DEFENDANTS THE LEADER'S INSTITUTE, LLC AND DOUG STANEART'S ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS TO PLAINTIFFS' FIRST AMENDED COMPLAINT

JANE MAGNUS-STINSON, District Judge.

Defendants The Leader's Institute, LLC and Doug Staneart (collectively, "Defendants") hereby file their Answer, Affirmative Defenses, and Counterclaims to Plaintiffs Robert C. Jackson and Magnovo Training Group, LLC's First Amended Complaint (Dkt No. 24). Pursuant to Fed. R. Civ. P. 8(b)(3), Defendants deny all allegations that are not specifically admitted herein.

I. ANSWER

1. Paragraph 1 does not allege statements of fact requiring admission or denial.

2. Defendant TLI admits that Plaintiff Jackson formerly worked "with" Defendant TLI. Defendant Staneart denies that Plaintiff Jackson formerly worked "with" him to the extent Plaintiff Jackson contends that he was hired by Defendant Staneart in his personal capacity. Defendants admit that they contend that Plaintiff Jackson was an independent contractor for Defendant TLI. Defendants lack sufficient information to admit or deny the remaining allegations of this paragraph, and therefore deny the same.

3. Defendants admit that Plaintiff Jackson ended his working relationship with Defendant TLI in approximately August 2013. Defendants admit that Plaintiffs Jackson and Magnovo engage in business operations generally involving at least leadership development, team building, and communications development for various business entities. Defendants deny that Plaintiffs Jackson and Magnovo only started engaged in these activities after Defendant Jackson left TLI. To the extent necessary, Defendants deny the remaining allegations of this paragraph.

4. Defendants admit that Plaintiffs and Defendant TLI are competitors in the same business industry. Defendants lack sufficient information to admit or deny the second sentence of paragraph 4, and therefore deny the same. Defendants deny the third sentence of paragraph 4. To the extend necessary, Defendants deny the remaining allegations of this paragraph.

5. Denied.

6. Denied.

7. Defendant TLI admits that it put videos of Plaintiff Jackson speaking on the Internet, including on TLI's webpage and TLI's YouTube page, when Plaintiff Jackson was a contractor for TLI. Defendants deny any wrongdoing. Defendants deny the remaining allegations of this paragraph.

8. Denied.

9. Denied.

10. Defendants deny the first sentence of paragraph 10. The second sentence of paragraph 10 does not allege statements of fact requiring admission or denial; however, to the extent necessary, Defendants deny the remaining allegations of this paragraph and deny the Plaintiffs are entitled to any relief.

11. Defendants deny that Plaintiffs are entitled to any relief in this case.

12. Plaintiffs admit the first sentence of this paragraph. The second sentence of paragraph 12 does not allege a statement of fact requiring admission or denial; however, to the extent necessary, Defendants deny the same.

13. Defendants lack sufficient information to admit or deny the first and second sentences of paragraph 13, and therefore deny the same. The third sentence of paragraph 13 does not allege a statement of fact requiring admission or denial; however, to the extent necessary, Defendants deny the same.

14. Admitted.

15. Defendants admits that Plaintiff Magnovo's business operations relate to leadership development, team building, and communications development among others. Defendants lack sufficient information to admit or deny the remaining allegations of this paragraph, and therefore deny the same.

16. Admitted.

17. Denied.

18. Admitted.

19. Admitted.

20. Defendants lack information sufficient to admit or deny the allegations of this paragraph at least because they cannot determine what time period Plaintiffs mean by "all times relevant"; therefore, Defendants deny the same.

21. Defendants lack sufficient information to admit or deny the allegations of the first sentence of paragraph 21, and therefore deny the same. Defendant TLI admits that it sent Plaintiff Jackson's paychecks to Indiana. To the extent necessary, Defendants deny the remaining allegations of this paragraph.

