Case 1:22-cv-10404-VF Document 23 Filed 03/10/23 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`FRANK DIAZ, TABET DIAZ, and PIERRE-
`LOUIS SEA MOSS LLC,
`
`Plaintiffs,
`
`
` -against-
`
`
`GERARDO RAY, TAMIKA RAY, MAJESTIC
`RAY’S LLC, AND MAJESTIC RAY’S LLC &
`PIERRE-LOUIS SEA MOSS LLC,
`
`Defendants.
`
`Case No. 22-CV-10404-VF
`
`
`
`
`ANSWER
`
`
`
`
`
`Defendants, Gerardo Ray, Tamika Ray, and Majestic Ray’s LLC (“Defendants”), by and
`
`through their attorney, Barry E. Janay, Esq., hereby submit their Answer to Plaintiffs’ Complaint
`
`as follows:
`
`ANSWER
`
`1.
`
`Deny generally each and every allegation made in Plaintiffs’ Complaint except
`
`for those specifically admitted.
`
`2.
`
`Admit paragraph 1 to the extent that it details Plaintiffs’ business independent
`
`from Defendants’ business and provides general information on sea moss.
`
`3.
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`Deny the claims made in paragraph 2 as to the existence of any partnership
`
`agreement or meeting of the minds between the parties.
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`4.
`
`Deny the claims made in paragraph 3 as to the existence of any partnership
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`agreement or meeting of the minds between the parties.
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`5.
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`Deny the claims made in paragraph 4 as to the existence of any partnership
`
`agreement or meeting of the minds between the parties.
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`6.
`
`Deny the claims made in paragraph 5 as to the existence of any partnership
`
`agreement or meeting of the minds between the parties.
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`FRANK DIAZ, TABET DIAZ, and PIERRE-
`LOUIS SEA MOSS LLC,
`
`Plaintiffs,
`
`
` -against-
`
`
`GERARDO RAY, TAMIKA RAY, MAJESTIC
`RAY’S LLC, AND MAJESTIC RAY’S LLC &
`PIERRE-LOUIS SEA MOSS LLC,
`
`Defendants.
`
`Case No. 22-CV-10404-VF
`
`
`
`
`ANSWER
`
`
`
`
`
`Defendants, Gerardo Ray, Tamika Ray, and Majestic Ray’s LLC (“Defendants”), by and
`
`through their attorney, Barry E. Janay, Esq., hereby submit their Answer to Plaintiffs’ Complaint
`
`as follows:
`
`ANSWER
`
`1.
`
`Deny generally each and every allegation made in Plaintiffs’ Complaint except
`
`for those specifically admitted.
`
`2.
`
`Admit paragraph 1 to the extent that it details Plaintiffs’ business independent
`
`from Defendants’ business and provides general information on sea moss.
`
`3.
`
`Deny the claims made in paragraph 2 as to the existence of any partnership
`
`agreement or meeting of the minds between the parties.
`
`4.
`
`Deny the claims made in paragraph 3 as to the existence of any partnership
`
`agreement or meeting of the minds between the parties.
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`5.
`
`Deny the claims made in paragraph 4 as to the existence of any partnership
`
`agreement or meeting of the minds between the parties.
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`6.
`
`Deny the claims made in paragraph 5 as to the existence of any partnership
`
`agreement or meeting of the minds between the parties.
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`
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`
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`Case 1:22-cv-10404-VF Document 23 Filed 03/10/23 Page 2 of 13
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`7.
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`Deny the claims made in paragraph 6 as to the existence of any partnership
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`agreement or meeting of the minds between the parties.
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`8.
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`Deny the claims asserted in paragraph 7 and the relief requested.
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`9.
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`10.
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`11.
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`12.
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`13.
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`14.
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`15.
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`The Parties
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`Admit paragraph 8 as to the identity of the parties.
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`Admit paragraph 9 as to the identity of the parties.
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`Admit paragraph 10 as to the identity of the parties.
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`Deny paragraph 11 as to the existence of the partnership business.
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`Admit paragraph 12 as to the identity of the parties.
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`Admit paragraph 13 as to the identity of the parties.
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`Admit paragraphs 14 as to the identity of the parties.
