throbber
Case 4:10-cv-01127 Document 79 Filed in TXSD on 07/23/10 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT FOR THE
`SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`
`
`§
`§
` §
`
`§
`§ CIVIL ACTION NO. 4:10-01127
`§
`JUDGE KEITH P. ELLISON
`§
`
`§
`§ JURY
`
`
`
`Plaintiff,
`
`
`ASPEN TECHNOLOGY, INC.,
`
`
`
`v.
`
`TEKIN A. KUNT &
`M3 TECHNOLOGY, INC.,
`Defendants.
`
`
`
`DEFENDANT TEKIN A. KUNT’S ANSWER TO
`PLAINTIFF’S SECOND AMENDED COMPLAINT
`______________________________________________________________________________
`
`
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`Defendant Tekin A. Kunt (“Kunt”) files this answer to Plaintiff Aspen Technology, Inc.’s
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`Second Amended Complaint, using the same paragraph numbering. All facts or assertions not
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`expressly admitted are hereby denied.
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`1.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 1, which are, therefore, denied.
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`2.
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`3.
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`4.
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`Admitted.
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`Admitted.
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`Kunt admits that Plaintiff has asserted a claim for copyright infringement against
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`M3 and that this Court has jurisdiction over such a claim. Plaintiff further admits that this Court
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`may exercise supplemental jurisdiction over any related state law claims. The remaining
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` PAGE 1 OF 16
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`KUNT’S ANSWER TO ASPEN’S SECOND AMENDED COMPLAINT
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`

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`Case 4:10-cv-01127 Document 79 Filed in TXSD on 07/23/10 Page 2 of 16
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`allegations in paragraph 4 constitute argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent that a responsive pleading is required, Kunt denies the
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`allegations.
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`5.
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`Kunt admits that Plaintiff purports that its state law claims exceeds $75,000, but
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`denies that there is any factual or legal basis for such claim. Kunt admits that Defendants are
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`citizens of Texas. Kunt is without sufficient information to form a belief as to the truth of
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`remaining allegations in paragraph 5 relating to Plaintiff’s residence, and therefore they are
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`denied.
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`6.
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`7.
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`Admitted.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 7, which are, therefore, denied.
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`8.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 8, which are, therefore, denied.
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`9.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 9, which are, therefore, denied.
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`10.
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`Kunt admits that he was hired by M3 and that previously he was hired by
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`AspenTech. Kunt is without sufficient knowledge or information to form a belief as to the truth
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`of the remaining allegations contained in paragraph 10, which are, therefore, denied.
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`11.
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`Kunt admits that he signed AspenTech’s Confidentiality and Non-Competition
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`Agreement that includes a covenant not to compete. Kunt also admits that he went to work for
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`M3 on or about January 18, 2010. Kunt denies the remaining factual allegations in paragraph 11.
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` PAGE 2 OF 16
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`KUNT’S ANSWER TO ASPEN’S SECOND AMENDED COMPLAINT
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`

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`Case 4:10-cv-01127 Document 79 Filed in TXSD on 07/23/10 Page 3 of 16
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`Paragraph 11 also contains argument and legal conclusions. As such, no responsive pleading is
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`required. To the extent one is required, those allegations are denied.
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`12.
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`Kunt admits that his employment agreement with M3 contains a confidentiality
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`provision, among others, that are similar to Kunt’s AspenTech confidentiality agreement. Kunt
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`denies the allegation contained in the third sentence of paragraph 12. Kunt is without sufficient
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`knowledge or information to form a belief as to the truth of the remaining allegations contained
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`in paragraph 12, which are, therefore, denied.
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`13.
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`The allegations in paragraph 13 constitute argument and legal conclusions. As
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`such, no responsive pleading is required. To the extent that a responsive pleading is required,
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`Kunt denies the allegations.
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`14.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 14, which are, therefore, denied.
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`15.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 15, which are, therefore, denied.
