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Fall 2010 open memo assignment no doubt v. activision right of publicity california   no doubt's answer to counterclaim federal court pdf
Fall 2010 open memo assignment no doubt v. activision right of publicity california   no doubt's answer to counterclaim federal court pdf
Fall 2010 open memo assignment no doubt v. activision right of publicity california   no doubt's answer to counterclaim federal court pdf
Fall 2010 open memo assignment no doubt v. activision right of publicity california   no doubt's answer to counterclaim federal court pdf
Fall 2010 open memo assignment no doubt v. activision right of publicity california   no doubt's answer to counterclaim federal court pdf
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Fall 2010 open memo assignment no doubt v. activision right of publicity california no doubt's answer to counterclaim federal court pdf

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  • 1. Case 2:09-cv-08872-SVW-VBK Document 7 Filed 12/23/09 Page 1 of 5 Page ID #:76 1 PROSKAUER ROSE LLP BERT H. DEIXLER, SBN 70614 2 bdeixler@proskauer.com GIL N. PELES, SBN 238889 3 gpeles@proskauer.com 2049 Century Park East 4 32nd Floor Los Angeles, California 90067-3206 5 Telephone: (310) 557-2900 Facsimile: (310) 557-2193 6 7 Attorneys for Plaintiff and Counter-Defendant 8 NO DOUBT 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 WESTERN DIVISION 12 13 NO DOUBT, a California Partnership, ) Case No. 2:09-cv-8872-SVW ) 14 Plaintiff and Counter- ) PLAINTIFF AND COUNTER- Defendant, ) DEFENDANT NO DOUBT’S 15 ) ANSWER TO THE v. ) COUNTERCLAIMS OF 16 ) DEFENDANT AND COUNTER- ACTIVISION PUBLISHING, INC., ) CLAIMANT ACTIVISION 17 a Delaware Corporation, ) PUBLISHING, INC. ) 18 Defendant and Counter- ) [JURY TRIAL DEMANDED] Claimant. ) 19 ) Case Filed: November 4, 2009 ) (Los Angeles Superior Court) 20 ) ) Case Removed: December 4, 2009 21 ) ) Hon. Stephen V. Wilson 22 ) ) 23 ) ) 24 ) ) 25 ) ) 26 27 288260/53928-004Current/17041318
  • 2. Case 2:09-cv-08872-SVW-VBK Document 7 Filed 12/23/09 Page 2 of 5 Page ID #:77 1 Plaintiff and counter-defendant No Doubt (“No Doubt”) hereby answers the 2 Counterclaims of defendant and counter-claimant Activision Publishing, Inc. 3 (“Activision”). In so answering, No Doubt does not waive and reasserts its claim 4 that this Court lacks subject matter jurisdiction over this action. No Doubt also does 5 not waive and reasserts its demand for a jury trial in this action. 6 1. Answering Paragraph 1 of the Counterclaims, No Doubt admits that 7 Activision has marketed and sold video games in the “Guitar Hero” franchise. No 8 Doubt states that it is without knowledge or information sufficient to form a belief 9 as to the truth of the remaining allegations therein and, on that basis, denies them. 10 2. Answering Paragraph 2 of the Counterclaims, No Doubt admits that the 11 parties entered into a Professional Services and Character License Agreement dated 12 May 21, 2009, a redacted copy of which is attached to Activision’s Counterclaims, 13 states that the Agreement speaks for itself, denies the truth of the remaining 14 allegations set forth in Paragraph 2 and specifically denies any and all allegations of 15 wrongdoing against No Doubt. 16 3. Answering Paragraph 3 of the Counterclaims, No Doubt denies the 17 allegations set forth in Paragraph 3. 18 4. Answering Paragraph 4 of the Counterclaims, No Doubt admits the 19 allegations set forth therein. 20 5. Answering Paragraph 5 of the Counterclaims, No Doubt admits the 21 allegations set forth therein. 22 6. Answering Paragraph 6 of the Counterclaims, No Doubt denies that this 23 Court has subject matter jurisdiction over this action. 24 7. Answering Paragraph 7 of the Counterclaims, No Doubt admits the 25 allegations set forth therein. 26 8. Answering Paragraph 8 of the Counterclaims, No Doubt admits that 27 Activision is the publisher of the “Band Hero” videogame. No Doubt states that it is 288260/53928-004Current/1704131
