Case 1:15-cv-00494-PAB-NYW Document 69 Filed 07/21/15 USDC Colorado Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No. 425-522-3104
JDK LLC, a Colorado limited liability company,
Deborah Kolassa, Jerry Kolassa, and S. Mark Spoone,
Plaintiffs,
versus,
Ronald K. Hodge, Gregg Hodge, Paul Talbot,
Thomas J. Gilhooly, Frank O. Hofmeister,
James E. Sylvester, Max 1 Financial LLC, a Colorado limited
liability company, and Brooke Talbot,
Defendants.

ANSWER TO UNVERIFIED COMPLAINT AND DEMAND FOR JURY TRIAL

To:

The court, all parties, and their attorneys of record:

1.

Defendants Ronald K. Hodge, Gregg Hodge, James E. Sylvester now admit,

deny, and allege as follows in answer to plaintiffs unverified Complaint, and hereby
demand trial by jury on all claims alleged in the Complaint.
2.

On information and belief, defendants deny the allegations in paragraph 1 of the

Complaint. For simplicity, the denials, admissions, and allegations below shall apply to plaintiffs
Complaint in this action.
3.

On information and belief, defendants admit the allegations regarding venue in

Paragraph 2.
3.

Defendants admit the allegations in paragraphs 3-8 in the Complaint.

4.

Defendants admit the residency allegations regarding defendant Paul Talbot but

deny the balance of the allegations in paragraph 9.

5.

Defendants have no information and so deny the allegations in paragraph 10.

1

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6.

Defendants admit paragraphs 11-13.

7.

Defendants admit the residency allegations regarding Brooke Talbot but deny the

balance of the allegations in paragraph 14.

8.

On information and belief, defendants deny paragraphs 15-174, and paragraphs

a-f in the Prayer to the Complaint.

AFFIRMATIVE DEFENSES
9.

Defendants allege that the Complaint and each claim in the Complaint fails to

state a claim for relief against defendants and each of them, and the Complaint fails to plead
facts sufficient to comply with FRCP 8-12.
10.

Defendants allege that this Court lacks subject matter jurisdiction over the claims

alleged in the Complaint.

11.

Defendants allege that each and every claim alleged in the Complaint is time-

barred by the applicable statutory limitations period, or by the doctrine of laches based on
plaintiffs unreasonably delay in bringing suit and based on defendants and each of their
material change of position.
12.

Defendants allege that each and every claim in the Complaint is barred or limited

by the clean hands doctrine, estoppel, waiver, impossibility of performance, and/or plaintiffs
and each of their knowing and voluntary consent to the actions complained of alleged in the
Complaint.
13.

Defendants allege that plaintiffs claims arising out of contracts and so allege that

all plaintiffs other than JDK, LLC lack standing to pursue claims in that the entity who plaintiff
JDK, LLC was in privity of contract with performed its obligations, and the additional allegations
regarding fraud violates the rule against parol evidence since the contract(s) at issue were
intended to be the final expression of the parties agreement.

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14.

Defendants further allege that all the conduct plaintiffs complain of arose of the

agreed contractual performance of General Payment Systems, Inc., which was properly
performed, such that the performance plaintiffs complain of was either not due under the
express terms of JDK, LLCs contract or was otherwise excused.
15.

Defendants allege on information and belief that plaintiffs and each of them failed

to mitigate their damages, if any, in a reasonable manner so as to bar or reduce the damages
that they may recover.
16.

Defendants and each of them allege they have claims against plaintiffs and each

of them that must be offset or set off against any valid claims plaintiffs pursue or may pursue
against defendants or any of them in this action.
17.

Defendants allege that this action should be stayed or abated as there is another

action pending between the parties in JAG Arbitration, Case No. 2015-0307A, styled JDK LLC
et al vs General Payment Systems Inc et al., in which plaintiff JDK, LLC is seeking the same or
substantially the same recovery here.
18.

To the extent that JDK, LLC is denied recover in the related arbitration proceeding

or obtains any recovery, plaintiffs claims and recovery in this action must be barred or
diminished by the doctrines of arbitration and award, or by the doctrines of issue or claim
preclusion, as all plaintiffs are privies of JDK, LLC in this action.
19.

On information and belief, plaintiffs on affirmative acts hindered General

Payments Systems, Inc.s performance of its contractual obligations and plaintiffs own acts and
omissions require that plaintiffs either take no recovery or require that plaintiffs recovery be
reduced by the doctrine of comparative fault.
20.

On information and belief, defendants acts and omissions were done as claim of

right so as to bar plaintiffs claims for theft.

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21.

On information and belief, to the extent plaintiffs sustained harm, that harm was

caused by intervening and superseding causes other than defendants or any of them, such that
the doctrine of frustration of purpose or other similar doctrines apply so as to prevent plaintiffs
or any of them from recovery against any or all of these answering defendants.
22.

Defendants and each of them reserve and preserve the rights to raise additional

affirmative defenses in the event that discovery or investigation shows that defendants or any of
them have additional defenses other than those pled above to either bar any of the claims pled
in the Complaint by any of the plaintiffs as to one or more defendants, or to bar or to reduce the
recovery of any by one or more the plaintiffs in this action.

DATED at Lake Forest, California 20th day of July, 2015.

/s John R. Armstrong
John R. Armstrong,
Horwitz + Armstrong LLP
26475 Rancho Parkway South
Lake Forest, CA 92630
(949) 540-6540 Tel.
(949) 540-6583 Fax.
jarmstrong@horwitzarmstrong.com

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DEMAND FOR TRIAL BY JURY

These answering defendants hereby demand trial by jury on a claims alleged against
them in the Complaint to the extent that such claims are supported by admissible evidence
sufficient to withstand a motion for nonsuit.

DATED at Lake Forest, California 20th day of July, 2015.

/s John R. Armstrong
John R. Armstrong
Horwitz + Armstrong LLP
26475 Rancho Parkway South
Lake Forest, CA 92630
(949) 540-6540 Tel.
(949) 540-6583 Fax.
jarmstrong@horwitzarmstrong.com

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CERTIFICATE OF SERVICE
I hereby certify that on July 21, 2015, I electronically filed the foregoing with the Clerk of
Court using the CM/ECF system which will send notification of such filing to the following e-mail
addresses: david@brownlegal.com, asa.garber@gmail.com, Scott@brownlegal.com as counsel

for plaintiffs, K.ieran@ColoradoStartupLawyer.com, as counsel for plaintiffs and defendant

Frank O. Hofmeister, and Reid Allred at rallred@chipmanglasser.com as counsel for Paul and
Brooke Talbot and M1 Financial, LLC. None of the other non CM/ECF participants have
provided contact information for service, however, I will serve such parties if any when they
appear. (It appears that defendant Thomas J. Gilhooly never appeared and was dismissed from
this action.)
/s John R. Armstrong
John R. Armstrong,
Horwitz + Armstrong LLP
26475 Rancho Parkway South
Lake Forest, CA 92630
(949) 540-6540 Tel.
(949) 540-6583 Fax.
jarmstrong@horwitzarmstrong.com