Free Answer to Complaint - District Court of California - California

Case 3:08-cv-00397-H-AJB

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Stuart E. Jones, (State Bar No 104566) WRIGHT, ROBINSON, OSTHIMER & TATUM 44 Montgomery Street, 18th Floor San Francisco, California 94104-4705 Telephone: (415) 391-7111 Telefax: (415) 391-8766 Attorneys for Defendant Kim Logue, an individual doing business as About Attitude

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

KIPPYS, INC., a California Corporation, Plaintiff, v. ABOUT ATTITUDE, an entity of unknown form, 13817 Village Mill Drive, Suite 200, Midlothian, Virginia; KIM LOGUE, an individual, and DOES 1 through 50, inclusive, Defendant.

Case No.: 08-CV-0397 H ANSWER OF DEFENDANT KIM LOGUE TO PLAINTIFF'S COMPLAINT AND DEMAND FOR A JURY TRIAL

Defendant Kim Logue, an individual, doing business as About Attitude [Hereinafter referred to as Defendant] Answers Plaintiff's Complaint as follows: JURISDICTION AND VENUE 1. In answer to paragraph 1, Defendant lacks sufficient information or belief to admit

the allegations contained therein and therefore denies each and every allegation of paragraph 1. 2. In answer to paragraph 2, Defendant lacks sufficient information or belief to admit

the allegations contained therein and therefore denies each and every allegation of paragraph 2. 3. In answer to paragraph 3, Defendant lacks sufficient information or belief to admit

the allegations contained therein and therefore denies each and every allegation of paragraph 3. 1
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THE PARTIES In answer to paragraph 4, Defendant lacks sufficient information or belief to admit

the allegations contained therein and therefore denies each and every allegation of paragraph 4. 5. In answer to paragraph 5(a), Defendant admits that she is an individual residing in Defendant also admits that she is a sole proprietor doing

the Commonwealth of Virginia.

business as About Attitude. Defendant denies the remainder of the allegations set forth in paragraph 5(a). In answer to paragraph 5(b), Defendant admits that she is an individual residing in the Commonwealth of Virginia. Defendant also admits that she is a sole proprietor doing business as About Attitude. Defendant admits that she is the owner of the domain name

AboutAttitude.com and that she sends and receives e-mail messages to/from potential customers from the e-mail address that is linked to AboutAttitude.com. Defendant denies the remainder of the allegations set forth in paragraph 5(b). In answer to paragraph 5(c) Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 5(c). In answer to paragraph 5(d), Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 5(d). GENERAL ALLEGATIONS In answer to paragraph 6, Defendant lacks sufficient information or belief to admit

the allegations contained therein and therefore denies each and every allegation of paragraph 6. 7. In answer to paragraph 7, Defendant lacks sufficient information or belief to admit

the allegations contained therein and therefore denies each and every allegation of paragraph 7. 8. In answer to paragraph 8, Defendant lacks sufficient information or belief to admit

the allegations contained therein and therefore denies each and every allegation of paragraph 8. 9. In answer to paragraph 9, Defendant lacks sufficient information or belief to admit

the allegations contained therein and therefore denies each and every allegation of paragraph 9. 10. In answer to paragraph 10, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of 2
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paragraph 10. 11. In answer to paragraph 11, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 11. 12. In answer to paragraph 12, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 12. 13. In answer to paragraph 13, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 13. 14. In answer to paragraph 14, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 14. 15. In answer to paragraph 15, Defendant denies generally and specifically each and

every allegation contained therein. 16. In answer to paragraph 16, Defendant denies generally and specifically each and

every allegation contained therein. 17. In answer to paragraph 17, Defendant denies generally and specifically each and

every allegation contained therein. 18. In answer to paragraph 18, Defendant denies generally and specifically each and

every allegation contained therein. 19. In answer to paragraph 19, Defendant denies generally and specifically each and

every allegation contained therein. FIRST CLAIM FOR RELIEF 20. In answer to paragraph 20, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 20. 3
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21.

In answer to paragraph 21, Defendant re-alleges the answers and denials to

paragraphs 1 through 19 of the Complaint as though fully set forth herein. 22. In answer to paragraph 22, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 22. 23. In answer to paragraph 23, Defendant denies generally and specifically each and

every allegation contained therein. 24. 25. In answer to paragraph 24, Defendant admits the allegations contained therein. In answer to paragraph 25, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 25, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 25. 26. In answer to paragraph 26, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 26, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 26. 27. In answer to paragraph 27, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 27, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 27. 28. In answer to paragraph 28, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 28, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 28. 29. In answer to paragraph 29, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 29, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and 4
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every allegation of paragraph 29. 30. In answer to paragraph 30, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 30, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 30. 31. In answer to paragraph 31, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 31, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 31. 32. In answer to paragraph 32, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 32, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 32. SECOND CLAIM FOR RELIEF 33. In answer to paragraph 33, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 33, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 33. 34. In answer to paragraph 34, Defendant re-alleges the answers and denials to

paragraphs 1 through 32 of the Complaint as though fully set forth herein. 35. In answer to paragraph 35, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 35. 36. In answer to paragraph 36, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 36, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 36. 5
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37. 38.

