United States of America v. Impulse Media Group Inc

Filing 4

ANSWER to Complaint , Affirmative Defenses, and Prayer for Relief with JURY DEMAND by Impulse Media Group Inc.(Apgood, Robert)

United States of America v. Impulse Media Group Inc

Doc. 4

Case 2:05-cv-01285-RSL

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Filed 09/19/2005

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I. ANSWER v. IMPULSE MEDIA GROUP, INC., a Washington corporation Defendant. UNITED STATES OF AMERICA, Plaintiff,

HON. ROBERT S. LASNIK

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

No. CV05 1285 L ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, PRAYER FOR RELIEF, AND JURY DEMAND

COMES NOW Defendant IMPULSE MEDIA GROUP, INC. in the above-captioned cause of action and answers the Amended Complaint of Plaintiff by generally denying all of the allegations in the Complaint, except as may be specifically admitted or denied below, referring to paragraphs as numbered in Plaintiffs' Complaint: Answering Plaintiff's opening allegations, Defendant is without sufficient knowledge to either admit or deny that Plaintiff acted upon notification and authorization to the Attorney General by the Federal Trade Commission ("FTC") pursuant to Section 16(a)(1) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 56(a)(1), and therefore denies same and leaves Plaintiff to its proofs.

ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, PRAYER FOR RELIEF, AND JURY DEMAND - 1

2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

CARPELAW PLLC

Dockets.Justia.com

Case 2:05-cv-01285-RSL

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Filed 09/19/2005

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1.

Answering Paragraph 1, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. JURISDICTION AND VENUE 2. Answering Paragraph 2, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 3. Answering Paragraph 3, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. DEFENDANT 4. Answering Paragraph 4, Defendant admits that it is a Washington corporation, that

it resides in the Western District of Washington and transacts business within the District and throughout the United States. Defendant further admits that its registered agent is CarpeLaw PLLC, with a mailing address of 2400 NW 80th Street, #130, Seattle, Washington 98117. Regarding the remainder of the allegations contained therein, the allegations are conclusions of law to which no response is required. To the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. COMMERCE 5. Answering Paragraph 5, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant is without

ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, PRAYER FOR RELIEF, AND JURY DEMAND - 2

2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

CARPELAW PLLC

Case 2:05-cv-01285-RSL

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sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. DEFENDANT'S BUSINESS PRACTICES 6. Answering Paragraph 6, Defendant admits that since at least May 19, 2004, and

continuing to the present, it has owned and operated numerous commercial Web sites that license access to sexually oriented videos and pictures. Defendant admits that it maintains an affiliate program, as that term is used within the online adult entertainment industry, and that the program pays a commission to its members who have steered consumers to Defendant's sites where those consumers have subscribed for access to a site. Defendant admits that it provides free Web hosting and marketing and promotional tools to affiliate program members, as well as access to periodic sales statistics showing subscriptions by consumers for which the affiliate is entitled to a commission. Regarding the remainder of the allegations contained therein, the allegations are conclusions of law to which no response is required. To the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 7. Answering Paragraph 7, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant admits that its affiliate program provides a means whereby a particular member of that program may be identified by a unique identifier that is used for purposes of allocation of commissions where those commissions are due to an affiliate program member as a result of that affiliate program member referring consumers to one or more of Defendant's Web sites and where the consumers referred to Defendant's Web site subsequently subscribed for access to that Web site. Regarding the remainder of the allegations contained therein, to the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs.

ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, PRAYER FOR RELIEF, AND JURY DEMAND - 3

2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

CARPELAW PLLC

Case 2:05-cv-01285-RSL

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8.

