Avago Technologies U.S., Inc et al v. Venture Corporation Limited, No. 5:2008cv03248 - Document 90 (N.D. Cal. 2010)
Court Description: STIPULATION AND ORDER Granting to File First Amended Answer to First Amended Complaint re 88 Stipulation. The parties have previously filed the attachment to the stipulation as a separate document. See 89 Answer to Complaint. Signed by Judge James Ware on 5/24/2010. (ecg, COURT STAFF) (Filed on 5/24/2010)
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ER H Attorneys for defendant, EMCORE CORP. 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA R NIA FO RT 6 re mes Wa Judge Ja NO 5 LI 4 ERED O ORD IT IS S A 3 ISTRIC ES D TC T TA RT U O 2 JOHN C. BROWN (CA Bar No. 195804) Redenbacher & Brown, LLP 580 California Street, Suite 1600 San Francisco, California 94104 Phone: (415) 409-8600 Facsimile: (415) 520-0141 Email: jbrown@redbrownlaw.com UNIT ED 1 Doc. 90 S Avago Technologies U.S., Inc et al v. Venture Corporation Limited N F D IS T IC T O R C 5/24/2010 9 10 AVAGO TECHNOLOGIES FIBER IP (SINGAPORE) PTE. LTD., et al., 11 Plaintiff, vs. 12 13 Case No.: C 08-3248-JW STIPULATION FOR FILING BY EMCORE CORPORATION OF FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT EMCORE CORP., et al., Defendant. 14 15 16 IT IS HEREBY STIPULATED by and between the plaintiffs AVAGO TECHNOLOGIES U.S., 17 INC.; AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE. LIMITED; AVAGO 18 TECHNOLOGIES JAPAN, LTD.; and, AVAGO TECHNOLOGIES CANADA CORPORATION, 19 on the one hand, and defendant EMCORE CORPORATION, on the other hand, that Emcore may 20 file a First Amended Answer to the First Amended Complaint filed by plaintiffs on February 4, 21 2009. A copy of the First Amended Answer, which incorporates a new Sixteenth Affirmative 22 Defense, “Applicability of Foreign Law,” is attached hereto as Exhibit 1. 23 24 It is so stipulated. 25 Date: 5/11/09 26 HOPKINS & CARLEY \s\ By ______________________________ Erik P. Khoobyarian Attorneys for Plaintiffs 27 28 1 STIPULATION FOR FILING BY EMCORE CORPORATION OF FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT; C 08-3248-JW Dockets.Justia.com 1 Date: 5/14/10 2 REDENBACHER & BROWN, LLP \s\ By ______________________________ John C. Brown Attorneys for defendant, EMCORE CORP. 3 4 5 6 ATTESTATION OF JOHN C. BROWN 7 8 I, John C. Brown, am attorney of record for defendant EMCORE CORP. I have obtained 9 concurrence in the filing of this document from Erik P. Khoobyarian, attorney of record for 10 Plaintiffs AVAGO TECHNOLOGIES U.S., INC., AVAGO TECHNOLOGIES 11 INTERNATIONAL SALES PTE. LIMITED, AVAGO TECHNOLOGIES JAPAN, LTD., and 12 13 AVAGO TECHNOLOGIES CANADA CORPORATION, which shall serve in lieu of his 14 signatures on the filed document. I have obtained and will maintain records to support this 15 concurrence for subsequent production for the court if so ordered or for inspection upon request by 16 a party until one year after final resolution of the action (including appeal, if any). 17 18 Dated: May 14, 2010 19 20 21 By: /s/ John C. Brown 22 IT IS SO ORDERED: 23 The parties have previously filed the attachment as a separate docket entry (Docket Item No. 89) 24 25 Dated: May 24, 2010 ___________________________ United States District Judge 26 27 28 2 STIPULATION FOR FILING BY EMCORE CORPORATION OF FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT; C 08-3248-JW EXHIBIT 1 4 JOHN C. BROWN (State Bar # 195804) Redenbacher & Brown, LLP 580 California Street, Suite 1600 San Francisco, California 94104 Phone: (415) 409-8600 Facsimile: (415) 520-0141 Email: jbrown@redbrownlaw.com 5 Attorneys for Defendant, EMCORE CORPORATION 1 2 3 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION 10 11 12 AVAGO TECHNOLOGIES U.S., INC., et al., Plaintiffs, 13 vs. 14 15 Case No.: C08-3248 JW DEFENDANT EMCORE CORPORATION’S FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT EMCORE CORPORATION, et al., (DEMAND FOR JURY TRIAL) Defendants. 16 17 18 19 Emcore Corporation (“Emcore”), through its attorneys, hereby answers the First Amended 20 Complaint of plaintiffs Avago Technologies US, Inc., Avago Technologies International Sales Pte 21 Ltd., Avago Technologies Japan Ltd., and Avago Technologies Canada Corporation (collectively, 22 “plaintiffs”) as follows: PARTIES 23 1. 24 Emcore lacks sufficient knowledge or information to form a belief as to the truth of 25 the allegations contained in Paragraph 1 of the First Amended Complaint and, therefore, denies 26 such allegations. 27 2. 28 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 2 of the First Amended Complaint and, therefore, denies 1 DEFENDANT EMCORE CORPORATION’S FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT; C 083248 JW 1 such allegations. 