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DEFENDANT FEI COMPANY’S AMENDED ANSWER TO FIRST AMENDED COMPLAINT

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KIMBERLY D. HOWATT (SBN: 196921)

khowatt@gordonrees.com 

GORDON & REES LLP 

101 W. Broadway, Suite 2000 

San Diego, CA 92101 

Telephone: (619) 696-6700 

Facsimile: (619) 696-7124 

ADAM M. TSCHOP (SBN: 209767) 

Adam.Tschop@thermofisher.com 

THERMO FISHER SCIENTIFIC INC. 

5823 Newton Drive 

Carlsbad, CA 92008 

Telephone: (760) 603-7200 

Facsimile: (760) 476-6048 

Attorneys for Defendant FEI COMPANY 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

TIBCO SOFTWARE INC.

Plaintiff, 

v. 

FEI COMPANY, 

Defendant. 

CASE NO. 17-CV-696-EJD

DEFENDANT FEI COMPANY’S 

AMENDED ANSWER TO 

PLAINTIFF’S FIRST AMENDED 

COMPLAINT 

Dept.: Courtroom 4, 5th Floor 

Judge: Hon. Edward J. Davila 

Case 5:17-cv-00696-EJD Document 34 Filed 06/16/17 Page 1 of 9
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COMES NOW defendant FEI COMPANY (“FEI” or “Defendant”) and hereby answers 

the First Amended Complaint (“Complaint”) of the above-captioned plaintiff (“Plaintiff”), as 

follows: 

1. Answering Paragraph 1 of the Complaint, upon review of public records, 

Defendant is informed and believes and based thereon admits that Plaintiff is a corporation 

organized and existing under the laws of the State of Delaware and that is address is 3303 

Hillview Avenue, Palo Alto, California, 94304. As to the remainder of the allegations in this 

paragraph, Defendant lacks sufficient information to admit or deny the allegations, and therefore 

denies them.

2. Answering Paragraph 2 of the Complaint, FEI admits that it is a corporation 

organized under the laws of the State of Oregon, that its principal place of business it 5350 N.E. 

Dawson Creek Drive, Hillsboro, Oregon, 97124, that it operates an office in Fremont, California, 

and that it designs, manufactures, and supports microscopy workflows. As to the remainder of 

the allegations in this paragraph, Defendant lacks sufficient information to admit or deny the 

allegations, and therefore denies them.

3. Answering Paragraph 3 of the Complaint, the allegations in this paragraph are 

primarily argumentative and/or include legal rather than factual matter, and thus Defendant is not 

required to admit or deny; however, to the extent necessary, Defendant lacks sufficient 

information to admit or deny the allegations of this paragraph, and therefore denies them. 

4. Answering Paragraph 4 of the Complaint, the allegations in this paragraph are 

primarily argumentative and/or include legal rather than factual matter, and thus Defendant is not 

required to admit or deny; however, to the extent necessary, Defendant lacks sufficient 

information to admit or deny the allegations of this paragraph, and therefore denies them. 

5. Answering Paragraph 5 of the Complaint, Defendants admits that Plaintiff and 

FEI entered into a contract consisting of documents entitled “Software License and Services 

Agreement” and “Order Form”, and that the Order Form identifies Plaintiff as “Licensor” and 

FEI as “Licensee”. As to the remainder of the allegations in this paragraph, Defendant lacks 

sufficient information to admit or deny the allegations, and therefore denies them.

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DEFENDANT FEI COMPANY’S AMENDED ANSWER TO FIRST AMENDED COMPLAINT

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6. Answering Paragraph 6 of the Complaint, the document cited is the best evidence 

of its contents; as to the remainder of the allegations in this paragraph, Defendant lacks sufficient 

information to admit or deny such allegations and on that basis denies them. 

7. Answering Paragraph 7 of the Complaint, the document cited is the best evidence 

of its contents; as to the remainder of the allegations in this paragraph, Defendant lacks sufficient 

information to admit or deny such allegations and on that basis denies them. 