Answering Paragraph 8, the averments contained therein are conclusions of law to

which no response is required. Defendant denies that it is an initiator, as that term is defined under the CAN-SPAM Act of 2003 (15 U.S.C. § 7701, et seq.), of commercial email with respect to the allegations of wrongdoing in Plaintiff's Complaint. Defendant denies that it is a sender, as that term is defined under the CAN-SPAM Act of 2003 (15 U.S.C. § 7701, et seq.), of commercial email with respect to the allegations of wrongdoing in Plaintiff's Complaint. Defendant denies that its affiliates are transmitting electronic mail messages on Defendant's behalf. Regarding the remainder of the allegations contained therein, to the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 9. Answering Paragraph 9, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant denies that the unilateral acts or omissions of third parties imposes any duty upon Defendant to act or fail to act. Defendant further denies that the unilateral acts or omissions of third parties imposes any criminal or civil liability upon Defendant. Regarding the remainder of the allegations, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 10. Answering Paragraph 10, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant denies that the unilateral acts or omissions of third parties imposes any duty upon Defendant to act or fail to act. Defendant further denies that the unilateral acts or omissions of third parties imposes any criminal or civil liability upon Defendant. Regarding the remainder of the allegations, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 11. Answering Paragraph 11, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant denies that

ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, PRAYER FOR RELIEF, AND JURY DEMAND - 4

2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

CARPELAW PLLC

Case 2:05-cv-01285-RSL

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the unilateral acts or omissions of third parties imposes any duty upon Defendant to act or fail to act. Defendant further denies that the unilateral acts or omissions of third parties imposes any criminal or civil liability upon Defendant. Regarding the remainder of the allegations, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 12. Answering Paragraph 12, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant denies that the unilateral acts or omissions of third parties imposes any duty upon Defendant to act or fail to act. Defendant further denies that the unilateral acts or omissions of third parties imposes any criminal or civil liability upon Defendant. Regarding the remainder of the allegations, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 13. Answering Paragraph 13, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant denies that the unilateral acts or omissions of third parties imposes any duty upon Defendant to act or fail to act. Defendant further denies that the unilateral acts or omissions of third parties imposes any criminal or civil liability upon Defendant. Regarding the remainder of the allegations, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 14. Answering Paragraph 14, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant denies that the unilateral acts or omissions of third parties imposes any duty upon Defendant to act or fail to act. Defendant further denies that the unilateral acts or omissions of third parties imposes any criminal or civil liability upon Defendant. Regarding the remainder of the allegations, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs.

ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, PRAYER FOR RELIEF, AND JURY DEMAND - 5

2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

CARPELAW PLLC

Case 2:05-cv-01285-RSL

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THE CAN-SPAM ACT Answering Paragraph 15, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 16. Answering Paragraph 16, the averments contained therein are conclusions of law to

which no response is required. Defendant admits that the quotation stated in the Complaint accurately recites portions of 15 U.S.C. § 7702(2)(A). Regarding the remainder of the allegations contained therein, to the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 17. Answering Paragraph 17, the averments contained therein are conclusions of law to

which no response is required. Defendant admits that the quotation stated in the Complaint accurately recites portions of 15 U.S.C. § 7702(9). Regarding the remainder of the allegations contained therein, to the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 18. Answering Paragraph 18, the averments contained therein are conclusions of law to

which no response is required. Defendant admits that the quotation stated in the Complaint accurately recites portions of 15 U.S.C. § 7702(12). Regarding the remainder of the allegations contained therein, to the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 19. Answering Paragraph 19, the averments contained therein are conclusions of law to

which no response is required. Defendant admits that 15 U.S.C. § 7702(13) defines "computer" by reference to 18 U.S.C § 1030(e)(2)(B). Defendant further admits that the quotation stated in the

ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, PRAYER FOR RELIEF, AND JURY DEMAND - 6