2 3. Emcore lacks sufficient knowledge or information to form a belief as to the truth of 3 the allegations contained in Paragraph 3 of the First Amended Complaint and, therefore, denies 4 such allegations. 5 4. Emcore lacks sufficient knowledge or information to form a belief as to the truth of 6 the allegations contained in Paragraph 4 of the First Amended Complaint and, therefore, denies 7 such allegations. 8 5. 9 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 5 of the First Amended Complaint and, therefore, denies 10 such allegations. 11 6. Admitted. JURISDICTION 12 7. 13 Emcore lacks sufficient knowledge or information to form a belief as to the truth of 14 the allegations contained in Paragraph 7 of the First Amended Complaint regarding the plaintiffs’ 15 place of business and regarding the amount in controversy and, therefore, denies such allegations. 16 The remaining allegations in paragraph 7 of the First Amended Complaint are legal conclusions to 17 which no answer is required. To the extent an answer is required, Emcore denies such allegations. 18 INTRADISTRICT ASSIGNMENT 8. 19 Emcore lacks sufficient knowledge or information to form a belief as to the truth of 20 the allegations contained in Paragraph 8 of the First Amended Complaint regarding the plaintiffs’ 21 place of business and regarding the amount in controversy and, therefore, denies such allegations. VENUE 22 9. 23 Emcore does not have sufficient information to form a conclusion as to the 24 allegations relating to the Agreement. Emcore states that the remaining allegations in paragraph 9 25 of the First Amended Complaint are legal conclusions to which no answer is required. To the 26 extent an answer is required, Emcore denies such allegations. 10. 27 28 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 10 of the First Amended Complaint regarding 2 DEFENDANT EMCORE CORPORATION’S FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT; C 083248 JW 1 whether events or omissions related to Avago’s allegations occurred in this district and, therefore, 2 denies such allegations. Emcore denies that it negligently manufactured VCSEL die or other 3 defective products as alleged by Avago and that it has otherwise caused any damages as alleged by 4 Avago. The remaining allegations in paragraph 10 of the First Amended Complaint are legal 5 conclusions to which no answer is required. To the extent an answer is required, Emcore denies 6 such allegations. GENERAL ALLEGATIONS 7 11. 8 9 10 allegations contained in Paragraph 11 of the First Amended Complaint and, therefore, denies such allegations. 12. 11 12 Emcore lacks sufficient knowledge or information to form a belief as to the Emcore lacks sufficient knowledge or information to form a belief as to the allegation that the “portfolio . . . supports all speeds” and, therefore, denies such allegations. 13. 13 Emcore lacks sufficient knowledge or information to form a belief as to the 14 allegations contained in Paragraph 13 of the First Amended Complaint and, therefore, denies such 15 allegations. 14. 16 Emcore admits that Venture issued purchase orders to Emcore for the manufacture 17 of VCSEL die that Venture represented would be incorporated in fiber optics transceivers 18 manufactured by it for Avago. Emcore denies that it negligently manufactured VCSEL die or 19 other defective products as alleged by Avago and that it has otherwise caused any damages as 20 alleged by Avago. Emcore lacks sufficient knowledge or information to form a belief as to the 21 remainder of the allegations contained in Paragraph 14 of the First Amended Complaint and, 22 therefore, denies such allegations. 15. 23 Emcore denies that it negligently manufactured VCSEL die or other defective 24 products as alleged by Avago and that it has otherwise caused any damages as alleged by Avago. 25 Otherwise, Emcore lacks sufficient knowledge or information to form a belief as to the truth of the 26 allegations contained in Paragraph 15 of the First Amended Complaint and, therefore, denies such 27 allegations. 16. 28 Emcore admits that Avago, Venture, and Emcore attempted to ascertain the 3 DEFENDANT EMCORE CORPORATION’S FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT; C 083248 JW 1 reasons for failures in fiber optics transceivers through a process of reverse engineering and 2 independent laboratory analysis. Emcore denies all remaining allegations of this paragraph. 3 Emcore denies that it negligently manufactured VCSEL die or other defective products as alleged 4 by Avago and that it has otherwise caused any damages as alleged by Avago. 