ANSWER

ANSWER

The first responsive pleading filed by the defendant in a civil action; a formal written statement that admits or denies the allegations in the complaint and sets forth any available AFFIRMATIVE DEFENSES.

The answer gives the plaintiff notice of the
issues the defendant will raise as the case progresses
and enables the plaintiff to adequately
prepare a case. In most jurisdictions, the answer
must be filed within twenty days after receipt of
the summons and complaint, although local rules
and customs may dictate different filing times.
The answer begins with a caption, which
identifies the location of the action, the court, the
docket or file number (assigned by the court),
and the title of the case (comprising the names of
the parties, e.g., Smith v. Jones). Following the
caption, the main body of the answer sets forth
admissions or denials that respond to each allegation
made in the complaint. In federal court
and in jurisdictions that follow the Federal Rules
of Civil Procedure, denials must be unambiguous
and stated in concise language that clearly
identifies the allegations being denied (Fed. R.
Civ. P. 8(b)). For example, if the complaint
alleges that the defendant was driving an automobile
that struck the plaintiff on Addison Street
in Chicago on March 11, an answer stating that
the defendant was in Milwaukee on March 11 is
unclear and ambiguous because it avoids the
question of whether the defendant was also in
Chicago at a different time on the same day.
The answer may plead any form of denial
that is truthful and made in GOOD FAITH.
Although general denials that deny the truth of
every fact in the complaint or of every element
of a charge are sometimes used, they are not
considered a sufficient response. Courts discourage
general denials because they fail to
respond to specific allegations and do not give
the plaintiff sufficient basis to prepare a case. If
the defendant lacks the knowledge or information
needed to respond to the truth or falsity of
a charge, rule 8(b) and similar rules in other
jurisdictions allow the defendant to state such in
the answer. This has the effect of a denial (rule
8(b)). If the defendant fails to respond to an allegation
by either denying it or by stating he or she
does not have the information necessary to
admit or deny it, it is considered admitted under
rule 8(d).

Following the admissions and denials, the
answer outlines any affirmative defenses available
to the defendant. Affirmative defenses,
which are grounded in SUBSTANTIVE LAW, state
that an allegation may or may not be true, but
that even if it is true, the law provides a legal
defense that defeats the plaintiff ’s claim. The
defendant must determine if the law allows an
affirmative defense to a charge, and must allege
sufficient facts to support the defense. For example,
in a NEGLIGENCE action, the defendant
might respond to an allegation that a duty of
care was owed to the plaintiff by stating that,
even if the allegation is true, the plaintiff
assumed the risk of the activity that led to the
injury. The defendant must then state the facts
that support the defense. It is critical to the
defendant’s case that all applicable affirmative
defenses are asserted. In most jurisdictions,
affirmative defenses not raised in a timely manner
in the defendant’s responsive PLEADING are
deemed to have been waived.

The answer, like the complaint, ends with a
“wherefore” clause that summarizes the defendant’s
demands, such as demands for a jury trial
and judgment in the defendant’s favor. Only one
wherefore clause is generally needed, although
local practice may dictate that each denial and
each affirmative defense have its own wherefore
clause.

Counterclaims and cross-claims sometimes
appear in the answer.A counterclaim arises when
the defendant’s response includes a claim against
the plaintiff. A counterclaim may come from the
same circumstances as the plaintiff ’s claim or
from a different set of facts. A cross-claim may be
filed when one party to a suit charges another
party with responsibility for the plaintiff ’s
injuries or damages.Under Federal Rules of Civil
Procedure rule 13(g), a cross-claim must arise
out of “the transaction or occurrence that is the
subject matter either of the original action or of
a counterclaim therein or relating to any property
that is the subject matter of the original
action.” A cross-claim may also be filed separately
from the answer. Because counterclaims and cross-claims raise new issues and initiate a
separate CAUSE OF ACTION, they must meet the
procedural requirements of a complaint.