22. Defendants lack sufficient information to admit or deny the first sentence of this paragraph, and therefore deny the same. Defendants deny the remaining allegations of this paragraph.

23. Paragraph 23 does not allege statements of fact requiring admission or denial. To the extent necessary, Defendants deny the allegations of this paragraph.

24. Admitted.

25. Paragraph 25 does not allege statements of fact requiring admission or denial.

26. Admitted.

27. Admitted. 28. Admitted.

29. Defendants lack information sufficient to admit or deny the allegations of this paragraph at least because they cannot determine what time period Plaintiffs mean by "at all times relevant"; therefore, Defendants deny the same.

30. Defendants lack information sufficient to admit or deny the allegations of this paragraph at least because they cannot determine what time period Plaintiffs mean by "at all times relevant"; therefore, Defendants deny the same.

31. Defendants lack information sufficient to admit or deny the allegations of this paragraph at least because they cannot determine what time period Plaintiffs mean by "time periods relevant to this lawsuit"; therefore, Defendants deny the same.

32. Defendants admit the first three sentences of paragraph 32. Defendants deny the fourth sentence of this paragraph. To the extent necessary, Defendants deny the remaining allegations of this paragraph.

33. Paragraph 33 does not allege statements of fact requiring admission or denial. To the extent necessary, Defendants deny the allegations of this paragraph.

34. Admitted.

35. Paragraph 35 does not allege statements of fact requiring admission or denial.

36. Defendants admit that this Court has specific personal jurisdiction in this case. Defendants deny that this Court has general jurisdiction.

37. Defendants lack information sufficient to admit or deny the allegations of this paragraph at least because they cannot determine what time period Plaintiffs mean by "at all times relevant"; therefore, Defendants deny the same.

38. Defendants lack information sufficient to admit or deny the allegations of the first sentence of this paragraph at least because they cannot determine what time period Plaintiffs mean by "all times relevant"; therefore, Defendants deny the same. Defendants lack information sufficient to admit or deny the second and third sentences of this paragraph, and therefore deny the same. Defendants deny the fourth sentence of this paragraph. The fifth sentence of this paragraph does not allege statements of fact requiring admission or denial. In any event, Defendants lack information sufficient to admit or deny the allegations of the fifth sentence of this paragraph at least because they cannot determine what time period Plaintiffs mean by "all times material to this lawsuit"; therefore, Defendants deny the same. To the extent necessary, Defendants deny the remaining allegations of this paragraph.

39. Defendants admit that this Court has subject matter jurisdiction over this case. To the extent necessary, Defendants deny the remaining allegations of this paragraph.

40. Defendants admit that this Court has supplemental jurisdiction in this case. Defendants deny the remaining allegations of this paragraph.

41. Defendants admit that venue is proper in this District. Defendants deny the remaining allegations of this paragraph.

42. Paragraph 42 does not allege statements of fact requiring admission or denial.

43. Defendant TLI admits that Plaintiff Jackson formerly worked "with" Defendant TLI. Defendant Staneart denies that Plaintiff Jackson formerly worked "with" him to the extent Plaintiff Jackson contends that he was hired by Defendant Staneart in his personal capacity. Defendants admit that they contend that Plaintiff Jackson was an independent contractor for Defendant TLI. Defendants admit that Plaintiff Jackson ended his working relationship with Defendant TLI in approximately August 2013. Defendant Defendants lack sufficient information to admit or deny the remaining allegations of this paragraph, and therefore deny the same.

44. Admitted.

45. Admitted.

46. Admitted.

47. Defendants admit that they dismissed Robert Jackson, Magnovo Training Group, LLC, Colette Johnston and Short Splice, Inc., Cause Number 348-268164-13, in the 348th Judicial District Court of Tarrant County, Texas on or about March 20, 2014. Defendants deny the remaining allegations of this paragraph.

