Case 0:06-cv-60881-KAM Document 28 Entered on FLSD Docket 06/11/2007 Page 1 of 9
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
`Case No.: 06-60881-CIV-MARRA/SELTZER
`
`Plaintiff,
`
`
`VINCENT STRUMOLO,
`
`
`vs.
`
`ALTERNATE FAMILY CARE, INC.,
`a Florida corporation, CENTRE FOR
`INNOVATIVE SOLUTIONS, INC., a
`Florida non-for-profit corp., and
`DAVID L. FERGUSON, individually,
`
`Defendants.
`
`_______________________________________/
`
`
`DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO COUNT I OF
`AMENDED COMPLAINT, AND COUNTERCLAIM1
`
`Defendant, ALTERNATE FAMILY CARE, INC., by and through its undersigned counsel,
`
`
`
`hereby files its Answer and Affirmative Defenses to Count I of the Amended Complaint, and states
`
`as follows:
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`Without knowledge, thus denied.
`
`Admitted.
`
`Without knowledge, thus denied.
`
`Without knowledge, thus denied.
`
`Without acknowledging the existence of the remedies sought or Plaintiff's
`
`entitlement to relief, Defendant admits that this lawsuit purports to arise under the Copyright Laws
`
`of the United Sates. All remaining allegations of Paragraph 5 are denied.
`
`6.
`
`Denied.
`
`Denied.
`7.
`
`1 Defendant, Alternate Family Care, Inc., has also filed a Motion to Dismiss Counts II and III of the Amended
`Complaint. The new Defendants in this lawsuit, Centre for Innovative Solutions, Inc. and David L. Ferguson, have not
`yet been served. Accordingly, this Answer and Affirmative Defenses are solely on behalf of Defendant Alternate
`Family Care, Inc.
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
`Case No.: 06-60881-CIV-MARRA/SELTZER
`
`Plaintiff,
`
`
`VINCENT STRUMOLO,
`
`
`vs.
`
`ALTERNATE FAMILY CARE, INC.,
`a Florida corporation, CENTRE FOR
`INNOVATIVE SOLUTIONS, INC., a
`Florida non-for-profit corp., and
`DAVID L. FERGUSON, individually,
`
`Defendants.
`
`_______________________________________/
`
`
`DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO COUNT I OF
`AMENDED COMPLAINT, AND COUNTERCLAIM1
`
`Defendant, ALTERNATE FAMILY CARE, INC., by and through its undersigned counsel,
`
`
`
`hereby files its Answer and Affirmative Defenses to Count I of the Amended Complaint, and states
`
`as follows:
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`Without knowledge, thus denied.
`
`Admitted.
`
`Without knowledge, thus denied.
`
`Without knowledge, thus denied.
`
`Without acknowledging the existence of the remedies sought or Plaintiff's
`
`entitlement to relief, Defendant admits that this lawsuit purports to arise under the Copyright Laws
`
`of the United Sates. All remaining allegations of Paragraph 5 are denied.
`
`6.
`
`Denied.
`
`Denied.
`7.
`
`1 Defendant, Alternate Family Care, Inc., has also filed a Motion to Dismiss Counts II and III of the Amended
`Complaint. The new Defendants in this lawsuit, Centre for Innovative Solutions, Inc. and David L. Ferguson, have not
`yet been served. Accordingly, this Answer and Affirmative Defenses are solely on behalf of Defendant Alternate
`Family Care, Inc.
`
`
`
`Case 0:06-cv-60881-KAM Document 28 Entered on FLSD Docket 06/11/2007 Page 2 of 9
`
`8.
`
`It is admitted that venue in this District Court is proper. All remaining allegations of
`
`Case No.: 06-60881-CIV-MARRA/SELTZER
`
`Paragraph 8 are denied.
`
`9.
`
`It is admitted that Plaintiff is a licensed marriage and family therapist in the State of
`
`Florida. Defendant is without knowledge and thus denies the remaining allegations of Paragraph 9.
`
`10.
`
`It is admitted that Plaintiff is a licensed marriage and family therapist in the State of
`
`Florida. Defendant is without knowledge and thus denies the remaining allegations of Paragraph
`
`10.2
`
`11.
`
`It is admitted that Plaintiff began working for Defendant in 1990, and ultimately
`
`became director of clinical services. Defendant is without knowledge and thus denies the remaining
`
`allegations of Paragraph 11.
`
`12. Without knowledge, thus denied.
`
`13.
`
`14.
`
`15.
`
`16.
`
`17.
`
`18.
`
`19.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`20. Without acknowledging Plaintiff's entitlement to relief, Defendant admits that
`
`Plaintiff is seeking injunctive relief and damages in this action.
`
`21.
`
`It is admitted that Resolution Focused Therapy ("RFT") targets the behavioral as
`
`well as the emotional effects of trauma on a child. All remaining allegations of Paragraph 21 are
`
`denied.
`
`
`2 The allegations in ¶ 10 are identical to the allegations in ¶ 9.