  • 3. Case 2:09-cv-08872-SVW-VBK Document 7 Filed 12/23/09 Page 3 of 5 Page ID #:78 1 without knowledge or information sufficient to form a belief as to the truth of the 2 remaining allegations therein and, on that basis, denies them. 3 9. Answering Paragraph 9 of the Counterclaims, No Doubt admits the 4 allegations set forth therein. 5 10. Answering Paragraph 10 of the Counterclaims, No Doubt admits that 6 the parties entered into a Professional Services and Character License Agreement 7 dated May 21, 2009, a redacted copy of which is attached to Activision’s 8 Counterclaims, states that the Agreement speaks for itself, denies the truth of the 9 remaining allegations set forth in Paragraph 10 and specifically denies any and all 10 allegations of wrongdoing against No Doubt. 11 11. Answering Paragraph 11 of the Counterclaims, No Doubt admits that 12 the parties entered into a Professional Services and Character License Agreement 13 dated May 21, 2009, a redacted copy of which is attached to Activision’s 14 Counterclaims, states that the Agreement speaks for itself, denies the truth of the 15 remaining allegations set forth in Paragraph 11 and specifically denies any and all 16 allegations of wrongdoing against No Doubt. 17 12. Answering Paragraph 12 of the Counterclaims, No Doubt denies the 18 allegations set forth in Paragraph 12. 19 Claim for Relief – Breach of Contract 20 13. Answering Paragraph 13 of the Counterclaims, No Doubt incorporates 21 paragraphs 1 through 12 of its Answer, as though fully set forth herein. 22 14. Answering Paragraph 14 of the Counterclaims, No Doubt denies the 23 allegations set forth in Paragraph 14. 24 15. Answering Paragraph 15 of the Counterclaims, No Doubt denies the 25 allegations set forth in Paragraph 15. 26 16. Answering Paragraph 16 of the Counterclaims, No Doubt denies the 27 allegations set forth in Paragraph 16 and specifically denies that Activision is 28 entitled to any damages or any other relief.8260/53928-004Current/17041318 -2-
  • 4. Case 2:09-cv-08872-SVW-VBK Document 7 Filed 12/23/09 Page 4 of 5 Page ID #:79 1 Second Claim for Relief – Unjust Enrichment 2 17. Answering Paragraph 17 of the Counterclaims, No Doubt incorporates 3 paragraphs 1 through 16 of its Answer, as though fully set forth herein. 4 18. Answering Paragraph 18 of the Counterclaims, No Doubt denies the 5 allegations set forth in Paragraph 18. 6 19. Answering Paragraph 19 of the Counterclaims, No Doubt denies the 7 allegations set forth in Paragraph 19. 8 20. Answering Paragraph 20 of the Counterclaims, No Doubt denies the 9 allegations set forth in Paragraph 20. 10 Prayer for Relief 11 21. Answering the Prayer for Relief, No Doubt denies the allegations set 12 forth in the Prayer for Relief and specifically denies that Activision is entitled to any 13 damages or any other relief. 14 General Denial 15 Any allegations with reference to No Doubt that have not been specifically 16 admitted in the preceding paragraphs are hereby denied. 17 AFFIRMATIVE DEFENSES 18 By alleging the Affirmative Defenses set forth below, No Doubt does not 19 agree or concede that it bears the burden of proof or the burden of persuasion on any 20 of these issues, whether in whole or in part. No Doubt further does not waive its 21 claim that this Court lacks subject matter jurisdiction over this action. 22 FIRST AFFIRMATIVE DEFENSE 23 This Court lacks subject matter jurisdiction over this entire action, including 24 the Counterclaims. 25 SECOND AFFIRMATIVE DEFENSE 26 The Counterclaims fail to state a claim upon which relief can be granted. 27 /// 28 ///8260/53928-004Current/17041318 -3-
  • 5. Case 2:09-cv-08872-SVW-VBK Document 7 Filed 12/23/09 Page 5 of 5 Page ID #:80 1 THIRD AFFIRMATIVE DEFENSE 2 Any obligation owed by No Doubt to Activision has been performed in full in 3 the manner agreed by the parties or has been excused by the conduct of Activision. 4 FOURTH AFFIRMATIVE DEFENSE 5 Activision’s claims are barred, either in whole or in part, by the doctrine of 6 acquiescence and consent. 7 FIFTH AFFIRMATIVE DEFENSE 8 Activision’s claims are barred, either in whole or in part, by the doctrine of 9 estoppel. 10 SIXTH AFFIRMATIVE DEFENSE 11 Activision’s claims are barred, either in whole or in part, by the doctrine of 12 unclean hands. 13 SEVENTH AFFIRMATIVE DEFENSE 14 Activision has failed to mitigate its damages, if any. 15 EIGHTH AFFIRMATIVE DEFENSE 16 Activision’s claims are barred, either in whole or in part, by the doctrine of 17 waiver. 18 ADDITIONAL DEFENSES 19 No Doubt reserves its right to assert any additional affirmative defenses that 20 are discovered during the course of this action. 21 22 23 Dated: December 22, 2009 PROSKAUER ROSE LLP BERT H. DEIXLER 24 GIL N. PELES 25 /s/ 26 GIL N. PELES Attorneys for Plaintiff and Counter- 27 Defendant No Doubt 288260/53928-004Current/17041318 -4-

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