2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

CARPELAW PLLC

Case 2:05-cv-01285-RSL

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Complaint accurately recites portions of 18 U.S.C. § 1030(e)(2)(B). Regarding the remainder of the allegations contained therein, to the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 20. Answering Paragraph 20, the averments contained therein are conclusions of law to

which no response is required. Defendant admits that the quotation stated in the Complaint accurately recites portions of 15 U.S.C. § 7702(16). Regarding the remainder of the allegations contained therein, to the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 21. Answering Paragraph 21, the averments contained therein are conclusions of law to

which no response is required. Defendant admits that the quotation stated in the Complaint accurately recites portions of 15 U.S.C. § 7704(a)(3). Regarding the remainder of the allegations contained therein, to the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 22. Answering Paragraph 22, the averments contained therein are conclusions of law to

which no response is required. Defendant admits that the quotation stated in the Complaint accurately recites portions of 15 U.S.C. § 7702(a)(5)(A)(ii) and (iii). Regarding the remainder of the allegations contained therein, to the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 23. Answering Paragraph 23, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs.

ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, PRAYER FOR RELIEF, AND JURY DEMAND - 7

2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

CARPELAW PLLC

Case 2:05-cv-01285-RSL

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24.

Answering Paragraph 24, the averments contained therein are conclusions of law to

which no response is required. Defendant admits that the quotation stated in the Complaint accurately recites portions of 15 U.S.C. § 7704(d)(4). Regarding the remainder of the allegations contained therein, to the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 25. Answering Paragraph 25, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 26. Answering Paragraph 26, the averments contained therein are conclusions of law to

which no response is required. To the extent that a response is deemed required, Defendant admits that 16 CFR PART 316.4, as promulgated by the Federal Trade Commission, purports to require that the phrase "SEXUALLY-EXPLICIT: " be included in the subject heading of an electronic mail message that includes sexually oriented material. Defendant denies that all electronic mail messages containing sexually oriented material must contain the phrase "SEXUALLY-EXPLICIT: ". Defendant denies that 15 U.S.C. § 7704(d)(1)(B)(i) purports to require that the phrase "SEXUALLY-EXPLICIT: " be displayed in the "initially viewable content" of an electronic mail message. Defendant admits that 16 CFR PART 316.4(a)(2)(i), as promulgated by the Federal Trade Commission, purports to require that the phrase "SEXUALLY-EXPLICIT: " be displayed in the "initially viewable" area of an electronic mail message. Defendant denies that 15 U.S.C. § 7704(d)(1)(B)(ii) requires that clear and conspicuous identification that the message is an advertisement or solicitation be displayed in the "initially viewable content" of an electronic mail message. Defendant admits that 16 CFR PART 316.4(a)(2)(ii), as promulgated by the Federal Trade Commission, purports to require that the clear and conspicuous identification that the message is an advertisement or solicitation be displayed in the "initially viewable" area of an

ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, PRAYER FOR RELIEF, AND JURY DEMAND - 8

2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

CARPELAW PLLC

Case 2:05-cv-01285-RSL

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electronic mail message. Defendant denies that 15 U.S.C. § 7704(d)(1)(B)(ii) requires that clear and conspicuous notice of the opportunity of a recipient to decline to receive further commercial email messages from the sender be displayed in the "initially viewable content" of an electronic mail message. Defendant admits that 16 CFR PART 316.4(a)(2)(iii), as promulgated by the Federal Trade Commission, purports to require that the clear and conspicuous notice of the opportunity of a recipient to decline to receive further commercial email messages from the sender be displayed in the "initially viewable" area of an electronic mail message. Defendant denies that 16 CFR PART 316.4(a)(2)(iv), as promulgated by the Federal Trade Commission, purports to require an electronic mail message to contain "a functioning return email message or other Internetbased mechanism, clearly and conspicuously displayed, that a recipient may use to submit, in a manner specified in the message, a reply email message or other form of Internet-based communication requesting not to receive further commercial email messages from that sender at the email address where the message was received; and that remains capable of receiving such messages or communications for no less that 30 days after the transmission of the original message" as alleged in Plaintiff's Complaint. Regarding the remainder of the allegations contained therein, to the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 27. Answering Paragraph 27, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant admits that 15 U.S.C. § 7704(d)(2) removes any duty by Defendant to comply with 15 U.S.C. § 7704(d)(1) if Defendant has prior affirmative consent by recipient to receive commercial electronic mail messages from Defendant. Defendant further admits that 16 CFR PART 316.4(b), as promulgated by the Federal Trade Commission, removes any duty by Defendant to comply with 16 CFR PART 316.4(a) if Defendant has prior affirmative consent by recipient to receive commercial electronic mail messages from Defendant. Regarding the remainder of the allegations contained therein, to

ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, PRAYER FOR RELIEF, AND JURY DEMAND - 9

2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

CARPELAW PLLC

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the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. 28. Answering Paragraph 28, the averments contained therein are conclusions of law to

which no response is required. Defendant admits that the quotation stated in the Complaint accurately recites and paraphrases portions of 15 U.S.C. § 7706(a). Regarding the remainder of the allegations contained therein, to the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies same and leaves Plaintiff to its proofs. COUNT I 29. Answering Paragraph 29, Defendant repeats and restates his answers in

Paragraphs 1 through 28 as if set forth fully herein. 30. Answering Paragraph 30, the averments contained therein are conclusions of law

to which no response is required. To the extent a response is deemed required, Defendant denies the allegations contained therein for the reasons that the allegations made therein are untrue. 31. Answering Paragraph 31, the averments contained therein are conclusions of law

to which no response is required. To the extent a response is deemed required, Defendant denies the allegations contained therein for the reasons that the allegations made therein are untrue. COUNT II 32. Answering Paragraph 32, Defendant repeats and restates his answers in

Paragraphs 1 through 28 as if set forth fully herein. 33. Answering Paragraph 33, the averments contained therein are conclusions of law

to which no response is required. To the extent a response is deemed required, Defendant denies the allegations contained therein for the reasons that the allegations made therein are untrue.

ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, PRAYER FOR RELIEF, AND JURY DEMAND - 10

2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

CARPELAW PLLC

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34.

Answering Paragraph 34, the averments contained therein are conclusions of law

to which no response is required. To the extent a response is deemed required, Defendant denies the allegations contained therein for the reasons that the allegations made therein are untrue. COUNT III 35. Answering Paragraph 33, Defendant repeats and restates his answers in

Paragraphs 1 through 28 as if set forth fully herein. 36. Answering Paragraph 36, the averments contained therein are conclusions of law

to which no response is required. To the extent a response is deemed required, Defendant denies the allegations contained therein for the reasons that the allegations made therein are untrue. 37. Answering Paragraph 37, the averments contained therein are conclusions of law

to which no response is required. To the extent a response is deemed required, Defendant denies the allegations contained therein for the reasons that the allegations made therein are untrue. INDIVIDUAL AND BUSINESS INJURY 38. Answering Paragraph 38, the averments contained therein are conclusions of law

to which no response is required. To the extent a response is deemed required, Defendant denies the allegations contained therein for the reasons that the allegations made therein are untrue. THIS COURT'S POWER TO GRANT RELIEF 39. Answering Paragraph 39, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant neither admits nor denies the allegations contained therein for lack of sufficient knowledge or information and therefore denies same and leaves Plaintiff to its proofs. 40. Answering Paragraph 40, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant admits that this Court is authorized by 15 U.S.C. § 45(m)(1)(A) to award monetary civil penalties. Defendant denies that this Court is authorized to award monetary civil penalties of not more than $11,000 for each violation of CAN-SPAM as alleged in the Complaint. Regarding the remainder of

ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, PRAYER FOR RELIEF, AND JURY DEMAND - 11

