Free Answer to Complaint - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-CV-2313-JLK-CBS GLN COMPLIANCE, INC., Plaintiff, v. UNITED AIRLINES, INC, d/b/a UNITED BIZJET HOLDINGS, BIZJET CHARTERS, INC., AND BIZJET SERVICES, INC., and JONATHAN ROSS, Defendants v. GERALD NAEKEL, Third-Party Defendant.

DEFENDANT JONATHAN ROSS'S ANSWER TO FIRST AMENDED COMPLAINT, AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND THIRD PARTY COMPLAINT

Defendant Jonathan Ross ("Ross"), through his undersigned counsel, hereby submits his Answer to First Amended Complaint, his Counterclaims against GLN Compliance, Inc. ("GLN"), and his Third Party Complaint against Gerald Naekel ("Naekel") and states: I. 1. PARTIES

Ross lacks knowledge or information sufficient to form a belief as to the truth of the

allegations in Paragraphs 1, 2 and 4 of the First Amended Complaint, and accordingly denies the same. 2. With respect to the allegations in Paragraph 3 of the First Amended Complaint, Ross

admits only that he is an individual who resides in New York.

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II. 3.

VENUE AND JURISDICTION

With respect to the allegations in Paragraph 5 of the First Amended Complaint, Ross

admits that the Court has found that jurisdiction and venue are proper in this Court. Ross maintains his objections to venue. III. 4. GENERAL ALLEGATIONS

Ross lacks knowledge or information sufficient to form a belief as to the truth of the

allegations in Paragraphs 6 through 15 and 17 of the First Amended Complaint. 5. Ross denies the allegations in Paragraph 16 and Paragraphs 18 through 22 of the

First Amended Complaint. IV. FIRST CLAIM FOR RELIEF (Breach of Contract ­ UAL and BizJet) 6. In response to Paragraph 23 of the First Amended Complaint, Ross incorporates his

responses to Paragraphs 1 through 22 above, as if fully set forth here. 7. No responses are required to the allegations in Paragraphs 23 through 27 of the First

Amended Complaint because the allegations in those paragraphs are directed at other defendants. To the extent that responses are required, Ross lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraphs 23 through 27 of the First Amended Complaint, and accordingly denies the same. V. SECOND CLAIM FOR RELIEF (Quantum Meruit/Unjust Enrichment ­ UAL and BizJet Charters, Inc.) 8. In response to Paragraph 28 of the First Amended Complaint, Ross incorporates his

responses to Paragraphs 1 through 27 above, as if fully set forth here. 9. No responses are required to the allegations in Paragraphs 29 though 35 of the First

Amended Complaint because the allegations in those paragraphs are directed at other defendants.

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To the extent that responses are required, Ross lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraphs 29 through 35 of the First Amended Complaint, and accordingly denies the same. VI. THIRD CLAIM FOR RELIEF (Civil Theft ­ UAL BizJet Charters and Jonathan Ross) 10. In response to Paragraph 36 of the First Amended Complaint, Ross incorporates his responses to Paragraphs 1 through 35 above, as if fully set forth here. 11. Ross denies the allegations in Paragraph 37 of the First Amended Complaint. VII. FOURTH CLAIM FOR RELIEF (Civil Conspiracy ­ UAL, BizJet Charters and Jonathan Ross) 12. In response to Paragraph 38 of the First Amended Complaint, Ross incorporates his responses to Paragraphs 1 through 37 above, as if fully set forth here. 13. Ross denies the allegations in Paragraphs 39 through 43 of the First Amended Complaint. VIII. FIFTH CLAIM FOR RELIEF (Outrageous Conduct ­ Jonathan Ross) 14. In response to the allegations in Paragraph 44 of the First Amended Complaint, Ross incorporates his responses to Paragraphs 1 through 43 above, as if fully set forth here. 15. No responses are required to the allegations in Paragraphs 45 through 47 of the First Amended Complaint, because the Court's December 12, 2007 Order dismissed Plaintiff's Outrageous Conduct Claim against Ross, with prejudice.