17. 5 Emcore denies that it negligently manufactured VCSEL die or other defective 6 products as alleged by Avago and that it has otherwise caused any damages as alleged by Avago. 7 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the remainder 8 of the allegations contained in Paragraph 17 of the First Amended Complaint and, therefore, denies 9 such allegations. 10 18. Emcore states that the allegations in paragraph 18 of the First Amended Complaint 11 are legal conclusions to which no answer is required. To the extent that the allegations are not 12 legal conclusions, Emcore denies the allegations. 19. 13 Emcore denies that Avago has made demands upon it for compensation. Emcore 14 admits that it has declined to compensate Avago. Emcore denies that it negligently manufactured 15 VCSEL die or other defective products as alleged by Avago and that it has otherwise caused any 16 damages as alleged by Avago. Emcore lacks sufficient knowledge or information to form a belief 17 as to the truth of the remainder of the allegations contained in Paragraph 19 of the First Amended 18 Complaint and, therefore, denies such allegations.” 19 FIRST CAUSE OF ACTION 20 (Breach of Contract; Non-conforming Goods Against Venture) 20. 21 22 Emcore incorporates its allegations in paragraphs 1 through 19, supra, in response to the allegations in paragraph 20. 21. 23 Emcore lacks sufficient knowledge or information to form a belief as to the truth of 24 the factual allegations contained in Paragraph 21 of the First Amended Complaint and, therefore, 25 denies such allegations. 22. 26 Emcore states that the allegations in paragraph 22 of the First Amended Complaint 27 are legal conclusions to which no answer is required. To the extent that the allegations are not 28 legal conclusions, Emcore denies the allegations. 4 DEFENDANT EMCORE CORPORATION’S FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT; C 083248 JW 23. 1 Emcore admits that Avago purchased fiber optics transceivers from Venture. 2 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the remainder 3 of the allegations contained in Paragraph 23 of the First Amended Complaint and, therefore, denies 4 such allegations. 5 24. Emcore admits that Avago claimed that the fiber optics transceivers had problems. 6 Emcore denies that it negligently manufactured VCSEL die or other defective products as alleged 7 by Avago and that it has otherwise caused any damages as alleged by Avago. Emcore lacks 8 sufficient knowledge or information to form a belief as to the truth of the allegations contained in 9 Paragraph 24 of the First Amended Complaint and, therefore, denies such allegations. 25. 10 Emcore denies that it negligently manufactured VCSEL die or other defective 11 products as alleged by Avago and that it has otherwise caused any damages as alleged by Avago. 12 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the allegations 13 contained in Paragraph 25 of the First Amended Complaint and, therefore, denies such allegations. 26. 14 Emcore denies that it negligently manufactured VCSEL die or other defective 15 products as alleged by Avago and that it has otherwise caused any damages as alleged by Avago. 16 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the allegations 17 contained in Paragraph 26 of the First Amended Complaint and, therefore, denies such allegations. 27. 18 Emcore admits that the purported Agreement defines “product requirements” and 19 the purported Agreement speaks for itself regarding same. Emcore denies that it negligently 20 manufactured VCSEL die or other defective products as alleged by Avago and that it has otherwise 21 caused any damages as alleged by Avago. Emcore lacks sufficient knowledge or information to 22 form a belief as to the truth of the allegations contained in Paragraph 27 of the First Amended 23 Complaint and, therefore, denies such allegations. 28. 24 Emcore denies that it negligently manufactured VCSEL die or other defective 25 products as alleged by Avago and that it has otherwise caused any damages as alleged by Avago. 26 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the allegations 27 contained in Paragraph 28 of the First Amended Complaint and, therefore, denies such allegations. 28 5 DEFENDANT EMCORE CORPORATION’S FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT; C 083248 JW 29. 1 Emcore denies that it negligently manufactured VCSEL die or other defective 2 products as alleged by Avago and that it has otherwise caused any damages as alleged by Avago. 