Digital Envoy Inc., v. Google Inc.,
Doc. 87
Case 5:04-cv-01497-RS
Document 87
Filed 02/14/2005
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1 P. CRAIG CARDON, Cal. Bar No. 168646
BRIAN R. BLACKMAN, Cal. Bar No. 196996 2 KENDALL M. BURTON, Cal. Bar No. 228720 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 3 Four Embarcadero Center, 17th Floor San Francisco, California 94111-4106 4 Telephone: 415-434-9100 Facsimile: 415-434-3947
5 6 TIMOTHY H. KRATZ (Admitted Pro Hac Vice)
LUKE ANDERSON (Admitted Pro Hac Vice) 7 MCGUIRE WOODS, L.L.P 1170 Peachtree Street, N.E., Suite 2100 8 Atlanta, Georgia 30309 Telephone: 404.443.5500 9 Facsimile: 404.443.5751
10 Attorneys for DIGITAL ENVOY, INC. 11 12 13 14 DIGITAL ENVOY, INC., 15 16
v. Plaintiff/Counterdefendant, ANSWER TO AMENDED COUNTERCLAIMS OF GOOGLE, INC. AND DEMAND FOR JURY TRIAL Defendant/Counterclaimant. Digital Envoy, Inc. (“Digital Envoy”) answers the Amended Counterclaims filed by UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. C 04 01497 RS
17 GOOGLE, INC., 18 19 20 21 Google, Inc. (“Google”) as follows: 22
1. In response to paragraph 1 of the Amended Counterclaims, Digital Envoy states
23 that this paragraph describes Google’s requested relief and does not require a response. Should 24 the court require an answer from Digital Envoy, it admits that Google seeks the relief stated in 25 paragraph 1, but denies that Google is entitled to any relief. 26
2. Digital Envoy lacks sufficient information to form a belief as to the truth of the
27 allegations stated in paragraph 2 of the Amended Counterclaims and on that basis denies the 28 allegations.
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ANSWER TO AMENDED COUNTERCLAIMS OF GOOGLE, INC. Dockets.Justia.com
Case 5:04-cv-01497-RS
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3.
Digital Envoy admits the allegations contained in paragraph 3 of the Amended
2 Counterclaims. 3
4. Digital Envoy admits the allegations contained in paragraph 4 of the Amended
4 Counterclaims. 5
5. In response to paragraph 5 of the Amended Counterclaims, Digital Envoy admits
6 the allegations contained in the first sentence of the paragraph and denies the second sentence. 7 Accordingly, Digital Envoy admits that this District is an appropriate venue under 28 U.S.C. 8 § 1391. 9
6. In response to paragraph 6 of the Amended Counterclaims, Digital Envoy admits
10 that Google performs internet search, but denies the remainder of that allegations contained in this 11 paragraph. 12
7. Digital Envoy admits the allegations contained in paragraph 7 of the Amended
13 Counterclaims. 14
8. Digital Envoy admits the allegations contained in paragraph 8 of the Amended
15 Counterclaims. 16
9. In response to paragraph 9 of the Amended Counterclaims, Digital Envoy denies
17 Google’s characterization of the Agreement and accordingly denies the allegations contained in 18 this paragraph. The Agreement speaks for itself. 19
10. In response to paragraph 10 of the Amended Counterclaims, Digital Envoy denies
20 Google’s characterization of the Agreement and accordingly denies the allegations contained in 21 this paragraph. The Agreement speaks for itself. 22
11. In response to paragraph 11 of the Amended Counterclaims, Digital Envoy denies
23 Google’s characterization of the Agreement and accordingly denies the allegations contained in 24 this paragraph. The Agreement speaks for itself. 25
12. In response to paragraph 12 of the Amended Counterclaims, Digital Envoy denies
26 Google’s characterization of the Agreement and accordingly denies the allegations contained in 27 this paragraph. The Agreement speaks for itself. 28
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.13.
In response to paragraph 13 of the Amended Counterclaims, Digital Envoy denies
2 Google’s characterization of the Mutual Non-Disclosure Agreement ("NDA") and accordingly 3 denies the allegations contained in this paragraph. The NDA speaks for itself. 4
14. In response to paragraph 14 of the Amended Counterclaims, Digital Envoy denies
5 Google’s characterization of the NDA and accordingly denies the allegations contained in this 6 paragraph. The NDA speaks for itself. 7
15. Digital Envoy denies the allegations contained in paragraph 15 of the Amended
8 Counterclaims. 9
16. Digital Envoy denies the allegations contained in paragraph 16 of the Amended
10 Counterclaims. 11
17. Digital Envoy denies the allegations contained in paragraph 17 of the Amended
12 Counterclaims. 13
18. Digital Envoy denies the allegations contained in paragraph 18 of the Amended
14 Counterclaims. 15
19. Digital Envoy denies the allegations contained in paragraph 19 of the Amended
16 Counterclaims. 17
20. Digital Envoy denies the allegations contained in paragraph 20 of the Amended
18 Counterclaims. 19
21. Digital Envoy denies the allegations contained in paragraph 21 of the Amended
20 Counterclaims. 21
22. Digital Envoy denies the allegations contained in paragraph 22 of the Amended
22 Counterclaims. 23
23. Digital Envoy denies the allegations contained in paragraph 23 of the Amended
24 Counterclaims. 25
24. Digital Envoy denies the allegations contained in paragraph 24 of the Amended
26 Counterclaims. 27
25. Digital Envoy denies the allegations contained in paragraph 25 of the Amended
28 Counterclaims.
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26.