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IX. FOURTH1 CLAIM FOR RELIEF (Tortious Interference ­ Jonathan Ross) 16. In response to the allegations in Paragraph 48 of the First Amended Complaint, Ross incorporates his responses to Paragraphs 1 through 47 above, as if fully set forth here. 17. Ross denies the allegations in Paragraphs 48 through 51 of the First Amended Complaint. AFFIRMATIVE DEFENSES 1. Plaintiff has failed to state claims upon which relief can be granted. 2. Plaintiff's claims are or may be barred in whole or in part by the applicable statute of limitations. 3. Plaintiff's claims are or may be barred in whole or in part by the doctrines of laches, waiver, estoppel and/or unclean hands. 4. Plaintiff and its affiliates' and agents' actions or inactions bar it from any recovery. 5. Plaintiff's damages, if any, are caused by its improper actions or the actions of third parties over whom Ross has no control. 6. Plaintiff's actions or inactions bar it from recovery. 7. Plaintiff's actions are barred because it incurred no damages and failed to mitigate damages. 8. Plaintiff's claims are or may be barred because Plaintiff cannot establish the existence of any underlying contract. 9. Plaintiff's claims are or may be barred because the alleged interference was not intentional.
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The First Amended Complaint mistakenly identifies Tortious Interference with Contract as the Fourth Claim for Relief.

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10. Plaintiff's claims are or may be barred because Ross had no improper motive. 11. Plaintiff's claims are or may be barred because Plaintiff cannot establish that Ross's alleged conduct interfered with any contract and caused Plaintiff damage. 12. Plaintiff's claims are or may be barred because the substantive law does not support the claims alleged. 13. Ross reserves the right to assert additional defenses as the factual bases for additional defenses become known during discovery or otherwise. WHEREFORE, Defendant Jonathan Ross requests that Plaintiff's claims be dismissed, with prejudice, that Ross recover his costs and attorney's fees as provided by law, and that the Court grant Ross such other and further relief as the Court deems appropriate.

COUNTERCLAIMS AND THIRD PARTY COMPLAINT Jonathan Ross ("Ross"), by and through his undersigned counsel, for his Counterclaim and Third Party Complaint states: I. INTRODUCTION

Ross asserts herein counterclaims and Third Party Claims for Defamation, Outrageous Conduct and Abuse of Process, stemming from GLN's and Naekel's false, libelous per se and outrageous statements and actions concerning Ross. Serial litigants GLN and Naekel have broadcast these statements in e-mails and website publications to third parties and the public during the six years since United Air Lines, Inc. ("UAL") justifiably terminated GLN's contract concerning UAL's bid to obtain Federal Aviation Administration certifications for its business jet airline subsidiaries.

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II. 1.

PARTIES

Ross is an aviation consultant and resident of New York. For the past twelve

years, Ross has been employed as Director of Operations or Chief Pilot for North American Air Charter and Pilot of business aircraft for North American Air Charter. In 2001, Ross acted to assist UAL and GLN in obtaining Part 121 and 135 certifications for UAL's business jet airline subsidiaries. 2. 3. On information and belief, GLN is a Colorado corporation. Gerald Naekel is a resident of Colorado and an aviation consultant. Naekel is the

principal of GLN. III. 4. JURISDICTION AND VENUE

This Court has determined that jurisdiction and venue are proper here. Ross

maintains his objections to venue in this District. IV. A. GENERAL ALLEGATIONS

GLN's and Naekel's Relationship With Ross And GLN's Contract With UAL. 5. As aviation consultants, Ross and Naekel have known each other for a number of

years. Early in 2001, after UAL had entered into a contract with GLN in which GLN agreed to assist UAL in obtaining Part 121 and Part 135 Certificates from the FAA for its United BizJet Holdings, Inc., BizJet Charter, Inc. and BizJet Services, Inc. (collectively "BizJet") subsidiaries, Naekel contacted Ross and asked Ross to assist UAL and GLN. 6. Ross acted to assist UAL and GLN in obtaining the FAA certifications for UAL's

BizJet subsidiaries, and brought with him his expertise in drafting and writing airline operations and maintenance manuals. Ross was also positioned to serve as Chief Pilot for the BizJet entities, an essential requirement for FAA certification of UAL's BizJet operations.

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7.

Soon after Ross began to work with UAL and GLN on the UAL / BizJet

certification process, Ross discovered that Naekel's poor communication skills, unprofessional conduct and lack of respect for UAL senior management were jeopardizing the project. 8. At various meetings among GLN and UAL senior management, Naekel belittled

UAL and BizJet senior management concerning their understanding of the certification process and arrogantly demanded that UAL follow his directions and recommendations without question. 9. Indeed, in a lengthy e-mail from GLN to UAL / BizJet senior management dated