3 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the allegations 4 contained in Paragraph 29 of the First Amended Complaint and, therefore, denies such allegations. 30. 5 Emcore states that the allegations in paragraph 30 of the First Amended Complaint 6 are legal conclusions to which no answer is required. To the extent that the allegations are not 7 legal conclusions, Emcore lacks sufficient knowledge or information to form a belief as to the truth 8 of the allegations contained in Paragraph 30 of the First Amended Complaint and, therefore, denies 9 such allegations. 10 31. Emcore lacks sufficient knowledge or information to form a belief as to the truth of 11 the allegations contained in Paragraph 31 of the First Amended Complaint and, therefore, denies 12 such allegations. 13 32. Emcore states that the allegations in paragraph 32 of the First Amended Complaint 14 are legal conclusions to which no answer is required. To the extent that the allegations are not 15 legal conclusions, Emcore lacks sufficient knowledge or information to form a belief as to the truth 16 of the allegations contained in Paragraph 32 of the First Amended Complaint and, therefore, denies 17 such allegations. In particular, Emcore denies that it negligently manufactured VCSEL die or 18 other defective products as alleged by Avago and that it has otherwise caused any damages as 19 alleged by Avago. 20 SECOND CAUSE OF ACTION 21 (Breach of Express Warranty Against Venture) 33. 22 23 Emcore incorporates its allegations in paragraphs 1 through 32, supra in response to the allegations in paragraph 33. 34. 24 Emcore states that the allegations in paragraph 34 of the First Amended Complaint 25 are legal conclusions to which no answer is required. To the extent this paragraph contains facts, 26 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the allegations 27 contained in Paragraph 34 of the First Amended Complaint and, therefore, denies such allegations. 35. 28 Emcore states that the allegations in paragraph 35 of the First Amended 6 DEFENDANT EMCORE CORPORATION’S FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT; C 083248 JW 1 Complaint are legal conclusions to which no answer is required. To the extent this paragraph 2 contains facts, Emcore lacks sufficient knowledge or information to form a belief as to the truth of 3 the allegations contained in Paragraph 35 of the First Amended Complaint and, therefore, denies 4 such allegations. 5 36. Emcore admits that the purported Agreement includes warranty provisions and 6 states that it speaks for itself regarding same. Emcore lacks sufficient knowledge or information to 7 form a belief as to the truth of the allegations contained in Paragraph 36 of the First Amended 8 Complaint and, therefore, denies such allegations. 37. 9 Emcore denies that it negligently manufactured VCSEL die or other defective 10 products as alleged by Avago and that it has otherwise caused any damages as alleged by Avago. 11 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the allegations 12 contained in Paragraph 37 of the First Amended Complaint and, therefore, denies such allegations. 38. 13 Emcore denies that it negligently manufactured VCSEL die or other defective 14 products as alleged by Avago and that it has otherwise caused any damages as alleged by Avago. 15 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the allegations 16 contained in Paragraph 38 of the First Amended Complaint and, therefore, denies such allegations. 39. 17 Emcore denies that it negligently manufactured VCSEL die or other defective 18 products as alleged by Avago and that it has otherwise caused any damages as alleged by Avago. 19 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the allegations 20 contained in Paragraph 39 of the First Amended Complaint and, therefore, denies such allegations. 40. 21 Emcore denies that it negligently manufactured VCSEL die or other defective 22 products as alleged by Avago and that it has otherwise caused any damages as alleged by Avago. 23 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the allegations 24 contained in Paragraph 40 of the First Amended Complaint and, therefore, denies such allegations. 41. 25 Emcore denies that it negligently manufactured VCSEL die or other defective 26 products as alleged by Avago and that it has otherwise caused any damages as alleged by Avago. 27 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the allegations 28 contained in Paragraph 41 of the First Amended Complaint and, therefore, denies such 7 DEFENDANT EMCORE CORPORATION’S FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT; C 083248 JW 1 allegations. 42. 