Case3:13-cv SI Document11 Filed03/26/13 Page1 of 17

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1 Case:-cv-000-SI Document Filed0// Page of CHRISTOPHER J. BORDERS (SBN: 0 cborders@hinshawlaw.com AMY K. JENSEN (SBN: ajensen@hinshawlaw.com HINSHAW & CULBERTSON LLP One California Street, th Floor San Francisco, CA Telephone: Facsimile: --00 Attorneys for Defendant FIELD ASSET SERVICES, LLC (erroneously sued herein as Field Asset Services, Inc. FRED BOWERMAN and JULIA BOWERMAN, on behalf of themselves and all others similarly situated, vs. Plaintiffs, FIELD ASSET SERVICES, INC., FIELD ASSET SERVICES, LLC, a successor in interest, Defendants. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION Case No.: C-000 SI DEFENDANT S ANSWER TO PLAINTIFFS FIRST AMENDED COMPLAINT Hon. Susan Illston Complaint Filed: February, 0 0 TO THIS HONORABLE COURT AND ALL ATTORNEYS AND THEIR ATTORNEYS OF RECORD: Defendant, FIELD ASSET SERVICES, LLC, erroneously sued herein as FIELD ASSET SERVICES, INC., hereby submits the following Answer and Affirmative Defenses to the Plaintiffs First Amended Complaint for Damages ( Complaint as follows. 00

2 Case:-cv-000-SI Document Filed0// Page of 0 ANSWER. Defendant admits so much of Paragraph which states that Plaintiffs seek to bring this action as a class action, but denies that Plaintiffs have sufficiently pled facts to support any class claims; that it engaged in any unlawful employment scheme; or that it denied anyone wages and benefits. Defendant denies that Plaintiffs or other members of the proposed class were employees. Except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in the aforementioned paragraph.. Defendant denies the allegations in Paragraph of the Complaint.. Defendant admits so much of Paragraph which states that Plaintiffs purport to charge Defendant with violations of provisions of the Labor Code and the California Industrial Welfare Commission Wage Orders, and that Plaintiffs seek declaratory and injunctive relief, restitution, compensatory damages, liquidated damages, penalties, attorneys fees and costs, and prejudgment interest. Defendant denies, however, that it violated any of the stated provisions, or that Plaintiffs or the proposed class are entitled to any of the stated requests for relief, and that there is any class entitled to any such relief. Except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in the aforementioned paragraph.. Defendant admits that Plaintiff Fred Bowerman, operating as BB Home Services, was a vendor for FAS. Defendant has insufficient knowledge to admit or deny the remaining allegations set forth in Paragraph of the Complaint and therefore denies the same.. Defendant admits on information and belief that Plaintiff Julia Bowerman, operating as BB Home Services, was a vendor for FAS. Defendant has insufficient knowledge to admit or deny the remaining allegations set forth in Paragraph of the Complaint and therefore denies the same.. Admitted.. Due to the vague, ambiguous, and uncertain nature of the allegations contained in Paragraph of the Complaint - namely, Plaintiffs fail to identify the entities which are allegedly affiliated with Defendant or constitute an affiliated enterprise with Defendant - Defendant is without sufficient knowledge or information to admit or deny the truth of the allegations contained in 00