FURTHER READINGS
James, Fleming, Jr. 1965. Civil Procedure. Boston: Little,
Brown.
McCord, James W.H. “Drafting the Complaint: Defending
and Testing the Lawsuit.” Practicing Law Institute
447:399.
Witus, Morley. “What Is the Answer? New Guidelines on
How to Draft the Answer and Affirmative Defenses.”
Michigan Bar Journal 73:1076.
CROSS-REFERENCES
Civil Procedure.

Answer and Counterclaim

United States District Court
Southern District of Texas
Corpus Christi Division

DirecTV, Inc.
vs.
John Bettiga, et al.

No. C-02-507
[Jury Requested]

Answer and Counterclaim

TO THE HONORABLE COURT:
John Bettiga (“Bettiga”) respectfully files this Answer and Counterclaim.

Admissions and Denials

Preliminary Statement
1. Paragraph 1. Denied.
• Bettiga purchased standard electronic components useful for a wide variety of lawful purposes. The components are not illegal. The components are not designed to intercept and decrypt protected satellite communications.
• Bettiga never used any illegal device for any illegal purpose.
• Bettiga never possessed any illegal device.
• Bettiga never viewed Satellite TV for free.
• Bettiga never distributed any illegal device.
DirecTV’s Business Operations
2. Paragraph 2. Admit
3. Paragraph 3. Admit all except final sentence which is denied.
• The primary basis of this dispute is DirecTV is on a fishing expedition harassing the purchasers of standard electronic components based on a mere possibility that the standard electronic components were used for an unlawful purpose.
4. Paragraph 4. Admit.
5. Paragraph 5. Admit.
6. Paragraph 6. Denied except Betigga is a resident of Texas.
• Betigga never purchased or used any illegal pirate device. He purchased standard electronic components useful for a wide variety of lawful purposes.
• Bettiga never purchased or used any device designed to permit viewing of DirecTV’s programming without authorization or payment to DirecTV.
DirecTV Obtained Evidence
7. Paragraphs 7-10. Bettiga does not have sufficient information to form a belief as to the truth of most of these paragraphs.
However, Bettiga denies that DirecTV obtained evidence that he purchase an unlawful pirate device. At most, it obtained evidence of his purchase of lawful standard electronic components usable for a wide variety of lawful purposes. Further, Bettiga never
possessed or used any pirate device. Further, he never manufactured, assembled, or used any pirate device. He merely purchased standard electronic components. He merely tinkered and experimented with these components. His tinkering did not result in a device capable of decrypting anything. It was capable only of converting a signal from one form to another.
DirecTV Obtained Records
8. Paragraph 11. Denied. Bettiga did not violate any federal or state statute or common law. He merely purchased standard electronic components. Bettiga never manufactured or assembled or obtained or possessed or purchased any unlawful pirate device. His tinkering did not result in a device capable of decrypting anything. It was capable only of converting a signal from one form to another. The device could not accomplish and was not designed to accomplish decryption of DirecTV’s signal without additional components and decryption software or device.
Jurisdiction, Venue, and Parties
9. Paragraphs 12-16. Denied except subject matter jurisdiction, personal jurisdiction, and venue are all admitted. Bettiga never violated any right of DirecTV anywhere.
10. Paragraph 17. Admit except Bettiga does not have sufficient information to admit or deny the State of Incorporation of DirecTV.
11. Paragraph 18.
• Admit that Bettiga resides in Corpus Christi, Texas.
• Denied that Bettiga purchased any Pirate Access Device. He purchased standard electronic components useful for a wide
variety of lawful purposes.
• Bettiga did not purchase anything designed specifically to permit the surreptitious interception of DirecTV Satellite
Programming.
• Bettiga purchased capacitors, transisters, and an RS-232 Transceiver. These are all electronic components with completely
lawful uses. These components are not sufficient without more to create any Pirate Access or Decryption Device.
12. Paragraphs 19-21. Bettiga does not have sufficient information to admit or deny any of the allegations relative to the other
Defendants.
13. Paragraphs 22-24. Denied. Bettiga did not import any illegal device. He merely purchased standard electronic components useful
