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

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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.

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 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
jonathan@jgarcialegal.com

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