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
28
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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
28
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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.
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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 ///
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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
28
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