3 Case:-cv-000-SI Document Filed0// Page of 0 Paragraph of the Complaint and on that basis, specifically and generally denies each and every allegation contained therein, except to the extent that the allegations constitute legal conclusions such that no response is required.. Defendant denies the allegations set forth in Paragraph of the Complaint.. Admitted.. Admitted.. Defendant denies that Plaintiffs, operating as BB Home Services, were employed by FAS. Defendant admits that Plaintiffs were independent contractors, operating under the company BB Home Services, and that BB Home Services was retained to perform property preservation services as BB Home Services in various counties in Northern and Central California. Defendant admits, on information and belief, that Plaintiffs operating as BB Home Services, executed work order requests in Mendocino, Lake, Sonoma, Marin, Napa, Solano, Contra Costa, Sacramento, San Joaquin, San Francisco, Alameda, Santa Clara, San Mateo, Santa Cruz, Monterey, and San Benito counties. Defendant denies that Plaintiffs, operating as BB Home Services, were inactivated due to the over saturation of vendors. Except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in Paragraph of the Complaint.. Defendant admits that Plaintiffs purport to bring this action on behalf of themselves maintainable as a class action. Defendant admits that Plaintiffs, operating as company BB Home Services, were paid as independent contractors. Except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in Paragraph of the Complaint.. Defendant denies the allegations set forth in Paragraph of the Complaint.. Defendant admits that Plaintiffs purport to bring this action on behalf of themselves maintainable as a class action. Defendant admits that it communicated work order requests through electronic mail notifications and vendor access to an online software systems and information via the Internet, but denies that it assigned work order requests to vendors seven days per week or that that 00

4 Case:-cv-000-SI Document Filed0// Page of 0 Plaintiffs, operating as company BB Home Services, were required to accept work order requests. Defendant admits that to the extent Plaintiffs elected to accept a work order request, that under most circumstances Plaintiffs were required to communicate their acceptance within hours, and the work had to be performed within specific deadlines of the work order request which was often within three days of receipt. Except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in Paragraph of the Complaint.. Defendant admits that Plaintiffs purport to bring this action on behalf of themselves maintainable as a class action. Defendant admits that it took steps to confirm the completion of work order requests by its vendors, and communicated with Plaintiffs, operating as BB Home Services, concerning their accepted work order requests. Defendant admits that it had the right to offer other vendors work order requests which were not completed within the timelines communicated with work order requests, including work order requests which required completion within hours of receipt. Except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in Paragraph of the Complaint.. Defendant admits that Plaintiffs purport to bring this action on behalf of themselves maintainable as a class action. Defendant admits that it required vendors to perform tasks outlined in the work order request and complete the objectives of the work order request, but denies that vendors were required to accept work order requests. Except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in Paragraph of the Complaint.. Defendant admits that Plaintiffs purport to bring this action on behalf of themselves maintainable as a class action. Defendant admits that vendors were utilized by Defendant to perform various tasks by way of accepted work order requests, including those tasks outlined in Paragraph, but Defendant denies that FAS required vendor companies to accept work order requests. Except as expressly admitted, Defendant specifically and generally denies each and every remaining 00

5 Case:-cv-000-SI Document Filed0// Page of 0 allegation contained in Paragraph of the Complaint.. Defendant admits that Plaintiffs purport to bring this action on behalf of themselves maintainable as a class action. Defendant is without sufficient knowledge or information to admit or deny the truth of the remaining allegations in Paragraph of the Complaint, and on that basis, specifically and generally denies the same.. Defendant admits that Plaintiffs purport to bring this action on behalf of themselves maintainable as a class action. Defendant admits that it required vendor companies to perform tasks outlined in accepted work order requests and complete the objectives of work order request, and to document completion of accepted work order requests which would commonly include submission of contemporaneous photographs. Except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in Paragraph of the Complaint. 0. Defendant admits that Plaintiffs purport to bring this action on behalf of themselves maintainable as a class action. Defendant is without sufficient knowledge or information to admit or deny the truth of the remaining allegations in Paragraph of the Complaint, and on that basis, specifically and generally denies the same.. Defendant admits that, as to work order requests which were not completed correctly, Plaintiffs, operating as BB Home Services, could be requested to correct deficiencies directly related to the tasks they agreed to perform, and that Plaintiffs had the opportunity to correctly complete tasks before having to incur any related costs. Except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in Paragraph of the Complaint.. Defendant admits that Plaintiffs purport to bring this action on behalf of themselves and a class of persons who they allege are similarly situated, but denies that this action is properly maintainable as a class action. Except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in Paragraph of the Complaint.. Defendant admits that Plaintiffs purport to bring this action on behalf of themselves 00

