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    2018.12.28. Answer To Counterclaim

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    Simon Otero filed an answer to a counterclaim denying many of the allegations. He admits some factual allegations but denies being responsible for any damages caused by third parties. Otero asserts affirmative defenses including failure to mitigate damages, accord and satisfaction, statute of frauds, waiver and estoppel. He requests dismissal of the counterclaims.

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    2018.12.28. Answer To Counterclaim

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    doczhar
    268 views3 pages
    Simon Otero filed an answer to a counterclaim denying many of the allegations. He admits some factual allegations but denies being responsible for any damages caused by third parties. Otero asserts affirmative defenses including failure to mitigate damages, accord and satisfaction, statute of frauds, waiver and estoppel. He requests dismissal of the counterclaims.

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    Simon D. Otero, Massthetics, LLC, Legion Iron, LLC v. Garrett Gonzales

    Original Title

    2018.12.28. Answer to Counterclaim

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    Simon Otero filed an answer to a counterclaim denying many of the allegations. He admits some factual allegations but denies being responsible for any damages caused by third parties. Otero asserts affirmative defenses including failure to mitigate damages, accord and satisfaction, statute of frauds, waiver and estoppel. He requests dismissal of the counterclaims.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    268 views3 pages

    2018.12.28. Answer To Counterclaim

    Uploaded by

    doczhar
    Simon Otero filed an answer to a counterclaim denying many of the allegations. He admits some factual allegations but denies being responsible for any damages caused by third parties. Otero asserts affirmative defenses including failure to mitigate damages, accord and satisfaction, statute of frauds, waiver and estoppel. He requests dismissal of the counterclaims.

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    FILED

    AB
    13th JUDICIAL DISTRICT COURT
    Valencia County
    STATE OF NEW MEXICO 12/28/2018 8:28 PM
    COUNTY OF VALENCIA PHILLIP ROMERO
    THIRTEENTH JUDICIAL DISTRICT CLERK OF THE COURT

    MASSTHETICS, LLC; a New Mexico


    Limited Liability Company;
    LEGION IRON, LLC, a New Mexico
    Limited Liability Company; and
    SIMON OTERO,

    Plaintiffs,
    v. D-1314-CV-2018-01280

    GARRETT GONZALES,

    Defendant.

    PLAINTIFF/COUNTER-DEFENDANT SIMON OTERO’S ANSWER TO COUNTERCLAIM

    Plaintiff/Counter-Defendant Simon Otero, by and through his undersigned counsel,

    answers Defendant Gonzales’ Counterclaim as follows:

    1. Mr. Otero admits the following paragraphs of the Counterclaim: 2-6, 15, 83-84.

    2. Mr. Otero denies the following paragraphs of the Counterclaim:7-9, 13-14, 16-18,

    21-60, 62-64, 67-70, 80, 85, 93-95.

    3. Mr. Otero is without sufficient information to admit or deny the allegations in

    Paragraph 1 of the Complaint, and therefore, denies the same: 10-12, 19-20.

    4. No response is required to the following paragraphs, which contain legal

    conclusions or references to documents that speak for themselves, instead of averments as required

    by Rule 1-008 NMRA: 1, 61, 65-66, 71-79, 81-82, 86-92, 96-104. To the extent a response is

    deemed required, Mr. Otero denies the same.

    5. Mr. Otero denies each and every factual allegation not expressly admitted herein.

    AFFIRMATIVE DEFENSES

    A. The Counterclaim fails to state a claim upon which relief can be granted.

    B. Defendant’s injuries and damages, if any, were proximately caused by the

    1
    negligence, negligence per se, and/or wrongful or tortious acts of other third persons or parties

    for whose conduct the Mr. Otero may not be held responsible, and any recovery against the

    Mr. Otero, if any, must be accordingly reduced by the percentage extent of the fault of others

    pursuant to the New Mexico Doctrine of Comparative Fault.

    C. Defendant has failed to mitigate his damages and to that extent they are not

    recoverable.

    D. Defendant’s claims are subject to the terms, conditions, limitations and

    exclusions as provided within the binding agreements between the parties, and Defendant’

    claims are limited or barred by said provisions.

    E. Defendants’ claims are barred by accord and satisfaction.

    F. Defendants’ claims are barred by the statue of frauds.

    G. Defendant’s claims are barred in whole or in part by the doctrines of unclean

    hands, waiver, estoppel, acquiescence and/or ratification or fraud.

    H. Defendant’s claims are groundless thereby entitling Mr. Otero to an award of

    attorneys' fees incurred in defending this action.

    I. The award of punitive or exemplary damages, if any, must be reasonably

    related to actual damages. An award of punitive or exemplary damages not reasonably related

    to actual damages violates the due process clause of the Fourteenth Amendment to the

    United States Constitution and Article II, Section 18 of the New Mexico Constitution.

    J. Mr. Otero has not yet had the opportunity to conduct any discovery in this matter,

    and so as not to waive any other applicable affirmative defenses set forth in Rule 1-008(C) NMRA

    and Rul1-012(B) NMRA, which may be shown to apply by future discovery in this matter, all

    defenses set forth in these rules are incorporated herein by reference.

    2
    CONCLUSION

    WHEREFORE, for the reasons set forth above, Mr. Otero respectfully requests that the

    Court dismiss Defendant Gonzales’ Counterclaims against Mr. Otero as set forth above, and for

    such other and further relief as the Court deems appropriate.

    Respectfully submitted,

    GARCIA LEGAL, LLC

    By: /s/ Jonathan A. Garcia


    Jonathan A. Garcia
    P.O. Box 94898
    Albuquerque, NM 87199
    Tel: (505) 297-1222
    Fax: (505) 318-1721
    [email protected]

    I HEREBY CERTIFY that on the 28thth day


    of December 2018, a copy of the foregoing
    pleading was filed and served upon all
    service contacts on the Court’s e-filing
    system.

    /s/ Jonathan A. Garcia


    Jonathan A. Garcia

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