8. Answering Paragraph 8 of the Complaint, Defendant lacks sufficient information 

to admit or deny such allegations and on that basis denies them 

9. Answering Paragraph 9 of the Complaint, Defendant admits that a multi-entity 

merger occurred with FEI as a surviving company. As to the remainder of the allegations in this 

paragraph, Defendant lacks sufficient information to admit or deny the allegations, and therefore 

denies them.

10. Answering Paragraph 10 of the Complaint, Defendants denies the allegations. 

11. Answering Paragraph 11 of the Complaint, Defendant admits that Plaintiff issued 

letter to Defendant seeking money therefrom. As to the remainder of the allegations, Defendant 

denies them. 

12. Answering Paragraph 12 of the Complaint, Defendant admits that more than 

forty-five days have passed with Plaintiff issued the above-referenced letter and that Defendant 

has not paid any money in response to that letter. As to the remainder of the allegations, 

Defendant denies them. 

13. Answering Paragraph 13 of the Complaint, the allegations in this paragraph are 

primarily argumentative and/or include legal rather than factual matter, and thus Defendant is not 

required to admit or deny; however, to the extent necessary, Defendant incorporates by reference 

its responses herein the paragraphs 1-12 of the Complaint.

14. Answering Paragraph 14 of the Complaint, Defendant lacks sufficient information 

to admit or deny the allegations of this paragraph, and therefore denies them. 

15. Answering Paragraph 15 of the Complaint, Defendant lacks sufficient information 

to admit or deny the allegations of this paragraph, and therefore denies them. 

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DEFENDANT FEI COMPANY’S AMENDED ANSWER TO FIRST AMENDED COMPLAINT

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16. Answering Paragraph 16 of the Complaint, Defendant denies the allegations. 

17. Answering Paragraph 17 of the Complaint, Defendant denies the allegations. 

18. Answering Paragraph 18 of the Complaint, Defendant denies the allegations. 

PRAYER FOR RELIEF 

Defendant is not obligated to respond Plaintiff's prayer for relief, as a matter of law; 

however, to the extent necessary, Defendant denies that Plaintiff is entitled to any of the relief 

requested thereby, or any relief at all. 

AFFIRMATIVE DEFENSES 

As for additional defenses to the Complaint, and without assuming any burden of 

pleading or proof that would otherwise rest on Plaintiff, Defendant asserts the following: 

GENERAL ALLEGATIONS BY ANSWERING DEFENDANT 

In addition to its admissions set forth above, Defendant alleges, as follows: 

1. TIBCO and FEI engaged in negotiations relative to the terms of a software license 

and services agreement, consisting of documents entitled “Order Form” and “Software License 

and Services Agreement”, to which TIBCO refers as the “Agreement” at Complaint ¶ 5. It is 

unclear from Plaintiff’s pleadings whether or not it is Plaintiff’s position that these two 

documents constitute the entirety of the contract it alleges, or if there are other materials that are 

a part of the alleged contract. 

2. The Order Form component of the Agreement contains a provision pertaining to 

an “Extraordinary Corporate Event.” This provision and term are unclear and ambiguous, and/or 

undefined with the Agreement, and/or require reference to materials outside the Agreement, and 

Plaintiff and Defendant disagree as to their interpretation. FEI maintains that its interpretation of 

the subject Agreement language is reasonable. 

3. The communications relative to the negotiation of the Agreement, and Plaintiff’s 

prior and subsequent conduct, reflect the parties’ intent and understanding that the Agreement 

language cited by Plaintiff would not apply to an event where FEI was acquired by a company, 

as opposed to a circumstance where FEI was the acquiring entity. To interpret the Agreement in 

the manner proposed by TIBCO would lead to an absurdity. 