48. Admitted.

49. Defendant TLI admits that Plaintiff Jackson formerly worked "with" Defendant TLI. Defendant Staneart denies that Plaintiff Jackson formerly worked "with" him to the extent Plaintiff Jackson contends that he was hired by Defendant Staneart in his personal capacity. Defendants lack information sufficient to admit or deny the remaining allegations of this paragraph, and therefore deny the same.

50. Defendants admit that Plaintiff Jackson ended his working relationship with Defendant TLI in approximately August 2013. Defendants admit that Plaintiffs Jackson and Magnovo engage in business operations generally involving at least leadership development, team building, and communications development for various business entities. Defendants deny that Plaintiffs Jackson and Magnovo only started engaged in these activities after Defendant Jackson left TLI. Defendants lack information sufficient to admit or deny the second and third sentences of this paragraph, and therefore deny the same. Defendants deny that Plaintiff Jackson is "accomplished, famous, and/or well known in his line of work." Defendants lack sufficient information to admit or deny the remaining allegations of this paragraph, and therefore deny the same.

51. Defendants admit that Magnovo and TLI are competitors in the same industry. Defendant TLI admits that it does use an Internet presence to attract and retain customers. Defendant denies the remaining allegations of this paragraph.

52. Denied.

53. Denied.

54. Defendants admit that Jackson is shown wearing a blue shirt in the bottom of the photo accompanying paragraph 54 in Plaintiffs' First Amended complaint. Defendants deny the remaining allegations of this paragraph.

55. Defendants admit that Jackson is shown wearing a suit, white shirt, and red tie in the bottom right hand corner of the photo accompanying paragraph 55 in Plaintiffs' First Amended complaint. Defendants deny the remaining allegations of this paragraph.

56. Defendant TLI admits that the photo accompanying paragraph 56 of Plaintiffs' First Amended Complaint was on TLI's website at http://www.leadersinstitute.com/behavioralchange-team-building/?utm_source=dlvr.it&utm_medium=twitter; however, it has since been removed. Defendants deny the remaining allegations of this paragraph.

57. Defendants lack sufficient information to admit or deny the first sentence of this paragraph, and therefore deny the same. Defendants deny the remaining allegations of this paragraph.

58. Defendant TLI admits that the Facebook posting accompanying paragraph 58 of Plaintiffs' First Amended Complaint was on TLI's Facebook page; however, it has since been removed. Defendants deny the remaining allegations of this paragraph.

59. Defendants deny the first, second, and fourth sentences of this paragraph. Defendants lack information sufficient to admit or deny the third sentence of this paragraph. Defendant TLI admits that the videos depicted in the screenshot accompanying paragraph 59 of Plaintiffs' First Amended Complaint were on Defendant TLI's YouTube channel or its website, but they have been removed. Defendants deny the remaining allegations of this paragraph.

60. Defendant TLI admits that it removed the above-referenced videos of Defendant Jackson from its YouTube channel and website. Defendants deny the remaining allegations of this paragraph.

61. Denied.

62. Denied.

63. Defendants lack sufficient information and context to admit or deny the first sentence of this paragraph, and therefore deny the same. Defendants deny the remaining allegations of this paragraph.

64. Defendant TLI admits that it TLI's website shows that TLI engages in business operations in Indiana. Defendants deny the remaining allegations of this paragraph.

65. Denied.

66. Denied.

67. Paragraph 67 does not allege statements of fact requiring admission or denial. To the extent a response is required, Defendants deny the allegations in this paragraph.

68. Paragraph 68 does not allege statements of fact requiring admission or denial. To the extent a response is required, Defendants deny the allegations in this paragraph.

69. Paragraph 69 does not allege statements of fact requiring admission or denial. To the extent a response is required, Defendants deny the allegations in this paragraph.

70. Denied.

71. Denied.

72. Denied.

73 Denied.

74. Denied.

75. Denied.

76. Denied.

77. Denied.

78. Denied.

79. Denied.

80. Denied.

81. Defendants deny the Plaintiffs are entitled to any relief.

82. Paragraph 82 does not allege any statement of fact requiring admission or denial. To the extent a response is necessary, Defendants deny the allegations of this paragraph.