for a wide variety of lawful purposes. Bettiga never viewed DirecTV programming without authorization or without payment.
Bettiga was never capable of viewing DirecTV programming without authorization or without payment.
14. Paragraph 25. Denied. Bettiga never engaged in an enterprise to distribute or resell illegal pirate devices whether for profit or not.
He never even possessed such a device. His tinkering and experimentation did not result in a device capable of decrypting
anything. It was capable only of converting a signal from one form to another.
Discovery
15. Paragraph 26. Denied. DirecTV never discovered Bettiga’s involvement in pirating Satellite Programming because he is and
never was involved in that. He merely purchased completely lawful standard electronic components and engaged in some
tinkering and experimentation. His tinkering and experimentation did not result in a device capable of decrypting anything. It was
capable only of converting a signal from one form to another.
47 U.S.C. 605(e)(3)(C)
16. Paragraphs 27-28. Denied
• Bettiga did not effect unauthorized interception and receipt of Satellite Programming through the use of an illegal Satellite
decoding device or otherwise.
17. Paragraph 29. Denied.
• Bettiga did not violate federal law.
• Bettiga did not intercept, receive, or exhibit DirecTV without authorization.
• Bettiga did not publish or divulge the existence, substance, etc. of the contents of DirecTV programming without authorization.
• Bettiga did not use DirecTV programming for his own benefit or the benefit of others without authorization.
18. Paragraphs 30-32. Denied.
19. In general, Bettiga did not intercept or receive DirecTV’s programming without authorization. He did not assemble a device
primarily of assistance in unauthroized decryption of satellite programming. Thus, he did not violate 47 U.S.C. 605.
20. Bettiga did engage in experimentation and tinkering. The device he constructed was not capable of unauthorized decryption of
satellite programming at all. It was merely capable of converting a signal into a different form (not decrypting the signal).
18 U.S.C. 2511
22. Paragraphs 33-36. Denied. Bettiga did not intercept, endeavor to intercept, or procure or otherwise to intercept electronic
communications. He did not disclose or endeavor to disclose to others the contents of intercepted electronic communications.
He did not use or endeavor to use intercepted communications. Further, the statute does not apply in some respects as DirecTV
asserts because the statute in some respects is limited to “oral” communications.
18 U.S.C. 2512
23. Paragraphs 37-40. Denied. Bettiga did not assemble or possess any device primarily useful for surreptitous interception of
DirecTV’s programming. Bettiga did not assemble a device capable of doing that. The device was not capable of decrypting the
DirecTV signal. It was merely a device built from standard components capable of transforming the signal from one form to
another (not decrypting it). The device was never sent through the mail and never was going to be sent through the mail. It was
not received by mail (standard electronic components were).
47 U.S.C. 605(e)(4)
24. Paragraphs 41-44. Denied. The device constructed by Bettiga was not capable of decrypting anything. It merely transformed a
signal from one form to another (not decrypted it). Bettiga did not program or reprogram access cards. There is not even a place
to put a card. The device was not capable of unlawful interception or receiving of DirecTV’s signal. It was capable only of
transforming a signal from one electronic form to another (not decrypting it).
Conversion
25. Paragraphs 45-48. Denied. Bettiga never viewed DirecTV programming without authorization. He did not convert anything.
Tex. Civ. P. Rem. Code 123.001, et seq.
26. Paragraphs 49-51. Denied. Bettiga did not intercept or attempt to intercept DirecTV’s programming. He did not divulge
intercepted programming.
Injunction
27. Paragraphs 53-56. Denied. There has been no illegal conduct to restrain. There is no showing of imminent irreparable injury or
even any probability at all of illegal conduct to restrain.
Counterclaim
Factual Background
28. Bettiga has on more than one occasion been working on his computer when an advertisement for DirecTV appeared or “popped