6 Case:-cv-000-SI Document Filed0// Page of 0 maintainable as a class action. Defendant denies that Plaintiffs and/or the proposed class members were workers. On that basis, except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in Paragraph of the Complaint.. Defendant admits that Plaintiffs purport to bring this action on behalf of themselves maintainable as a class action. Defendant admits that vendor companies were sometimes required to participate in telephone calls, in-person seminars, and/or online webinars regarding various matters related to the satisfactory completion of various work order requests or tasks, but denies that all were mandatory. Except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in Paragraph of the Complaint.. Defendant admits that Plaintiffs purport to bring this action on behalf of themselves maintainable as a class action. Defendant denies that Plaintiffs or any proposed class members has or ever had employment with Defendant. Defendant denies that FAS determined all price rates or flat rates for each work order request, as Plaintiffs had the opportunity to bid and/or negotiate rates on various services and/or work order requests. Except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in Paragraph of the Complaint.. Defendant admits that Plaintiffs purport to bring this action on behalf of themselves maintainable as a class action. Defendant denies that Plaintiffs, operating as BB Home Services, were required to incur the expense of debris dumping. Except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in Paragraph of the Complaint.. Defendant admits that Plaintiffs purport to bring this action on behalf of themselves maintainable as a class action. Defendant denies that Plaintiffs or any proposed class members has 00

7 Case:-cv-000-SI Document Filed0// Page of 0 or ever had employment with Defendant. Except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in Paragraph of the Complaint.. Defendant admits that Plaintiffs purport to bring this action on behalf of themselves maintainable as a class action. Defendant denies that Plaintiffs or any proposed class members were entitled to any payment of overtime. Except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in Paragraph of the Complaint.. Defendant admits that Plaintiffs purports to bring this action on behalf of themselves maintainable as a class action pursuant to Federal Rules of Civil Procedure, Rules (a, (b(, and (b(. To the extent that Paragraph of the Complaint contains legal conclusions, no response is required. Otherwise, Defendant specifically and generally denies each and every remaining allegation. 0. Defendant admits that Plaintiffs purports to bring this action on behalf of themselves maintainable as a class action pursuant to Federal Rules of Civil Procedure, Rules (a, (b(, and (c(. To the extent that Paragraph 0 of the Complaint contains legal conclusions, no response is required. Otherwise, Defendant specifically and generally denies each and every remaining allegation.. Defendant admits that Plaintiffs purports to bring this action on behalf of themselves maintainable as a class action pursuant to Federal Rules of Civil Procedure, Rules (a, (b(, and (b(. To the extent that Paragraph of the Complaint contains legal conclusions, no response is required. Otherwise, Defendant specifically and generally denies each and every remaining allegation.. Defendant admits that Plaintiffs purports to bring this action on behalf of themselves 00

8 Case:-cv-000-SI Document Filed0// Page of 0 maintainable as a class action pursuant to Federal Rules of Civil Procedure, Rules (a, (b(, and (b(. To the extent that Paragraph of the Complaint contains legal conclusions, no response is required. Otherwise, Defendant specifically and generally denies each and every remaining allegation.. Defendant admits that Plaintiffs purports to bring this action on behalf of themselves maintainable as a class action pursuant to Federal Rules of Civil Procedure, Rules (a, (b(, and (b(. To the extent that Paragraph of the Complaint contains legal conclusions, no response is required. Otherwise, Defendant specifically and generally denies each and every remaining allegation.. Defendant admits that Plaintiffs purports to bring this action on behalf of themselves maintainable as a class action pursuant to Federal Rules of Civil Procedure, Rules (a, (b(, and (b(. To the extent that Paragraph of the Complaint contains legal conclusions, no response is required. Otherwise, Defendant specifically and generally denies each and every remaining allegation.. Defendant admits that Plaintiffs purports to bring this action on behalf of themselves maintainable as a class action pursuant to Federal Rules of Civil Procedure, Rules (a, (b(, and (b(. To the extent that Paragraph of the Complaint contains legal conclusions, no response is required. Otherwise, Defendant specifically and generally denies each and every remaining allegation.. Defendant repeats and re-alleges each and every statement, averment, denial, and admission contained in paragraphs - as set forth above, with the same force and effect as if fully set forth herein.. Defendant admits that Plaintiffs purport to bring this action on behalf of themselves maintainable as a class action. Defendant admits that it entered into contracts with vendor 00

