Case 1:17-cv-00414-TCB Document 32 Filed 06/10/19 Page 1 of 14
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
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`FASTCASE, INC.,
`Plaintiff,
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`vs.
`LAWRITER LLC.,
`Defendant.
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`CASE NO: 17-cv-00414-TCB
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`DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT
`FOR DECLARATORY JUDGMENT
`Defendant Lawriter LLC, d/b/a Casemaker (“Lawriter”), by and through its
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`undersigned counsel, answering the Amended Complaint of the Plaintiff, Fastcase,
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`Inc., would respectfully show unto the Court as follows:
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`FOR A FIRST DEFENSE
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`1.
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`In response to Paragraph 1 of Plaintiff’s Complaint, Lawriter admits
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`that Plaintiff purports to bring this Declaratory Judgment action pursuant to the
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`sections cited, but demands strict proof that there is an actual controversy within
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`this court’s jurisdiction as required by 28 U.S. Code Section 2201(a). Further
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`
`FASTCASE, INC.,
`Plaintiff,
`
`vs.
`LAWRITER LLC.,
`Defendant.
`
`CASE NO: 17-cv-00414-TCB
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`)))))))))))
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`DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT
`FOR DECLARATORY JUDGMENT
`Defendant Lawriter LLC, d/b/a Casemaker (“Lawriter”), by and through its
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`undersigned counsel, answering the Amended Complaint of the Plaintiff, Fastcase,
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`Inc., would respectfully show unto the Court as follows:
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`FOR A FIRST DEFENSE
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`1.
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`In response to Paragraph 1 of Plaintiff’s Complaint, Lawriter admits
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`that Plaintiff purports to bring this Declaratory Judgment action pursuant to the
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`sections cited, but demands strict proof that there is an actual controversy within
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`this court’s jurisdiction as required by 28 U.S. Code Section 2201(a). Further
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`Case 1:17-cv-00414-TCB Document 32 Filed 06/10/19 Page 2 of 14
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`answering Paragraph 1 of Plaintiff’s Complaint, Lawriter admits the Regulations of
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`the State of Georgia are broad-ranging.
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`PARTIES
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`2.
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`Lawriter admits the allegations of Paragraph 2 of Plaintiff’s
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`Complaint upon information and belief.
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`3.
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`Lawriter admits the allegations of Paragraph 3 of Plaintiff’s
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`Complaint.
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`JURISDICTION AND VENUE
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`4.
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`Lawriter denies the allegations of Paragraph 4 of Plaintiff’s Complaint
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`inasmuch as Plaintiff’s Complaint does not adequately allege a claim under the
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`Copyright Act or allege the requisite amount in controversy1 and demands strict
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`proof thereof.
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`5.
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`The Lawriter denies the allegations of Paragraph 5 of Plaintiff’s
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`Complaint as Plaintiff’s duty to mitigate its damages would necessarily reduce the
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`damages below the $75,000 threshold.
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`6.
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`Lawriter denies the allegations of Paragraph 6 of Plaintiff’s Complaint
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`and demands strict proof thereof.
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`1 Lawriter recognizes that the 11th Circuit Court of Appeals has held that
`Plaintiff has adequately pled the amount in controversy and this denial is to
`preserve the issue for reconsideration or appeal.
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`2
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`Case 1:17-cv-00414-TCB Document 32 Filed 06/10/19 Page 3 of 14
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`7.
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`Lawriter denies the allegations of Paragraph 7 of Plaintiff’s Complaint
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`as alleged that the contractual terms quoted require Lawriter to assess a $20,000
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`every time Plaintiff accesses the website of the Georgia Secretary of State or
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`provides its upload to members of the State Bar of Georgia pursuant to the Terms
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`and Conditions stated therein and demands strict proof thereof. Further, Lawriter
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`is without sufficient information to admit or deny the allegations of Paragraph 7
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`that allege Plaintiff would update its database daily and/or thousands of times a
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`day.
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`8.
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`Lawriter admits the allegations of Paragraph 8 of Plaintiff’s
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`Complaint.
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`9.
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`Lawriter admits the allegations of Paragraph 9 of Plaintiff’s
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`Complaint.
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`10. Lawriter admits the allegations of Paragraph 10 of Plaintiff’s
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`Complaint.
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`FACTUAL BACKGROUND
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`In response to the allegations of Paragraph 11 of Plaintiff’s
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`11.
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`Complaint, Lawriter admits that the Georgia Regulations are promulgated by the
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`public agencies of the State of Georgia as required by statute. Lawriter is without
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`3
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`Case 1:17-cv-00414-TCB Document 32 Filed 06/10/19 Page 4 of 14
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`sufficient information to admit or deny the remaining allegations upon information
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`and belief and demands strict proof thereof.