Case 5:17-cv-00696-EJD Document 34 Filed 06/16/17 Page 4 of 9
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DEFENDANT FEI COMPANY’S AMENDED ANSWER TO FIRST AMENDED COMPLAINT

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4. Prior to the Agreement, FEI had acquired other entities, which was publically 

known and available to Plaintiff. 

5. In a prior acquisition transaction involving FEI, Plaintiff did not take any action 

under the Agreement relative to such event. 

6. In May 2017, TIBCO sent FEI an invoice seeking to renew the maintenance 

component of the Agreement, quoting a charge based upon the original Agreement amount, and 

not the increased fees and percentages asserted in the context of this lawsuit. 

7. The Agreement contains an entire section entitled “Limitation of Liability” 

(Section 17), which includes express limitation(s) on liability of the parties which bar(s) 

TIBCO’s subject lawsuit, and express limitation(s) on any damages recoverable by TIBCO. 

8. The Agreement also expressly requires that a written amendment be executed by 

duly authorized officers of Plaintiff and Defendant in the case of an Extraordinary Corporate 

Event preparatory to making the Agreement applicable. 

9. The Agreement expressly requires the consent of one party to any assignment of 

the Agreement by the other party, including in the instance of change in control of Defendant; 

otherwise any attempted assignment is void. Upon information and belief, Plaintiff did not 

convey any such consent under the Agreement to Defendant. 

SPECIFIC AVOIDANCES AND AFFIRMATIVE DEFENSES 

As for its avoidances and affirmative defenses to the Complaint, based upon and 

incorporating by this reference the foregoing admissions and allegations, and with each 

avoidance and affirmative defense set forth below incorporating the facts alleged specific to 

each of the others, Defendant asserts the following:

FIRST AFFIRMATIVE DEFENSE 

The Complaint fails in whole or part to state facts sufficient to state a cause of action, 

or a claim upon which relief can be granted, or entitlement to the relief requested, 

particularly, inter alia, given the uncertainty and ambiguity of the alleged documents and/or 

terms that constitute the subject contract; the lack of factual allegations to support the mere 

conclusory allegations that the Agreement is a valid and enforceable contract and that 

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DEFENDANT FEI COMPANY’S AMENDED ANSWER TO FIRST AMENDED COMPLAINT

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Plaintiff performed (Complaint ¶¶ 14-15), among others; because of the allegations that are 

asserted by Plaintiff merely “on information and belief” and without supporting facts (see 

e.g., Complaint ¶9); and, because there is no legal or factual basis alleged for the recovery of 

“expenses” as distinct from “fees” or “costs”. Accordingly, Defendant reserves its 

defensive rights under Rule 12, pursuant to, inter alia, Fed. R. Civ. P. 12(c) and 12(h)(2). 

SECOND AFFIRMATIVE DEFENSE 

The Complaint is barred in whole or part by the doctrines of waiver and/or estoppel, 

particularly given Plaintiff’s conduct relative to other acquisition(s) involving Defendant and its 

May 2017 invoicing based on the original contract amount, i.e., after both the alleged acquisition 

and the filing of this lawsuit, on which conduct Defendant has relied. 

THIRD AFFIRMATIVE DEFENSE 

Plaintiff is barred by the doctrine of unclean hands from maintaining its Complaint 

and all claims for relief stated therein because, inter alia, Plaintiff’s proposed interpretation 

of the subject provision in intentionally manufactured and contrived in a manner that 

conflicts with the parties’ intended and understood meaning thereof, and Plaintiff’s own 

conduct before and after the subject lawsuit was filed. 

FOURTH AFFIRMATIVE DEFENSE 

Plaintiff is barred from recovery herein by virtue of the fact that it failed to perform 

certain conditions of the alleged contractual agreement(s) in issue which were on Plaintiff’s part 

to be performed, and/or certain conditions precedent to the maturation of contractual duties 

allegedly owed by others did not occur, including but in no way limited to its provision of 

consent to an assignment of the Agreement upon the acquisition and/or the execution of a written 

amendment as required to make the Agreement applicable in the case of an Extraordinary 

Corporate Event. Upon information and belief, Defendant anticipates that discovery and 

ongoing investigation in this case may reveal additional instances of non-performance by 

Plaintiff. 

