Case 0:11-cv-60947-PAS Document 10

Entered on FLSD Docket 07/07/2011 Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 11-cv-60947 IO GROUP, INC., Plaintiff, v. ANTONIO ALMEIDA, Defendant. ____________________________/ DEFENDANTS ANSWER, AFFIRMATIVE DEFENSES TO COMPLAINT AND DEMAND FOR JURY TRIAL Defendant, ANTONIO ALMEIDA (hereinafter, Plaintiff), by and through his undersigned counsel, hereby file his Answer and Affirmative Defenses to the Complaint (the Complaint) filed by Plaintiff, IO GROUP, INC., a California corporation (hereinafter, Plaintiff) and states: ANSWER 1. Defendant is without knowledge with respect to the allegations contained in

paragraph 1 of the Complaint and demands strict proof thereof. 2. With respect to the allegations contained in paragraph 2 of the Complaint,

Defendant admits that Plaintiff is attempting to state a cause of action, but deny any entitlement to relief. 3. Defendant is without knowledge with respect to the allegations contained in

paragraph 3 of the Complaint and demands strict proof thereof. 4. Defendant admits that he owns a property in Wilton Manors, Florida but

denies all other allegations set forth in paragraph 4 of the Complaint and demands strict proof thereof.

Case 0:11-cv-60947-PAS Document 10

Entered on FLSD Docket 07/07/2011 Page 2 of 4

5.

Defendant denies the allegations contained in paragraph 5 of the Complaint

and demands strict proof thereof. 6. Defendant is without knowledge with respect to the allegations contained in

paragraph 6 of the Complaint and demands strict proof thereof. 7. With respect to the allegations contained in paragraph 7 of the Complaint,

Defendant admits venue is proper in this action but denies that Plaintiff is entitled to any relief and demands strict proof thereof. 8. Defendant denies the allegations contained in paragraph 8 of the Complaint

and demands strict proof thereof. 9. Defendant is without knowledge with respect to the allegations contained in

paragraph 9 of the Complaint and demands strict proof thereof. 10. Defendant is without knowledge with respect to the allegations contained in

paragraph 10 of the Complaint and demands strict proof thereof. 11. Defendant is without knowledge with respect to the allegations contained in

paragraph 11 of the Complaint and demands strict proof thereof. 12. Defendant denies the allegations contained in paragraph 12 of the Complaint

and demands strict proof thereof. 13. Defendant is without knowledge with respect to the allegations contained in

paragraph 13 of the Complaint and demands strict proof thereof. 14. Defendant denies the allegations contained in paragraph 14 of the Complaint

as Defendant was out of the country in Romania from March 30, 2011 until April 3, 2011 and did not have access to his desktop computer or internet access through his Bell South internet account. When Defendant returned to his residence in Wilton Manors, Florida he noticed that Defendants desktop computer was comprised by viruses or other malware. On April 3, 2011, Defendant brought his computer to Best Buy in Fort Lauderdale, Florida and it was

Case 0:11-cv-60947-PAS Document 10

Entered on FLSD Docket 07/07/2011 Page 3 of 4

determined that Defendants computer was unrecoverable as a result of virus/malware infection. As such, Defendant demands strict proof thereof. 15. Defendant denies the allegations contained in paragraph 15 of the Complaint

and demands strict proof thereof. 16. Defendant denies all of the allegations/prayers contained in items (1) through

(6) in the Prayer for Relief and demands strict proof thereof. 17. All allegations not otherwise admitted or denied are hereby denied. AFFIRMATIVE DEFENSES 1. As and for a First Affirmative Defense, Defendant has the affirmative defense

of legal impossibility as Defendant did not exert ownership or control over the computer/IP Address alleged in the Complaint at any time during April 1, 2011 which is the time of the alleged copyright infringement. Defendant was out of the country in Romania from March 30, 2011 until April 3, 2011 and did not have access to his desktop computer or internet access through his Bell South internet account. When Defendant returned to his residence in Wilton Manors, Florida he noticed that Defendants desktop computer was comprised by viruses or other malware. On April 3, 2011, Defendant brought his computer to Best Buy in Fort Lauderdale, Florida and it was determined that Defendants computer was unrecoverable as a result of virus/malware infection. 2. As and for a Second Affirmative Defense, Plaintiff action should be barred

and/or dismissed as it has failed to join in the above styled action such necessary parties as Bell South (Defendants ISP provider) and/or the owners/developers of EDonkey2000 P2P network. 3. As and for a Third Affirmative Defense, Defendant has the benefit of the legal

defense of superseding or intervening cause as Defendant accessed the internet through a

Case 0:11-cv-60947-PAS Document 10

Entered on FLSD Docket 07/07/2011 Page 4 of 4

WIFI network that was unsecured. As such, an unrelated third party may have accessed the IP Address outlined in the Complaint and committed the alleged copyright infringement. 4. As and for a Fourth Affirmative Defense, any alleged act on the part of

Defendant was unintentional, inadvertent and without malice. 5. As and for a Fifth Affirmative Defense, Defendant may have accessed the

copyrighted material via a fair use. 6. As and for a Sixth Affirmative Defense, Plaintiff has failed to state a cause of

action on which relief may be granted. 7. Defendant reserves the rights to make any additional affirmative defenses

when such facts are revealed to Defendant during discovery. DEMAND FOR JURY TRIAL Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Defendant demands a trial by jury of all issues properly triable by a jury in this action. Dated: July 7, 2011 Respectfully submitted, THE WALLACE LAW GROUP, P.L. Attorneys for Defendant 1375 Gateway Boulevard Boynton Beach, Florida 33426 Telephone: 561-767-4413 Facsimile: 561-767-4414 By: /s/ Steven E. Wallace Florida Bar Number 585661