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`12. The allegations of Paragraph 12 of Plaintiff’s Complaint state legal
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`conclusions to which a response is not required. To the extent a response is
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`required, Lawriter admits so much of Paragraph 12 as alleges that the Georgia
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`Regulations are public law and are in the public domain, and for which Lawriter
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`does not claim any exclusive right. Lawriter denies the remaining allegations of
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`Paragraph 12 and demands strict proof thereof.
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`13. Lawriter is without sufficient information to admit or deny the
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`allegations of Paragraph 13 of Plaintiff’s Complaint and therefore denies the same
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`and demands strict proof thereof.
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`14. Lawriter is without sufficient information to admit or deny the
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`allegations of Paragraph 14 of Plaintiff’s Complaint and therefore denies the same
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`and demands strict proof thereof.
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`15. Lawriter is without sufficient information to admit or deny the
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`allegations of Paragraph 15 of Plaintiff’s Complaint and therefore denies the same
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`and demands strict proof thereof.
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`16. Lawriter admits the allegations of Paragraph 16 of Plaintiff’s
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`Complaint.
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`4
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`Case 1:17-cv-00414-TCB Document 32 Filed 06/10/19 Page 5 of 14
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`17.
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`In response to the allegations of Paragraph 17 of Plaintiff’s
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`Complaint, Lawriter admits that it entered into a contract with the Secretary of
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`State of Georgia to publish the Georgia Regulations and craves reference to said
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`contract in its entirety, including addendum, and denies any allegations
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`inconsistent therewith.
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`18. Lawriter denies the allegations of Paragraph 18 of Plaintiff’s
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`Complaint and craves reference to said contract in its entirety, including
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`addendum, and denies any allegations inconsistent therewith. Further, Plaintiff
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`lacks standing to claim an alleged breach of a contract to which is it neither a party
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`nor an intended beneficiary.
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`19. Lawriter is without sufficient information to admit or deny the
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`allegations of Paragraph 19 of Plaintiff’s Complaint and therefore denies the same
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`and demands strict proof thereof.
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`THE PREVIOUS LITIGATION
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`20. Lawriter admits the allegations of Paragraph 20 of Plaintiff’s
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`Complaint.
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`21. Lawriter denies the allegations of Paragraph 21 of Plaintiff’s
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`Complaint.
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`5
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`Case 1:17-cv-00414-TCB Document 32 Filed 06/10/19 Page 6 of 14
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`22.
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`In response to the allegations of Paragraph 22 of Plaintiff’s
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`Complaint, Lawriter is without sufficient information to admit or deny what
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`Fastcase is aware of and therefore denies the same. Lawriter denies the remaining
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`allegations of Paragraph 22 as seeking an impermissible advisory opinion from this
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`court. Lawriter avers, however, that it does not claim a copyright in the text of any
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`laws or regulations of Georgia or any other state and further avers that it does not
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`utilize “Terms and Conditions” with regard to accessing any other state’s statutory
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`law.
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`23. Lawriter admits the allegations of Paragraph 23 of Plaintiff’s
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`Complaint.
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`24. Lawriter admits the allegations of Paragraph 24 of Plaintiff’s
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`Complaint.
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`25. Lawriter admits the allegations of Paragraph 25 of Plaintiff’s
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`Complaint.
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`26.
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`In response to the allegations of Paragraph 26 of Plaintiff’s
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`Complaint, Lawriter denies any explicit threat and denies that any such claim for a
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`violation of the Terms of Use would be preempted by the Copyright Act.
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`27. Lawriter admits the allegations of Paragraph 27 of Plaintiff’s
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`Complaint.
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`Case 1:17-cv-00414-TCB Document 32 Filed 06/10/19 Page 7 of 14
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`COUNT ONE: CLAIM FOR DECLARATORY RELIEF
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`28.
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`In response to the allegations of Paragraph 28 of the Plaintiff’s
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`Complaint, Lawriter incorporates the preceding responses, not inconsistent
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`herewith as if fully restated verbatim herein.
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`29. Lawriter admits so much of the allegations of Paragraph 29 of the
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`Plaintiff’s Complaint as allege that Lawriter contends that the “Terms of Use”
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`presented to users of the website of the Georgia Secretary of State create a valid
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`and enforceable contract.
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`30. Lawriter is without sufficient information to admit or deny the
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`allegations of Paragraph 30 of Plaintiff’s Complaint and therefore denies the same
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`and demands strict proof thereof.
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`31. Lawriter is without sufficient information to admit or deny the
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`allegations of Paragraph 31 of Plaintiff’s Complaint and therefore denies the same
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`and demands strict proof thereof. Further, Lawriter avers that Plaintiff has a duty to
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`mitigate its damages to avoid breaching its alleged contract.
