NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFTS’ ANSWER - 1

(CV06-0204JCC)

The Honorable John C. Coughenour

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JAMES S. GORDON, Jr., a married

individual, d/b/a

‘GORDONWORKS.COM’; OMNI

INNOVATIONS, LLC, a Washington

limited liability company;

Plaintiff,

v.

VIRTUMUNDO, INC, a Delaware

corporation d/b/a

ADNOWLEDGEMAIL.COM;

ADKNOWLEDGE, INC., a Delaware

corporation, d/b/a

ADKNOWLEDGEMAIL.COM;

SCOTT LYNN, an individual; and

JOHN DOES, 1-X,

Defendants.

No. CV06-0204JCC

DEFENDANTS’ ANSWER AND

AFFIRMATIVE DEFENSES TO

THE FIRST AMENDED

COMPLAINT

Defendants VIRTUMUNDO, INC. (“Virtumundo”), ADKNOWLEDGE,

INC. (“Adknowledge”) and SCOTT LYNN (“Lynn”)(collectively, “Defendants”)

answer Plaintiffs’ First Amended Complaint (“FAC”) and assert affirmative

defenses as follows:

I. ANSWER

1.1. Defendants are without knowledge and information sufficient to

form a belief with respect to the veracity of the allegations contained in 

Case 2:06-cv-00204-JCC Document 31 Filed 08/29/2006 Page 1 of 9

Gordon v. Virtumundo Inc et al Doc. 31

Dockets.Justia.com
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFTS’ ANSWER - 2

(CV06-0204JCC)

Paragraph 1.1 of Plaintiffs’ FAC, and therefore DENY the same. 

1.2. Defendants are without knowledge and information sufficient to

form a belief with respect to the veracity of the allegations contained in

Paragraph 1.2 of Plaintiffs’ FAC, and therefore DENY the same.

1.3. Defendants ADMIT that Adknowledge is a Delaware corporation

and has its principal place of business in the state of Missouri. Defendants

ADMIT that Virtumundo is a Delaware corporation and has its principal

place of business in the state of Kansas. Defendants DENY all other

allegations contained in Paragraph 1.3 of Plaintiffs’ FAC.

1.4. Defendants ADMIT Scott Lynn is an individual and a resident of

Kansas City, Missouri. Defendants ADMIT Scott Lynn is a director of

Adknowledge. Defendants ADMIT Scott Lynn a shareholder in Virtumundo

and Adknowledge. Defendants are without knowledge and information

sufficient to form a belief with respect to the veracity of the following

allegations and therefore DENY the same: “All acts and practices undertaken

by Schran on behalf of Ascentive are and were for the benefit of his marital

community.” Defendants DENY all other allegations contained in Paragraph

1.4 of Plaintiffs’ FAC.

1.5. Defendants ADMIT Lynn is a resident of Missouri. Defendants

DENY all other allegations contained in Paragraph 1.5 of Plaintiffs’ FAC.

1.6. Defendants DENY the allegations contained in Paragraph 1.6 of

Plaintiffs’ FAC. 

2.1. Defendants ADMIT the Court has original jurisdiction over

causes of action brought under the CAN-SPAM Act, 15 U.S.C. § 7701 et seq.

(“CAN-SPAM”). Defendants DENY all other allegations contained in

Paragraph 2.1 of Plaintiffs’ FAC.

2.2. Defendants DENY the allegations contained in Paragraph 2.2 of

Plaintiffs’ FAC.

Case 2:06-cv-00204-JCC Document 31 Filed 08/29/2006 Page 2 of 9
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFTS’ ANSWER - 3

(CV06-0204JCC)

2.3. Defendants ADMIT they send emails to persons who have

affirmatively indicated their desire to receive those emails. Defendants are

without knowledge and information sufficient to form a belief with respect to

the veracity of Plaintiffs’ allegations that Defendants’ emails “are received on

computers and other electronic devices owned and maintained by residents of

the State in the State”, and therefore DENY the same. Defendants DENY all

other allegations contained in Paragraph 2.3 of Plaintiffs’ FAC.