/// 

/// 

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DEFENDANT FEI COMPANY’S AMENDED ANSWER TO FIRST AMENDED COMPLAINT

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FIFTH AFFIRMATIVE DEFENSE 

Plaintiff’s allegations assume obligations non-existent, not contracted for, and/or outside 

any agreement or relationship with Defendant, and in particular, but not limited to, that 

Defendant would be required to pay additional monies and fees in the instance that it is involved 

in a multi-entity merger transaction and/or that the Agreement is applicable without a signed 

written amendment following the alleged Extraordinary Corporate Event. 

SIXTH AFFIRMATIVE DEFENSE 

Any duty or performance by Defendant is excused by reason of failure of consideration 

or performance by Plaintiff as described above, anticipatory breach, and/or breach, including in 

that Plaintiff seeks to impose charges and fees upon Defendant in violation of the fee stated on 

the Order Form and the Fees section of the Agreement (Section 11). 

SEVENTH AFFIRMATIVE DEFENSE 

The claim of liability asserted in Plaintiff’s Complaint is barred, waived, and/or limited 

by the express terms of the alleged underlying contract(s), as set forth in Section 7 of the 

Agreement entitled “Limitation of Liability”, and in particular, Sections 17.1 and 17.2. 

EIGHTH AFFIRMATIVE DEFENSE 

The claim for damages asserted in Plaintiff’s Complaint is barred, waived, and/or limited 

by the express terms of the alleged underlying contract(s), as set forth in Section 7 of the 

Agreement entitled “Limitation of Liability”, and in particular, Sections 17.1 and 17.2. 

NINTH AFFIRMATIVE DEFENSE 

Any duty or performance by Defendant is excused by accord and satisfaction based upon 

Plaintiff’s acceptance of prior payments by Defendant, and similarly, by the doctrines of release 

(express or implied), license (express or implied), and/or acceptance by Plaintiff, particularly 

given that Plaintiff did not affirmatively terminate the alleged underlying contract.

TENTH AFFIRMATIVE DEFENSE 

Defendant has not knowingly or intentionally waived any applicable defenses, 

including those set forth in Fed. R. Civ. P. 8(c), and reserves the right to amend, assert, and 

rely on any other defenses as may become available or apparent during this litigation. 

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DEFENDANT FEI COMPANY’S AMENDED ANSWER TO FIRST AMENDED COMPLAINT

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PRAYER FOR RELIEF 

WHEREFORE, Defendant prays the Court determine and adjudge: 

1. That the Complaint, and all claims alleged therein, be dismissed with prejudice; 

2. That Plaintiff recover nothing; 

3. That Defendant be awarded its costs and attorneys’ fees incurred in this action; 

and, 

4. That Defendant be awarded such other and further relief as the Court may deem 

just and proper. 

DEMAND FOR JURY TRIAL 

Defendant hereby demands a jury trial on any and all issues in the Complaint as to which 

a jury is available under applicable law. 

Dated: June 16, 2017 GORDON & REES LLP

By: /s/ Kimberly D. Howatt

Kimberly D. Howatt 

Attorneys for Defendant 

FEI COMPANY

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DEFENDANT FEI COMPANY’S AMENDED ANSWER TO FIRST AMENDED COMPLAINT

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CERTIFICATE OF SERVICE 

I hereby certify that on June 16, 2017, a copy of the foregoing document was filed 

electronically with the Clerk of the Court using the Court’s CM/ECF electronic filing system, 

which will send an electronic copy of this filing to all counsel of record. 

_________________________ 

1132960/33357302v.1

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