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`32. Lawriter admits the allegations of Paragraph 32 of Plaintiff’s
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`Complaint as alleged that declaratory judgment is authorized by statute, but denies
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`the remaining allegations of Paragraph 32 and demands strict proof thereof.
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`7
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`Case 1:17-cv-00414-TCB Document 32 Filed 06/10/19 Page 8 of 14
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`33.
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`In response to the allegations of Paragraph 33 of Plaintiff’s
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`Complaint, Lawriter is without sufficient information to admit or deny what
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`Fastcase believes, but denies that the remaining allegations of Paragraph 33 and
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`asserts that the “Terms of Use” are valid and enforceable. Further, Lawriter asserts
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`that Plaintiff lacks standing to claim an alleged breach of a contract to which is it
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`neither a party nor an intended beneficiary. Lawriter affirmatively asserts that a
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`user’s consent to the “Terms of Use” is an extra element, beyond the elements of
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`copyright infringement, which must be present to support a claim for breach of the
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`“Terms of Use.” Lawriter further affirmatively asserts that Lawriter does not claim
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`the right to prevent or to collect damages for any party’s duplicating of any of the
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`Georgia Regulations unless the party has breached the “Terms of Use.”
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`34. The allegations of Paragraph 34 of Plaintiff’s Complaint are a
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`conclusion of law and thus do not require a response by Lawriter. To the extent
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`that a response is required, Lawriter admits that states’ laws standing alone are not
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`copyrightable. Lawriter further affirmatively asserts that to the extent Plaintiff’s
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`claim rests on the allegations of Paragraph 34, Plaintiff’s claim is one upon which
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`relief may not be granted because there is no case or controversy between Plaintiff
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`and Lawriter with respect to whether the text of the Georgia regulations, standing
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`alone, may be copyrighted by Lawriter. Plaintiff and Lawriter are in agreement that
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`8
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`Case 1:17-cv-00414-TCB Document 32 Filed 06/10/19 Page 9 of 14
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`Lawriter may not obtain a copyright in the text of the Georgia regulations, standing
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`alone.
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`35. The allegations of Paragraph 35 of Plaintiff’s Complaint are a
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`conclusion of law and thus do not require a response by Lawriter. To the extent
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`that a response is required, Lawriter denies that it claims a copyright in the text of
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`the Georgia Regulations, standing alone.
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`36. Lawriter admits the allegations of Paragraph 36 of Plaintiff’s
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`Complaint as alleged with respect to the Georgia Regulations, but denies the
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`allegations as to compilations of the Georgia Regulations.
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`37. Lawriter admits the allegations of Paragraph 37 of Plaintiff’s
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`Complaint inasmuch as Lawriter does not claim any copyright in, but denies the
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`allegations that Lawriter has no legal contract rights to restrict publication of the
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`Georgia Regulations. In particular, Lawriter has the legal right to restrict access to
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`the Georgia Regulations through website of the Georgia Secretary of State
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`operated by Lawriter on behalf of the Secretary of State of the State of Georgia to
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`persons who consent to the “Terms of Use” in a manner authorized by agreement
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`between Lawriter and the Secretary of State of the State of Georgia, and to restrict
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`access to the Georgia Regulations through website operated by Lawriter on behalf
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`of the Secretary of State of the State of Georgia in order to require commercial
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`Case 1:17-cv-00414-TCB Document 32 Filed 06/10/19 Page 10 of 14
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`users of the Georgia Regulations to pay the fees that the Secretary of State of the
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`State of Georgia has authorized Lawriter to collect from commercial users of the
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`Georgia Regulations.
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`38. The allegations of Paragraph 38 of Plaintiff’s Complaint are a
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`conclusion of law and thus do not require a response by Lawriter. To the extent
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`that a response is required, Lawriter denies that it has no basis for prohibiting
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`Plaintiff from publishing the Georgia Regulations obtained from the website of the
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`Georgia Secretary of State. Further, Lawriter denies the allegations of Paragraph
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`38 with respect to “comparable materials from any other state” as seeking an
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`impermissible advisory opinion from this court.
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`39. Lawriter denies the allegations of Paragraph 39 of Plaintiff’s
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`Complaint. Lawriter further affirmatively asserts that to the extent Plaintiff’s claim
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`rests on the allegations of Paragraph 39, Plaintiff’s claim is one upon which relief
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`may not be granted because there is no case or controversy between Plaintiff and
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`Lawriter with respect to whether the text of the Georgia regulations, standing
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`alone, may be copyrighted by Lawriter. Plaintiff and Lawriter are in agreement
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`that Lawriter may not obtain a copyright in the text of the Georgia regulations,
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`standing alone. Further, to the extent that Paragraph 39 is directed to the laws of
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`10
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`Case 1:17-cv-00414-TCB Document 32 Filed 06/10/19 Page 11 of 14
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`other states or to anticipated future assertions by Lawriter, Plaintiff’s claim not
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`directed to an actual case or controversy.
