26 avril 2013
Motion de contre-plainte de Virginia Coverdale, demande reconventionnelle.
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF THURSTON
JZK, INC., a Washington corporation,
including RAMTHA’S SCHOOL OF ENLIGHTENMENT
(« RSE »), a division thereof,
Plaintiff,
vs.
VIRGINIA COVERDALE,
JOHN DOES 1-20 and JANE DOES 1-20,
also known as ENLIGHTEN ME FREE,
Defendants.
No. 12 – 2 – 02241 – 8
______________________________________
DEFENDANT AND COUNTER-PLAINTIFF COVERDALE’S [PROPOSED]
FIRST AMENDED ANSWER AND AMENDED COUNTERCLAIMS
___________________________________
COMES NOW Defendant and Counter-Plaintiff Virginia Coverdale, by and through her attorney of record, Breckan C.L. Scott, Attorney & Counselor of Law, PLLC, and hereby answers and counterclaims as follows:
I. PLAINTIFF’S STATUS
1.1 Admit JZK, Inc. is registered in the State of Washington as a for profit corporation with the only officer identified on the Secretary of State’s website being the President, J. Knight, Yelm, Washington.1 Defendant Coverdale has insufficient information to admit or deny the remaining allegations in this paragraph and thus denies the same.
1 [site internet] sos.wa.gov/corps/search_detail.aspx?ubi=601524947
II. DEFENDANT’S STATUS
2.1 Defendant Coverdale has insufficient information to admit or deny the remaining allegations in this paragraph and thus denies the same.
2.2 Defendant admits she resides in Thurston County, but denies she entered into “a contract” or any enforceable contract with RSE in Thurston County, Washington.
III. FACTUAL SUMMARY
A. Defendant Coverdale
3.1 Defendant admits she is a former RSE member of RSE and signed various documents. There was no Exhibit A attached to the complaint she received. Therefore, she denies the allegations.
3.2 Defendant answers that there were no attachments to her complaint so denies the allegations.
3.3 Defendant admits she signed “Conditions of Participation” but none were attached to the Complaint she received so thus denies the allegations.
3.4 Defendant admits she signed “Conditions of Participation” but none were attached to the Complaint she received so thus denies the allegations.
3.5 Deny.
3.6 Defendant Coverdale has insufficient information to admit or deny the remaining allegations in this paragraph and thus denies the same.
3.7 Defendant Coverdale has insufficient information to admit or deny the remaining allegations in this paragraph and thus denies the same.
3.8 Defendant Coverdale has insufficient information to admit or deny the remaining allegations in this paragraph and thus denies the same.
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B. Individual Members of Enlighten Me Free
3.9 Defendant Coverdale has insufficient information to admit or deny the remaining allegations in this paragraph and thus denies the same.
3.10 Defendant Coverdale has insufficient information to admit or deny the remaining allegations in this paragraph and thus denies the same.
3.11 Defendant Coverdale has insufficient information to admit or deny the remaining allegations in this paragraph and thus denies the same.
3.12 Defendant Coverdale has insufficient information to admit or deny the remaining allegations in this paragraph and thus denies the same.
Unless otherwise states, all remaining allegations, causes of action, and prayers for relief are denied.
IV. AFFIRMATIVE DEFENSES
Having fully answered the Complaint, Defendant Coverdale pleads the following defenses or affirmative defenses without waiving any arguments that she may be entitled to assert concerning the burden of proof, legal presumptions, or other legal characteristics:
4.1 Lack of capacity to sue;
4.2 Failure to join a party pursuant to CR 19;
4.3 Federal pre-emption insofar as the Plaintiff’s claim requires the assertion of copyright and trademark rights. 17 USC 301
4.4 Failure to state a claim upon which relief can be granted;
4.5 Unconscionability, Illegality, Estoppel, Waiver; Failure of consideration, Fault of a Non-party;
4.6 Violation of public policy;
4.7 Voidness, vagueness, and indefiniteness;
4.8 Misrepresentation and/or Fraud;
4.9 Fraudulent inducement;
4.10 Defendant’s action are protected pursuant to article 1, section 5 of the Washington Constitution, and the First Amendment to the US Constitution.
V. COUNTERCLAIMS
5.1 This action is governed by RCW 4.24.525 in that it is based on an action involving public participation and petition. The action was filed in retaliation and for purposes of intimidating the Defendant for making communications regarding the legal violations occurring at Plaintiff’s business. RCW 4.24.500, et seq.