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`16.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 16, which are, therefore, denied.
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`17.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 17, which are, therefore, denied.
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`18.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 18, which are, therefore, denied.
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` PAGE 3 OF 16
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`KUNT’S ANSWER TO ASPEN’S SECOND AMENDED COMPLAINT
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`Case 4:10-cv-01127 Document 79 Filed in TXSD on 07/23/10 Page 4 of 16
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`19.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 19, which are, therefore, denied.
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`20.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 20, which are, therefore, denied.
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`21.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 21, which are, therefore, denied.
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`22.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 22, which are, therefore, denied.
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`23.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 23, which are, therefore, denied.
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`24.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 24, which are, therefore, denied.
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`25.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 25, which are, therefore, denied.
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`26.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 26, which are, therefore, denied.
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`27.
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`28.
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`29.
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`Admitted.
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`Admitted.
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`Kunt admits that he worked for AspenTech for nearly 13 years and that he was
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`involved in software development for PIMS and PIMS AO. Kunt denies the remaining
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`allegations in paragraph 29.
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` PAGE 4 OF 16
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`KUNT’S ANSWER TO ASPEN’S SECOND AMENDED COMPLAINT
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`Case 4:10-cv-01127 Document 79 Filed in TXSD on 07/23/10 Page 5 of 16
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`30.
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`Kunt admits that he had contact with some AspenTech customers and that as part
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`of his job he had access to AspenTech information, including some software. Kunt denies the
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`remaining allegations in paragraph 30.
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`31.
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`Kunt admits that he is generally familiar with common model environment
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`(CME). Kunt is without sufficient knowledge or information to form a belief as to the truth of
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`the remaining allegations contained in paragraph 31, which are, therefore, denied.
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`32.
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`Kunt admits that he did some work relating to CME and PIMS. Kunt is without
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`sufficient knowledge or information to form a belief as to the truth of the allegations contained in
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`paragraph 32, which are, therefore, denied.
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`33.
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`Kunt denies the first sentence of paragraph 33. Kunt is without sufficient
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`knowledge or information to form a belief as to the truth of the remaining allegations contained
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`in paragraph 33, which are, therefore, denied.
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`34.
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`Kunt admits that he signed a confidentiality agreement containing a covenant not
`
`to compete. Kunt further admits that he was involved in some product development. The
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`remaining allegations, which include argument and legal conclusions, in paragraph 34 are
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`denied.
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`35.
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`36.
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`37.
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`38.
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`39.
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`Admitted.
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`No responsive pleading is required.
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`No responsive pleading is required.
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`No responsive pleading is required.
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`No responsive pleading is required.
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` PAGE 5 OF 16
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`KUNT’S ANSWER TO ASPEN’S SECOND AMENDED COMPLAINT
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`Case 4:10-cv-01127 Document 79 Filed in TXSD on 07/23/10 Page 6 of 16
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`40.
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`41.
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`Admitted.
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`Kunt admits that on January 4, 2010 he told AspenTech he was resigning
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`effective January 15, 2010 and that he did not reveal where he was going to work. Kunt is
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`without sufficient knowledge or information to form a belief as to the truth of the remaining
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`allegations contained in paragraph 41, which are, therefore, denied.
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`42.
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`Kunt admits that he left AspenTech on January 6, 2010 and that he placed
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`AspenTech documents in a shredder box that day. The remaining allegations of paragraph 42 are
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`denied.
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`43.
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`44.
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`45.
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`46.
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`Denied.
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`Admitted.
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`Admitted.
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`Kunt admits that his counsel’s letter to AspenTech states that, among other jobs,
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`Kunt would be working on scheduling technology for consumer products.
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`47.
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`48.
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`Denied.
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`To the extent paragraph 48 refers to Kunt, admitted. Kunt is without sufficient
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`knowledge or information to form a belief as to the truth of the remaining allegations contained
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`in paragraph 48, which are, therefore, denied.