In answer to paragraph 37, Defendant admits the allegations contained therein. In answer to paragraph 38, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 38, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 38. 39. In answer to paragraph 39, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 39, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 39. 40. In answer to paragraph 40, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 40, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 40. 41. In answer to paragraph 41, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 41, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 41. 42. In answer to paragraph 42, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 42, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 42. 43. In answer to paragraph 43, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 43, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 43. 44. In answer to paragraph 44, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of 6
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paragraph 44. THIRD CLAIM FOR RELIEF 45. In answer to paragraph 45, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 45. 46. In answer to paragraph 46, Defendant re-alleges the answers and denials to

paragraphs 1 through 44 of the Complaint as though fully set forth herein. 47. In answer to paragraph 47, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 47, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 47. 48. In answer to paragraph 48, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 48, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 48. 49. In answer to paragraph 49, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 49, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 49. 50. In answer to paragraph 50, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 50, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 50. 51. In answer to paragraph 51, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 51, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 51. 7
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52.

In answer to paragraph 52, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 52. FOURTH CLAIM FOR RELIEF 53. In answer to paragraph 53, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 53. 54. In answer to paragraph 54, Defendant re-alleges the answers and denials to

paragraphs 1 through 52 of the Complaint as though fully set forth herein. 55. In answer to paragraph 55, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 55. 56. In answer to paragraph 56, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 56. 57. In answer to paragraph 57, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 57. 58. In answer to paragraph 58, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 58. FIFTH CLAIM FOR RELIEF 59. In answer to paragraph 59, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 59. 60. In answer to paragraph 60, Defendant re-alleges the answers and denials to

paragraphs 1 through 58 of the Complaint as though fully set forth herein. 8
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61.

In answer to paragraph 61, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 61. 62. In answer to paragraph 62, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 62, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 62. 63. 64. In answering paragraph 63, Defendant admits the allegations contained therein. In answer to paragraph 64, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 64, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 64. 65. In answer to paragraph 65, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 65, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 65. 66. In answer to paragraph 66, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 66, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 66. 67. In answer to paragraph 67, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 67, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 67. 68. In answer to paragraph 68, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 68, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and 9
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every allegation of paragraph 68. 69. In answer to paragraph 69, Defendant denies using the Kippys trademarks for any

purpose. In answer to the remaining allegations of paragraph 69, Defendant lacks sufficient information or belief to admit the allegations contained therein and therefore denies each and every allegation of paragraph 69. 70. In answer to paragraph 70, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 70.

SIXTH CLAIM FOR RELIEF 71. In answer to paragraph 71, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 71. 72. In answer to paragraph 72, Defendant re-alleges the answers and denials to

paragraphs 1 through 70 of the Complaint as though fully set forth herein. 73. In answer to paragraph 73, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 73. 74. In answer to paragraph 74, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 74. 75. In answer to paragraph 75, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 75. 76. In answer to paragraph 76, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 76. 10
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77.

In answer to paragraph 77, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 77. SEVENTH CLAIM FOR RELIEF 78. In answer to paragraph 78, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 78. In answer to the second paragraph 78, Defendant re-alleges the answers and denials to paragraphs 1 through 77 of the Complaint as though fully set forth herein. 79. In answer to paragraph 79, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 79. 80. In answer to paragraph 80, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 80. 81. In answer to paragraph 81, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 81. 82. In answer to paragraph 82, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 82. 83. In answer to paragraph 83, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 83. 84. In answer to paragraph 84, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 84. 85. In answer to paragraph 85, Defendant lacks sufficient information or belief to 11
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admit the allegations contained therein and therefore denies each and every allegation of paragraph 85. 86. In answer to paragraph 86, Defendant lacks sufficient information or belief to

admit the allegations contained therein and therefore denies each and every allegation of paragraph 86. Wherefore, Defendant prays for judgment against Plaintiff as follows: 1. That Plaintiff's complaint be dismissed or that judgment be entered in

