Actus, LLC v. Bank of America Corp. et al

RESPONSE to 55 Answer to Amended Complaint, Counterclaim

E.D. Tex.June 10, 2009

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION ACTUS, LLC, Plaintiff, v. (1) BANK OF AMERICA CORP.; (2) BLAZE MOBILE, INC.; (3) CAPITAL ONE FINANCIAL CORP.; (4) ENABLE HOLDINGS, INC.; (5) GOOGLE, INC.; (6) GREEN DOT CORP.; (7) JAVIEN DIGITAL PAYMENT SOLUTIONS, INC.; (8) JPMORGAN CHASE & CO.; (9) MASTERCARD INTERNATIONAL, INC.; (10) META FINANCIAL GROUP, INC.; (11) M&T BANK CORP.; (12) OBOPAY, INC.; (13) SONIC SOLUTIONS; (14) VISA, INC.; (15) VIVENDI UNIVERSAL U.S. HOLDING CO.; (16) VIVENDI UNIVERSAL, SA; (17) WAL-MART STORES, INC.; (18) THE WALT DISNEY CO.; (19) THE WESTERN UNION CO.; (20) WILDTANGENT, INC.; (21) AGILECO, Defendants. CASE NO. 2:09-cv-102-TJW(CE) JURY TRIAL DEMANDED PLAINTIFF’S RESPONSE TO DEFENDANT WILDTANGENT, INC.’S COUNTERCLAIMS PL AI NT I F F ’ S R E SPONSE T O DE F E NDANT W I L DT ANG E NT , I NC .’ S C OUNT E R C L AI M S 2 Plaintiff Actus, LLC (“Actus”) hereby responds to each paragraph of Defendant WildTangent, Inc.’s (“WildTangent”) counterclaims as follows, wherein each and every paragraph is hereby incorporated by reference into each and every answer to each and every Count: 1. Admitted. COUNTERCLAIMS THE PARTIES 2. Admitted. JURISDICTION AND VENUE 3. Admitted. 4. Admitted. COUNTERCLAIMS FOR DECLARATORY RELIEF FIRST CLAIM FOR RELIEF: DECLARATION OF NONINFRINGEMENT OF U.S. PATENT NO. 7,177,838 5. Actus restates and incorporates by reference each of its responses to the allegations of paragraphs 1-4 of the WildTangent’s Counterclaims above, as if fully set forth herein. 6. Admitted. 7. Denied. SECOND CLAIM FOR RELIEF: DECLARATION OF NONINFRINGEMENT OF U.S. PATENT NO. 7,376,621 8. Actus restates and incorporates by reference each of its responses to the allegations of paragraphs 1-4 of the WildTangent’s Counterclaims above, as if fully set forth herein. PL AI NT I F F ’ S R E SPONSE T O DE F E NDANT W I L DT ANG E NT , I NC .’ S C OUNT E R C L AI M S 3 9. Admitted. 10. Denied. THIRD CLAIM FOR RELIEF: DECLARATION OF INVALIDITY OF U.S. PATENT NO. 7,177,838 11. Actus restates and incorporates by reference each of its responses to the allegations of paragraphs 1-4 of the WildTangent’s Counterclaims above, as if fully set forth herein. 12. Admitted. 13. Denied. FOURTH CLAIM FOR RELIEF: DECLARATION OF INVALIDITY OF U.S. PATENT NO. 7,376,621 14. Actus restates and incorporates by reference each of its responses to the allegations of paragraphs 1-4 of the WildTangent’s Counterclaims above, as if fully set forth herein. 15. Admitted. 16. Denied. EXCEPTIONAL CASE 17. Denied. PRAYER FOR RELIEF Actus denies that WildTangent is entitled to any of the relief requested in its Prayer. A. That WildTangent take nothing by its Counterclaims; PRAYER FOR RELIEF In addition to the relief requested in its First Amended Complaint, Actus respectfully requests a judgment against WildTangent as follows: PL AI NT I F F ’ S R E SPONSE T O DE F E NDANT W I L DT ANG E NT , I NC .’ S C OUNT E R C L AI M S 4 B. That the Court award Actus all costs and attorneys’ fees incurred in defending against WildTangent’s Counterclaims; C. Any and all further relief that the Court deems just and proper. Dated: June 10, 2009 Respectfully submitted, /s/ William E. Davis, III William E. Davis, III TX State Bar No. 24047416 The Davis Firm, PC 111 W. Tyler St. Longview, TX 75601 Ph: 903-230-9090 Fx: 903-230-0661 bdavis@bdavisfirm.com Attorney for Actus, LLC PL AI NT I F F ’ S R E SPONSE T O DE F E NDANT W I L DT ANG E NT , I NC .’ S C OUNT E R C L AI M S 5 CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, the foregoing was served on all counsel of record who have consented to electronic service. Local Rule CV-5(a)(3)(A). Pursuant to Fed. R. Civ. P. 5(d) and Local Rule CV-5(d), all others not deemed to have consented to electronic service were served with a true and correct copy of the foregoing via email on this 10th day of June, 2009. /s/ William E. Davis, III William E. Davis, III