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Plaintiff,
CONSTITUTION PARTY OF UTAH, a
registered political party of Utah,
Case No. 2:14-cv-00876-DN
Plaintiff and Intervenor,
Judge David Nuffer
v.
GARY R. HERBERT, in his Official Capacity
as Governor of Utah, and SPENCER J. COX,
in his Official Capacity as Lieutenant Governor
of Utah,
Defendants.
Defendants answer Plaintiffs Complaint (doc. 2) and assert their defenses as follows.
FIRST DEFENSE
Plaintiffs Complaint fails to state a claim upon which relief may be granted.
SECOND DEFENSE
Defendants respond to the numbered paragraphs of Plaintiffs Complaint as follows:
1.
Complaint.
5.
Defendants admit that SB 54 modified part of the process governing how candidates may access
the ballot and deny the remaining allegations contained in paragraph 5 of Plaintiffs Complaint.
6.
Defendants lack sufficient knowledge and information to either admit or deny the
7.
Complaint.
8.
Complaint.
9.
Complaint.
10.
Defendants admit that Plaintiff seeks an order striking down SB 54, but denies that Plaintiff is
entitled to the requested relief.
11.
Defendants lack sufficient knowledge and information to either admit or deny the
Defendants admit that Gary R. Herbert is the Governor of the State of Utah. The remaining
allegations contained in paragraph 12 of Plaintiffs Complaint constitute legal conclusions to
which no response is necessary. To the extent a response is deemed necessary, Defendants state
that the Governors powers and duties are defined by constitutional provisions of the Utah
Constitution, statute and common law.
13.
14.
directed at these answering Defendants, and thus, no response is necessary. To the extent a
response is deemed necessary, Defendants deny that Plaintiff is entitled to the relief sought in its
Complaint.
18.
20.
Defendants lack sufficient knowledge and information to either admit or deny the
allegations of paragraphs 30 through 40 of Plaintiffs Complaint and, therefore, deny the same.
21.
Defendants lack sufficient knowledge and information to either admit or deny the
Defendants lack sufficient knowledge and information to either admit or deny the
Defendants lack sufficient knowledge and information to either admit or deny the
28.
Defendants lack sufficient knowledge and information to either admit or deny the
allegations of paragraphs 50 through 60 of Plaintiffs Complaint and, therefore, deny the same.
30.
Defendants lack sufficient knowledge and information to either admit or deny the
allegations contained in the first sentence of paragraph 61 of Plaintiffs Complaint and, therefore,
deny the same. Defendants deny the allegations contained in the second sentence of paragraph 61
of Plaintiffs Complaint. The allegations contained in the last sentence of paragraph 61 of
Plaintiffs constitute legal conclusions to which no response is necessary. To the extent a
response is deemed necessary, Defendants state that the provisions contained in Senate Bill 54
speak for themselves.
31.
33.
Defendants lack sufficient knowledge and information to either admit or deny the
39.
41.
Defendants lack sufficient knowledge and information to either admit or deny the
allegations contained in paragraph 84 of Plaintiffs Complaint and, therefore, deny the same.
44.
46.
Complaint.
48.
In response to paragraph 108, Defendants admit that Plaintiff has brought claims
pursuant to 42 U.S.C. 1983 for alleged violations of the First and Fourteenth Amendments to
the United States Constitution and deny the validity of those claims.
50.
Complaint.
52.
53.
Complaint.
54.
Complaint.
57.
Defendants deny each and every allegation of Plaintiffs Complaint, which is not
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SEVENTH DEFENSE
Plaintiffs claims for injunctive relief may be barred be the doctrines of res judicata,
waiver or estoppel.
EIGHTH DEFENSE
Plaintiffs claims for injunctive relief may be barred by the doctrine of mootness.
NINTH DEFENSE
To the extent Plaintiffs subsequently assert any claims based on state law, such state law
claims are limited and barred by the Utah Governmental Immunity Act, which includes but is not
limited to, timely failure to file a notice of claim and bring the action within the statutory period
and file a bond prior to commencement of the action, all of which deprives the court of subject
matter jurisdiction.
TENTH DEFENSE
Plaintiffs trademark infringement claims are barred because the mark is not used in
commerce as required by 15 U.S.C 1125(a).
ELEVENTH DEFENSE
Plaintiffs trademark infringement claims are barred because as alleged in the Complaint,
the mark is not used in interstate commerce as required by 15 U.S.C 1125(a).
TWELFTH DEFENSE
Plaintiffs trademark infringement claims are barred by sovereign immunity.
THIRTEENTH DEFENSE
Plaintiffs trademark infringement claims are barred because the mark is generic.
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FOURTEENTH DEFENSE
Plaintiffs trademark infringement claims are barred because the mark is merely
descriptive and has not acquired secondary meaning.
FIFTEENTH DEFENSE
Plaintiffs trademark infringement claims are barred because Plaintiff's mark is
misdiscriptive.
SIXTEENTH DEFENSE
Plaintiffs trademark infringement claims are barred because any use of the mark was
protected by the doctrine of fair use.
SEVENTEENTH DEFENSE
Plaintiffs trademark infringement claims are barred because any use of the mark was
protected by the doctrine of nominative fair use.
EIGHTEENTH DEFENSE
Plaintiffs trademark infringement claims are barred because any use of the mark did not
cause likelihood of consumer confusion as to the source of the goods or services for which the
mark is applied.
NINTEENTH DEFENSE
Defendants preserve and do not waive any of the affirmative defenses set forth in Rule
8(c) of the Federal Rules of Civil Procedure, as discovery may reveal to be applicable, or any
other matter constituting an avoidance or affirmative defense as may become known in the
future.
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