Here's Bell Microproducts' ANSWER TO THE COMPLAINT: IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------x ERIK ANDERSEN AND ROB LANDLEY, Plaintiffs, -against- BELL MICROPRODUCTS, INC. D.B.A. HAMMER STORAGE, Defendant.
Civil Action No. 08 CV 5270 (HB) ECF CASE ------------------------------------------------------------x ANSWER TO THE COMPLAINT Defendant Bell Microproducts, Inc. (Bell Microproducts), through its undersigned counsel, as and for its Answer to the Complaint filed by Erik Anderson and Rob Landley, states as follows: THE PARTIES 1. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 1 of the Complaint. 2. In response to paragraph 2 of the Complaint, Bell Microproducts admits that it is a California corporation with its principal place of business at 1941 Ringwood Avenue, San Jose, CA 95131. Bell Microproducts admits that it is a distributor of computer hardware and software. Bell Microproducts further admits that it conducts business in New York. Except as specifically admitted, Bell Microproducts denies the allegations in paragraph 2 of the Complaint. JURISDICTION AND VENUE 3. In response to paragraph 3 of the Complaint, Bell Microproducts states this is a legal conclusion not subject to an admission or denial. 4. In response to paragraph 4 of the Complaint, Bell Microproducts admits that it owns and operates a website at shop.bellmicro.com where it sells hardware and software products to, including, but not limited to, residents of New York state. Except as expressly admitted, Bell Microproducts denies the allegations in paragraph 4 of the Complaint and states that personal jurisdiction is a legal conclusion not subject to an admission or denial. 5. In response to paragraph 5 of the Complaint, Bell Microproducts admits that it conducts business in New York state. Except as expressly admitted, Bell Microproducts denies knowledge or information sufficient to form a belief as to the truth of the matters asserted therein and states that whether venue is proper is a legal conclusion not subject to an admission or denial. FACTUAL BACKGROUND 6. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 6 of the Complaint. 7. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 7 of the Complaint. 8. In response to paragraph 8 of the Complaint, Bell Microproducts states that the License speaks for itself and on that basis, denies any allegations of paragraph 8 inconsistent therewith. 9. In response to paragraph 9 of the Complaint, Bell Microproducts states that the License speaks for itself and on that basis, denies any allegations of paragraph 9 inconsistent therewith. 10. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 10 of the Complaint. 11. Bell Microproducts admits that it sells storage devices containing firmware, which it purchases from a third party. Defendant further admits that it makes the firmware available for download on its website. Except as expressly admitted, Bell Microproducts denies all the allegations contained in paragraph 11 of the Complaint. 12. Bell Microproducts admits that it purchases storage devices that contain firmware from a third party. Bell Microproducts is unaware if the firmware it purchases from the third party contains BusyBox. Bell Microproducts states that the License speaks for itself and on that basis, denies any allegations of paragraph 12 inconsistent therewith. Except as expressly admitted, Bell Microproducts denies all the allegations contained in paragraph 12 of the Complaint. 13. In response to paragraph 13 of the Complaint, Bell Microproducts denies, generally and specifically, each and every allegation contained therein. 14. In response to paragraph 14 of the Complaint, Bell Microproducts states that the License speaks for itself and on that basis, denies any allegations of paragraph 14 inconsistent therewith. 15. Upon information and belief, Bell Microproducts denies the allegations of Paragraph 15 of the Complaint. 16. In response to paragraph 16 of the Complaint, Bell Microproducts admits that Plaintiffs sent a letter dated April 21, 2008, addressed to Hammer Storage by Bell Microproducts alleging Hammer Storage failed to comply with the License. Except as expressly admitted, Bell Microproducts denies, generally and specifically, the allegations contained in paragraph 16 of the Complaint. COUNT 1 COPYRIGHT INFRINGEMENT 17. In response to paragraph 17, Bell Microproducts incorporates its answers from paragraphs 1 through 16 as though fully stated herein. 18. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 18 of the Complaint. 19. In response to paragraph 19 of the Complaint, Bell Microproducts denies, generally and specifically, each and every allegation contained therein. 20. In response to paragraph 20 of the Complaint, Bell Microproducts denies, generally and specifically, each and every allegation contained therein. 21. In response to paragraph 21 of the Complaint, Bell Microproducts denies, generally and specifically, each and every allegation contained therein. 22. In response to paragraph 22 of the Complaint, Bell Microproducts denies, generally and specifically, each and every allegation contained therein. In response to Plaintiffs Prayer for Relief, Bell Microproducts denies that Plaintiffs are entitled to any relief, injunctive, monetary, or otherwise, against Bell Microproducts. DEFENSES FIRST DEFENSE (FAILURE TO STATE A CLAIM) The Complaint fails to set forth facts sufficient to state a claim upon which relief may be granted against Bell Microproducts and fails to state facts sufficient to entitle Plaintiffs to the relief sought, or to any other relief from Bell Microproducts. SECOND DEFENSE (ESTOPPEL) Plaintiffs are estopped from pursuing their claims against Bell Microproducts. THIRD DEFENSE (UNCLEAN HANDS) The Complaint, and each claim for relief therein that seeks equitable relief, is barred by the doctrine of unclean hands. FOURTH DEFENSE (WAIVER) Plaintiffs have waived their claims against Bell Microproducts. FIFTH DEFENSE (DE MINIMIS USE) Plaintiffs claims are barred by the doctrine of de minimis use. SIXTH DEFENSE (FIRST SALE DOCTRINE) Plaintiffs claims are barred by the first sale doctrine. SEVENTH DEFENSE (INDEMNIFICATION) Any purported damages allegedly suffered by Plaintiffs are the results of the acts or omissions of third persons over whom Bell Microproducts had neither control nor responsibility. EIGHTH DEFENSE (RIGHT TO ASSERT ADDITIONAL DEFENSES) Bell Microproducts reserves the right to assert additional affirmative defenses as such time and to such extent as warranted by discovery and the factual developments in this case. WHEREFORE, Defendant Bell Microproducts prays as follows: (1) That Plaintiffs take nothing by virtue of the Complaint herein and that this action be dismissed in its entirety; (2) For costs and attorneys fees incurred; and (3) For such other and further relief as the Court may deem just and proper. Dated: New York, New York September 24, 2008 Respectfully submitted, JONES DAY /s/ Lynn M. Marvin Ognian Shentov, Esq. (OS-4868) Lynn M. Marvin, Esq. (LM-2281) JONES DAY 222 E. 41st Street New York, NY 10017 Telephone: 212-326-3939 Facsimile: 212-755-7306 Counsel for Defendant BELL MICROPRODUCTS, INC. regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
