 8(b) and 8(c), the defendant, Coldwater

Creek lnc. ("Coldwater"), answers the plaintiff's complaint and states its affirmative defenses
as

follows:
ANSWER

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1.
P:004337

Paragraph 1 of the plaintiff's complaint states a legal conclusion to which no

response is required. To the extent, if any, that paragraph 1 contains allegations of fact,
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08 COLDWATER'5 ANSWER

cv

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208 JLS (CAB)

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Coldwater denies the same.

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2.
complaint.

Coldwater admits that it operates retail stores throughout the United States,

including California. Coldwater denies the remaining allegations in paragraph 2 of plaintiff's

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3.
complaint.

Coldwater denies the allegations contained in paragraph 3 of the plaintiff's

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4.

Paragraph 4 of the plaintiff's complaint states a legal conclusion to which no

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response is required. To the extent, if any, that paragraph 4 contains allegations of fact,

Coldwater denies the same.

5.

Coldwater admits that it does business in California. including the County of

San Diego, and that it accepts credit cards. Coldwater denies the remaining allegations in

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paragraph 5 of the plaintiff's complaint.

6. 7. 8. 9.

Coldwater admits the allegations in paragraph 6 of the plaintiff's complaint. Coldwater is without sufficient information to form a belief as to the truth or

falsity of the allegations contained in paragraph 7, and therefore denies the same. Coldwater admits that plaintiff purports to bring this action as a class action.

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Coldwater denies the remaining allegations in paragraph 8 of the plaintiff's complaint. Coldwater admits that it is a Delaware corporation and that it operates retail

stores in California, including stores in San Diego County. Coldwater denies the remaining

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allegations in paragraph 9 of plaintiff's complaint.

10.
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Coldwater is without sufficient information to form a belief as to the truth or

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falsity of the allegations contained in paragraph 10, and therefore denies the same.

1.

Coldwater denies the allegations contained in paragraph 11 of the plaintiff's

comolaint.

12.
complaint.

Coldwater denies the allegations contained in paragraph 12 of the plaintiff's

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'13.

Coldwater is without sufficient information to form a belief as to the truth or

falsity of the allegations contained in paragraph 13, and therefore denies the same.

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"14.

Coldwater is without sufficient information to form a belief

as

to the truth or

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falsity of the allegations contained in paragraph 14, and therefore denies the same.

15. 16.
complaint.

Coldwater is without sufficient information to form a belief

as

to the truth or

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falsity ofthe allegations contained in paragraph 15, and therefore denies the same. Coldwater denies the allegations contained in paragraph 16 of the plaintiff's

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17.
complaint.

Coldwater denies the allegations contained in paragraph 17 ol the plaintiff's

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18.
complaint.

Coldwater denies the allegations contained in paragraph 18of the plaintiff's

19.
comolaint.

Coldwater denies the allegations contained in paragraph 19 of the plaintiff's

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20.
comolaint.

Coldwater denies the allegations contained in paragraph 20 of the plaintiff's

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21. 22. 23.
comolaint.

Coldwater is without sufficient information to form a belief as to the truth or

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falsity of the allegations contained in paragraph 21, and therefore denies the same. Coldwater admits that plaintiff purports to bring this action as a class action.

Coldwater denies the remaining allegations in paragraph 22 of the plaintiff's complaint. Coldwater admits that, as pled, the purported class includes numerous

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persons. Coldwater denies the remaining allegations in paragraph 23 of the plaintiff's

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24.
comolaint.

Coldwater denies the allegations contained in paragraph 24 of the plaintiff's

25.
comolaint.

Coldwater denies the allegations contained in paragraph 25 of the plaintiff's

26.
complaint.

Coldwater denies the allegations contained in paragraph 26 of the plaintiff's

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27.

Coldwater denies the allegations contained in paragraph 30 of the plaintiff's

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complaint.

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28.
complaint.

Coldwater denies the allegations contained in paragraph 28 of the plaintiff's

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29. 30.

Coldwater realleges and incorporates by reference its responses to each and

every allegation set forth above in paragraphs 1 through 28, inclusive.
Paragraph 30 of the plaintiff's complaint states a legal conclusion to which no

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response is required. To the extent, if any, that paragraph 30 contains allegations of fact,

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Coldwater denies the same.

31. 32.
complaint.

Coldwater admits that it accepts credit cards as a form of payment. Coldwater

denies the remaining allegations in paragraph 31.

Coldwater denies the allegations contained in paragraph 32 of the plaintiff's

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33.
complaint.

Coldwater denies the allegations contained in paragraph 33 of the plaintiff's

34.
complaint.

Coldwater denies the allegations contained in paragraph 34 of the plaintiff's

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35. 36.
comolaint.

Coldwater realleges and incorporates by reference its responses to each and

every allegation set forth above in paragraphs 1 through 34, inclusive.

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Coldwater denies the allegations contained in paragraph 36 of the plaintiff's

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37.
comþlaint.

Coldwater denies the allegations contained in paragraph 37 of the plaintiff's

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38.
comolaint.

Coldwater denies the allegations contained in paragraph 38 of the plaintiff's

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39.
complaint.

Coldwater denies the allegations contained in paragraph 39 of the plaintiff's

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40.
comolaint.

Coldwater denies the allegations contained in paragraph 40 of the plaintiff's

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41.
comolaint.

Coldwater denies the allegations contained in paragraph 41 of the plaintiff's

42. 43.
comolaint.

Coldwater realleges and incorporates by reference its responses to each and

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every allegation set forth above in paragraphs 1 through 41, inclusive.

Coldwater denies the allegations contained in paragraph 43 of the plaintiff's

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44.
comolaint.