2 Emcore states that the allegations in paragraph 42 of the First Amended Complaint 3 are legal conclusions to which no answer is required. To the extent this paragraph contains facts, 4 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the allegations 5 contained in Paragraph 42 of the First Amended Complaint and, therefore, denies such allegations. 43. 6 Emcore denies that it negligently manufactured VCSEL die or other defective 7 products as alleged by Avago and that it has otherwise caused any damages as alleged by Avago. 8 Emcore states that the allegations in paragraph 43 of the First Amended Complaint are legal 9 conclusions to which no answer is required. To the extent this paragraph contains facts, Emcore 10 lacks sufficient knowledge or information to form a belief as to the truth of the allegations 11 contained in Paragraph 43 of the First Amended Complaint and, therefore, denies such allegations. 12 THIRD CAUSE OF ACTION 13 (Negligent Interference With Prospective Economic Relations Against Emcore) 14 44. 15 Emcore incorporates its allegations in paragraphs 1 through 43, supra, in response to the allegations in paragraph 44. 45. 16 Emcore lacks sufficient knowledge or information to form a belief as to the truth of 17 the allegations contained in Paragraph 45 of the First Amended Complaint and, therefore, denies 18 such allegations. 19 46. Emcore admits that Emcore contracted to supply to Venture VCSEL die and that 20 Venture advised Emcore that this VCSEL die would be incorporated in fiber optics transceivers 21 manufactured by Venture for Avago. Emcore denies the remainder of the allegations of paragraph 22 46. 47. 23 Emcore denies that it negligently manufactured VCSEL die or other defective 24 products as alleged by Avago and that it has otherwise caused any damages as alleged by Avago. 25 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the remainder 26 of the allegations contained in Paragraph 47 of the First Amended Complaint and, therefore, denies 27 such allegations. 28 8 DEFENDANT EMCORE CORPORATION’S FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT; C 083248 JW 48. 1 Emcore denies that it negligently manufactured VCSEL die or other defective 2 products as alleged by Avago and that it has otherwise caused any damages as alleged by Avago. 3 Emcore lacks sufficient knowledge or information to form a belief as to the truth of the remainder 4 of the allegations contained in Paragraph 48 of the First Amended Complaint and, therefore, denies 5 such allegations. 6 49. Denied. 7 50. Denied. 8 51. Emcore denies that it negligently manufactured VCSEL die or other defective 9 products as alleged by Avago and that it has otherwise caused any damages as alleged by Avago. 10 Otherwise, Emcore states that the allegations in paragraph 51 of the First Amended Complaint are 11 legal conclusions to which no answer is required. To the extent this paragraph contains facts, 12 Emcore denies the allegations. 13 AFFIRMATIVE DEFENSES 14 FIRST AFFIRMATIVE DEFENSE--FAILURE TO STATE A CAUSE OF ACTION 15 The Complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause 16 of action against Emcore. SECOND AFFIRMATIVE DEFENSE--STATUTE OF LIMITATIONS 17 18 The action against Emcore is barred by the applicable statute of limitations, including but not 19 limited to California Code of Civil Procedure §339(1), California Code of Civil Procedure §343, 20 California Code of Civil Procedure §§335-349.4. THIRD AFFIRMATIVE DEFENSE--PREJUDGMENT INTEREST 21 22 The First Amended Complaint fails to state facts sufficient to constitute grounds for an award of 23 prejudgment interest against Emcore. FOURTH AFFIRMATIVE DEFENSE--ATTORNEYS’ FEES 24 25 The First Amended Complaint fails to state facts sufficient to constitute grounds for an award of 26 attorneys’ fees against Emcore. FIFTH AFFIRMATIVE DEFENSE--MITIGATION OF DAMAGES 27 28 On information and belief, plaintiffs’ alleged injuries, if any there were, were aggravated by 9 DEFENDANT EMCORE CORPORATION’S FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT; C 083248 JW 1 the plaintiffs’ failures to use reasonable diligence to mitigate them. SIXTH AFFIRMATIVE DEFENSE--MISUSE OF PRODUCT 2 3 If plaintiffs were injured and/or damaged as alleged in plaintiffs’ complaint, then said injuries 4 and/or damages were the direct and proximate result of plaintiffs’ misuse of the subject property. 