`
`2
`
`
`
`Case 0:06-cv-60881-KAM Document 28 Entered on FLSD Docket 06/11/2007 Page 3 of 9
`
`Case No.: 06-60881-CIV-MARRA/SELTZER
`
`22.
`
`23.
`
`24.
`
`25.
`
`26.
`
`27.
`
`28.
`
`29.
`
`30.
`
`31.
`
`32.
`
`33.
`
`34.
`
`35.
`
`36.
`
`37.
`
`38.
`
`39.
`
`40.
`
`41.
`
`42.
`
`43.
`
`44.
`
`45.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Admitted.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Admitted.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`3
`
`
`
`Case 0:06-cv-60881-KAM Document 28 Entered on FLSD Docket 06/11/2007 Page 4 of 9
`
`Case No.: 06-60881-CIV-MARRA/SELTZER
`
`46.
`
`47.
`
`48.
`
`49.
`
`50.
`
`51.
`
`52.
`
`53.
`
`54.
`
`55.
`
`56.
`
`57.
`
`58.
`
`59.
`
`60.
`
`61.
`
`62.
`
`63.
`
`64
`
`65.
`
`66.
`
`67.
`
`68.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`COUNT I – COPYRIGHT INFRINGEMENT
`
`Defendant realleges its responses to Paragraphs 1 through 52 above.
`
`Admitted.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`4
`
`
`
`Case 0:06-cv-60881-KAM Document 28 Entered on FLSD Docket 06/11/2007 Page 5 of 9
`
`Case No.: 06-60881-CIV-MARRA/SELTZER
`
`69.
`
`70.
`
`71.
`
`72.
`
`73.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`COUNT II – COMMON LAW RIGHT AGAINST MISATTRIBUTION
`
`74. - 88. Defendant, ALTERNATE FAMILY CARE, INC., has moved to dismiss Count II
`
`of the Amended Complaint.
`
`COUNT III – COMMON LAW RIGHT AGAINST FALSE ATTRIBUTION
`
`89. - 100. Defendant, ALTERNATIVE FAMILY CARE, INC., has moved to dismiss Count
`
`III of the Amended Complaint.
`
`PRAYER FOR RELIEF
`
`101. Defendant denies that Plaintiff is entitled to any of the relief sought in his Prayer for
`
`Relief.
`
`Further responding to Paragraphs 1 through 73 of the Amended Complaint, all allegations
`
`not specifically admitted herein are denied.
`
`AFFIRMATIVE DEFENSES
`
`
`
`102. As and for an affirmative defense, Defendant asserts that Count I of the Amended
`
`Complaint fails to state a claim upon which relief may be granted.
`
`
`
`103. As and for an affirmative defense, Defendant asserts that Plaintiff was an employee
`
`of Defendant and the RFT was created in the course and scope of his employment with Defendant.
`
`The RFT is, therefore, a work for hire.
`
`
`
`104. As and for an affirmative defense, Defendant asserts that Plaintiff’s Copyright
`
`Registration is invalid because the RFT is a work for hire.
`
`5
`
`
`
`Case 0:06-cv-60881-KAM Document 28 Entered on FLSD Docket 06/11/2007 Page 6 of 9
`
`Case No.: 06-60881-CIV-MARRA/SELTZER
`
`
`
`105. As and for an affirmative defense, Defendant asserts that Plaintiff’s copyright
`
`infringement claim is barred, in whole or in part, by the applicable statute of limitations.
`
`
`
`106. As and for an affirmative defense, Defendant asserts that Plaintiff’s copyright
`
`infringement claim is barred, in whole or in part, by the doctrine of laches.
`
`
`
`107. As and for an affirmative defense, Defendant asserts that Plaintiff’s copyright
`
`infringement claim is barred by the doctrine of acquiescence.
`
`
`
`108. As and for an affirmative defense, Defendant asserts that Plaintiff is entitled to
`
`recover its full costs, including attorneys' fees in accordance with 17 U.S.C. § 505.
`
`
`
`109. As and for an affirmative defense, Defendant asserts that Plaintiff cannot recover for
`
`copyright infringement because he has unclean hands in that he improperly and falsely acquired his
`
`purported copyright.
`
`
`
`110. As and for an affirmative defense, Defendant asserts that Plaintiff ratified
`
`Defendant’s conduct and/or waived enforcement of his purported copyright by failing to take
`
`reasonable and timely efforts to enforce his purported copyright.
`
`
`
`111. As and for an affirmative defense, Defendant asserts that Plaintiff’s copyright
`
`infringement claim is barred by the doctrine of estoppel.
`
`
`
`112. As and for an affirmative defense, Defendant asserts that the injunctive relief
`
`requested by Plaintiff will cause significant harm and hardship to Defendant and to those children
`
`dependent upon Defendant's services which is disproportionate to any benefit which could accrue to
`
`Plaintiff.