Coldwater denies the allegations contained in paragraph 44 of the plaintiff's

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45.
complaint.

Coldwater denies the allegations contained in paragraph 45 of the plaintiff's

46.
complaint.

Coldwater denies the allegations contained in paragraph 46 of the plaintiff's

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47.
complaint.

Coldwater denies the allegations contained in paragraph 47 of the plaintiff's

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48.
complaint.

Coldwater denies the allegations contained in paragraph 48 of the plaintiff's

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AFFTRMATIVE DEFENSES Reserving the right to add additional affirmative defenses, and to assert other defenses, which become known through investigation, discovery, or other proceedings,

including trial, in this matter, Coldwater states for its affirmative defenses:
FIRST AFF¡RMATIVE DEFENSE

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49.
granted.

The plaintiff's complaint fails to state a clalm upon which relief may be

SECOND AFFIRMATIVE DEFENSE

50.

The plaintiff's complaint should be dismissed for lack of standing to assert any

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or all of the causes of action alleged and to recover on behalf of the purported class.
THI RD AFFI RMATIVE DEFENSE

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50.

The injury or damage suffered by plaintiff, if any exists, would be adequately

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compensated in an action at law for damages. Accordingly, plaintiff has a complete and adequate remedy at law and is not entitled to seek equitable relief. FOURTH AFF!RMATIVE DEFENSE

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51.

The plaintiff's complaint is barred by the equitable doctrines of estoppe.,

waiver, laches and/or unclean hands.
FIFTH AFFI RMATIVE DEFENSE

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52.

The plaintiff's complaint is barred because no violation of section 1747.08 has

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occurred or is occurring, and Coldwater's activities conformed with and were pursuant to
any and all applicable siatutes and regulations and were not unlawful.
SIXTH AFFI RMATIVE DEFENSE

53.

To the extent that Coldwater has done or failed to do anything which

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constitutes a violation of the law as alleged in the Complaint (which Coldwater expressly denies) such violation was not intentional but resulted from a bona fide error made

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notwithstanding Coldwater's maintenance of procedures reasonably adopted to avoid that
error.
SEVENTH AFFIRMATIVE DEFENSE

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54.

The causes of action alleged in the Complaint are barred, in whole or in part,

by the doctrines of acquiescence, ratification, and consent.

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EICHTH AFFI RMATIVE DEFENSE

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55.

The causes of action alleged in the Complaini are barred, in whole or in part,

because neither plaintiff nor any member of the putative class suffered any legally

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cognizable or other injury or damage as a result of the conduct alleged in the Complaint.

NINTH AFFIRMATIVE DEFENSE

56.

The causes of action alleged in the Complaint are barred, in whole or in part,

because to the extent plaintiff or any member of the putative class was damaged, the

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damage was caused by the acts, omissions, fault or conduct of third parties for whom

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Coldwater is not legally responsible and has no legal control.

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TENTH AFFIRMATIVE DEFENSE

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The causes of action alleged in the Complaint are barred, because California

Civil Code S 1747.08 is unconstitutional to the extent it is applied in a manner that violates
any constitutional protection, including without limitation:

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(a) (b) (c) (d) (e) (f) 58.
of:

The excessive fines clauses of the Eighth Amendment to the United States

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Constitution;
The due process clause of the Fourteenth Amendment to the Un¡ted States

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Constitution;
The constitutional requirement that an entity receive fair notice of the conduct that will subject it to punishment; The constitutional prohibition against grossly excessive punishment; The constitutional prohibition against vague, standardless, and overbroad laws; and The constitutional rights of free speech and free association.
ELEVENTH AFFIRMATIVE DEFENSE

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With respect to each and every allegation of the Complaint

as

they relate to

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the request for class certification, class certification is not appropriate because there is a lack

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(a) (b) (c) (d) (e) (0 (g) (h)

Commonality or community of interest; Typicality; An ascertainable class; Adequaterepresentation;
Appropriateness of relief to the putatlve class as a whole; Predominance of common questions over questions affecting individual class members; Substantial benefit to the litigants and the Court; and

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Superiority of a class action to other available methods for fair and efficient adjudication.

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TWELFTH AFFI RMATIVE DEFENSE

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Venue in the Southern District of California is improper. CONCLUSION

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Based upon the foregoing, Coldwater requests that the complaint against it be

dismissed with prejudice in its entirety, and that Coldwater be awarded its costs and attorneys' fees, and any further relief this Court deems just and proper. DATED: July 14,2008

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SOLOMON WARD SEIDENWURM & SMITH, LLP

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By:

/s/ William N. Kammer WILLIAM N. KAMMER ALISON L. PIVONKA Attorneys for COLDWATER CREEK lNC.

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p:00433 773.2:61

030.003

-8COLDWATER'S ANSWER

08 CV 1208 ILS (CAB)

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DEMAND FOR JURY TRIAT
Defendant demands a jury trial of all claims triable by a jury.

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DATED: July 14,2OOB

SOLOMON WARD SEIDENWURM & SMITH, LLP

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By:

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/s/ William N. Kammer WILLIAM N. KAMMER ALISON L. PIVONKA Attorneys for COLDWATER CREEK lNC.

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CERTIFICATE OF SERVICE
I caused ANSWER to be served in the

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following manner:

Electronic Mail Notice List
The followins are those who are currently on the list to receive e-mail notices for this
ca5e.

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[email protected]

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Manual Notice List
The following is the list of attorneys who are not on the list to receive e-mail notices

for this case (who therefore require manual noticing).

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lNoNEl lsl William N. Kammer WilTiãm N. Kammer

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-10-

08 CV 1208

lts

(CAB)