May 24, 2001, which e-mail is representative of many such communications, Naekel falsely accused UAL and BizJet senior managers of "having the GLN team lie to the FAA." Naekel

also blamed GLN's lack of progress in obtaining certification on one of UAL's senior managers, Rick Wright, stating, "[t]he certification is in disarray due, we feel, largely because of Rick Wright and comments he made orally and in writing to the FAA in Las Vegas." Naekel continued, "You have no plan. At least no one has ever been shoved under the darkened closet door. So we have no idea what is going on. And if WE have no idea at this stage how are you going to convince the FAA that you have any sort of `corporate culture' when no one in the loop seems to really knows [sic] the game plan. We cannot help you write certification manuals when we have no plans. No REAL plans, just ideas." A copy of Naekel's May 24, 2001 e-mail is attached hereto as Exhibit A. 10. In part, as a result of these types of unproductive communications, tensions

between Naekel and UAL / BizJet senior management escalated through June and into July 2001.

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11.

On June 30, 2001, BizJet's President and CEO Stuart Oran wrote to Naekel,

reminding him, "We are the principal and you are the consultant." A copy of Mr. Oran's e-mail is attached as Exhibit B. 12. Although UAL attempted to continue to work with GLN to obtain the FAA

certifications for its BizJet subsidiaries even in light of the these tensions, Naekel's increasingly bizarre and volatile behavior and obvious disrespect towards UAL / BizJet senior management, coupled with GLN's failure to move the certification process along in accordance with UAL / BizJet's expectations, led UAL to terminate GLN's contract. B. GLN's and Naekel's Campaign To Destroy Ross 13. After GLN's termination, Naekel began to take out his frustrations resulting from

the loss of UAL's business on the people who had previously been a part of the GLN and UAL team, including Ross. 14. For example, in July 2001, Naekel falsely accused Jim Davidson (another

member of GLN's "team") of stealing software and other materials from GLN's offices in Arapahoe County, Colorado. According to Naekel, Ross spearheaded this "civil conspiracy." 15. In a series of e-mail communications sent to then-former GLN team members

including Rob Rowland and Jim Davidson, Naekel publicly and falsely accused Ross of theft, conspiracy to commit a felony, lying and other wrongdoing: a. For example, excerpts from an e-mail from Naekel to Jim Davidson on July 19, 2001, attached hereto as Exhibit C, include: "Jim, you ended your career being caught in a theft, conspiracy with Jon to commit theft and you lied." b. Excerpts from an e-mail from Naekel to Jim Davidson dated July 23, 2001, attached hereto as Exhibit D, include: "Jon is a liar, cheat and a thief..."

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16.

In a letter to UAL's chief counsel dated June 21, 2002, a copy of which is

attached hereto as Exhibit E, Naekel accused Ross of illicitly working with Robert Rowland to sell allegedly stolen UAL software, stating, "The other person that provided some of the stolen software was the guy ahead of him, Mr. Jonathan Ross. They work together now on trying to peddle the UAL software to startup airlines." See Exhibit E. 17. Continuing throughout 2002, Naekel wrote repeatedly to Robert Rowland, Jim

Davidson and Ross, accusing them of various alleged wrong-doing. 18. In a June 4, 2002 e-mail to Robert Rowland attached hereto as Exhibit F, Naekel

wrote about Ross: "There was a conspiracy that turned out to be criminal fraud and theft. Some people would like the `good old boy' group to cover for each other. Don't be foolish. Their stupidity and conspiracy is not the concern of you, your wife or your family... Jim or Jon [Ross]or anyone at UAL is not worth it and not worth the risks...From the conversations with you, these guys got into a criminal conspiracy and tried to tie you to it. All for money. You maybe need to stop being the nice guy and take a stand to protect you and your family, not the likes of Jim and Jon [Ross]. Jon [Ross] is going to screw over everyone at the very first chance he gets. Once a prostitute, always a prostitute and Jim probably thinks Jon [Ross] will cover for him. He would have to be an idiot to think Jon [Ross] has even an ounce of trust or integrity... Just don't get fucked by the likes of Jon Ross. And if you are reluctant [sic] to do that, may I suggest the FBI (Mr. Chris Stillman) or the Arapahoe County Sheriff investigators. This is an open and current criminal case." 19. In a June 26, 2002 e-mail to Robert Rowland, Jim Davidson and Ross attached

hereto as Exhibit G, Naekel wrote: "Thanks in large part to you we have, we believe will be able

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to open up the issue of Jon's theft of our Training software as the copies we sent to the FBI, but not UAL, are coded off our machines..." 20. In an August 29, 2002 e-mail to Ross, Jim Davidson, Robert Rowland and Geno