up” on his screen without his consent or request. In fact, this DirecTV advertisement “popped up” on the screen of his attorney’s
computer while working on this answer and counterclaim. This consumes computer resources and more importantly the time
of the computer user to delete the unauthorized “pop up.” No consent was ever given to these pop-up advertisements whether
express or implicit.
29. This amounts to an unauthorized “trespass” on the computer. See America Online vs. IMS, 46 F.Supp. 444 (E.D. Va. October 29,
1998) (Court awards AOL summary judgment against a spammer finding that the sending of unauthroized junk e-mail to AOL
subscribers constituted an actionable trespass to AOL’s computer network); CompuServe Incorporated v. Cyber Promotions, Inc.
and Sanford Wallace, Case No. C2-96-1070 (S.D. Ohio, Feb. 3, 1997) (Graham, J.) (Court issued preliminary injunction enjoining
the defendants from sending unsolicited advertisements via E-mail to any CompuServe subscribers. The court held that by
sending junk e-mail, defendants had committed the tort of trespass on personal property by utilizing without permission the
computer system which supports CompuServe’s e-mail facilities).
30. On information and belief, DirecTV commits this trespass through a third-party service provider not directly. However, DirecTV
knows what its agent is doing and thus is responsible for the spam by its agent. Bettiga is entitled to actual and exemplary
damages.
31. Further, DirecTV violated 18 U.S.C. 1030. Bettiga’s computer is a “protected” computer in that it is used in interstate commerce
and communication. 18 U.S.C. 1030)(e)(2)(B). DirecTV knowingly and with intent to defraud accessed this protected computer
without authorization or exceeded authorized access and by means of such access defrauded him by appropriating his time and
attention without authorization and use of his computer resources (not only this).
32. As a result, Bettiga has suffered loss. DirecTV intentionally accessed a protected computer without authorization and as a result
recklessly caused damage. 18 U.S.C. 1030(a)(5)(ii). Bettiga has a private right of action. 18 U.S.C. 1030(g) for damages and
“loss.” Further, he has an action for injunctive and other equitable relief. Each pop-up causes distraction of work in process and
attention. Bettiga is entitled to recover his attorneys’ fees.
33. Even computer users who have successfully installed an effective “popup killer” program are damaged by illegal popups, because
they have generally spent money for the “popup killer” program and have always expended time and effect directly or indirectly to
find and install the “popup killer” program. Further, the “popup killer” program consumes computer resources.
34. Further, on information and belief, all prerequisites to a class action exist. The Court should promptly after appropriate discovery certify both a Plaintiff class and a Defendant Class. The Plaintiff class consists of all users of “protected” computers anywhere who have been victimized by an unauthorized “popup advertisement” within the last 2 years and the Defendant Class consists of all Corporations and other business entities who have either directly or indirectly caused “popup” advertisements to appear on
“protected” computers. The Court should award appropriate relief to all Plaintiff Class Members against all Defendant Class Members. The Court should allow appropriate discovery on the identities of all Defendant Class Members and Plaintiff Class Members. It should award appropriate compensation to the class attorney.

Conditions Precedent
35. All conditions precedent have been performed or have occurred.
Conclusions
36. The Court should deny DirecTV damages. The Court should certify a class. The Court should grant actual and exemplary damages
for trespass and for violation of 18 U.S.C. 1030.
Respectfully submitted,
_______________________________________________
David A. Sibley
Attorney at Law
P.O. Box 9610
719 N. Upper Broadway (78401)
Corpus Christi, Texas 78469-9610
(361) 882-2377 – Telephone
(877) 582-7477 – Telecopier
david@davidsibley.com – E-mail
davidsibley.law – Home Page
State Bar No. 18337600
Federal I.D. 10053
Attorney-in-charge for Bettiga
Certificate of Service
On Sunday, January 5, 2002, I served this as follows:
Via Telecopier
Joe C. Fulcher
Attorney At Law
______________________________________________
David A. Sibley