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`40. Lawriter denies the allegations of Paragraph 40 of Plaintiff’s
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`Complaint. Lawriter further affirmatively asserts that to the extent Plaintiff’s
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`claim rests on the allegations of Paragraph 40, Plaintiff’s claim is one upon which
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`relief may not be granted because there is no case or controversy between Plaintiff
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`and Lawriter with respect to whether the text of the Georgia regulations, standing
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`alone, may be copyrighted by Lawriter. Plaintiff and Lawriter are in agreement that
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`Lawriter may not obtain a copyright in the text of the Georgia regulations, standing
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`alone. Further, to the extent that Paragraph 40 is directed to the laws of other
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`states or to anticipated future assertions by Lawriter, Plaintiff’s claim not directed
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`to an actual case or controversy.
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`RELIEF REQUESTED
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`41.
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`In response to Plaintiff’s Prayer for Relief, Lawriter denies that it
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`claims any copyright in text of the Georgia Regulations, standing alone, and
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`therefore does not claim any right to limit copying and publication of the text of
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`Georgia Regulations, standing alone, in the absence of any agreement between
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`Plaintiff and Lawriter. Lawriter denies the remaining allegations of Plaintiff’s
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`Prayer for Relief. Lawriter affirmatively asserts that the “Terms of Use” included
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`11
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`Case 1:17-cv-00414-TCB Document 32 Filed 06/10/19 Page 12 of 14
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`on the website of the Georgia Secretary of State have changed over time, so that
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`Plaintiff’s claim is moot as to the specific Terms of Use alleged in the Complaint.
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`42. Each and every allegation not expressly admitted is denied.
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`FOR A SECOND DEFENSE
`(FRCP Rule 12(b)(6) – Failure to State a Claim)
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`43. Lawriter incorporates the preceding responses, not inconsistent
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`herewith, as if fully set forth herein.
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`44. Plaintiff’s Complaint, as alleges that Lawriter claims a copyright
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`and/or contractual right in any state’s law other than the State of Georgia, the
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`Complaint fails to state facts sufficient to constitute a cause of action.
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`WHEREFORE, having fully answered the Declaratory Judgment Complaint
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`of the Plaintiff, Defendant Lawriter seeks a dismissal of the action, costs and fees
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`associated with the defense of this action, and any other and further relief as is just
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`and appropriate.
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`Case 1:17-cv-00414-TCB Document 32 Filed 06/10/19 Page 13 of 14
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`Dated: June 10, 2019
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`Respectfully submitted,
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`WHEELER TRIGG O’DONNELL LLP
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`s/ Kurt M. Rozelsky
`Kurt M. Rozelsky (#617932)
`Kori F. Miller (#582238)
`370 Seventeenth Street, Suite 4500
`Denver, CO 80202
`Telephone: 678.916.2825
`Email: rozelsky@wtotrial.com
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`kmiller@wtotrial.com
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`Attorneys for Defendant Lawriter, LLC
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`13
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`Case 1:17-cv-00414-TCB Document 32 Filed 06/10/19 Page 14 of 14
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`CERTIFICATE OF SERVICE (CM/ECF)
`I hereby certify that on June 10, 2019, I electronically filed the foregoing
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`with the Clerk of Court using the CM/ECF system which sent notification of such
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`filing to the following:
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`•
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`•
`
`•
`
`•
`
`•
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`Robert G. Brazier
`rbrazier@bakerdonelson.com, dpayne@bakerdonelson.com,
`awells@bakerdonelson.com
`
`Steven G. Hall
`sghall@bakerdonelson.com, jbuller@bakerdonelson.com,
`dpayne@bakerdonelson.com, awells@bakerdonelson.com,
`kovesen@bakerdonelson.com, jrattley@bakerdonelson.com
`
`Joseph William Rohe
`joseph.rohe@smithmoorelaw.com, carol.bell@smithmoorelaw.com
`
`Kurt Matthew Rozelsky
`rozelsky@wtotrial.com, edwards@wtotrial.com, tapia@wtotrial.com
`
`Joshua Tropper
`jtropper@bakerdonelson.com
`s/ Kurt Rozelsky
`Kurt M. Rozelsky (Georgia Bar No. 617932)
`rozelsky@wtotrial.com
`Kori F. Miller (Georgia Bar No. 582238)
`kmiller@wtotrial.com
`Wheeler Trigg O’Donnell LLP
`370 Seventeenth Street, Suite 4500
`Denver, CO 80202
`Telephone: 678.916.2825
`Attorneys for Defendant Lawriter, LLC
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