5.2 Defamation. JZK, Inc., and its agent JZ Knight, have made false statements regarding Virginia Coverdale. At all relevant times hereto, such statements were unprivileged and published to persons other than Virginia Coverdale. These statements include, but are not limited to, the statement during the February 2012 live stream event, and/or similar event, that Ms. Coverdale was a “whore.” JZK, Inc.’s defamatory conduct continues via posted material regarding Ms. Coverdale on its website(s), and/or websites of its agent, JZ Knight. In making the relevant statements herein, the Counter-Defendant JZK, Inc./RSE was negligent, reckless, malicious, and/or acted intentionally. As a result of the defamation, Ms. Coverdale has been damaged in an amount to be determined at trial;
5.3 Defamation, per se. Ms. Coverdale incorporates herein the allegations contained in paragraphs 1.1-5.3 of this Amended Answer and Counterclaims. The statements made by or on behalf of the Counter-Defendant were and are false, were unprivileged communications, and were published to persons other than Ms. Coverdale. In making the defamatory statements, Counter-Defendant JZK, Inc. and its agent JZ Knight were negligent, reckless, malicious, and/or acted intentionally. The statements exposed Ms. Coverdale to hatred, contempt, ridicule or obloquy, and deprive her of the benefit of public confident or social intercourse or pursuit of gainful employment. As a result of the defamation, Ms. Coverdale has been damaged in an amount to be determined at trial.
5.4 False Light. Coverdale incorporates herein all previously made allegations in this Amended Answer and Amended Counterclaims. The statements made by the counter defendants and/or on behalf of the counter defendants about Coverdale were and are false and placed Coverdale in a false light. The false light created by the false statements was and is highly offensive to Coverdale and would be highly offensive to a reasonable person.
The counter defendants knew of or recklessly disregarded the falsity of the publications and the false light in which Coverdale would be placed. As a result of the false light, Coverdale has been damaged in an amount to be determined at trial.
5.5 Outrage Coverdale incorporates herein all previously made allegations in this Amended Answer and Amended Counterclaims. The counter defendants have engaged in extreme and outrageous conduct. Their conduct has been intentional or reckless and has caused emotional distress. Coverdale has suffered severe emotional distress as an actual result of such conduct. Because of the outrage, Coverdale has been damaged in an amount to be determined at trial.
5.6 Intentional Infliction of Emotional Distress Coverdale incorporates herein all previous allegations in this pleading. The counter defendants have engaged in extreme and outrageous conduct. Their conduct has been intentional or reckless and has caused emotional distress. Coverdale has suffered severe emotional distress as an actual result of such conduct. Because of the infliction of emotional distress, Coverdale has been damaged in an amount to be determined at trial.
5.7 Violation of the Consumer Protection Act Coverdale incorporates herein all previous allegations in this pleading. JZK, Inc. uses deceptive and unfair business practices, including relevant marketing, advertising, and program materials. The deception of such material is based, in part, on making specific false factual assertions, or vital material omissions, about itself, its members, the results potential members should reasonably expect to obtain, in what specific activities members are expected to participate in progressive stages of membership, the scientific validity of the material promulgated by the organization, and various other deceptive statements and/or deceptive material omissions. JZK, Inc.’s business practices, including contracts and nondisclosure agreements, are unfair and deceptive acts. The nature and content of the contracts and nondisclosure agreements, especially given the coercive environment at JZK, Inc./RSE, make them unfair and deceptive. Counter-Defendant JZK, Inc.’s actions and inactions are unfair and deceptive acts or practices in violation of RCW 19.86 et seq. Even a loss of use of money or property that is casually related to an unfair or deceptive act or practice is sufficient to sustain a claim under the Consumer Protection Act. Griffin v. Allstate Ins. Co., 108 Wn. App. 133, 29 P.3d 777 (2001). JZK, Inc./RSE’s previous and ongoing acts or practices have the capacity to deceive, and do deceive, a substantial portion of the public and affect the public interest as a matter of law. Ms. Coverdale has suffered damages as a result of this Counter-Defendant’s unfair and deceptive practices and is entitled to compensation for all resulting damages.
5.8 Misrepresentation and Fraud Coverdale incorporates herein all previous allegations in this pleading. Counter Defendant JZK, Inc., itself and through its agent, JZ Knight, engage in a pattern and practice of misrepresentation and fraudulent assertions in connection with its profit-seeking ventures. All relevant representations were material in Ms. Coverdale’s entering into any alleged contractual relationship with the Counter Defendant, and/or in her involvement/participation with the organization in any manner. The Counter-Defendant made one or more representations of an existing fact; such representations were material; the representation(s) were false; Counter-Defendant JZK, Inc. and/or its agent knew it was false and intended it to be acted upon by Counter-Plaintiff Coverdale. Ms. Coverdale did not know such representations were false, had a right to rely, and did so rely, upon the truth of the representation and such reliance caused Ms. Coverdale damages to be determined at trial. The fraudulent misrepresentations include, but are not limited to, misrepresenting the validity of scientific studies purporting to substantiate RSE’s claimed abilities; making contradictory statements in advertising versus less public forums to induce membership; misrepresenting the nature of the organization and its expectations; misrepresenting the credentials of the organization’s staff; making statements regarding the scientific nature of the school as using the “latest discoveries in neuroscience and quantum physics,” as well as other misrepresentations regarding the nature of the school; and misrepresenting the identity of individuals responsible for publications, material, and other products/events.
