Case 0:11-cv-60947-PAS Document 20

Entered on FLSD Docket 08/22/2011 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 0:11-cv-60947

IO GROUP, INC., Plaintiff, v. ANTONIO ALMEIDA, Defendant. / SECOND SUPPLEMENT TO JOINT SCHEDULING REPORT Plaintiff, IO GROUP, INC., and Defendant, ANTONIO ALMEIDA, by and through their undersigned attorneys, pursuant to the Court’s Order of August 16, 2011 (Doc. No.19), file their Supplement to Joint Scheduling Report. A. Outlined below are the elements of the Legal Defenses contained in the First

Supplement to the Joint Scheduling Report: I. Legal Impossibility/Impracticability When a party raises the defense of impossibility/impracticability, courts generally determine three things: first, whether something unexpected occurred after the parties entered the contract; second, whether the parties had assumed that this thing would not occur; and third, that the unexpected occurrence made performance of the act impracticable. Some widely recognized occurrences that would normally provide a defense of impossibility/impracticability are the death or illness of one of the necessary parties, the unfore-seeable destruction of the

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Case 0:11-cv-60947-PAS Document 20

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subject matter of the contract (perhaps by an "act of God"), or a supervening action by a third party (which the evidence will shows occurred in this case). II. Joinder of Necessary Parties Federal Rule of Civil Procedure 19(a)(1) provides that A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A) in that person's absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. III. Superseding and Intervening Cause A superseding and intervening cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another the third party action is a substantial factor in bringing about. The doctrine applies only when the intervening act (1) was sufficient by itself to cause the injury, (2) was not reasonably foreseeable to the party, and (3) was not a normal response to the party’s conduct. IV. Unintentional and Inadvertent and Without Malice The aforementioned affirmative defense is a factual defense, not a legal defense.

-2Second Supplement to Joint Scheduling Report

Case 0:11-cv-60947-PAS Document 20

Entered on FLSD Docket 08/22/2011 Page 3 of 3

V.

Fair Use When evaluating the defense of Fair Use, Courts apply the following 4 prong test: •the purpose and character of your use •the nature of the copyrighted work •the amount and substantiality of the portion taken, and •the effect of the use upon the potential market.

VI.

Failure to State a Cause of Action Federal Rule of Civil Procedure 12(b)(6) provides that a party may assert the defense of failure to state a claim upon which relief can be granted in a motion or a pleading, such a defense evaluates the “four corners” of the Complaint to determine whether the Complaint properly pleads with the necessary facts the statutory cause of action.

Dated: August 22, 2011
THE WALLACE LAW GROUP, P.L. 1375 Gateway Boulevard Boynton Beach, Florida 33426 Telephone: 561-767-4413 Facsimile: 561-767-4414

Respectfully Submitted
RANDAZZA LEGAL GROUP 2 South Biscayne Blvd., Suite 2600 Miami, Florida 33131 Telephone: 888-667-1113 Facsimile: 305-397-2772

s/Steven E. Wallace Steven E. Wallace (Fla. Bar. 585661) wallacelaw1@me.com

s/Jason A. Fischer Marc J. Randazza (Fla. Bar. 625566) mjr@randazza.com Jason A. Fischer (Fla. Bar. 68762) jaf@randazza.com

-3Second Supplement to Joint Scheduling Report

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