1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

Flava Works, Inc., )

)

Plaintiff, ) Case No. 1:12-cv-01885

)

v. )

) Hon. Judge Joan H Lefkow

Frank Rossi, )

)

Defendant )

) 

DEFENDANT FRANK ROSSI’S RESPONSE TO

PLAINTIFF’S MOTION TO DISMISS DEFENDANT’S COUNTERCLAIM

Now comes, Defendant FRANK ROSSI ("Defendant"), by and through his attorneys, Saper Law 

Offices, LLC, to respond to the motion of Plaintiff Flava Works, Inc. (“Plaintiff”) pursuant to Federal 

Rules of Civil Procedure § 12(b)(6) to dismiss Defendant’s Counterclaim. 

ARGUMENT

Plaintiff asserts that Defendant failed to plead the necessary breach-of-contract elements of (1)

substantial performance of the contract by Defendant and (2) a breach by Plaintiff. Even a cursory

review of Defendant’s Counterclaim shows that this assertion is baseless.

With respect to substantial performance, Defendant pled to ¶ 10 that he had continued to pay for 

his account on Plaintiff’s website through at least September 2010. This was despite Defendant’s 

attempts to cancel the account in July 2007. See Counterclaim, ¶¶ 2-6. Defendant performed his 

obligations under the member agreement, and Defendant has sufficiently pled this fact in association 

with his Counterclaim.

With respect to the breach by the Plaintiff, Plaintiff’s own member agreement stated that 

Defendant could cancel his account in the support section of Plaintiff’s website. See id., ¶ 7. Instead of 

Case: 1:12-cv-01885 Document #: 36 Filed: 07/30/13 Page 1 of 2 PageID #:341
2

complying with their agreement, Plaintiff deferred to CCBill.com. See id., ¶ 6. However, as Defendant 

pled in ¶¶ 2-3 of his Counterclaim, Defendant had already contacted CCBill.com in an attempt to cancel 

his account. Id. CCBill.com Member Services could not locate the account and recommended 

Defendant contact Plaintiff directly for cancellation of the account. Id., ¶ 4. Plaintiff’s proposed 

substitute to performing its obligations under the User/Subscriber Agreement was therefore inadequate, 

leaving Defendant with no way to properly cancel his account. See id., ¶ 8. It was not until over three 

years later that Defendant realized, through a general message to CCBill.com Member Services 

questioning why he was still being charged monthly fees despite his CCBill.com account showing no 

active memberships: that he was still paying for an account on Plaintiff’s website. See id., ¶¶ 8-11. As 

of the date of his Counterclaim, Defendant has still been unable to locate the account that is the subject 

of this lawsuit in his CCBill.com member history, despite Plaintiff’s claim to the contrary. 

Having pled that he substantially performed his obligations by paying his membership fees and 

having pled that Flava Works breached its obligations by refusing to “cancel [Defendant’s] subscription 

in the support section of [its] site” or by providing any other reasonable means of cancellation, 

Defendant has properly alleged a breach of contract claim.

WHEREFORE, Defendant Frank Rossi requests this Court to dismiss the Motion to 

Dismiss his Counterclaim.

Dated: July 30, 2013 Respectfully submitted, 

Defendant Frank Rossi 

By: /s/ Daliah Saper 

Daliah Saper

Saper Law Offices, LLC 

505 N. LaSalle Suite 350 

Chicago, Illinois 60654 

(312) 527-4100 

IL ARDC. No.: 6283932

dsaper@saperlaw.com

Case: 1:12-cv-01885 Document #: 36 Filed: 07/30/13 Page 2 of 2 PageID #:342