VI. PRAYER FOR RELIEF
Counter-Plaintiff Virginia Coverdale respectfully requests the following relief from Counter-Defendant JZK, Inc./RSE:
6.1 That Plaintiff JZK, Inc./RSE takes nothing in the Complaint, and that it be dismissed with prejudice;
6.2 That Defendant/Counter Plaintiff Virginia Coverdale should be allowed her attorney’s fees, costs and expenses incurred herein to the fullest extent allowed by law,
6.3 That Defendant/Counter Plaintiff Virginia Coverdale should be granted general and special damages as proven at trial, including interest on all liquidated damages;
6.4 Damages for violations of the Consumer Protection Act, RCW 19.86. et seq., including damages without limitation, treble damages, attorney fees and costs, including expert witness and litigation fees, in an amount to be proven at trial, and damages as allowed by RCW 4.24.500, et seq.
6.5 Such other relief as the Court deems proper.
DATED this 15th day of April, 2013. .
...
COMES NOW Defendant and Counter-Plaintiff Virginia Coverdale, by and through her attorney of record, Breckan C.L. Scott, Attorney & Counselor of Law, PLLC, and hereby respectfully moves the court as follows:
1. Relief Requested. The court is requested to enter an order granting leave for Defendant Coverdale to amend her Answer and Counterclaims in the form and style attached hereto.
2. Statement of Facts. Defendant JZK, Inc./RSE filed this litigation on October 29, 2012. Immediately upon filing, JZK, Inc. began an aggressive litigation strategy, by obtaining early preliminary injunctions and assertively pursuing subpoenas and discovery practice. While Plaintiff is a profitable corporation with significant assets with which to pay attorney fees and costs, Defendant Coverdale does not have such ready access to financial reserves for legal expenses. Further, the expediency necessitated by Plaintiff’s early efforts may have impeded Defendant’s ability to properly review and draft a comprehensive answer with all proper counterclaims. In any case, the discovery and motion practice conducted thus far has addressed all of the new material and allegations in Ms. Coverdale’s Proposed First Amended Answer and Counterclaims. The amendments relate primarily to adding counterclaims for unfair and deceptive practices relating to the contract at issue in this case, as well as the related business practices of JZK, Inc. which caused Ms. Coverdale damages. All of the circumstances of Ms. Coverdale’s participation in RSE have been placed at issue by the Plaintiff, since such circumstances are relevant as to whether the contract was breached, and/or whether the contract was valid at all.
3. Statement of Issues. The sole issue on which the court is asked to rule is whether plaintiff should be granted leave to amend her Answer and Counterclaims.
4. Evidence Relied Upon. The Court’s file and material contained therein, as well as this motion, and the supportive Declaration of Breckan Scott, with exhibits, including Proposed First Amended Answer and Counterclaims.
5. Authority. CR 15 (a) states that, other than one amendment as a matter of right,
[A] party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
The « freely given » mandate of this rule has been followed by the courts. The primary reason for disallowing amendment is prejudice to the non-moving party. The Washington Supreme Court has said:
In Caruso v. Local 690, Int’l Bhd. of Teamsters, 100 Wn.2d 343, 670 P.2d 240 (1983), we discussed the objective of CR 15:
The purpose of pleadings is to « facilitate a proper decision on the merits, » [citation omitted], and not to erect formal and burdensome impediments to the litigation process. . . . Caruso, at 349. As stated by this court, « [t]he touchstone for denial of an amendment is the prejudice such amendment would cause the nonmoving party. » Del Guzzi Constr. v. Global Northwest, 105 Wn.2d 878, 888, 719 P.2d 120 (1986).
In the present case, no prejudice to Plaintiff will result from an amendment of Defendant’s Answer and Counterclaims. Ms. Coverdale is submitting this motion and proposed amended Answer and Counterclaims within the deadline to add claims. Ms. Coverdale is not requesting that the trial date be reset, and discovery cutoff has not been reached. The factual matters inquired into thus far are identical to the factual matters relevant to the new amendments to the pleading. Ms. Coverdale is willing to work in good faith with Plaintiff regarding discovery relevant to the new amendments to avoid any possible prejudice. Amendment of the complaint will put Counter-Defendant on notice of all of Counter-Plaintiff Coverdale’s claims, and will « facilitate a proper decision on the merits. »
6. Proposed Order. A proposed form of order is attached to all copies of this motion except the original.
DATED this 15th day of April, 2013.
unsouffledelavie 