This action might not be possible to undo. Are you sure you want to continue?
Page 1 of 5
WOOD CRAPO LLC Mary Anne Q. Wood #3539 Darryl J. Lee #4955 500 Eagle Gate Tower 60 East South Temple Salt Lake City, Utah 84111 Telephone (801) 366-6060 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION RADER, FISHMAN & GRAUER, PLLC Plaintiff, v. 1-800 CONTACTS, INC., Defendant. ) ) ) ) ) ) ) ) ) )
ANSWER AND AFFIRMATIVE DEFENSES TO COUNTERCLAIM
Civil No. 2:10-cv-191 Judge Ted Stewart
Plaintiff Rader Fishman & Grauer, PLLC (“RFG”), by and through its counsel, files herewith its Answer and Affirmative Defenses to the Counterclaim asserted by Defendant and Counterclaimant 1-800 Contacts, Inc. (“1-800"), as follows: FIRST AFFIRMATIVE DEFENSE Counterclaimant’s Counterclaim fails to state claims upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE RFG responds to each paragraph of the Counterclaim, by paragraph number as delineated in the Counterclaim, as follows: 1. As Counterclaimant has admitted such in its response to RFG’s
Complaint, and on that basis, RFG admits the allegations of Paragraph 1.
Page 2 of 5
2. 3. 4. 5.
RFG admits the allegations of Paragraph 2. RFG admits the allegations of Paragraph 3. RFG admits the allegations of Paragraph 4. RFG admits that in or around August 2007, Counterclaimant asked RFG
to represent it in litigation against Lens.com, and at Counterclaimant’s direction, RFG filed an action against Lens.com in federal court in Utah captioned 1-800 Contacts v. Lens.com., 2:07-cv00591 CW (the Lens.com litigation). RFG further admits that Counterclaimant agreed to pay RFG for all legal fees and related costs incurred to prosecute the matter on Counterclaimant’s behalf, pursuant to the attorney/client relationship created by such retention. Except as expressly admitted herein, RFG denies each and every allegation of Paragraph 5. 6. Denied. RFG affirmatively asserts that in November 2008,
Counterclaimant informed RFG that the Company’s senior managers and/or investors did not want to pay any more than $750,000.00 in attorneys’ fees for the Lens.com matter during calendar year 2008, and asked RFG to limit the attorneys’ fees charged for the Lens.com matter to $750,000.00 for calendar year 2008, with the understanding that RFG would delay billing certain attorneys’ fees incurred in the last quarter of 2008, and not bill such fees to Counterclaimant until the beginning of calendar year 2009. 7. RFG admits that in or around November 2008, RFG and Counterclaimant
agreed in principle that RFG would cap the attorneys’ fees for the Lens.com matter to $1.1M through the trial of the case. Except as expressly admitted herein, RFG denies each and every other allegation of Paragraph 7. 8. forth above. 2 RFG incorporates herein its responses to Paragraphs 1 through 7 as set
Page 3 of 5
9. 10. 11. 12. forth above. 13.
RFG denies the allegations of Paragraph 9. RFG denies the allegations of Paragraph 10. RFG denies the allegations of Paragraph 11. RFG incorporates herein its responses to Paragraphs 1 through 11 as set
RFG admits that it owed Counterclaimant all duties created by the
attorney/client relationship. Except as expressly admitted herein, RFG denies each and every other allegation of Paragraph 13. 14. 15. RFG denies the allegations of Paragraph 14. RFG denies the allegations of Paragraph 15.
RFG states that Counterclaimant’s Prayer for Relief requires no response. To the extent its Prayer for Relief requires a response, RFG denies that Counterclaimant is entitled to any of the relief set forth therein. Accordingly, RFG respectfully prays for Judgment on Counterclaimant’s Counterclaim as follows: 1. 2. That the Counterclaim be dismissed with prejudice; That Counterclaimant take nothing for its First and Second Claims for Relief; 3. 4. For costs of suit incurred herein; and For such other and further relief as the Court deems just and proper. THIRD AFFIRMATIVE DEFENSE Counterclaimant is barred from recovery due to its material breaches of its agreements with RFG to pay for legal services rendered. 3
Page 4 of 5
FOURTH AFFIRMATIVE DEFENSE Counterclaimant’s claims are barred from recovery due to its anticipatory breach of its agreements to pay RFG for legal services rendered. FIFTH AFFIRMATIVE DEFENSE Counterclaimant’s claims are barred by the doctrine of unclean hands. SIXTH AFFIRMATIVE DEFENSE Counterclaimant has failed to mitigate its damages, if any. SEVENTH AFFIRMATIVE DEFENSE Counterclaimant’s claims are barred by the doctrines of waiver and estoppel. Dated this 19th day of April, 2010. WOOD CRAPO LLC
/s/ Darryl J. Lee Mary Anne Q. Wood Darryl J. Lee Attorneys for Plaintiff
Page 5 of 5
CERTIFICATE OF SERVICE On the date below written, the undersigned hereby certifies that a true and correct copy of the forgoing ANSWER AND AFFIRMATIVE DEFENSES TO COUNTERCLAIM was served as indicated to:
VIA ECF: Richard D. Burbidge Jefferson W. Gross Burbidge Mitchell & Gross 214 South State Street, Suite 920 Salt Lake City, UT 84111
Dated this 19th day of April, 2010.
/s/ Darryl J. Lee