`
`RESERVATION
`
`
`
`Defendant reserves the right to amend and/or supplement answers and its affirmative
`
`defenses and/or to assert additional defenses upon the particularization of Plaintiff’s claims, upon
`
`6
`
`
`
`Case 0:06-cv-60881-KAM Document 28 Entered on FLSD Docket 06/11/2007 Page 7 of 9
`
`discovery and review of additional documents and information, and upon the development of other
`
`Case No.: 06-60881-CIV-MARRA/SELTZER
`
`pertinent facts as discovery progresses.
`
`COUNTERCLAIM
`
`
`
`1.
`
`This is an action for declaratory and injunctive relief pursuant to 28 U.S.C. § 2201.
`
`The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a).
`
`
`
`2.
`
`Defendant/Counter-Plaintiff AFC is a Florida corporation having its principal place
`
`of business in Sunrise, Florida.
`
`
`
`3.
`
`Upon information and belief, Plaintiff/Counter-Defendant, VINCENT STRUMOLO
`
`(“STRUMOLO”), is an individual living in Davie, Florida.
`
`
`
`4.
`
`Prior to leaving the employment of AFC in or around January 2006, STRUMOLO
`
`was an employee of AFC, serving in a variety of capacities throughout his tenure.
`
`
`
`5.
`
`As an AFC employee, STRUMOLO was paid regular wages by AFC, which
`
`withheld federal taxes and social security on his behalf.
`
`
`
`6.
`
`STRUMOLO's participation in the creation of the RFT, as explained more fully in
`
`the Amended Complaint, occurred within the scope of his employment at AFC.
`
`
`
`7.
`
`The RFT is a work for hire pursuant to 17 U.S.C. § 101. Accordingly, AFC, and not
`
`STRUMOLO, is considered the author of, and owns the copyright for, the RFT.
`
`
`
`8.
`
`Because the RFT is a work for hire, any registration of the RFT in the name of
`
`STRUMOLO is invalid.
`
`
`
`9.
`
`STRUMOLO has asserted a claim of ownership and authorship to the RFT.
`
`Accordingly, an actual controversy exists regarding the ownership and authorship of the RFT and
`
`its copyright.
`
`
`
`WHEREFORE, Defendant/Counter-Plaintiff, ALTERNATE FAMILY CARE, INC.,
`
`respectfully requests that this Honorable Court enter a judgment:
`
`7
`
`
`
`Case 0:06-cv-60881-KAM Document 28 Entered on FLSD Docket 06/11/2007 Page 8 of 9
`
`Case No.: 06-60881-CIV-MARRA/SELTZER
`
`
`
`a) declaring that the RFT is a work for hire, that AFC owns any copyright to the RFT, that
`
`AFC is considered the author of the RFT, and that any registration of copyright or other assertion of
`
`ownership of copyright or of authorship by VINCENT STRUMOLO is void and invalid;
`
`
`
`b) ordering Plaintiff/Counter-Defendant to surrender all copies of the RFT and certificates of
`
`registration of the RFT, and enjoining Plaintiff/Counter-Defendant from representing that he owns
`
`or is the author of the RFT;
`
`
`
`c) granting Defendant/Counter-Plaintiff its costs and attorneys fees pursuant to 17 U.S.C. §
`
`505; and
`
`
`
`d) granting any other equitable or legal relief that this Court deems just and proper.
`
`CERTIFICATE OF SERVICE
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`GREENSPOON MARDER, P.A.
`Attorneys for Defendant Alternate Family Care, Inc.
`100 West Cypress Creek Road, Suite 700
`Fort Lauderdale, Florida 33309
`Tel: (954) 491-1120 Fax: (954) 267-8027
`peter.siegel@gmlaw.com
`
`I CERTIFY that on June 11, 2007, a true and correct copy of the foregoing was filed with
`
`this Court using CM/ECF. We also certify that the foregoing document is being served this day on
`all counsel of record or pro se parties identified on the attached Service List in the manner specified,
`either via transmission of Notice of Electronic Filing generated by CM/ECF or by U.S. Mail to
`whom are not authorized to received electronically Notices of Electronic Filing.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By: ____s/Peter R. Siegel _____
`PETER R. SIEGEL
`
`
`Florida Bar No.: 988634
`JOEL L. SHULMAN
`
`
`Florida Bar No.: 389242
`
`
`
`8
`
`
`
`Case 0:06-cv-60881-KAM Document 28 Entered on FLSD Docket 06/11/2007 Page 9 of 9
`
`Case No.: 06-60881-CIV-MARRA/SELTZER
`
`
`
`SERVICE LIST
`
`JERRY D. HAYNES, ESQ.
`Law Offices of Jerry D. Haynes
`Attorney for Plaintiff
`440 Sawgrass Corporate Parkway
`Suite 100
`Sunrise, FL 33325
`Tel: (954) 318-3029
`Fax: (954) 318-7223
`jdhlaw@mac.com
`
`G:\DOCS\LIT\13991\0001\PLDG\26F9736.DOC
`
`9
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
