Case 1:12-cv-00179-TBR Document 41 Filed 02/20/14 Page 1 of 5 PageID #: 311
`
`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF KENTUCKY
`AT BOWLING GREEN
`
`Sun Style International, LLC,
`
`Civil Action No.: 1:12-cv-00179-TBR
`
`Plaintiff,
`
`Judge Thomas B. Russell
`
`v.
`
`Sunless, Inc.,
`
`
`
`Defendant.
`
`
`
`
`
`PLAINTIFF’S REPLY TO SUNLESS, INC.’S FIRST
`AMENDED ANSWER, AFFIRMATIVE DEFENSES,
`AND COUNTERCLAIMS
`
`Comes Plaintiff, Sun Style International, LLC (“SSI”), by and through undersigned
`
`counsel, and for its Reply to Sunless, Inc.’s First Amended Answer, Affirmative Defenses, and
`
`Counterclaims, states as follows:
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`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`SSI admits the allegations contained in paragraph 1 of the Counterclaims.
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`SSI admits the allegations contained in paragraph 2 of the Counterclaims.
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`SSI admits the allegations contained in paragraph 3 of the Counterclaims.
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`SSI admits the allegations contained in paragraph 4 of the Counterclaims.
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`SSI lacks sufficient knowledge to admit or deny the allegations in paragraph 5 of
`
`the Counterclaims, and therefore denies same.
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`6.
`
`7.
`
`8.
`
`9.
`
`SSI denies the allegations contained in paragraph 6 of the Counterclaims.
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`SSI admits the allegations contained in paragraph 7 of the Counterclaims.
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`SSI denies the allegations contained in paragraph 8 of the Counterclaims.
`
`SSI lacks sufficient knowledge to admit or deny the allegations in paragraph 9 of
`
`the Counterclaims, and therefore denies same.
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF KENTUCKY
`AT BOWLING GREEN
`
`Sun Style International, LLC,
`
`Civil Action No.: 1:12-cv-00179-TBR
`
`Plaintiff,
`
`Judge Thomas B. Russell
`
`v.
`
`Sunless, Inc.,
`
`
`
`Defendant.
`
`
`
`
`
`PLAINTIFF’S REPLY TO SUNLESS, INC.’S FIRST
`AMENDED ANSWER, AFFIRMATIVE DEFENSES,
`AND COUNTERCLAIMS
`
`Comes Plaintiff, Sun Style International, LLC (“SSI”), by and through undersigned
`
`counsel, and for its Reply to Sunless, Inc.’s First Amended Answer, Affirmative Defenses, and
`
`Counterclaims, states as follows:
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`SSI admits the allegations contained in paragraph 1 of the Counterclaims.
`
`SSI admits the allegations contained in paragraph 2 of the Counterclaims.
`
`SSI admits the allegations contained in paragraph 3 of the Counterclaims.
`
`SSI admits the allegations contained in paragraph 4 of the Counterclaims.
`
`SSI lacks sufficient knowledge to admit or deny the allegations in paragraph 5 of
`
`the Counterclaims, and therefore denies same.
`
`6.
`
`7.
`
`8.
`
`9.
`
`SSI denies the allegations contained in paragraph 6 of the Counterclaims.
`
`SSI admits the allegations contained in paragraph 7 of the Counterclaims.
`
`SSI denies the allegations contained in paragraph 8 of the Counterclaims.
`
`SSI lacks sufficient knowledge to admit or deny the allegations in paragraph 9 of
`
`the Counterclaims, and therefore denies same.
`
`
`
`
`Case 1:12-cv-00179-TBR Document 41 Filed 02/20/14 Page 2 of 5 PageID #: 312
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`10.
`
`SSI lacks sufficient knowledge to admit or deny the allegations in paragraph 10 of
`
`the Counterclaims, and therefore denies same.
`
`11.
`
`12.
`
`13.
`
`SSI admits the allegations contained in paragraph 11 of the Counterclaims.
`
`SSI denies the allegations contained in paragraph 12 of the Counterclaims.
`
`SSI denies the allegations contained in paragraph 13 of the Counterclaims.
`
`14. With regard to paragraph 14 of the Counterclaims, SSI admits that it sells its
`
`sunless tanning booth in the United States to third-party distributors who, in turn, resell same to
`
`purchasers, including tanning salons and consumers who operate the product, but denies that SSI
`
`actively aids and abets the resale and use of the Sun Style Booth insofar as that allegation implies
`
`improper or unlawful conduct.
`
`15.
`
`16.
`
`17.
`
`SSI denies the allegations contained in paragraph 15 of the Counterclaims.
`
`SSI denies the allegations contained in paragraph 16 of the Counterclaims.
`
`Paragraph 17 of the Counterclaims merely reiterates foregoing paragraphs and
`
`does not require a reply.
`
`18.
`
`19.
`
`20.
`
`21.
`
`22.
`
`SSI denies the allegations contained in paragraph 18 of the Counterclaims.
`
`SSI denies the allegations contained in paragraph 19 of the Counterclaims.
`
`SSI denies the allegations contained in paragraph 20 of the Counterclaims.
`
`SSI denies the allegations contained in paragraph 21 of the Counterclaims.
`
`Paragraph 22 of the Counterclaims merely reiterates foregoing paragraphs and
`
`does not require a reply.