9 Case:-cv-000-SI Document Filed0// Page of 0 companies to perform certain services in exchange for the payment for those services and that those agreements were in writing. Except as expressly admitted, Defendant specifically and generally denies each and every remaining allegation contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint. 0. Defendant repeats and re-alleges each and every statement, averment, denial, and admission contained in paragraphs - as set forth above, with the same force and effect as if fully set forth herein.. Defendant denies the allegations contained in Paragraph of the Complaint, including (a, (b, (c, and (d.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint, including (a and (b.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant repeats and re-alleges each and every statement, averment, denial, and admission contained in paragraphs - as set forth above, with the same force and effect as if fully set forth herein.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant repeats and re-alleges each and every statement, averment, denial, and admission contained in paragraphs - as set forth above, with the same force and effect as if fully set forth herein.. Defendant denies the allegations contained in Paragraph of the Complaint. 0. Defendant denies the allegations contained in Paragraph 0 of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant repeats and re-alleges each and every statement, averment, denial, and 00

10 Case:-cv-000-SI Document Filed0// Page of 0 admission contained in paragraphs - as set forth above, with the same force and effect as if fully set forth herein.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint. 0. Defendant denies the allegations contained in Paragraph 0 of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant repeats and re-alleges each and every statement, averment, denial, and admission contained in paragraphs - as set forth above, with the same force and effect as if fully set forth herein.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant repeats and re-alleges each and every statement, averment, denial, and admission contained in paragraphs - as set forth above, with the same force and effect as if fully set forth herein.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint. 0. Defendant denies the allegations contained in Paragraph 0 of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant repeats and re-alleges each and every statement, averment, denial, and admission contained in paragraphs - as set forth above, with the same force and effect as if fully 00

11 Case:-cv-000-SI Document Filed0// Page of 0 set forth herein.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint. 0. Defendant denies the allegations contained in Paragraph 0 of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint.. Defendant denies the allegations contained in Paragraph of the Complaint. Prayer for Relief. Defendant denies that Plaintiffs are entitled to judgment against Defendant. Defendant denies that Plaintiffs are entitled to any declaratory judgment. Defendant denies that Plaintiffs are entitled to a preliminary, permanent, or mandatory injunction. Defendant denies that Plaintiffs are entitled to an equitable accounting. Defendant denies that Plaintiffs are entitled to compensatory damages, including lost wages, earnings, and other employee benefits. Defendant denies that Plaintiffs are entitled to an award of reasonable attorneys fees, costs of suit, interest, and any other relief. Defendant also asserts the following affirmative defenses: AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim Defendant alleges as a separate and distinct affirmative defense that Plaintiffs Complaint fails to state a cause of action on which recovery may be granted to Plaintiffs. SECOND AFFIRMATIVE DEFENSE (Statute of Limitations Defendant alleges as a separate and distinct affirmative defense that Plaintiffs Complaint, and each purported cause of action therein, are barred by the applicable statute of limitations, including, but not limited to, Sections, et seq. 00