Haggan attached hereto as Exhibit H, Naekel wrote: "So we have 8,000++ emails of most major company and department heads in aviation and pushing the GO button once a week for ever is fine with me. Sue me, go for it. Just makes it easy to go ahead. A threat? No, boys. I have absolutely nothing--NOTHING to lose by doing that. The only reason we have not done that is maybe about to go away? Go for it boys. Right now we send out about 32,000++ emails a month that have our advertising messages or links to our site or other ones. That is what we do. We use automated software that runs from the server for several hours once a week. Granted, the UAL story got A BIG response, but these emails feed our business. People read them. Lets get it all out there. All of it. Lets call criminals criminals, crooks crooks, liars liars, conspirators conspirators and persons who commit perjury and criminal harassment--persons that commit perjury and criminal harassment. Welcome to the world wide web. . . . Some of you lied, stole, defrauded and entered into conspiracies. Then you got others to over for you. How nice. Then you left a trail of looting UAL while doing it, from phony documents and expenses to steal UAL software for private use to criminal harassment. Have you some other plans we have not seen that you plan to reveal that may redeem you in the eyes of a jury? Hello? Probably the least guilty on some issues, at least he was not defrauding UAL and others, was Jim. Don't like your follow-on actions, but you took the bait from Jon Ross hook, line and sinker and he screwed you, got you into a conspiracy that only , only Jon Ross benefited from. Only Jon Ross. That was really dumb that you believed Jon.... So don't bother to waste a call with threats. Sue me. Every piece of fraud and theft and conspiracy and cheating and

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lying is going to be in the public eye, part of the public record and published on the web forever." (emphasis contained in original) 21. Naekel's campaign to destroy Ross by publicly and falsely accusing him of theft,

conspiracy and wrongdoing continues today. In fall 2007, GLN's website contained the following statements concerning Ross under a heading "A Story That Affects Everyone In General Aviation": "The primary voice mails are with a GLN Contractor that was secretly working for UAL. He is Jon Ross, a Gulfstream pilot from Long Island, NY. Tom Davis at Avolar had connected with him to criminally obtain a half million dollars in project software and to get onto our server, in the middle of the night, and look for any records of the FBI meeting two weeks ago. . . . so the tapes have Ross convincing another criminal conspirator, Jim Davidson, of what needs to be done and what to say if he is caught! . . . KEY UAL PLAYERS...Jon Ross, from Long Island, NY, a thief, conspirator and fired from UAL for misconduct. He is tied to organizing a burglary at the GLN offices. . . . KEY FAA PLAYERS...Ross, from paying an insider in GLN, knew of the FBI meeting on July 5, 2001, and organized a conspiracy to burglarize the GLN Denver offices, access the server and search for letters and documents related to our work. They already had the work files, worth about $400,000, so stealing that was of no concern...Two days later, the BOMB SHELL was several voice messages left by Ross to Jim Davidson giving him instructions on the burglary and outlining what UAL bagman David Hobgood was to do if anyone got caught or in trouble...." A copy of GLN's website publication is attached hereto as Exhibit I. 22. GLN's and Naekel's false statements and outrageous conduct have harmed Ross's

reputation and have caused Ross to suffer losses, injuries and damages in an amount to be determined at trial.

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C.

GLN's Unfounded Claim For Outrageous Conduct and The Court's Dismissal of the Same. 23. GLN's and Naekel's intent in engaging in the e-mail campaign and website

publication against Ross was unfounded because it was intended to destroy Ross's reputation, disparage Ross's business and personal reputation in the community and cause Ross financial harm. 24. Indeed, GLN and Naekel bragged about sending over 32,000 e-mails a week to

broadcast to the world that Ross was a thief, conspirator and criminal. 25. In this action, GLN's First Amended Complaint contained a claim against Ross

for Outrageous Conduct that had no cognizable basis in law. 26. On December 11, 2007, the Court dismissed GLN's claim against Ross for

Outrageous Conduct because GLN, a corporation, cannot suffer emotional distress, one of the elements of a claim for outrageous conduct. (See Order on Pending Motions, Docket # 99). 27. As a result of GLN's Outrageous Conduct claim that had no cognizable basis in

law, Ross has suffered significant injuries, harm and damages in an amount to be determined at trial. FIRST CLAIM FOR RELIEF (Defamation ­ Libel Per Se ­ Against GLN and Naekel) 28. 29. Ross incorporates in this claim for relief all of the allegations set forth above. GLN and Naekel authored and published, or caused to be published, false and

unprivileged statements and articles about Ross on GLN's website and have e-mailed false, libelous per se statements to third persons. 30. Ross. The e-mails, letters and website publications detailed here specifically concern

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31.

As a result of the false and unprivileged statements, Ross has suffered damage to

his business and personal reputation in the community and has suffered financial harm. 32. The e-mails and the website publications were false and contained unprivileged

statements at the time they were published or broadcast. 33. At the time of publication or broadcast, GLN and Naekel knew that the statements

were false and/or made the statements with reckless disregard as to whether they were false. 34. These statements, including but not limited to those detailed above, constitute

libel per se because the statements concern an alleged criminal offense and/or a matter incompatible with Ross's business, trade and profession and cause Ross financial harm, thereby entitling Ross to an award of compensatory and punitive damages in an amount to be proved at trial. SECOND CLAIM FOR RELIEF (Outrageous Conduct ­ Against GLN and Naekel) 35. 36. Ross incorporates in this claim for relief all of the allegations set forth above. As detailed in part above, GLN and Naekel have published false, libelous per se

e-mails and website publications about Ross to third persons and readers of the website. 37. GLN and Naekel have engaged in outrageous conduct with respect to the e-mails

and website publications about Ross. 38. GLN and Naekel did so recklessly and/or with the intent of causing Ross severe

emotional distress. 39. GLN's and Naekel's conduct was so outrageous in character, and so extreme in

degree, that a reasonable member of the community would regard the conduct as atrocious, going beyond all possible bounds of decency, and utterly intolerable in a civilized community. 40.
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GLN's and Naekel's conduct has caused Ross severe emotional distress. 13

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41.

Ross has suffered injuries, damages, and/or losses as a result of GLN's and

Naekel's extreme and outrageous conduct. 42. GLN and Naekel are the direct and proximate cause of Plaintiff's injuries,

damages, and/or losses. THIRD CLAIM FOR RELIEF (Abuse of Process ­ Against GLN) 43. 44. Ross incorporates in this claim for relief all of the allegations set forth above. As set forth here, GLN had an ulterior purpose for the use of judicial process ­

e.g., to ruin Ross's business, trade and profession, personal reputation and to cause Ross financial harm. 45. GLN's conduct in initiating this action and in bringing the frivolous and

groundless Outrageous Conduct claim against Ross was willful and not proper in the regular course of proceedings. 46. The Court dismissed GLN's frivolous and groundless Outrageous Conduct Claim

against Ross because GLN, a corporation, cannot suffer "emotional distress," an element of that claim as required by Colorado law. 47. As such, GLN's Outrageous Conduct Claim against Ross was frivolous,

groundless, contrary to well-established law, and had no cognizable basis in law. 48. GLN's act in filing the Outrageous Conduct Claim against Ross has caused Ross

injuries, damages and losses, in an amount to be proven at trial. WHEREFORE, Jonathan Ross respectfully requests that the Court enter judgment in his favor and against Plaintiff GLN Compliance Group, Inc. and Third Party Defendant Gerald Naekel for Ross's claims for Defamation ­ Libel Per Se, Outrageous Conduct and Abuse of Process and awarding damages in an amount to be determined at trial, awarding attorneys' fees
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and costs and for such other and further relief as the Court deems just and proper under the circumstances.

RESPECTFULLY submitted this 27th day of December, 2007. KAMLET SHEPHERD & REICHERT, LLP

s/ Stephen D. Gurr Stephen D. Gurr, No. 19789 Amy E. Arlander, No. 33200 Kamlet Shepherd & Reichert, LLP 1515 Arapahoe Tower One, Suite 1600 Denver, CO 80202 Attorneys for Defendant Jonathan Ross

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 27th day of December, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to: Mark T. Barnes, Esq. Brownstein Hyatt & Farber, P.C. 410 17th Street, 22nd Floor Denver, CO 80202 Telephone: 303-223-1100 Fax: 303-223-1111 E-mail: [email protected] Michah E. Marcus, Esq. Kirkland & Ellis LLP 200 E. Randolph Drive Chicago, IL 60601 Telephone: 312-861-2165 Fax: 312-861-2200 E-mail: [email protected] Elizabeth A. Starrs Daniel A. Wartell STARRS MIHM & CASCHETTE LLP 707 Seventeenth Street, Suite 2600 Denver, CO 80202 Telephone: 303-592-5900 Fax: 303-592-5910 E-mail: [email protected] [email protected]

s/ R. Gretchen Smith

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