2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

CARPELAW PLLC

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the allegations contained therein, Defendant denies the allegations contained therein for the reasons that the allegations made therein are untrue. 41. Answering Paragraph 41, the averments contained therein are conclusions of law to

which no response is required. To the extent a response is deemed required, Defendant admits that this Court is empowered to grant injunctive relief. Regarding the remainder of the allegations contained therein, Defendant denies the allegations contained therein for the reasons that the allegations made therein are untrue. II. AFFIRMATIVE DEFENSES As affirmative defenses, Defendant alleges and states as follows: 1. Plaintiff has failed in whole or in part to state a claim upon which relief can be granted; 2. Plaintiff has suffered no damages by Defendant and/or has failed to mitigate its damages, if any; 3. Plaintiff has suffered no injury by Defendant nor is there a likelihood of injury by Defendant; 4. Plaintiff has suffered no harm and/or irreparable harm by Defendant; 5. Plaintiff failed to protect and/or enforce its alleged rights; 6. Defendant denies being initiator of any email communications in violation of the CAN-SPAM Act of 2003; 7. Defendant denies being sender of any email communications in violation of the CAN-SPAM Act of 2003; 8. Defendant denies violating any provision of the Adult Labeling Rule as codified in 16 CFR Part 316.1, et seq.; 9. Plaintiff's Complaint is barred as unconscionable; 10. Plaintiff's Complaint is barred by reason of waiver, estoppel, laches, and Plaintiff's unclean hands;

ANSWER TO THE COMPLAINT, AFFIRMATIVE DEFENSES, PRAYER FOR RELIEF, AND JURY DEMAND - 12

2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

CARPELAW PLLC

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11. Plaintiff's Complaint is barred by the Statutes of Limitations; 12. Plaintiff has overreached its statutory authority in promulgating the regulations codified in 16 CFR Part 316; 13. Section 7704(d)(1) of Title 15 is unconstitutionally vague and therefore void; 14. Part 316.4(a)(2) of Title 16 of the Code of Federal Regulations is unconstitutionally vague and therefore void; 15. Defendant cannot be held liable for the unilateral acts or omissions of independent third parties; 16. Plaintiff's Complaint violates the Defendant's Due Process rights as guaranteed by the Fourteenth Amendment to the United States Constitution; 17. Defendant hereby reserves the right to add, supplement, modify, change or amend any and all of its Affirmative Defenses as the facts and circumstances become known through further discovery and/or investigation. III. PRAYER FOR RELIEF Having completely and fully provided his Answer to the Complaint, this Defendant therefore also denies Plaintiff's prayer for relief. WHEREFORE, Defendant prays for relief as follows: 1. The Complaint against Defendant be dismissed with prejudice; 2. The Defendant be awarded his reasonable attorney's fees and costs in accordance with 28 U.S.C. § 1927; and 3. That Defendant be awarded such other and further relief as the Court deems just and equitable. IV. DEMAND FOR JURY TRIAL Defendant hereby respectfully makes a demand for trial by a jury of his peers.

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2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

CARPELAW PLLC

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DATED this 19th day of September 2005. CARPELAW PLLC s/ Robert S. Apgood WSBA # 31023 CARPELAW PLLC 2400 NW 80th Street #130 Seattle, WA 98117-4449 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail]

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2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

CARPELAW PLLC

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DECLARATION OF SERVICE I, Robert S. Apgood, hereby make the following Declaration from personal knowledge that on September 19, 2005, I electronically filed the foregoing NOTICE OF APPEARANCE with the Clerk of the Court using the CM/ECF system. In accordance with their ECF registration agreement and the court's rules, the Clerk of the Court will send e-mail notification of such filing to the following attorneys: Brian C. Kipnis Asst. U.S. Attorney District of the Western District of Washington 700 Stewart Street Seattle, WA 98101-1271 Jeffrey I. Steger Office of Consumer Litigation U.S. Dept. of Justice P.O. Box 386 Washington, D.C. 20044 (Courtesy copy by electronic mail)

I herby declare under penalty of perjury under the laws of the United States of America and the State of Washington that the foregoing is true and correct. EXECUTED this 19th of September 2005 at Seattle, Washington. CARPELAW PLLC s/ Robert S. Apgood WSBA # 31023 CARPELAW PLLC 2400 NW 80th Street #130 Seattle, WA 98117-4449 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail]

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2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

CARPELAW PLLC