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`Jurisdiction and Venue
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`16.
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`Deny the claims of jurisdiction set forth in paragraph 15 insofar as they relate to
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`general jurisdiction of the court over the parties because Plaintiffs have stated no viable claims.
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`17.
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`Deny the claims of jurisdiction set forth in paragraph 16 insofar as they relate to
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`general jurisdiction of the court over the parties because Plaintiffs have stated no viable claims.
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`18.
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`Deny the claims of jurisdiction set forth in paragraph 17 insofar as they relate to
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`supplemental jurisdiction of the court over the parties because Plaintiffs have stated no viable
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`claims.
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`19.
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`Deny information or knowledge sufficient to for a belief as to the truth of the
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`claims set forth in paragraph 18 insofar as they relate to whether venue is proper.
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`Case 1:22-cv-10404-VF Document 23 Filed 03/10/23 Page 3 of 13
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`20.
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`Deny the claims of personal jurisdiction set forth in paragraph 19 insofar as they
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`relate to personal jurisdiction of the court over the parties because Plaintiffs have stated no viable
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`claims.
`
`Plaintiffs’ Statement of Facts
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`21.
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`Deny paragraph 20 as to the agreement of the parties to create and the actual
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`creation of a partnership agreement or partnership business.
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`22.
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`Deny paragraph 21 as to the agreement of the parties to create and the actual
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`creation of a partnership agreement or partnership business.
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`23.
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`Deny paragraph 22 as to the agreement of the parties to create and the actual
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`creation of a partnership agreement or partnership business.
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`24.
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`Deny paragraph 23 as to the agreement of the parties to create and the actual
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`creation of a partnership agreement or partnership business.
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`25.
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`Deny paragraph 24 as to the agreement to share profits and losses and the
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`existence or applicability of the alleged partnership agreement.
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`26.
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`Deny paragraphs 25 regarding the process of creating the alleged partnership
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`agreement, the terms Plaintiffs claim were agreed upon, and the existence of such partnership
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`agreement.
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`27.
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`Deny paragraph 26 regarding the process of creating the alleged partnership
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`agreement, the terms Plaintiffs claim were agreed upon, and the existence of such partnership
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`agreement.
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`28.
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`Deny paragraph 27 including subsections thereof regarding the process of creating
`
`the alleged partnership agreement, the terms Plaintiffs claim were agreed upon, and the existence
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`of such partnership agreement.
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`
`
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`Case 1:22-cv-10404-VF Document 23 Filed 03/10/23 Page 4 of 13
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`29.
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`Deny paragraph 28 regarding the process of creating the alleged partnership
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`agreement, the terms Plaintiffs claim were agreed upon, and the existence of such partnership
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`agreement.
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`30.
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`Deny knowledge and information sufficient to form a belief as to the truth of the
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`allegations contained in paragraph 29.
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`31.
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`Deny knowledge and information sufficient to form a belief as to the truth of the
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`allegations in paragraph 30 as to the location where the sea moss was stored and where
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`packaging occurred and deny the existence of the partnership business.
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`32.
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`33.
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`34.
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`Deny paragraph 31 alleging Defendants’ wrongful actions in its entirety.
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`Deny paragraph 32 alleging Defendants’ wrongful actions in its entirety.
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`Admit in part and deny in part paragraph 33. Admit to the extent that the
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`Defendants did carry on their business past the date alleged but deny the allegations that such
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`partnership did exist at that time or any time prior, that Plaintiffs were somehow entitled to
`
`profits from and involvement in Defendants’ independent business operations and
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`responsibilities, and that there was any agreement between the parties as to the existence of a
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`partnership and any rights, obligations, or duties associated.
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`35.
`
`Admit in part and deny in part paragraph 34. Admit to the extent that the
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`Defendants did carry on their business past the date alleged but deny the allegations that such
`
`partnership did exist at that time or any time prior, that Plaintiffs were somehow entitled to
`
`profits from and involvement in Defendants’ independent business operations and
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`responsibilities, and that there was any agreement between the parties as to the existence of a
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`partnership and any rights, obligations, or duties associated.
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`
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`Case 1:22-cv-10404-VF Document 23 Filed 03/10/23 Page 5 of 13
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`36.