12 Case:-cv-000-SI Document Filed0// Page of 0 THIRD AFFIRMATIVE DEFENSE (Failure to Mitigate Defendant alleges as a separate and distinct affirmative defense that Plaintiffs recovery, if any, should be barred or decreased to the extent that Plaintiffs have failed to mitigate their damages. FOURTH AFFIRMATIVE DEFENSE (Comparative Fault Defendant alleges as a separate and distinct affirmative defense that the damages of which Plaintiffs now complain were proximately caused by the acts or omissions of Plaintiffs and/or other parties, persons, and/or entities. Wherefore, if there is found to be fault on the part of Defendant, which in any manner or degree contributed to Plaintiffs alleged damages, a finding should be made apportioning and affixing comparative fault of any and all parties or persons, whether named in this action or otherwise. FIFTH AFFIRMATIVE DEFENSE (Acts of Others Defendant alleges as a separate and distinct affirmative defense that Plaintiffs Complaint, and each purported cause of action therein, are barred, in whole or in part, in that the damages of which Plaintiffs now complain were proximately caused by the acts or omissions of other parties, persons and/or entities, and its agents and/or employees, which acts or omissions were intervening and superseding and/or the causes of the injuries and/or damages allegedly sustained by Plaintiff, if any. SIXTH AFFIRMATIVE DEFENSE (Estoppel Defendant alleges as a separate and distinct affirmative defense that Plaintiffs are estopped by their conduct from recovering relief by this Complaint. SEVENTH AFFIRMATIVE DEFENSE (Affirmative Misconduct Defendant alleges as a separate and distinct affirmative defense that Plaintiffs are barred from bringing this Complaint, and each purported cause of action therein, and obtaining any relief 00

13 Case:-cv-000-SI Document Filed0// Page of 0 pursuant to the claims for relief alleged in the Complaint against Defendant by virtue of Plaintiffs own affirmative misconduct. EIGHTH AFFIRMATIVE DEFENSE (Unclean Hands Defendant alleges as a separate and distinct affirmative defense that Plaintiffs Complaint, and each purported cause of action therein, are barred, in whole or in part, by the equitable doctrine of unclean hands. NINTH AFFIRMATIVE DEFENSE (Laches Defendant alleges as a separate and distinct affirmative defense that Plaintiffs Complaint, and each purported cause of action therein, are barred by the doctrine of laches. TENTH AFFIRMATIVE DEFENSE (Waiver Defendant alleges as a separate and distinct affirmative defense that Plaintiffs Complaint, and each purported cause of action therein, are barred, in whole or in part, by the equitable doctrine of waiver. ELEVENTH AFFIRMATIVE DEFENSE (Justification Defendant alleges as a separate and distinct affirmative defense that any recovery on the Complaint, or any purported cause of action alleged herein is barred because Defendant s conduct was lawful and justified. TWELFTH AFFIRMATIVE DEFENSE (Lack of Standing Defendant alleges as a separate and distinct affirmative defense that Plaintiffs claims are barred in whole or in part in that Plaintiffs lack standing to assert each and every purported cause of action in the Complaint against Defendant, and are not a proper party. 00

14 Case:-cv-000-SI Document Filed0// Page of 0 THIRTEENTH AFFIRMATIVE DEFENSE (Consent Defendant alleges as a separate and distinct affirmative defense that Plaintiffs claims are barred, in whole or in part, in that Plaintiffs, their agents or predecessors in interest willfully and voluntarily consented, expressly and impliedly, after full and complete disclosure of all relevant and material facts, to any and all such act or acts, event or events, as to which he now complains. FOURTEENTH AFFIRMATIVE DEFENSE (Ratification Defendant alleges as a separate and distinct affirmative defense that Plaintiffs claims are barred by reason of the fact that Plaintiffs or their predecessor in interest, upon being fully informed or the acts and events of which he now complains, ratified and affirmed all conduct with respect to those acts and events. FIFTEENTH AFFIRMATIVE DEFENSE (Superseding/Intervening Act Defendant alleges as a separate and distinct affirmative defense that Plaintiffs alleged injuries, losses, or damages were approximately caused by a superseding and intervening act. SIXTEENTH AFFIRMATIVE DEFENSE (Assumption of Risk Defendant alleges as a separate and distinct affirmative defense that if Plaintiffs suffered or sustained any loss, damages or injury at or about the times and places alleged, although such is not admitted hereby or herein, the same or the direct and proximate result of the risk, if any there was, was knowingly assumed by Plaintiffs. SEVENTEENTH AFFIRMATIVE DEFENSE (No Illegal Intent Defendant alleges as a separate and distinct affirmative defense that at all relevant times, none of Defendant s acts were in bad faith, spiteful, malicious, or otherwise motivated by any ill-will or illegal intent. Instead, Defendant s acts were at all relevant times privileged or taken in accordance with its rights as accorded by law. 00

