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10/27/2010 9 ANSWER to 1 Complaint by JBI, Inc..(Beveridge, Cathy) (Entered: 10/27/2010)
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IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MICHAEL KAPLANIS,
Plaintiff,
vs.
JBI, INC., a Nevada Corporation and
JOHN BORDYNUIK, an Individual,
Defendants.
DEFENDANT JBI'S ANSWER AND DEFENSES TO PLAINTIFF'S COMPLAINT
COMES NOW, the Defendant, JBI, INC., ("JBI") by and through its undersigned counsel, and files this Answer and Affirmative Defenses, and states as follows:
PARTIES, JURISDICTION, AND VENUE
1. Denied that this claim is worth $75,000.00 or more.
2. Denied. When Plaintiff entered into the Employment Agreement ("Agreement"),
Plaintiff resided outside the state of Florida.
3. Admitted only that JBI is a Nevada corporation with its principal place of business in 1483 Allanport Road, Allanburg, Ontario, Canada.
4. Admitted.
5. Denied that diversity jurisdiction exists, since the amount in controversy is less than $75,000.00.
6. Denied.
FACTUAL ALLEGATIONS
7. Denied.
8. Admitted only that John Bordynuik spoke with Plaintiff about entering into the Agreement with JBI when Plaintiff was in Illinois or in Canada. Otherwise, denied.
9. Admitted only that Plaintiff and Bordynuik negotiated the Agreement. The Agreement speaks for itself.
10. The Agreement speaks for itself.
11. Admitted.
12. Denied.
13. Admitted only that Plaintiff received 100,000 shares of JBI stock. Otherwise, the Agreement speaks for itself.
14. Admitted.
15. Denied.
16. Admitted only that Plaintiff received a sixty (60) day termination notice on or about July 15, 2010. Otherwise, denied.
17. Denied.
18. Denied.
19. Denied.
20. Denied.
21. Admitted that JBI terminated Plaintiff with cause.
22. Denied.
23. Denied.
24. Denied.
COUNT I - BREACH OF CONTRACT AGAINST JBI
25. Defendant realleges and incorporates its answers to paragraphs 7-24 above.
26. Admitted.
27. Admitted upon knowledge and belief.
28. Admitted only that the Agreement speaks for itself and clearly specifies the particular benefits and salary to be paid to Kaplanis. Otherwise, denied.
29. Denied.
30. Denied.
31. Denied.
32 Denied.
33. Denied.
34. Denied.
35. Denied.
36. Denied.
37. Denied.
38. Denied.
COUNT II - EQUITABLE ACCOUNTING AGAINST JBI AND BORDYNUIK
39-43. This Count is the subject of Defendants' Motion to Dismiss.
COUNT III - NEGLIGENT MISPRESENTATION AGAINST JOHN BORDYNUIK
44-53. This Count is the subject of Defendants' Motion to Dismiss.
54. Denied that Plaintiff is entitled to a jury triaL.
55. All unanswered averments are denied
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
JBI states that its performance under the Employment Agreement is excused due to the breach by the Plaintiff of Paragraphs 1 (b), ( c) and ( e) of the Agreement by failing to devote all of Plaintiff’s business time, energy and skill in the performance of his duties and his failure to obey the lawful directions of the CEO and use his diligent efforts to promote the interests of the Company.
SECOND AFFIRMATIVE DEFENSE
Plaintiff is not entitled to a jury trial on this claim because the Parties clearly and unequivocably waived their right to a jury trial in bold lettering in Paragraph 14 of the Employment Agreement.
THIRD DEFENSE
Defendant reserves the right to assert further affirmative defenses as identified through discovery.
WHEREFORE, for the reasons stated above, Defendant JBI, Inc. respectfully requests that Plaintiffs Complaint be dismissed in its entirety and with prejudice, and that JBI, Inc. be awarded its costs, including reasonable attorney's fees, incurred in defending this action and all other relief to which it is entitled.
DATED: October 27,2010
/s/ Cathy J. Beveridge
Cathy J. Beveridge
Florida Bar No.: 0831018
FOWLER WHITE BOGGS P.A.
501 E. Kennedy Boulevard, Suite 1700
Tampa, Florida 33602-5239
(813) 228-7411/Facsimile: (813) 229-8313
cbeveridge@fowlerwhite.com
Counsel for Defendants |