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`Admit in part and deny in part paragraph 35. Admit to the extent that the
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`Defendants did carry on their business past the date alleged but deny the allegations that such
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`partnership did exist at that time or any time prior, that Plaintiffs were somehow entitled to
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`profits from and involvement in Defendants’ independent business operations and
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`responsibilities, and that there was any agreement between the parties as to the existence of a
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`partnership and any rights, obligations, or duties associated.
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`37.
`
`Admit in part and deny in part paragraph 36. Admit to the extent that the
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`Defendants did carry on their business past the date alleged but deny the allegations that such
`
`partnership did exist at that time or any time prior, that Plaintiffs were somehow entitled to
`
`profits from and involvement in Defendants’ independent business operations and
`
`responsibilities, and that there was any agreement between the parties as to the existence of a
`
`partnership and any rights, obligations, or duties associated.
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`38.
`
`Admit in part and deny in part paragraph 37. Admit to the extent that the
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`Defendants did carry on their business past the date alleged but deny the allegations that such
`
`partnership did exist at that time or any time prior, that Plaintiffs were somehow entitled to
`
`profits from and involvement in Defendants’ independent business operations and
`
`responsibilities, and that there was any agreement between the parties as to the existence of a
`
`partnership and any rights, obligations, or duties associated.
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`39.
`
`Admit in part and deny in part paragraph 38. Admit to the extent that the
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`Defendants did carry on their business past the date alleged but deny the allegations that such
`
`partnership did exist at that time or any time prior, that Plaintiffs were somehow entitled to
`
`profits from and involvement in Defendants’ independent business operations and
`
`
`
`
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`Case 1:22-cv-10404-VF Document 23 Filed 03/10/23 Page 6 of 13
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`responsibilities, and that there was any agreement between the parties as to the existence of a
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`partnership and any rights, obligations, or duties associated.
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`40.
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`Admit in part and deny in part paragraph 39. Admit to the extent that the
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`Defendants did carry on their business past the date alleged but deny the allegations that such
`
`partnership did exist at that time or any time prior, that Plaintiffs were somehow entitled to
`
`profits from and involvement in Defendants’ independent business operations and
`
`responsibilities, and that there was any agreement between the parties as to the existence of a
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`partnership and any rights, obligations, or duties associated.
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`41.
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`Admit in part and deny in part paragraph 40. Admit regarding Ms. Haddad’s
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`cease and desist letter, the contents of such letter, and that Defendants carried on their business
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`independent of Plaintiffs but deny paragraph 40 regarding the timeline of the events at issue,
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`existence and breach of the alleged partnership agreement, and alleged infringement.
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`42.
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`Admit in part and deny in part paragraph 41. Admit regarding Ms. Haddad’s
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`cease and desist letter, the contents of such letter, and that Defendants carried on their business
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`independent of Plaintiffs but deny paragraph 41 regarding the timeline of the events at issue,
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`existence and breach of the alleged partnership agreement, and alleged infringement.
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`43.
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`Deny knowledge and information sufficient to form a belief as to the truth of the
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`allegations contained in paragraph 42 including subsections thereof.
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`Plaintiffs’ Statements Regarding the Pierre-Louis Sea Moss Trademark and the Sea Moss
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`Distribution Business
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`44.
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`Deny knowledge and information sufficient to form a belief as to the truth of the
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`allegations contained in paragraph 43.
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`Case 1:22-cv-10404-VF Document 23 Filed 03/10/23 Page 7 of 13
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`45.
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`Deny knowledge and information sufficient to form a belief as to the truth of the
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`allegations contained in paragraph 44.
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`46.
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`Deny knowledge and information sufficient to form a belief as to the truth of the
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`allegations contained in paragraph 45.
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`47.
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`Deny knowledge and information sufficient to form a belief as to the truth of the
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`allegations contained in paragraph 46.
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`Plaintiffs’ Statements Regarding the Pierre Louis Copyright
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`Deny paragraph 47 regarding creation of Plaintiffs’ alleged copyright.
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`Admit in part and deny in part paragraph 48. Admit to the extent that Plaintiffs
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`48.
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`49.
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`have provided a copyright registration as an Exhibit but deny the veracity and legitimacy of the
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`document’s content.