Defendants' favor and against Plaintiff; 2. 3. 4. deem just. That Defendant be awarded costs of suit; That Defendant be warded attorney's fees as provided by statute; and That Defendant be awarded such further and other relief as the court may

DATED: March 27, 2008

Respectfully submitted, WRIGHT, ROBINSON, OSTHIMER & TATUM By: /s/ Stuart E. Jones Stuart E. Jones Wright, Robinson, Osthimer & Tatum 44 Montgomery St., 18th Floor San Francisco, CA 94104 (415) 391-7111, Fax (415) 391-8766 [email protected] Attorneys for Defendant Kim Logue, an individual doing business as About Attitude

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ANSWER OF DEFENDANT KIM LOGUE TO PLAINTIFF'S COMPLAINT AND DEMAND FOR A JURY TRIAL

AFFIRMATIVE DEFENSES Defendant Kim Logue asserts the following affirmative defenses to Plaintiff's Complaint: 1. The Complaint, and each claim alleged therein, fails to state facts sufficient to

constitute a claim against this answering Defendant. 2. Plaintiff's Complaint, and each claim alleged therein, is barred because plaintiff

has not suffered any harm as a result of the conduct of Defendant. 3. estoppel. 4. unclean hands. 5. laches. 6. Plaintiff lacks standing to assert a federal copyright claim because Plaintiff has not Plaintiff's Complaint, and each claim alleged therein, is barred by the doctrine of Plaintiff's Complaint, and each claim alleged therein, is barred by the doctrine of Plaintiff's Complaint, and each claim alleged therein, is barred by the doctrine of

obtained federal copyrights for the works identified within Plaintiff's Complaint. 7. Defendant alleges that the claims alleged in the Complaint were caused, if at all,

by other persons or entities not named in the Complaint. 8. Complaint. 9. Defendant alleges that the claims alleged within the Complaint are barred by the Defendant alleges that Plaintiff has failed to name indispensible parties in the

applicable statute of limitations. 10. conduct. Defendant alleges that Plaintiff has not suffered any damages due to Defendant's

Case 3:08-cv-00397-H-AJB 11.

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Defendant alleges that all of the statements that she has made, if any, as alleged in

the Complaint were protected by the First Amendment to the United States Constitution. 12. 13. Plaintiff has waived any claim against Defendant. Defendant alleges that the court lack jurisdiction over Defendant because

Defendant is a resident of the Commonwealth of Virginia and was not and is not subject to service of process within the Southern District of California. 14. Defendant alleges that the venue of this action is improper in that Plaintiff is a

California Corporation and Defendant is a resident of the Commonwealth of Virginia. This action was brought in the Southern District of California. 15. Defendant alleges that the court lack's jurisdiction over this action because the

actual amount in controversy is less than $ 75,000, exclusive of interest and costs. DATED: March 27, 2008 Respectfully submitted, WRIGHT, ROBINSON, OSTHIMER & TATUM By: /s/ Stuart E. Jones Stuart E. Jones Wright, Robinson, Osthimer & Tatum 44 Montgomery St., 18th Floor San Francisco, CA 94104 (415) 391-7111, Fax (415) 391-8766 [email protected] Attorneys for Defendant Kim Logue, an individual doing business as About Attitude

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DEMAND FOR JURY TRIAL Defendant Kim Logue hereby demands a jury trial DATED: March 27, 2008 Respectfully submitted, WRIGHT, ROBINSON, OSTHIMER & TATUM By: /s/ Stuart E. Jones Stuart E. Jones Wright, Robinson, Osthimer & Tatum 44 Montgomery St., 18th Floor San Francisco, CA 94104 (415) 391-7111, Fax (415) 391-8766 [email protected] Attorneys for Defendant Kim Logue, an individual doing business as About Attitude

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CERTIFICATE OF FILING

I hereby certify that on March 17, 2008, I electronically filed the foregoing with the Clerk of the Court using CM/ECF system which will send a notification of electronic filing to the following CM/ECF Participants and served upon all counsel of record by placing a copy of the same in the United States Mail, postage prepaid, and sent to their last known address as follows: Joseph A. Yanny, Esq. Raphael B. Emanuel, Esq. Kim D. Ashley, Esq. Yanny & Smith 1801 Century Park East, 23rd Floor Los Angeles, California 90067 Telephone: (310) 551-2966 Facsimile: (310) 551-1949 Attorneys for Plaintiff Kippys, Inc.

By: /s/ Stuart E. Jones Stuart Jones Wright, Robinson, Osthimer & Tatum 44 Montgomery St., 18th Floor San Francisco, CA 94104 (415) 391-7111, Fax (415) 391-8766 [email protected]

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