Dan Marovitch <dmarovitch@marovitchlaw.com>

Lowe v. Diversified Answer and Affirmative Defenses

4 messages

Alex Burke <ABurke@burkelawllc.com> Wed, May 16, 2012 at 1:09 PM

To: John Brigandi <JBrigandi@salvolawfirm.com>, gnapleton@rockfuscoconnelly.com, Cindy Salvo

<csalvo@salvolawfirm.com>

Cc: dmarovitch@marovitchlaw.com

Cindy,

Reviewing Diversified’s answer, I notice that it does not comply with Local Rule 10.1, which requires a “concise

summary” of the paragraph to which it is directed.

LR10.1 Responsive Pleadings

Responsive pleadings shall be made in numbered paragraphs each corresponding to and stating a concise

summary of the paragraph to which it is directed.

Typically defendants just retype the allegations, and then place their answer to the allegations below. We request

that defendant please amend its answer to comply.

The answer is also deficient as to at some of the alleged affirmative defenses. For starters, affirmative defense two,

“bona fide error” is improperly pleaded. Fed.R.Civ.P. 9(b) requires that allegations of “mistake” in pleadings be stated

with particularity. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168

(1993). “Particularity” as used in Rule 9(b) means “the who, what, when, where, and how of the mistake: the first

paragraph of any newspaper story." GE Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1078 (7th Cir.

1997). We request that Diversified please amend its answer to identify what error it alleges happened, if any.

We also question affirmative defenses four and five, that plaintiff’s claims may be barred or diminished because of

some right to setoff, because plaintiff is not a debtor here. We are not aware of any relationship between plaintiff

and defendant, other than the fact that defendant kept calling plaintiff. Do you really contend that plaintiff owes

money to your client? Similarly, does defendant really believe that a rogue employee loaded the autodialer with

plaintiff’s cell phone number repeatedly and over a multiple-month period, for personal gain? This seems unlikely. We

expect Diversified either to delete these affirmative defenses, or respond fully to our interrogatories and document

requests with information and documents/data that support them, pursuant to Fed.R.Civ.P. 11 and 37.

We request that Diversified bring its answer and defenses into compliance with the rules, by May 18, 2012. After that

date, we will file our motion to strike the answer.

Please contact me with any questions at all.

Sincerely,

Marovitch Law Firm, LLC Mail - Lowe v. Diversified Answer and Affirmative Defenses

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Case: 1:12-cv-02009 Document #: 37-1 Filed: 08/28/12 Page 1 of 4 PageID #:168
Alex Burke

URKE AW FFICES

155 N. Michigan Ave., Suite 9020

Chicago, IL 60601

(312) 729-5288

(312) 729-5289 (fax)

ABurke@BurkeLawLLC.com

www.BurkeLawLLC.com

Answer of Diversified.pdf

357K

Cindy Salvo <csalvo@salvolawfirm.com> Wed, May 16, 2012 at 2:07 PM

To: Alex Burke <ABurke@burkelawllc.com>, John Brigandi <JBrigandi@salvolawfirm.com>,

gnapleton@rockfuscoconnelly.com

Cc: dmarovitch@marovitchlaw.com

Today is 5/16. You are suggesting that we redraft the Answer by Friday. I cannot do this as I have depositions all

day tomorrow and am otherwise tied up on Friday. Plus, I need time to review the contentions in your e-mail to see if

I agree with you. I ask that you give until mid-next week before filing a motion to strike. 

Cindy D. Salvo, Esq.

The Salvo Law Firm, P.C.

With offices in NJ and NY

www.salvolawfirm.com

165 Passaic Avenue

Suite 310

Fairfield, New Jersey 07004

(973) 233-4080

Marovitch Law Firm, LLC Mail - Lowe v. Diversified Answer and Affirmative Defenses

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Case: 1:12-cv-02009 Document #: 37-1 Filed: 08/28/12 Page 2 of 4 PageID #:169
(973) 900-8800 (fax)

303 South Broadway

Suite 486

Tarrytown, New York 10591

(914) 366-7466

(973) 900-8800 (fax)

A Woman-Owned Law Firm (Certified by WBENC)

From: Alex Burke [mailto:ABurke@BurkeLawLLC.com]

Sent: Wednesday, May 16, 2012 2:10 PM

To: 'John Brigandi'; gnapleton@rockfuscoconnelly.com; 'Cindy Salvo'

Cc: dmarovitch@marovitchlaw.com

Subject: Lowe v. Diversified Answer and Affirmative Defenses

[Quoted text hidden]

Alex Burke <aburke@burkelawllc.com> Wed, May 16, 2012 at 2:27 PM

Reply-To: aburke@burkelawllc.com

To: Cindy Salvo <csalvo@salvolawfirm.com>, John Brigandi <JBrigandi@salvolawfirm.com>,

gnapleton@rockfuscoconnelly.com

Cc: dmarovitch@marovitchlaw.com

That seems reasonable. How about a week from Friday, May 25?

Alex Burke

Burke Law Offices, LLC

155 N. Michigan Ave., Suite 9020

Chicago, IL 60201

312-729-5288

ABurke@BurkeLawLLC.com

(sent from my handheld)

From: Cindy Salvo <csalvo@salvolawfirm.com>

Date: Wed, 16 May 2012 15:07:11 -0400

To: 'Alex Burke'<ABurke@BurkeLawLLC.com>; 'John Brigandi'<JBrigandi@SalvoLawFirm.com>;

<gnapleton@rockfuscoconnelly.com>

Cc: <dmarovitch@marovitchlaw.com>

Subject: RE: Lowe v. Diversified Answer and Affirmative Defenses

[Quoted text hidden]

Cindy Salvo <csalvo@salvolawfirm.com> Wed, May 16, 2012 at 2:49 PM

Marovitch Law Firm, LLC Mail - Lowe v. Diversified Answer and Affirmative Defenses

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Case: 1:12-cv-02009 Document #: 37-1 Filed: 08/28/12 Page 3 of 4 PageID #:170
To: aburke@burkelawllc.com, John Brigandi <JBrigandi@salvolawfirm.com>, gnapleton@rockfuscoconnelly.com

Cc: dmarovitch@marovitchlaw.com

OK, will do.

Cindy D. Salvo, Esq.

The Salvo Law Firm, P.C.

With offices in NJ and NY

www.salvolawfirm.com

165 Passaic Avenue

Suite 310

Fairfield, New Jersey 07004

(973) 233-4080

(973) 900-8800 (fax)

303 South Broadway

Suite 486

Tarrytown, New York 10591

(914) 366-7466

(973) 900-8800 (fax)

A Woman-Owned Law Firm (Certified by WBENC)

From: Alex Burke [mailto:aburke@burkelawllc.com]

Sent: Wednesday, May 16, 2012 3:28 PM

To: Cindy Salvo; 'John Brigandi'; gnapleton@rockfuscoconnelly.com

Cc: dmarovitch@marovitchlaw.com

Subject: Re: Lowe v. Diversified Answer and Affirmative Defenses

[Quoted text hidden]

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