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`50.
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`Admit in part and deny in part paragraph 49. Admit only insofar as the allegations
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`that Defendants were operating their business as of the dates listed but deny the assertions
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`regarding the existence of a valid copyright and associated infringing use.
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`51.
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`Admit in part and deny in part paragraph 50. Admit only insofar as the allegations
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`that Defendants were operating their business as of the dates listed but deny the assertions
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`regarding the existence of a valid copyright and associated infringing use.
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`52.
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`Admit in part and deny in part paragraph 51. Admit to the extent that Defendants
`
`did use the allegedly copyright protected material on their product bags on the date listed.
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`
`
`FIRST CAUSE OF ACTION
`(Breach of Contract)
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`53.
`
`Deny the allegations contained in paragraph 52.
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`54.
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`Deny the allegations contained in paragraph 53.
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`Case 1:22-cv-10404-VF Document 23 Filed 03/10/23 Page 8 of 13
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`55.
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`Deny the allegations contained in paragraph 54.
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`56.
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`Deny the allegations contained in paragraph 55.
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`57.
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`Deny the allegations contained in paragraph 56.
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`58.
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`Deny the allegations contained in paragraph 57.
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`
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`SECOND CAUSE OF ACTION
`(Breach of Fiduciary Duty)
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`59.
`
`Deny the allegations contained in paragraph 59.
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`60.
`
`Deny the allegations contained in paragraph 60.
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`61.
`
`Deny the allegations contained in paragraph 61.
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`62.
`
`Deny the allegations contained in paragraph 62.
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`63.
`
`Deny the allegations contained in paragraph 63.
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`64.
`
`Deny the allegations contained in paragraph 64.
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`65.
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`66.
`
`Deny the allegations contained in paragraph 65.
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`Deny the allegations contained in paragraph 66.
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`67.
`
`Deny the allegations contained in paragraph 67.
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`68.
`
`Deny the allegations contained in paragraph 68.
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`69.
`
`Deny the allegations contained in paragraph 69.
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`70.
`
`Deny the allegations contained in paragraph 70.
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`
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`THIRD CAUSE OF ACTION
`(Alternative to First Cause of Action: Constructive Trust)
`
`71.
`
`Deny the allegations contained in paragraph 72.
`
`72.
`
`Deny the allegations contained in paragraph 73.
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`
`
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`Case 1:22-cv-10404-VF Document 23 Filed 03/10/23 Page 9 of 13
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`73.
`
`Deny the allegations contained in paragraph 74.
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`74.
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`Deny the allegations contained in paragraph 75.
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`75.
`
`Deny the allegations contained in paragraph 76.
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`76.
`
`Deny the allegations contained in paragraph 77.
`
`77.
`
`Deny the allegations contained in paragraph 78.
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`78.
`
`Deny the allegations contained in paragraph 79.
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`79.
`
`Deny the allegations contained in paragraph 80.
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`
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`FOURTH CAUSE OF ACTION
`(Trademark Infringement)
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`80.
`
`Deny the allegations contained in paragraph 81.
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`81.
`
`Deny the allegations contained in paragraph 82.
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`82.
`
`Deny the allegations contained in paragraph 83.
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`83.
`
`Deny knowledge or information sufficient to form a belief as to the truth of the
`
`allegations contained in paragraph 84.
`
`84.
`
`Deny the allegations contained in paragraph 85.
`
`85.
`
`Deny knowledge or information sufficient to form a belief as to the truth of the
`
`allegations contained in paragraph 86.
`
`86.
`
`Deny the allegations contained in paragraph 87.
`
`87.
`
`Deny the allegations contained in paragraph 88.
`
`88.
`
`Deny the allegations contained in paragraph 89.
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`89.
`
`Deny the allegations contained in paragraph 90.
`
`
`
`FIFTH CAUSE OF ACTION
`
`
`
`
`
`Case 1:22-cv-10404-VF Document 23 Filed 03/10/23 Page 10 of 13
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`(Copyright Infringement)
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`90.
`
`Deny the allegations contained in paragraph 92.
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`91.
`
`Deny the allegations in paragraph 93.
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`92.