2.4. Defendants ADMIT Plaintiffs’ FAC contains various allegations,

but provide those allegations speak for themselves; accordingly, Defendants

DENY all other allegations contained in Paragraph 2.4 of Plaintiffs’ FAC.

2.5. Defendants are without knowledge and information sufficient to

form a belief with respect to the veracity of the allegations contained in

Paragraph 2.5 of Plaintiffs’ FAC, and therefore DENY the same.

2.6. Defendants provide the statutes cited in Paragraph 2.6 of

Plaintiffs’ FAC speak for themselves, and Plaintiffs’ interpretation of those

statutes is not a factual allegation which must be admitted or denied. 

Defendants DENY all allegations contained in Paragraph 2.6 of Plaintiffs’

FAC.

3.1. Defendants incorporate their answers to Paragraphs 1.1 through

2.6 above as though fully stated herein. Defendants DENY any allegations

contained in Paragraph 3.1 of Plaintiff’s FAC.

3.2. Defendants DENY Plaintiff James S. Gordon, Jr. (“Gordon”) is an

interactive computer service pursuant to the statutes cited in Paragraph 3.2

of Plaintiffs’ FAC or any other definition of “interactive computer service”. 

Defendants are without knowledge and information sufficient to form a belief

with respect to the veracity of the remaining allegations contained in

Paragraph 3.2 of Plaintiffs’ FAC, and therefore DENY the same. 

3.3. Defendants DENY Plaintiff Omni Innovations, LLC (“Omni”) is

Case 2:06-cv-00204-JCC Document 31 Filed 08/29/2006 Page 3 of 9
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFTS’ ANSWER - 4

(CV06-0204JCC)

an interactive computer service pursuant to the statutes cited in Paragraph

3.3 of Plaintiffs’ FAC or any other definition of “interactive computer service”. 

Defendants are without knowledge and information sufficient to form a belief

with respect to the veracity of the remaining allegations contained in

Paragraph 3.3 of Plaintiffs’ FAC, and therefore DENY the same. 

3.4. Defendants are without knowledge and information sufficient to

form a belief with respect to the veracity of the allegations contained in

Paragraph 3.4 of Plaintiffs’ FAC, and therefore DENY the same.

3.5. Defendants are without knowledge and information sufficient to

form a belief with respect to the veracity of the allegations contained in

Paragraph 3.5 of Plaintiffs’ FAC, and therefore DENY the same.

3.6. Defendants DENY the allegations contained in Paragraph 3.6 of

Plaintiffs’ FAC.

3.7. Defendants DENY the allegations contained in Paragraph 3.7 of

Plaintiffs’ FAC.

4.1. FIRST ALLEGED CAUSE OF ACTION

Defendants incorporate their answers to Paragraphs 1.1 through 3.7 of

Plaintiffs’ FAC as though fully stated herein. Defendants DENY any

allegations contained in the unnumbered first paragraph of Section 4.1 of

Plaintiffs’ FAC.

4.1.1. Defendants DENY the allegations contained in Paragraph 4.1.1 of

Plaintiffs’ FAC.

4.1.2. Defendants DENY the allegations contained in Paragraph 4.1.2 of

Plaintiffs’ FAC.

4.1.3. Defendants DENY the allegations contained in Paragraph 4.1.3 of

Plaintiffs’ FAC.

4.1.4. Defendants DENY the allegations contained in Paragraph 4.1.4 of

Plaintiffs’ FAC.

Case 2:06-cv-00204-JCC Document 31 Filed 08/29/2006 Page 4 of 9
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFTS’ ANSWER - 5

(CV06-0204JCC)

4.1.5. Defendants DENY the allegations contained in Paragraph 4.1.5 of

Plaintiffs’ FAC.

4.1.6. Defendants DENY the allegations contained in the first

“Paragraph 4.1.6” of Plaintiffs’ FAC.