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`49.
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`Kunt admits that M3 was founded in 2002 by Dr. Dong and that Kunt is a
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`member of the leadership team. Kunt is without sufficient knowledge or information to form a
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`belief as to the truth of the remaining allegations contained in paragraph 49, which are, therefore,
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`denied.
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` PAGE 6 OF 16
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`KUNT’S ANSWER TO ASPEN’S SECOND AMENDED COMPLAINT
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`Case 4:10-cv-01127 Document 79 Filed in TXSD on 07/23/10 Page 7 of 16
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`50.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 50, which are, therefore, denied.
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`51.
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`Kunt admits that M3 markets products that compete with AspenTech’s products,
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`and that M3 lacks a product comparable to PIMS and PIMS AO. Kunt further admits that he is
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`familiar with PIMS and PIMS AO. Kunt is without sufficient knowledge or information to form
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`a belief as to the truth of the allegations contained in paragraph 51, which are, therefore, denied.
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`52.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 52, which are, therefore, denied.
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`53.
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`Kunt admits that as an employee of AspenTech, he worked on some of its
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`software products. Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the remaining allegations contained in paragraph 53, which are, therefore, denied.
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`54.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 54, which are, therefore, denied.
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`55.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 55, which are, therefore, denied.
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`56.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 56, which are, therefore, denied.
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`57.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 57, which are, therefore, denied.
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`58.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 58, which are, therefore, denied.
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` PAGE 7 OF 16
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`KUNT’S ANSWER TO ASPEN’S SECOND AMENDED COMPLAINT
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`Case 4:10-cv-01127 Document 79 Filed in TXSD on 07/23/10 Page 8 of 16
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`59.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 59, which are, therefore, denied.
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`60.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 60, which are, therefore, denied.
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`61.
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`Kunt admits that when he was employed by AspenTech, he had access to some of
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`AspenTech’s software information. Kunt is without sufficient knowledge or information to form
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`a belief as to the truth of the remaining allegations contained in paragraph 61, which are,
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`therefore, denied.
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`62.
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`To the extent this paragraph 62 is referring to Kunt, denied. Kunt is without
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`sufficient knowledge or information to form a belief as to the truth of the remaining allegations
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`contained in paragraph 62, which are, therefore, denied.
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`63.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 63, which are, therefore, denied.
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`64.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 64, which are, therefore, denied.
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`65.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 65, which are, therefore, denied.
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`66.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 66, which are, therefore, denied.
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`67.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 67, which are, therefore, denied.
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` PAGE 8 OF 16
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`KUNT’S ANSWER TO ASPEN’S SECOND AMENDED COMPLAINT
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`Case 4:10-cv-01127 Document 79 Filed in TXSD on 07/23/10 Page 9 of 16
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`68.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 68, which are, therefore, denied.
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`69.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 69, which are, therefore, denied.
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`70.
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`71.
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`Admitted.
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`Kunt admits that his lawyer informed AspenTech that Kunt is Director of
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`Technology at M3 and that he described his job duties. Kunt also admits that he worked on some
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`AspenTech products. Kunt is without sufficient knowledge or information to form a belief as to
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`the truth of the remaining allegations contained in paragraph 71, which are, therefore, denied.
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`72.
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`Kunt admits his lawyer made that representation. The remaining allegations in
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`paragraph 72 constitute argument and legal conclusions and therefore do not require a response.
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`To the extent one is required, denied.
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`73.
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`Kunt admits that he helped others at AspenTech working on products other than
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`PIMS and PIMS AO. Kunt denies that he will use or disclose AspenTech’s alleged trade secrets,
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`confidential information, or copyrighted information. The remaining allegations in paragraph 73
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`constitute argument and legal conclusions and therefore do not require a response. To the extent
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`one is required, denied.
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`74.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 74, which are, therefore, denied.
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`75.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 75, which are, therefore, denied.