In response to paragraph 26 of the Amended Counterclaims, Digital Envoy
2 incorporates its responses to paragraphs 1 through 25 of the Amended Counterclaims. 3
27. Digital Envoy admits the allegations contained in paragraph 27 of the Amended
4 Counterclaims. 5
28. Digital Envoy denies the allegations contained in paragraph 28 of the Amended
6 Counterclaims. 7
29. Digital Envoy denies the allegations contained in paragraph 29 of the Amended
8 Counterclaims. 9
30. Digital Envoy denies the allegations contained in paragraph 30 of the Amended
10 Counterclaims. 11
31. Digital Envoy denies the allegations contained in paragraph 31 of the Amended
12 Counterclaims. 13
32. In response to paragraph 32 of the Amended Counterclaims, Digital Envoy
14 incorporates its responses to paragraphs 1 through 31 of the Amended Counterclaims. 15
33. Digital Envoy denies the allegations contained in paragraph 33 of the Amended
16 Counterclaims. 17
34. Digital Envoy denies the allegations contained in paragraph 34 of the Amended
18 Counterclaims. 19
35. In response to paragraph 35 of the Amended Counterclaims, Digital Envoy
20 incorporates its responses to paragraphs 1 through 34 of the Amended Counterclaims. 21
36. Digital Envoy admits the allegations contained in paragraph 36 of the Amended
22 Counterclaims. 23
37. Digital Envoy denies the allegations contained in paragraph 37 of the Amended
24 Counterclaims. 25
38. Digital Envoy denies the allegations contained in paragraph 38 of the Amended
26 Counterclaims. 27
39. Digital Envoy denies the allegations contained in paragraph 39 of the Amended
28 Counterclaims.
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ANSWER TO AMENDED COUNTERCLAIMS OF GOOGLE, INC..
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40.
In response to paragraph 40 of the Amended Counterclaims, Digital Envoy
2 incorporates its responses to paragraphs 1 through 39 of the Amended Counterclaims. 3
41. Digital Envoy denies the allegations contained in paragraph 41 of the Amended
4 Counterclaims. 5
42. Digital Envoy denies the allegations contained in paragraph 42 of the Amended
6 Counterclaims. 7
43. Digital Envoy denies the allegations contained in paragraph 43 of the Amended
8 Counterclaims. 9
44. Digital Envoy denies the allegations contained in paragraph 44 of the Amended
10 Counterclaims. 11
45. Digital Envoy denies the allegations contained in paragraph 45 of the Amended
12 Counterclaims. 13
46. Digital Envoy denies the allegations contained in paragraph 46 of the Amended
14 Counterclaims. 15
47. Digital Envoy denies the allegations contained in paragraph 47 of the Amended
16 Counterclaims. 17
48. Digital Envoy denies the allegations contained in paragraph 48 of the Amended
18 Counterclaims. 19
49. Everything no expressly admitted by Digital Envoy in this answer to Google's
20 Amended Counterclaims is denied. Digital Envoy further denies that Google is entitled to any of 21 the relief it prays for in its Amended Counterclaims. 22 23
50. AFFIRMATIVE DEFENSES First Affirmative Defense Some or all of Google’s claims for relief fail to state a
24 claim upon which relief can be granted. 25
51. Second Affirmative Defense: Google is barred from recovery against Digital
26 Envoy because, all, or part of the alleged actions or inactions of Digital Envoy were privileged and 27 cannot serve as a basis for imposing liability on Digital Envoy. 28
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52.
Third Affirmative Defense: Google is barred from recovery against Digital Envoy
2 because, all, or part of the alleged actions or inactions taken by Digital Envoy were taken with 3 Google's consent. 4
53. Fourth Affirmative Defense: Some or all of Google’s claims for relief are barred Fifth Affirmative Defense: Some or all of Google’s claims for relief are barred by Sixth Affirmative Defense: Some or all of Google’s claims are barred by its
5 by waiver. 6
54.
7 estoppel. 8
55.
9 failure to mitigate its damages. 10
56. Seventh Affirmative Defense: Some or all of Digital Envoy's actions or inactions
11 are excused. 12 13
57. PRAYER WHEREFORE, Digital Envoy respectfully prays that the Court dismiss these
14 Amended Counterclaims, or in the alternative enter judgment in favor of Digital Envoy and 15 against Google, for its costs and for such other relief as deemed just and proper. 16 17 DATED: February 14, 2005 18 19 20 21 22 23 24 25 26 27 28
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
By
-sP. CRAIG CARDON BRIAN R. BLACKMAN TIMOTHY H. KRATZ (Admitted Pro Hac Vice) LUKE ANDERSON (Admitted Pro Hac Vice ) MCGUIRE WOODS, L.L.P 1170 Peachtree Street, N.E., Suite 2100 Atlanta, Georgia 30309 Telephone: 404.443.5706 Facsimile: 404.443.5751 Attorneys for DIGITAL ENVOY, INC.
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ANSWER TO AMENDED COUNTERCLAIMS OF GOOGLE, INC..
Case 5:04-cv-01497-RS
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JURY TRIAL DEMAND Plaintiff/Counter-Defendant Digital Envoy, Inc. demands trial by jury on these Amended
3 Counterclaims as to all issues so triable. 4 DATED: February 14, 2005 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
By
-sP. CRAIG CARDON BRIAN R. BLACKMAN TIMOTHY H. KRATZ (Pro Hac Vice To Be Applied For) LUKE ANDERSON (Pro Hac Vice To Be Applied For) MCGUIRE WOODS, L.L.P 1170 Peachtree Street, N.E., Suite 2100 Atlanta, Georgia 30309 Telephone: 404.443.5706 Facsimile: 404.443.5751 Attorneys for DIGITAL ENVOY, INC.
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ANSWER TO AMENDED COUNTERCLAIMS OF GOOGLE, INC..