4.1.7. Defendants DENY the allegations contained in Paragraph 4.1.7 of

Plaintiffs’ FAC.

4.1.8. Defendants DENY the allegations contained in Paragraph 4.1.8 of

Plaintiffs’ FAC.

4.1.9. Defendants DENY the allegations contained in Paragraph 4.1.9 of

Plaintiffs’ FAC.

4.1.10. Defendants ADMIT Plaintiffs seek injunctive relief but

DENY Plaintiffs are entitled to any such relief. Defendants DENY all other

allegations contained in Paragraph 4.1.10 of Plaintiffs’ FAC.

4.1.11. Defendants ADMIT Plaintiffs seek their “attorney fees and

costs” but DENY Plaintiffs are entitled to them. Defendants DENY all other

allegations contained in the second paragraph of Plaintiffs’ FAC numbered

“4.1.6”.

4.2. SECOND AND THIRD ALLEGED CAUSES OF ACTION

Defendants incorporate their answers to Paragraphs 1.1 through the second

Paragraph “4.1.6 ” of Plaintiffs’ FAC as though fully stated herein. 

Defendants DENY any allegations contained in the unnumbered first

paragraph of Section 4.2 of Plaintiffs’ FAC.

4.2.1. Defendants provide the statutes cited in Paragraph 4.2.1 of

Plaintiffs’ FAC speak for themselves, and Plaintiffs’ interpretation of those

statutes is not a factual allegation which must be admitted or denied. 

Defendants DENY all allegations contained in Paragraph 4.2.1 of Plaintiffs’

FAC.

4.2.2. Defendants DENY the allegations contained in Paragraph 4.2.2 of

Case 2:06-cv-00204-JCC Document 31 Filed 08/29/2006 Page 5 of 9
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFTS’ ANSWER - 6

(CV06-0204JCC)

Plaintiffs’ FAC.

4.2.3. Defendants provide the statute cited in Paragraph 4.2.3 of

Plaintiffs’ FAC speaks for itself, and Plaintiffs’ interpretation of that statute

is not a factual allegation which must be admitted or denied. Defendants

specifically DENY the following allegation: “Numerous emails sent by

Defendants and received by Plaintiffs violated this provision of the CEMA”,

and further DENY all other allegations contained in Paragraph 4.2.3 of

Plaintiffs’ FAC.

4.2.4. Defendants DENY the allegations contained in Paragraph 4.2.4 of

Plaintiffs’ FAC.

4.2.5. Defendants DENY the allegations contained in Paragraph 4.2.5 of

Plaintiffs’ FAC.

4.2.6. Defendants DENY the allegations contained in the unnumbered

final paragraph of Section 4.2 of Plaintiffs’ FAC.

4.3. FOURTH ALLEGED CAUSE OF ACTION

Defendants incorporate their answers to Paragraphs 1.1 through the

unnumbered final paragraph of Section 4.2 of Plaintiffs’ FAC as though fully

stated herein. Defendants DENY any allegations contained in the

unnumbered first paragraph of Section 4.3 of Plaintiffs’ FAC.

4.3.1. Defendants provide the statutes cited in Paragraph 4.3.1 of

Plaintiffs’ FAC speak for themselves, and Plaintiffs’ interpretation of those

statutes is not a factual allegation which must be admitted or denied. 

Defendants DENY all allegations contained in Paragraph 4.3.1 of Plaintiffs’

FAC.

4.3.2. Defendants DENY the allegations contained in Paragraph 4.3.2 of

Plaintiffs’ FAC.

5. Defendants provide Plaintiffs’ jury demand is not a factual

allegation which must be admitted or denied. Defendants DENY all

Case 2:06-cv-00204-JCC Document 31 Filed 08/29/2006 Page 6 of 9
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFTS’ ANSWER - 7

(CV06-0204JCC)

allegations contained in Paragraph 5 of Plaintiffs’ FAC.

