Inspar's Answer to Planet's counterclaims.
Note: The court documents are scanned PDF files and so this is the text from an OCR recreation. I noted that process created a few typos that are not in the original doc.
Case 4:10-cv-05086 Document 12 Filed in TXSD on 02/10/11
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OE TEXAS
HOUSTON DIVISION
KENT WEISENBERG AND
INSPAR EIELD SERVICES, LLC
Plaintiffs
vs.
PLANET RESOURCE RECOVERY,
INC., KURT NEUBAUER
Defendants
CIVIL ACTION NO. 4:l0-cv-05086
PLAINTIFFS' ANSWER TO COUNTERCLAIMS
Conditional Upon Plaintiffs' Motion to Dismiss Counterclaims
TO THE HONORABLE UNITED STATES DISTRICT COURT:
COMES NOW, Plaintiffs Kent Weisenberg and Inspar Field Services, LLC and file this
Answer to the Counterclaims filed by the Defendants, Planet Resources Recovery, Inc. ("Planet")
and Kurt Neubauer ("Neubauer") and would respectfully show as follows:
1. Plaintiffs deny that they engaged in any fraud against the Defendants or that Defendants
suffered any injury as alleged in Paragraph 53 (a) - (f) of the Original Counterclaim.
1.1. Specifically, as pertains to Exhibit "A" to Defendant's Counterclaim, the document
attached as an Exhibit is not a complete document and is specifically designed to mislead.
Projections, by definition, axe hypothetical scenarios or an estimate of future possibilities
based upon current trends. Plaintiff contends that the projections that were made in Exhibit
"A" were in no way false. In fact, many of the projects outlined within the Exhibit did not
come to fruition as a result of Planet's fraud and breaches. For example, with regard to the
Dynergy and Xcel Energy transactions (projects) IRT could not complete this project
because Planet never had, nor ever procured, the proper liability insurance and/or worker's
compensation insurance which is required by companies in order to do work at their
facilities. Yet another example, with regard to technology and licensing fees. Planet would
not fund the building of the robotic equipment to facilitate sales and, the entities would not
sign licensing agreements without the ability to obtain equipment to facilitate the completion
of these projects. In essence, it was the fraudulent representations and breaches by Planet
that negatively impacted the business of IRT and impacted the "projections". To argue that
IRT was unable to meet projections after Planet breached its obligations; failed to pay
employees salaries and failed to act in accordance with industry standards is a disingenuous
position that lacks any legal merit.
2. Plaintiffs deny that they engaged in any fraud in the inducement or that Defendants suffered
any injury as alleged by the- Defendants in Paragraph 54 (a) — (d) of the Original
Counterclaim.
3. Plaintiffs deny that they owed any frduciaxy duty to the Defendants as alleged in Paragraph
55 (a) - (c) of the Original Complaint. Plaintiffs deny that the breached any duty owed to the
Defendants, or that Defendants suffered any injury as alleged in Paragraph 55 of the Original
Complaint.
3.1.Specifically, it is imperative to note that the Defendants are the ones that authorized and
approved every transaction and expenditure of IRT. It is the Defendants that controlled and
maintained the books of IRT (and still do) and at no time was Plaintiff permitted to keep the
accounting. Everything was submitted to Planet for their review and approval.
3.2.With regard to the truck allegations. Plaintiff vehemently denies these charges. The
transactions with Carl Frisch were negotiated by the Defendant Neubauer along with Bill
Young and Tim Williams. Weisenberg introduced them to Mr. Frisch at which point the
foregoing persons inspected the truck and gave IRT the authorization to have Planet pay for
the truck. Planet's office sent the check for $5,500, as negotiated, to Mr. Frisch and title was
provided to Weisenberg and forwarded to Planet's office.
3.3. Planet also fails to paint the complete picture v^th regard to transactions involving Karl
Frisch. Planet authorized the rental of a building where Mr. Frisch was the landlord. Planet,
consistent with their failure to meet their financial obligations, became more than three
months in arrears on the lease. Additionally, Planet failed to properly register IRT in Florida
as required under Florida law. Consequently, a lawsuit was filed against Weisenberg,
individually as a result of Planet's default and Planet's failure to register IRT to do business
in the state of Florida as legally required. Since Weisenberg signed the lease for IRT, and
since Planet wrongfiiUy failed to register IRT in the State of Florida, Weisenberg was sued in
his individual capacity for a Planet debt. This has culminated in litigation against Weisenberg
in the state of Florida (since Weisenberg signed the Lease on behalf of IRT). Weisenberg
has been forced to expend resources and faces individual exposxH'e as a result of Planet's
failures and breaches.
3.4. By way of affirmative defense, the Plaintiffs allege ratification and waiver.
3.5. By way of affirmative defense, the Plaintiffs allege justification and privilege.
3.6. By way of affirmative defense, the Plaintiffs allege fi:aud by Defendants.
4. Plaintiffs deny that they published any disparaging words to third parties as alleged in
Paragraph 56 (a) - (g) of the Original Counterclaim. Plaintiffs deny that the Defendants
suffered any injury as alleged.
4.1. Plaintiffs, by way of affirmative defense, plead that the damages of which the
Defendants-claim were caused in whole or part by the actions of the Defendants.
4.2. Plaintiffs, by way of affirmative defense, plead justification, truth, and privilege.
4.3. Plaintiffs, by way of affirmative defense, plead that the Defendants are "libel-proof in
that they have no reputation to lose.
5. Plaintiffs deny that the Defendants are entitled to any of the relief that they seek tlirough their
counterclaims, as identified in Paragraphs 58 and 59 (a) — (f) of the Original Counterclaim.
6. Plaintiffs deny that the Defendants have the right to amend their pleading (unless allowed by
rule, agreement, or court order) as alleged in Paragraph 60 of the Original Counterclaim.
7. In conjunction with Plaintiffs denials under Paragraph 56 of the Defendant's Counterclaim,
Plaintiff further asserts the affirmative defense of unclean hands. Specifically, many of the
bogus allegations contained in this Counterclaim were purposefully alleged so that Planet
could post these public documents on the internet and in the public domain. Plaintiffs
contend that Planet posted these pleadings on the internet, sent them in email blasts to
shareholders, and into the public record so they can be used like press releases in a manner
consistent with their past practices of posting information in order to manipulate their stock
value. Plaintiffs contend that the Defendants have purposefully authored these documents
with false, misleading and inaccurate information solely to discredit the Plaintiffs in the
public domain through the internet. In essence. Defendants use self serving publicly filed
pleadings as a form of a press release. Plaintiff contends that this tact is undertaken solely in
an attempt to discredit the Plaintiff and somehow provide false confidences to shareholders.
8. Wherefore, the Plaintiffs pray that upon final hearing of these matters, the Court dismiss the
counterclaims and enter a take nothing judgment against the Defendants for any relief sought
through these counterclaims.
Respectfully Submitted,
By: /s/Tanya N. Garrison
ANDREW M. CAPLAN
State Bar No. 03776700
TANYA N. GARRISON
State Bar No. 24027180
Weycer, Kaplan, Pulaski & Zuber, P.C.
11 Greenway Plaza, Suite 1400
Houston, Texas 77046
Telephone: (713) 961-9045
Facsimile: (713) 961-5341
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing instrument
has been served through electronic transmission through the USDC ECP, on February 10, 2011.
A copy of this pleading was also forwarded to the following via certified mail:
Mr. Michael Minns
The Minns Law Firm
9119 S. Gessner Suite One
Houston, Texas IIQIA