83. Paragraph 83 does not allege any statement of fact requiring admission or denial. To the extent a response is necessary, Defendants deny the allegations of this paragraph.

84. The first sentence of this paragraph does not allege a statement of fact requiring admission or denial; however, to the extent a response is required, Defendants deny the same. Defendants deny sentences two, four, and five of this paragraph. Defendants admit that Plaintiff Jackson was an independent contractor relative to his working relationship with Defendant TLI. Defendants deny the remaining allegations of this paragraph.

85. Denied.

86. Defendants deny that Plaintiffs are entitled to any relief.

87. Paragraph 87 does not allege any statements of fact requiring admission or denial. To the extent a response is necessary, Defendants deny the allegations of this paragraph.

88. Paragraph 88 does not allege any statements of fact requiring admission or denial. To the extent a response is necessary, Defendants deny the allegations of this paragraph.

89. Paragraph 89 does not allege any statements of fact requiring admission or denial.

90. Defendants deny the first sentence of this paragraph. Defendants admit that Plaintiffs and Defendant TLI are direct competitors in the same industry, and that Plaintiffs and Defendant TLI relies on internet and social media based advertising to attract and retain customers. Defendants deny the remaining allegations of this paragraph.

91. Defendants deny that Jackson is "accomplished, famous, and/or well known in his line of work." Defendants lack sufficient information and context to admit or deny the remainder of the first sentence of this paragraph, and therefore deny the same. Defendants deny the second sentence of this paragraph, and all other remaining allegations in this paragraph.

92. Denied.

93 Denied.

94. Defendants deny that Plaintiffs are entitled to any relief.

95. Paragraph 95 does not allege statements of fact requiring a response. To the extent a response is required, Defendants deny the allegations in this paragraph.

96. Paragraph 96 does not allege statements of fact requiring a response. To the extent a response is required, Defendants deny the allegations in this paragraph.

97. Paragraph 97 does not allege statements of fact requiring a response. To the extent a response is required, Defendants deny the allegations in this paragraph.

98. Paragraph 98 does not allege statements of fact requiring a response. To the extent a response is required, Defendants deny the allegations in this paragraph.

99. Paragraph 99 does not allege statements of fact requiring a response. To the extent a response is required, Defendants deny the allegations in this paragraph.

100. Paragraph 100 does not allege statements of fact requiring a response. To the extent a response is required, Defendants deny the allegations in this paragraph.

101. Defendants deny the first sentence of this paragraph. Defendants admit that Jackson was living as of the filing of this lawsuit and was alive as of the filing of the First Amended Complaint. Defendants deny the remaining allegations of this paragraph.

102. Denied.

103. Defendants deny the Plaintiffs are entitled to any relief.

104. Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs hereby demand a trial by jury of all issues so triable.

105. Defendants deny that Plaintiffs are entitled to any relief.

II. AFFIRMATIVE DEFENSES

106. Subject to the responses above, and without assuming any burden other than that imposed by operation of law, Defendants allege and assert the following defenses in response to the allegations, undertaking the burden of proof only as to those defenses deemed affirmative defenses by law, regardless of how such defenses are denominated herein. In addition to the defenses described below, subject to the responses above, Defendants intend to conduct discovery and specifically reserve the right to assert additional affirmative and other defenses that become known through the course of discovery or otherwise.

107. Failure to State a Claim. Plaintiffs' First Amended Complaint fails to state a claim upon which any relief may be granted against Defendants.

