Opinion
Case No. C 01-04204 CRB.
April 5, 2002
Samuel R. Miller (SBN# 066871), FOLGER LEVIN KAHN LLP, Embarcadero Center West, San Francisco, CA, Attorneys for Third-Party Defendant, All American, Semiconductor, Inc.
THIRD-PARTY DEFENDANT'S ANSWER TO THIRD-PARTY COMPLAINT
Third-party defendant All American Semiconductor, Inc. ("All American") hereby answers plaintiff Videotek, Inc.'s ("Videotek") third-party complaint ("Complaint") as follows:
1. All American is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 1 and therefore denies the same.
2. All American admits the averments in paragraph 2.
3. All American admits the averments in paragraph 3.
4. All American is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 4 and therefore denies the same.
5. All American is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 5 and therefore denies the same.
6. On information and belief, All American admits that Technology Licensing Corporation filed an Amended complaint against Videotek. Except as so admitted, All American is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 6 and therefore denies the same.
7. All American denies each and every allegation of paragraph 7, except that All American is without knowledge or information sufficient to form a belief as to the allegations in paragraph 17 regarding FAI Electronics ("FAI") and therefore denies the same.
JURISDICTION AND VENUE
8. All American does not challenge jurisdiction. All American is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 8 and therefore denies the same.
9. All American does not challenge venue. All American is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 9 and therefore denies the same.
FACTS
10. All American admits that it is a distributor of semiconductors supplied by Fairchild Semiconductor, Inc. or its predecessors and Samsung. Except as so admitted, All American is without knowledge or information sufficient to form a belief as to the allegations in paragraph 10 and therefore denies the same.
11. All American admits that at some time Videotek purchased some products from All American's Marlton, New Jersey office. Except as so admitted, All American is without knowledge or information sufficient to form a belief as to the allegations of paragraph 11.
12. All American is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 12 and therefore denies the same.
13. All American is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 13 and therefore denies the same.
14. All American denies each and every allegation of paragraph 14, except that All American is without knowledge or information sufficient to form a belief as to the allegations in paragraph 14 regarding FAI and therefore denies the same.
15. All American denies each and every allegation of paragraph 15, except that All American is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 15 regarding FAI and therefore denies the same.
COUNT I
16. All American hereby incorporates the statements of foregoing paragraphs 1-15 in response to the allegations of paragraph 16.
17. All American denies each and every allegations of paragraph 17, except that All American is without knowledge or information sufficient to form a belief as to the allegations in paragraph 17 regarding FAI and therefore denies the same.
FIRST AFFIRMATIVE DEFENSE
1. As its first, separate and affirmative defense, the Complaint and each purported claim for relief therein fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
2. As its second, separate and affirmative defense, at the time of the sale and as part of the parties' agreement, All American and Videotek agreed that All American did not warrant or otherwise guarantee that the products sold by All American to Videotek would be delivered free of the rightful claim of any third person under any patent. The agreement between the parties contains the following provision: "INTELLECTUAL PROPERTY/PROPRIETARY RIGHTS. All American shall have no liability or obligation in connection with any claims of infringement to any patent, trademark, copyright, trade secret or other propriety right or information. . . ." As a consequence of this provision, All American is not liable or obligated to Videotek for the alleged loss incurred by plaintiff due to plaintiff's alleged infringement.
THIRD AFFIRMATIVE DEFENSE
3. As its third, separate and affirmative defense, the Complaint and each purported claim for relief therein is barred by the applicable statute of limitations.
FOURTH AFFIRMATIVE DEFENSE
4. As its fourth, separate and affirmative defense, the Complaint and each purported claim for relief therein is barred under the doctrine of unclean hands.
FIFTH AFFIRMATIVE DEFENSE
5. As its fifth, separate and affirmative defense, the Complaint is barred under the doctrine of estoppel and/or waiver.
SIXTH AFFIRMATIVE DEFENSE
6. As its sixth, separate and affirmative defense, the Complaint and each purported claim for relief therein is barred under the doctrine of laches.
SEVENTH AFFIRMATIVE DEFENSE
7. As its seventh, separate and affirmative defense, any damages are barred or should be reduced due to Videotek's failure to mitigate damages.
WHEREFORE, All American does pray that the Complaint be dismissed with prejudice and that Videotek take nothing thereby, judgment be ordered for All American on the Complaint, and other and further relief be granted to All American pursuant to its contract rights and as the Court deems just and proper.