5 SEVENTH AFFIRMATIVE DEFENSE--UNFORESEEABLE USE OF PRODUCT 6 Any injury, damage or loss, was sustained by and solely caused by and attributable to the 7 unreasonable, unforeseeable and totally inappropriate purpose and improper use made by plaintiffs 8 of the product alleged in the Complaint. EIGHTH AFFIRMATIVE DEFENSE--COMPARATIVE NEGLIGENCE 9 10 Plaintiffs were comparatively at fault, and Emcore prays that any and all damages sustained by 11 said plaintiffs be reduced by the percentage of their negligence. NINTH AFFIRMATIVE DEFENSE--CONTRIBUTORY NEGLIGENCE 12 13 Plaintiffs were actively careless and negligent in and about the matters alleged in the Complaint, 14 and said acts of carelessness and negligence on plaintiffs’ own part proximately contributed to the 15 happening of the incident and to the loss and damage, if any there were. Plaintiffs’ contributory 16 negligence shall reduce any and all damages sustained by said plaintiffs. 17 TENTH AFFIRMATIVE DEFENSE--RESPONSIBILITY OF OTHERS (NEGLIGENCE 18 OF OTHERS) 19 The damages complained of, if any there were, were proximately contributed to or caused by the 20 carelessness, negligence, fault or defects created by the remaining parties in this action, or by other 21 persons, corporations or business entities, unknown to Emcore at this time, and were not caused in 22 any way by Emcore, or by persons for whom Emcore is legally liable. Should Emcore be found 23 liable to plaintiffs, which liability is expressly denied, Emcore is entitled to have this award against 24 it abated, reduced or eliminated to the extent that the negligence, carelessness, fault or defects 25 created by the remaining parties in this action, or by said other persons, corporations or business 26 entities, contributed to plaintiffs’ damages, if any. 27 ELEVENTH AFFIRMATIVE DEFENSE--ASSUMPTION OF RISK 28 Plaintiffs knew, or in the exercise of ordinary care should have known, of the risks and 10 DEFENDANT EMCORE CORPORATION’S FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT; C 083248 JW 1 hazards involved in the undertaking in which it was engaged, but nevertheless and knowing these 2 things, did freely and voluntarily consent to assume all the risks and hazards involved in the 3 undertaking. TWELFTH AFFIRMATIVE DEFENSE--SUPERVENING FACTORS 4 5 Any alleged acts or omissions of Emcore were superseded by the acts or omissions of others, 6 including plaintiffs, other defendants, and/or other yet unnamed individuals or entities that were 7 the independent, intervening, and proximate cause of the damage or loss complained of by 8 plaintiffs, if any there were. 9 THIRTEENTH AFFIRMATIVE DEFENSE--LACK OF SUBJECT MATTER 10 JURISDICTION 11 This Court lacks subject matter jurisdiction to adjudicate the causes of action alleged by plaintiffs. 12 FOURTEENTH AFFIRMATIVE DEFENSE--WAIVER 13 Plaintiffs have waived their rights to maintain the action filed in this case. 14 FIFTEENTH AFFIRMATIVE DEFENSE--ESTOPPEL 15 The plaintiffs are estopped by action of law or by conduct from maintaining the action filed in this 16 case. 17 SIXTEENTH AFFIRMATIVE DEFENSE—APPLICABILITY OF FOREIGN LAW 18 Plaintiffs’ claims against Emcore are not governed by the law of the forum, California, but rather 19 by the law of a foreign state and/or foreign country, possibly including but not limited to the laws 20 of Japan, Canada, Malaysia, and other countries, which state or country will be determined based 21 on information and/or documents in the possession of plaintiffs and sought by Emcore through 22 discovery. 23 24 25 26 27 28 11 DEFENDANT EMCORE CORPORATION’S FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT; C 083248 JW 1 PRAYER FOR RELIEF 2 3 WHEREFORE, defendant Emcore Corporation prays: 4 1. That plaintiffs take nothing by the Complaint; 5 2. That any damages sustained by plaintiffs be reduced by the percentage of its own 6 negligence; 7 3. That plaintiffs’ First Amended Complaint be dismissed with prejudice; 8 4. That the Court award defendant Emcore its costs and attorneys’ fees incurred in this 9 action; 5. That the Court award such further relief to defendant Emcore as deemed just and proper. 10 11 12 Dated: November 18, 2009 REDENBACHER & BROWN, LLP 13 By: 14 JOHN C. BROWN Attorneys for defendant EMCORE CORPORATION 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 DEFENDANT EMCORE CORPORATION’S FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT; C 083248 JW DEMAND FOR JURY TRIAL 1 Emcore Corporation hereby demands a jury trial as provided by Rule 38(a) of the Federal 2 3 Rules of Civil Procedure. 4 Dated: 5 November 18, 2009 By ______________________________ JOHN C. BROWN Attorneys for defendant, EMCORE CORPORATION 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 DEFENDANT EMCORE CORPORATION’S FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT; C 083248 JW
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