15 Case:-cv-000-SI Document Filed0// Page of 0 EIGHTEENTH AFFIRMATIVE DEFENSE (Attorneys Fees Defendant has engaged attorneys to represent it in defense of Plaintiffs frivolous, unfounded and unreasonable action and Plaintiffs are not entitled to attorneys fees; and further, this answering Defendant is thereby entitled to an award of attorneys fees upon judgment thereon in its favor. NINETEENTH AFFIRMATIVE DEFENSE (Privilege Defendant alleges as a separate and distinct affirmative defense that Plaintiffs claims are barred in whole or in part because Defendant s acts were privileged. TWENTIETH AFFIRMATIVE DEFENSE (Defendant Acted in Good Faith At all times mentioned in the Complaint, Defendant performed and discharged in good faith each and every obligation, if any, owed to Plaintiffs. TWENTY-FIRST AFFIRMATIVE DEFENSE (Plaintiff Breached the Covenant of Good Faith and Fair Dealing Plaintiffs conduct constitutes a breach of covenant of good faith and fair dealing, if any such covenant existed. TWENTY-SECOND AFFIRMATIVE DEFENSE (No Express or Implied Contract Defendant alleges as a separate and distinct affirmative defense that Plaintiffs Complaint, and each purported cause of action therein, are barred, in whole or in part, because no express or implied contract for employment existed between Plaintiffs and Defendant. TWENTY-THIRD AFFIRMATIVE DEFENSE (Plaintiffs Were Fully Compensated Defendant alleges as a separate and distinct affirmative defense that Plaintiffs were sufficiently compensated for the tasks for which they, through their company, BB Home Services, was retained to do. 00

16 Case:-cv-000-SI Document Filed0// Page of 0 TWENTY-FOURTH AFFIRMATIVE DEFENSE (Penalties are Subject to One-Year Statute of Limitations Defendant alleges as a separate and distinct affirmative defense that wage penalties pursuant to the Labor Code are subject to a statute of limitations period of one year. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Plaintiffs Not Injured Parties Defendant alleges as a separate and distinct affirmative defense that Plaintiffs claim for unfair competition is barred because Plaintiffs have not suffered injury in fact and/or has not lost money. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Performance Excused Defendant alleges as a separate and distinct affirmative defense that this answering Defendant fully performed under any agreement referenced in the Complaint, except as excused by Plaintiffs failure to perform under such agreement, and/or Plaintiffs misrepresentations in making the agreement. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Frustrated Contract Defendant alleges as a separate and distinct affirmative defense that Plaintiffs, by their own actions and representations, may have frustrated the purpose of the contract between Plaintiffs and this answering Defendant, thereby excusing any further performance by this answering Defendant. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Plaintiffs Prior Breach Defendant alleges as a separate and distinct affirmative defense that this answering Defendant s performance and obligations, if any, were excused by reason of Plaintiffs prior breach of any alleged agreement. TWENTY-NINTH AFFIRMATIVE DEFENSE (Unknown Defenses Defendant presently has insufficient knowledge or information on which to form a belief as 00

17 Case:-cv-000-SI Document Filed0// Page of to whether it may have additional, as yet unstated, defenses available. Defendant reserves herein the right to assert additional defenses in the event discovery indicates that they would be appropriate. WHEREFORE, this answering Defendant prays as follows:. That Plaintiffs take nothing by this Complaint;. That Defendant recover its costs of suit herein;. That Defendant recover reasonable attorney s fees incurred herein; and. That the Court award such other and further relief as it is just and proper. 0 Dated: March, 0 HINSHAW & CULBERTSON LLP By:_/s/ Christopher J. Borders Christopher J. Borders Amy K. Jensen Attorneys for Defendant Field Asset Services LLC 00