`
`Deny knowledge or information sufficient to form a belief as to the truth of the
`
`allegations in paragraph 94 regarding the presence of the allegedly copyrighted Pierre Louis Sea
`
`Moss LLC on Defendants’ product packaging but deny the assertion of the existence of a
`
`partnership between the parties.
`
`93.
`
`Deny the allegations in paragraph 95.
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`94.
`
`Deny the allegations in paragraph 96.
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`95.
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`Deny the allegations in paragraph 97.
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`
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`
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`AFFIRMATIVE DEFENSES
`
`Defendants assert the following affirmative and other defenses, without assuming the
`
`burden of proof with respect to any issue as to which applicable law places the burden of proof
`
`upon Plaintiffs. Defendants expressly reserve the right to supplement and/or amend any or all of
`
`the following defenses, as warranted by discovery or other investigation, or as justice may
`
`require.
`
`FIRST AFFIRMATIVE DEFENSE
`
`Plaintiffs’ Complaint fails to state any viable causes of action against Defendants.
`
`
`
`
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`SECOND AFFIRMATIVE DEFENSE
`
`Plaintiffs’ Complaint fails to state any cause of action upon which relief can be granted.
`
`
`
`
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`Case 1:22-cv-10404-VF Document 23 Filed 03/10/23 Page 11 of 13
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`THIRD AFFIRMATIVE DEFENSE
`
`Plaintiffs’ claims are barred by the doctrine of unclean hands.
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`FOURTH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ damages, if any, were caused by Plaintiffs’ own actions or inactions.
`
`
`
`
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`FIFTH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ claims are fraudulent in their assertions.
`
`
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`SIXTH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ claims are barred, in whole or in part, because Defendants acted lawfully at all times.
`
`
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`SEVENTH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ infringement claims fail due to the existence of an explicit and implicit license for use
`
`
`
`
`
`of any and all intellectual property at issue.
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`EIGHTH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ claims only appear to have merit as a result of their own fraudulent conduct or
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`fraudulent misrepresentations.
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`NINTH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs have not suffered and injury,
`
`directly or indirectly, as a result of the matters alleged in the complaint.
`
`
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`
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`Case 1:22-cv-10404-VF Document 23 Filed 03/10/23 Page 12 of 13
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`TENTH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ claims are barred because no benefit was conferred upon Defendants under the
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`preliminary distribution agreement, thus Plaintiffs were unjustly enriched.
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`
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`ELEVENTH AFFIRMATIVE DEFENSE
`
`Plaintiffs acquiesced to Defendants’ actions.
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`Dated: Livingston, New Jersey
`March 10th, 2023,
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`Signature:
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`Email:
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`
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`Respectfully Submitted,
`
`______________________
`Barry E. Janay, Esq. (BJ9311)
`Law Offices of Barry E. Janay, P.C.
`90 Broad Street, 25th Floor
`New York, NY 10004
`bjanay@lobej.com and
`azeitz@lobej.com and
`asanchez@lobej.com
`
`
`
`
`
`Barry Janay
`
`bjanay@lobej.com
`
`
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`Case 1:22-cv-10404-VF Document 23 Filed 03/10/23 Page 13 of 13
`
`Answer - 10 Mar 23
`
`Final Audit Report
`
`2023-03-10
`
`Created:
`
`By:
`
`Status:
`
`2023-03-10
`
`Angelina Sanchez (asanchez@lobej.com)
`
`Signed
`
`Transaction ID:
`
`CBJCHBCAABAAA2E4JfAhI_C86J8U3s_E52JhtSvJv1CR
`
`"Answer - 10 Mar 23" History
`Document created by Angelina Sanchez (asanchez@lobej.com)
`2023-03-10 - 7:13:18 PM GMT
`
`Document emailed to Barry Janay (bjanay@lobej.com) for signature
`2023-03-10 - 7:14:36 PM GMT
`
`Email viewed by Barry Janay (bjanay@lobej.com)
`2023-03-10 - 8:10:05 PM GMT
`
`Document e-signed by Barry Janay (bjanay@lobej.com)
`Signature Date: 2023-03-10 - 8:18:51 PM GMT - Time Source: server
`
`Agreement completed.
`2023-03-10 - 8:18:51 PM GMT
`
`
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