In Texas state courts, this answer would possibly be striken as our Supreme Court has stated that prophylactic defenses and objections are wasteful of judicial resources. But, there's no need to fear! The prophylactic defense is here! (with apologies to Underdog). What? You don't see that here?
Well, look almost to the end. Yeah, there at paragraph 27. To my knowledge, only causes of action for defamation are subject to a one year statute of limitation. Paragraph 14 of the Complaint pretty well limits the email subject to the complaint to the period from October 2006 to the present. That's a single year, boys and girls.
But, hey, they're just getting started in this thing and probably misread the Complaint and thought he was suing for email going back to January 2000 (when that was stated as the time he became an "internet access service" with standing to sue under the statutes) since that is mentioned in paragraph 11.
Also, I'm not entirely sure how "waiver" and "estoppel" work into this. Maybe they're going to claim that Ferguson deserves to get spam because he doesn't complain in a timely manner?
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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
MARK FERGUSON, a married individual,
d/b/a WHEW.COM,
Plaintiff,
vs.
ACTIVE RESPONSE GROUP, a New York
company; THE BRADFORD EXCHANGE,
LTD., an Illinois corporation; QUINSTREET,
INC., a California corporation; VISION CARE
HOLDINGS, LLC, a Florida Limited Liability
Company; NAUTILUS, INC., a Washington
corporation; and JOHN DOES, I-CC,
Defendant.
NAUTILUS’S ANSWER AND AFFIRMATIVE DEFENSES
Nautilus, Inc. (“Nautilus”), by and through its undersigned attorneys, hereby answers plaintiff’s complaint as follows:
PARTIES, JURISDICTION, VENUE
1. Answering paragraph 1 of the complaint, Nautilus lacks knowledge or information sufficient to form a belief as to the truth of plaintiff’s allegations regarding who he does business as, his marital status, and his place of residence, and on that basis denies the same.
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2. Answering paragraph 2 of the complaint, the paragraph contains no allegations against or about Nautilus and therefore no answer is required.
3. Answering paragraph 3 of the complaint, the paragraph contains no allegations against or about Nautilus and therefore no answer is required.
4. Answering paragraph 4 of the complaint, the paragraph contains no allegations against or about Nautilus and therefore no answer is required.
5. Answering paragraph 5 of the complaint, the paragraph contains no allegations against or about Nautilus and therefore no answer is required.
6. Answering paragraph 6 of the complaint, Nautilus admits that it is a corporation, that its principal place of business is in Washington, and that it does business as Nautilus, Inc. Nautilus denies the remaining allegations of paragraph 6.
Jurisdiction and Venue
7. Answering paragraph 7 of the complaint, Nautilus admits that jurisdiction is proper under 28 U.S.C. §1331, but denies that jurisdiction is proper under 28 U.S.C. § 1332.
8. Answering paragraph 8 of the complaint, Nautilus admits that supplemental jurisdiction is proper under 28 U.S.C. § 1367.
9. Answering paragraph 9 of the complaint, Nautilus admits that venue is proper under 28 U.S.C. § 1391.
General Allegations
10. Answering paragraph 10 of the complaint, Nautilus lacks knowledge or information sufficient to form a belief as to the truth of plaintiff’s allegations and therefore denies the same.
11. Answering paragraph 11 of the complaint, Nautilus lacks knowledge or information sufficient to form a belief as to the truth of plaintiff’s allegations and therefore denies the same.
12. Answering paragraph 12 of the complaint, Nautilus lacks knowledge or
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information sufficient to form a belief as to the truth of plaintiff’s allegations and therefore denies the same.
13. Answering paragraph 13 of the complaint, Nautilus lacks knowledge or information sufficient to form a belief as to the truth of plaintiff’s allegations and therefore denies the same.
14. Answering paragraph 14 of the complaint, Nautilus lacks knowledge or information sufficient to form a belief as to the truth of plaintiff’s allegations and therefore denies the same.
15. Answering paragraph 15 of the complaint, Nautilus lacks knowledge or information sufficient to form a belief as to the truth of plaintiff’s allegations and therefore denies the same.
16. Answering paragraph 16 of the complaint, Nautilus denies the allegations contained therein.
17. Answering paragraph 17 of the complaint, Nautilus denies the allegations contained therein.
18. Answering paragraph 18 of the complaint, Nautilus denies the allegations contained therein.
First Cause of Action – Can-Spam Act
19. Answering paragraph 19 of the complaint, Nautilus denies the allegations contained therein.
20. Answering paragraph 20 of the complaint, Nautilus denies the allegations contained therein.
Second Cause of Action – CEMA
21. Answering paragraph 21 of the complaint, Nautilus denies the allegations contained therein.
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Third Cause of Action – Consumer Protection Act
22. Answering paragraph 22 of the complaint, Nautilus denies the allegations contained therein.
Affirmative Defenses
23. Plaintiff has failed to state a claim upon which relief can be granted.
24. Plaintiff’s claims and damages are the result of one or more intervening and/or superseding cause(s).
25. Plaintiff’s claims are barred because they were caused in whole or in part by the fault of another entity and/or a nonparty pursuant to RCW 4.22.070(1).
26. Plaintiff’s claims are barred by the doctrines of waiver and estoppel.
27. Plaintiff’s claims are barred by applicable statutes of limitation.
28. Nautilus expressly reserves the right to plead further answers, affirmative defenses or counterclaims, cross-claims or third-party claims, as investigation and/or discovery may warrant.
Prayer for Relief
WHEREFORE, Nautilus prays for the following relief:
1. That plaintiff’s complaint be dismissed with prejudice and without costs and reasonable attorneys’ fees;
2. That all costs incurred herein by defendant plus reasonable attorneys’ fees be taxed against plaintiff as permitted by law; and
3. For such other and further relief as the Court deems just and appropriate.
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DATED this 20th day of August, 2007.
GARVEY SCHUBERT BARER
By s/ Justin E. Dolan
Justin E. Dolan, WSBA #33000
Attorneys for Defendant Nautilus, Inc.
Eighteenth Floor
1191 Second Avenue
Seattle, Washington 98101-2939
Phone: (206) 464-3939
Fax: (206) 464-0125