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` PAGE 9 OF 16
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`KUNT’S ANSWER TO ASPEN’S SECOND AMENDED COMPLAINT
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`Case 4:10-cv-01127 Document 79 Filed in TXSD on 07/23/10 Page 10 of 16
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`76.
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`77.
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`Denied.
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`To the extent this paragraph imparts some intent on Kunt’s part to use or disclose
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`AspenTech’s alleged trade secrets, confidential information, or copyrighted information, denied.
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`Kunt is without sufficient knowledge or information to form a belief as to the truth of the
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`remaining allegations contained in paragraph 77, which are, therefore, denied.
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`78.
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`Paragraph 78 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`79.
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`80.
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`No responsive pleading is required.
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`Paragraph 80 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`81.
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`82.
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`Kunt admits that the Agreement contains a purported covenant not to compete.
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`Paragraph 82 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`83.
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`Paragraph 83 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`84.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 84, which are, therefore, denied.
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`85.
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`Paragraph 85 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`86.
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`Paragraph 86 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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` PAGE 10 OF 16
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`KUNT’S ANSWER TO ASPEN’S SECOND AMENDED COMPLAINT
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`Case 4:10-cv-01127 Document 79 Filed in TXSD on 07/23/10 Page 11 of 16
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`87.
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`88.
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`No responsive pleading is required.
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`Paragraph 88 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`89.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 89, which are, therefore, denied.
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`90.
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`Paragraph 90 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`91.
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`Paragraph 91 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`92.
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`93.
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`No responsive pleading is required.
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`Paragraph 93 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`94.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 94, which are, therefore, denied.
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`95.
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`Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 95, which are, therefore, denied.
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`96.
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`Paragraph 96 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`97.
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`Paragraph 97 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`98.
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`No responsive pleading is required.
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` PAGE 11 OF 16
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`KUNT’S ANSWER TO ASPEN’S SECOND AMENDED COMPLAINT
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`Case 4:10-cv-01127 Document 79 Filed in TXSD on 07/23/10 Page 12 of 16
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`99.
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`Paragraph 99 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`100. Paragraph 100 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`101. Paragraph 101 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`102. Paragraph 102 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`103. No responsive pleading is required.
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`104. Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 104, which are, therefore, denied.
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`105. Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 105, which are, therefore, denied.
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`106. To the extent this paragraph refers to Kunt, denied. Kunt is without sufficient
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`knowledge or information to form a belief as to the truth of the remaining allegations contained
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`in paragraph 106, which are, therefore, denied.
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`107. Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 107, which are, therefore, denied.
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`108. Kunt is without sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in paragraph 108, which are, therefore, denied.
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` PAGE 12 OF 16
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`KUNT’S ANSWER TO ASPEN’S SECOND AMENDED COMPLAINT
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`Case 4:10-cv-01127 Document 79 Filed in TXSD on 07/23/10 Page 13 of 16
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`109. Paragraph 109 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`110. No responsive pleading is required.
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`111. Paragraph 111 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`112. Paragraph 112 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`113. Paragraph 113 constitutes argument and legal conclusions. As such, no responsive
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`pleading is required. To the extent one is required, the allegations are denied.
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`114. Kunt admits that his lawyer sent AspenTech a letter contending the Agreement is
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`unenforceable under Texas law. The remaining allegation in paragraph 114 is denied.
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`115. No responsive pleading is required.
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`116. No responsive pleading is required.
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`117. No responsive pleading is required.
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`[Prayer—heading “G.”]: This paragraph constitutes a prayer for relief. As such, no
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`responsive pleading is required. To the extent a responsive pleading is required, Kunt denies that
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`Plaintiff is entitled to any relief against him.
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`KUNT’S AFFIRMATIVE DEFENSES
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`
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`Pleading further, if necessary, Kunt asserts the following affirmative defenses:
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`1.