`
`23. With regard to paragraph 23 of the Counterclaims, SSI admits it has offered to
`
`sell and sold its sunless tanning booth in the United States to distributors, but denies that it has
`
`also aided and abetted distributors and the purchasers to offer for sale, sell and/or use its sunless
`
`tanning booth insofar as that allegation implies improper or unlawful conduct. SSI further denies
`
`
`
`2
`
`
`
`Case 1:12-cv-00179-TBR Document 41 Filed 02/20/14 Page 3 of 5 PageID #: 313
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`that it intended to cause these acts or knew or should have known such acts would directly
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`infringe one or more claims of the ’288 patent, and SSI denies its sunless tanning booth infringes
`
`the ’288 patent in any respect.
`
`24.
`
`25.
`
`26.
`
`27.
`
`28.
`
`SSI denies the allegations contained in paragraph 24 of the Counterclaims.
`
`SSI denies the allegations contained in paragraph 25 of the Counterclaims.
`
`SSI denies the allegations contained in paragraph 26 of the Counterclaims.
`
`SSI denies the allegations contained in paragraph 27 of the Counterclaims.
`
`Paragraph 28 of the Counterclaims merely reiterates foregoing paragraphs and
`
`does not require a reply.
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`29.
`
`30.
`
`31.
`
`32.
`
`33.
`
`SSI denies the allegations contained in paragraph 29 of the Counterclaims.
`
`SSI denies the allegations contained in paragraph 30 of the Counterclaims.
`
`SSI denies the allegations contained in paragraph 31 of the Counterclaims.
`
`SSI denies the allegations contained in paragraph 32 of the Counterclaims.
`
`Paragraph 33 of the Counterclaims merely reiterates foregoing paragraphs and
`
`does not require a reply.
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`34. With regard to paragraph 34 of the Counterclaims, SSI admits it has offered to
`
`sell and sold its sunless tanning booth in the United States to distributors. SSI denies that it has
`
`also actively aided and abetted distributors and the purchasers to offer for sale, sell and/or use its
`
`sunless tanning booth and SSI further denies it intended to cause any acts that would infringe any
`
`claims of the ’461 patent or that its sunless tanning booth infringes the ’461 patent in any respect.
`
`35.
`
`36.
`
`37.
`
`38.
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`SSI denies the allegations contained in paragraph 35 of the Counterclaims.
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`SSI denies the allegations contained in paragraph 36 of the Counterclaims.
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`SSI denies the allegations contained in paragraph 37 of the Counterclaims.
`
`SSI denies the allegations contained in paragraph 38 of the Counterclaims.
`
`
`
`3
`
`
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`Case 1:12-cv-00179-TBR Document 41 Filed 02/20/14 Page 4 of 5 PageID #: 314
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`39.
`
`SSI denies any and all material allegations contained in Sunless’s prayer for relief
`
`in its Counterclaims insofar as the prayer of relief could be read to allege facts that could be
`
`admitted or denied.
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`AFFIRMATIVE AND OTHER DEFENSES
`
`1.
`
`2.
`
`The Sunless Counterclaims fail to state a claim upon which relief can be granted.
`
`The patents referenced in the Counterclaims are invalid and unenforceable under
`
`United States Patent Law, including but not necessarily limited to 35 U.S.C. §§ 102, 103 and/or
`
`112.
`
`3.
`
`SSI does not infringe the patents referenced in the Counterclaims, either directly
`
`or otherwise.
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`4.
`
`SSI reserves the right to amend this Reply to, among other things, assert
`
`additional affirmative defenses as may be appropriate.
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`5.
`
`SSI restates and reiterates any and all affirmative defenses previously pleaded.
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`WHEREFORE, SSI respectfully demands that Sunless’s Amended Counterclaims be
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`dismissed with prejudice and held for naught; that judgment be entered in favor of SSI in its
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`action for declaratory judgment; that SSI be awarded its costs expended herein, including
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`reasonable attorney’s fees; and that SSI be awarded any and all other relief to which it may
`
`otherwise appear entitled.
`
`
`
`4
`
`
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`Case 1:12-cv-00179-TBR Document 41 Filed 02/20/14 Page 5 of 5 PageID #: 315
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`
`
`
`
`
`
`Respectfully submitted,
`
`
` /s/ Christopher A. Bates
`KYLE ANNE CITRYNELL
`CHRISTOPHER A. BATES
`PAUL HERSHBERG
`SEILLER WATERMAN LLC
`Meidinger Tower, 22nd Floor
`462 S. Fourth Street
`Louisville, Kentucky 40202
`Email: citrynell@derbycitylaw.com
`Email: bates@derbycitylaw.com
`Email: hershberg@derbycitylaw.com
`Attorneys for Plaintiff
`
`
`CERTIFICATE OF SERVICE
`
`
`
`
`
`I hereby certify that on February 20, 2014, a true and correct copy of the foregoing
`
`PLAINTIFF’S REPLY TO SUNLESS, INC.’S FIRST AMENDED ANSWER, AFFIRMATIVE
`DEFENSES, AND COUNTERCLAIMS was served via email on all counsel of record for
`Defendant.
`
`
`
`
`
`
`
`
`
` /s/ Christopher A. Bates
`KYLE ANNE CITRYNELL
`CHRISTOPHER A. BATES
`PAUL HERSHBERG
`
`
`
`G:\doc\KAC\Sun Style International\v. Sunless\Pldgs\Reply to Amended Answer.docx
`
`
`
`5
`
`
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