108. Consent. Plaintiffs are barred in whole or in part because Plaintiffs consented to any use and/or publication of Defendant Jackson's name, voice, photograph, image, likeness, and/or distinctive appearance. For example, upon information and belief, Defendant Jackson consented to such use at least when he uploaded the photos to Defendant TLI's website using his secure login provided to him by Defendant TLI. Likewise, upon information and belief, Defendant Jackson consented to such use at least when he accepted approximately $2,000 from Defendant TLI for appearing in the videos complained of in Plaintiffs' First Amended Complaint. In addition, upon information and belief, Defendant Jackson was paid fees by Defendant TLI in excess of $274,139 from February of 2011 until August of 2013 to instruct classes and post items about those classes to the TLI website, Facebook account, Twitter feed, and YouTube account. Upon information and belief, all of the photographs addressed Plaintiffs' First Amended Complaint were uploaded to these sites by Defendant Jackson using a secured login in exchange for the fees paid by Defendant TLI. Upon information and belief, all text cited in Plaintiffs' First Amended Complaint related to Defendant Jackson being an instructor of TLI was posted by Defendant Jackson himself when he was an instructor of TLI.

109. Standing. Plaintiffs' claims are barred in whole or part by lack of standing.

110. Statute of Limitations. Plaintiffs' claims are barred in whole or in part by the applicable statutes of limitations.

111. Laches, Waiver, Estoppel, and Acquiescence. Plaintiffs are barred in whole or in part under the equitable doctrines of laches, waiver, estoppel, and acquiescence.

112. Litigation Hold. Defendants were under a litigation hold in Robert Jackson, et al. v. The Leader's Institute, LLC and Doug Staneart; Case No. 1:14-cv-193-TWPDML and under the impression that they were not permitted to remove the photos or videos during that time.

113. Reservation of Defenses. Defendants reserve all affirmative defenses under Rule 8(c) of the Federal Rules of Civil Procedure and any other defenses, at law or in equity, that may now exist or in the future be available based on discovery or further factual investigation in the case.

III. COUNTERCLAIMS

114. This Court has personal jurisdiction over Plaintiffs.

115. Plaintiffs' First Amended Complaint pleads that Plaintiff Jackson is a natural person who resides in Indianapolis, Marion County, Indiana.

116. Plaintiffs' First Amended Complaint pleads that Magnovo is an Indiana limited liability company with its principle place of business is in Indianapolis, Indiana.

117. Additionally, this Court has personal jurisdiction over Plaintiffs at least by virtue of the fact that Plaintiffs commenced this action against Defendants in this Court alleging violations of the Lanham Act, violations of Indiana Common Law Relative to Invasion of Privacy for Misappropriation of Name or Likeness, Unfair Competition, and violations of the Indiana Right to Publicity Statute.

118. This Court has subject matter jurisdiction over Defendants' counterclaims under 28 U.S.C. § 1367.

119. Plaintiffs First Amended Complaint pleads that venue is proper in this District.

A. Unfair Competition

120. Defendant TLI incorporates paragraphs 114-119 by reference as if set forth fully herein. This cause of action is asserted by Defendant TLI against Plaintiffs.

121. "Unfair competition . . . does not describe a single course of conduct or a tort with a specific number of elements; it instead describes a general category into which a number of new torts may be placed when recognized by the courts. The category is open-ended, and nameless forms of unfair competition may be recognized at any time for the protection of commercial values." Heartland Recreational Vehicles, LLC v. Forest River, Inc., No. 3:08-CV-490-AS-CAN, 2009 WL 418079, at *4 (N.D. Ind. Feb. 18, 2009) (citing Felsher v. University of Evansville, 755 N.E.2d 589, 598 (Ind. 2001)).

122. Plaintiffs filed their original Complaint in this case on April 4, 2017. Dkt No. 1.

123. Defendants filed their Motion to Dismiss on May 26, 2017. Dkt No. 13.

124. The Court entered its order on Defendants' Motion to Dismiss on August 7, 2017. Dkt No. 23.

125. Plaintiffs filed their First Amended Complaint on August 29, 2017. Dkt No. 24.

126. On or about August 17, 2017, Defendant Staneart received an email from a former TLI instructor requesting to "Please remove any information concerning me from your website immediately."