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`AspenTech’s alleged contract with Kunt fails due to a lack of consideration.
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` PAGE 13 OF 16
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`KUNT’S ANSWER TO ASPEN’S SECOND AMENDED COMPLAINT
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`Case 4:10-cv-01127 Document 79 Filed in TXSD on 07/23/10 Page 14 of 16
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`2.
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`AspenTech’s alleged contract constitutes an illegal restraint of trade under Texas’
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`Free Enterprise and Antitrust Act.
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`Kunt.
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`3.
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`4.
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`5.
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`6.
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`AspenTech has waived its right to enforce a covenant not to compete against
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`AspenTech is estopped to enforce a covenant not to compete against Kunt.
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`AspenTech’s contract is void because it is against public policy.
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`AspenTech’s contract is unenforceable under Sections 15.05 and 15.50-.52 of the
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`Texas Business and Commerce Code.
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`7.
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`8.
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`AspenTech’s alleged contract is unenforceable due to ambiguity.
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`Defendant Kunt alleges that if Plaintiff has sustained damages as a result of the
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`conduct alleged in the Complaint, that such damages were the result of actions, in whole or in
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`part, of Plaintiff or third parties not under Kunt’s control.
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`9.
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`10.
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`Some of Plaintiff’s claims are barred by the Doctrine of Federal Preemption.
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`Kunt hereby gives notice that it intends to rely upon such other defenses as may
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`become available or appear during discovery in this case. Kunt hereby reserves the right to
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`amend its answer to assert any such defenses.
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`CONCLUSION
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`For these reasons, Kunt asks this Court to enter judgment that Plaintiff take nothing
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`against it, dismiss Plaintiff’s suit with prejudice as to it, assess costs against Plaintiff, and award
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`Kunt all other relief to which he is justly entitled under law or equity.
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` PAGE 14 OF 16
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`KUNT’S ANSWER TO ASPEN’S SECOND AMENDED COMPLAINT
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`Case 4:10-cv-01127 Document 79 Filed in TXSD on 07/23/10 Page 15 of 16
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`DEMAND FOR TRIAL BY JURY
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`Pursuant to the U.S. Const. amend. 7, Federal Rule of Civil Procedure 38, and Local Rule
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`38.1, Defendant Tekin A. Kunt hereby demands a trial by jury on all issues of fact.
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`Respectfully submitted,
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`__/s/ Charles A. Sturm_______
`Charles A. Sturm
`Texas Bar No. 24003020
`Federal Bar No. 21777
`Wells Fargo Plaza
`1000 Louisiana, Suite 3780
`Houston, Texas 77002
`(713) 659-2600 [Telephone]
`(713) 659-2601 [Facsimile]
`csturm@steelesturm.com
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`ATTORNEY IN CHARGE FOR PLAINTIFF
`TEKIN A. KUNT
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`OF COUNSEL:
`STEELE STURM, PLLC
`Howard L. Steele, Jr.
`Texas Bar No. 24002999
`Federal Bar No. 21615
`Kevin Kennedy
`Texas Bar No. 24009053
`Federal Bar No. 305324
`kkennedy@steelesturm.com
`Mo Taherzadeh
`Texas Bar No. 24028022
`Federal Bar No. 29596
`mtaherzadeh@steelesturm.com
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` PAGE 15 OF 16
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`KUNT’S ANSWER TO ASPEN’S SECOND AMENDED COMPLAINT
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`Case 4:10-cv-01127 Document 79 Filed in TXSD on 07/23/10 Page 16 of 16
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`CERTIFICATE OF SERVICE
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`__/s/ Mo Taherzadeh_______
`Mo Taherzadeh
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`I hereby certify that a copy of the foregoing document was served upon all counsel of
`record pursuant to the Electronic Case Filing system on July 23, 2010.
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` PAGE 16 OF 16
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`KUNT’S ANSWER TO ASPEN’S SECOND AMENDED COMPLAINT

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