II. AFFIRMATIVE DEFENSES

Without admitting any allegations contained in Plaintiffs’ FAC,

Defendants assert the following affirmative defenses:

6.1. Plaintiffs are barred from obtaining any relief sought in the FAC

because the FAC fails to state any claim upon which relief may be granted.

6.2. Plaintiffs are barred from obtaining any relief because Plaintiffs

failed to mitigate their alleged damages, if any.

6.3. Plaintiffs are barred from obtaining any relief because Plaintiffs

subscribed to receive commercial emails on which Plaintiffs base their FAC.

6.4. Plaintiffs are barred from obtaining any relief sought in the FAC

by reason of their own unclean hands.

6.5. Plaintiffs are barred from obtaining any relief sought in the FAC

because Plaintiffs failed to unsubscribe utilizing unsubscribe links in the

emails or other means reasonably calculated to communicate to Defendants

an intent to unsubscribe.

6.6. Plaintiffs waived their claims.

6.7. Plaintiffs are not entitled to damages from Defendants where

Plaintiffs have already been compensated by another entity for alleged

damages allegedly caused by Defendants.

6.8. Plaintiffs consented to all actions they complain about in their

FAC, and therefore Plaintiffs are not entitled to any relief.

6.9. Plaintiffs ratified and approved all actions they complain about in

their FAC, and therefore Plaintiffs are not entitled to any relief.

6.10. Plaintiffs’ claims, and each of them, are barred by the doctrine of

estoppel.

6.11. Plaintiffs’ claims, and each of them, are barred by the doctrine of

Case 2:06-cv-00204-JCC Document 31 Filed 08/29/2006 Page 7 of 9
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFTS’ ANSWER - 8

(CV06-0204JCC)

laches.

6.12. The damages alleged in Plaintiffs’ FAC, if any, were not caused

by Defendants, or any of them; rather, any damages suffered by Plaintiffs

were caused by one or more third parties whose activities were not approved,

ratified, or controlled by any Defendant.

6.13. Plaintiffs have failed to join one or more necessary and

indispensable parties.

6.14. Defendants established and implemented, with due care,

commercially reasonable practices and procedures designed to effectively

prevent the violations alleged in the FAC.

6.15. Defendants made commercially reasonable efforts to maintain

compliance with their practices and procedures designed to effectively

prevent the violations alleged in the FAC.

6.16. To the extent any action by Defendants violate CAN-SPAM,

Defendants, each of them, acted without actual knowledge, or knowledge

fairly implied on the basis of objective circumstances, of the act or omission

that constitutes the violation.

III. PRAYER FOR RELIEF

WHEREFORE, Defendants VIRTUMUNDO, INC., ADKNOWLEDGE,

INC. and SCOTT LYNN respectfully request that the Court enter judgment

against Plaintiffs JAMES S. GORDON, Jr. and OMNI INNOVATIONS, LLC,

and in favor of Defendants, as follows:

1. Judgment Dismissing Plaintiffs’ Claims. That the Court enter a

judgment dismissing Plaintiffs’ claims against Defendants alleged in the FAC

and denying Plaintiffs’ requested relief. 

2. Attorneys’ Fees and Costs. That the Court award Defendants

their reasonable attorneys’ fees and costs incurred in defending this lawsuit.

Case 2:06-cv-00204-JCC Document 31 Filed 08/29/2006 Page 8 of 9
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFTS’ ANSWER - 9

(CV06-0204JCC)

3. Other Equitable Relief. That the Court grant such other and

further relief to Defendants as the Court shall deem just and equitable.

DATED this 29th day of August, 2006.

Respectfully Submitted,

NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

By:

Derek A. Newman, WSBA No. 26967

Roger M. Townsend, WSBA No. 25525

Attorneys for Defendants 

VIRTUMUNDO, INC., ADKNOWLEDGE, INC.

and SCOTT LYNN

Case 2:06-cv-00204-JCC Document 31 Filed 08/29/2006 Page 9 of 9