127. On or about August 24, 2017, Defendant Staneart received a separate email from a different former TLI instructor claiming that "You are currently using my image and saying that I work for you," requesting to "Please remove all images and reference of me from your Twitter, Facebook and website accounts," and stating that "You are jeopardizing my current relationships by misrepresenting what I am doing professionally" (emphasis added).

128. Both emails came as the first communication from either person in over four years, and both came within one week of each other and just prior to Plaintiffs' First Amended Complaint containing similar allegations.

129. Defendants contend that there is nothing improper about using materials created for Defendant TLI by its former instructors while working for TLI. In order to avoid potentially costly conflict, Defendant TLI made the business decision to honor these two former instructors' requests although it does not believe it was obligated to do so.

130. Based on, among other things, the coinciding timing and nature of these emails to Plaintiffs claims in this case and the timing of prior communications with these two individuals, Defendants believe that Plaintiffs or someone working on Plaintiffs' behalf contacted these individuals for the purpose of eliciting complaints with the goal of interfering with, damaging, or otherwise harming Defendant TLI's business operations.

131. Upon information and belief, Plaintiffs, unless enjoined, will continue to contact TLI's former instructors for the purpose of eliciting complaints against TLI with the goal of interfering with, damaging, or otherwise harming Defendant TLI's business operations. These acts constitute unfair competition.

132. These actions entitle Defendant TLI to a preliminary injunction and, upon hearing, permanent injunction enjoining Plaintiffs and their officers, agents, servants, employees, users, and attorneys, and all those persons in active concert or in participation with them from (1) contacting TLI's former instructors for the purpose of eliciting similar complaints, and (2) otherwise competing unfairly with Defendant TLI or injuring its business reputation in any manner.

133. For these actions, there is no adequate remedy at law. Further, Defendant TLI is substantially likely to prevail on the merits of this claims. The injury to Defendant TLI greatly outweighs any injury to Plaintiffs that the requested injunction may cause. The balance of hardships tips strongly in favor of Defendant TLI. Finally, the injunction will not disserve the public interest. Therefore, Defendant TLI is entitled to preliminary and permanent injunctive relief against Plaintiffs.

B. Breach of Contract

134. Defendant TLI incorporates the paragraphs 114-133 by reference as if set forth fully herein. This cause of action is asserted by Defendant TLI against Plaintiffs.

135. All conditions precedent to Defendant TLI's claims and recovery have been performed or have occurred.

136. Plaintiff Jackson entered into valid and enforceable contract with Defendant TLI to be in the videos complained of in Plaintiffs' First Amended Complaint. See, e.g., First Amended Complaint, Dkt No. 24, ¶ 59. Defendant TLI paid Plaintiff Jackson $2,000 for his appearance in these videos.

137. Plaintiff Jackson also entered into valid and enforceable contracts with Defendant TLI to instruct classes and post items about those classes to the TLI website, Facebook account, Twitter feed, and YouTube account. Upon information and belief, Defendant Jackson was paid fees by Defendant TLI in excess of $274,139 from February of 2011 until August of 2013 to instruct classes and post items.

138. Defendant TLI is a proper party to its contracts with Plaintiff Jackson and is a proper party to sue for breach of the commitments thereof.

139. Defendant TLI performed all of its contractual obligations.

140. Plaintiff Jackson has breached his contractual obligations by demanding that the videos and posts be removed from Defendant TLI's website, Facebook account, Twitter feed, and YouTube account.

141. Plaintiff Jackson's breach caused Defendant TLI substantial injury.

IV. JURY DEMAND

142. Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs hereby demand a trial by jury of all issues so triable.

V. PRAYER FOR RELIEF

143. WHEREFORE, Defendants respectfully request that this Court enter judgment for Defendants and against Plaintiffs and order: