Free Answer to Complaint - District Court of California - California

Case 3:08-cv-00489-W-CAB

Document 3

Filed 03/24/2008

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Hugh A. McCabe, SBN 131828 David P. Hall, SBN 196891 NEIL, DYMOTT, FRANK, MCFALL & TREXLER A Professional Law Corporation 1010 Second Avenue, Suite 2500 San Diego, CA 92101-4959 P 619.238.1712 F 619.238.1562 Attorneys for Defendants FRIJOUF, RUST & PYLE, P.A. and ROBERT F. FRIJOUF

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA PURE BIOSCIENCE, a California Corporation, Plaintiff, vs. FRIJOUF, RUST & PYLE, P.A., a Florida Corporation, ROBERT F. FRIJOUF, an individual, and does 1 through 50 inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 08 CV 0489 W CAB

ANSWER TO COMPLAINT FOR DECLARATORY RELIEF

Defendants, FRIJOUF, RUST & PYLE, PA, a Florida partnership, and Robert F. Frijouf 21 22 23 24 25 26 27 28 reporting to represent certain interests of Pure Bioscience. Defendants further admit 1
08-CV-0489 W CAB

(hereinafter "Defendants") by and through their attorneys of record, answer the Complaint of Plaintiff, PURE BIOSCIENCE, ("Plaintiff") as follows: 1. With regard to the allegations in Paragraph 1, Defendants, based on information and belief, admit this paragraph. 2. With regard to the allegations in Paragraph 2, Defendants admit Defendants Frijouf, Rust & Pyle, P.A. are and at all times mentioned in the complaint were a legal partnership

Case 3:08-cv-00489-W-CAB

Document 3

Filed 03/24/2008

Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12

Robert F. Frijouf was the lead attorney for Pure Bioscience within the referenced firm. Based on information and belief, the remaining allegations in paragraph 2 are denied. 3. With regard to the allegations in the second paragraph numbered "2," (typo?) Defendants admit the following: An actual controversy has arisen and now exists in that Defendants assert entitlement to collect fees from Pure Bioscience. Defendants deny the remaining allegations in this paragraph. 4. With regard to the allegations in paragraph 3, Defendants admit the same. 5. With regard to the allegations in paragraph 4, Defendants lack sufficient knowledge and information to admit or deny this paragraph due to its vague nature. GENERAL DENIAL These answering defendants deny generally and specifically each, every and all of the

13 14 15 16 17 18 19 20 The complaint and every purported cause of action therein fails to set forth facts sufficient to 21 state a cause of action. 22 23 24 25 26 27 28 2
08-CV-0489 W CAB

allegations in said complaint, and the whole thereof, including each and every purported cause of action contained therein. These answering defendants further deny that plaintiff has or will sustain damages. AFFIRMATIVE DEFENSES AS AND FOR A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ARE INFORMED AND BELIEVE AND THEREON ALLEGE AS FOLLOWS:

AS AND FOR A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT IS INFORMED AND BELIEVE AND THEREON ALLEGE AS FOLLOWS: The plaintiff has engaged in conduct with respect to the activities and/or property which are the subject of the complaint, and by reason of said activities and conduct, is estopped from asserting any claim or damages or seeking any other relief against these answering defendants.

Case 3:08-cv-00489-W-CAB

Document 3

Filed 03/24/2008

Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14

AS AND FOR A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ARE INFORMED AND BELIEVE AND THEREON ALLEGE AS FOLLOWS: The plaintiff has engaged in conduct and activities sufficient to constitute a waiver of any alleged breach of contract, negligence or any other conduct, if any, as set forth in the Complaint. AS AND FOR A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ARE INFORMED AND BELIEVE AND THEREON ALLEGE AS FOLLOWS: By virtue of plaintiff's unlawful, immoral, careless, negligent and other wrongful conduct, plaintiff should be barred from recovering against these answering defendants by the equitable doctrine of unclean hands. AS AND FOR A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ARE INFORMED AND BELIEVE AND THEREON ALLEGE AS FOLLOWS: Defendants' performance of the agreement between the parties was at all times reasonable and appropriate. Plaintiff's own breach of the agreement was the cause in whole or in part of the

15 16 17 18 19 20 21 22 23 24 25 26 defendants of attorneys' fees and costs of suit herein incurred, and such other and further relief as the 27 28 Court deems just 3
08-CV-0489 W CAB

claims necessitating this action. AS AND FOR A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ARE INFORMED AND BELIEVE AND THEREON ALLEGE AS FOLLOWS: These answering defendants presently have insufficient knowledge or information upon which to form a belief as to whether they may have additional, as yet unknown, affirmative defenses. These answering defendants reserve the right to assert additional affirmative defenses in the event discovery indicates it would be appropriate. WHEREFORE, these answering defendants pray that plaintiff take nothing by way of its complaint on file herein, that judgment be entered in the within action in favor of these answering defendants and against the plaintiff upon the issues of the complaint, together with an award to these

Case 3:08-cv-00489-W-CAB

Document 3

Filed 03/24/2008

Page 4 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Dated:

March 24, 2008

NEIL, DYMOTT, FRANK, MCFALL & TREXLER A Professional Law Corporation

By:

//s// Hugh A. McCabe Hugh A. McCabe David P. Hall Attorneys for Defendants FRIJOUF, RUST & PYLE, P.A. and ROBERT F. FRIJOUF

4
08-CV-0489 W CAB