Case 0:12-cv-61677-MGC Document 17 Entered on FLSD Docket 10/16/2012 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CASE NO.: 12-CV-61677 NICOLE MORELAND, individually and on Behalf of all others similarly situated, Plaintiff, v. ACQUINITY INTERACTIVE, LLC, a Delaware limited liability company, and MODERNAD MEDIA, LLC, a Florida limited liability company, Defendants. / DEFENDANTS, ACQUINITY INTERACTIVE, LLC AND MODERNAD MEDIA, LLCs ANSWER AND AFFIRMATIVE DEFENSES TO CLASS ACTION COMPLAINT FOR DAMAGES COMES NOW Defendants, ACQUINITY INTERACTIVE, LLC, a Delaware limited liability company, and MODERNAD MEDIA, LLC, a Florida limited liability company (hereinafter Defendants), by and through their undersigned counsel and in accordance with Local Rules 2.02 of the United States District Court for the Southern District of Florida, hereby files their Answer and Affirmative Defenses to Plaintiffs Complaint for Damages and demands a trial by jury, and in response, hereby states as follows: ANSWER 1. Defendants deny the allegations contained in Paragraph 1 and hereby demands

strict proof thereof. 2. Defendants deny the allegations contained in Paragraph 2 and hereby demands

strict proof thereof. 3. Defendants deny the allegations contained in Paragraph 3 and hereby demands

strict proof thereof.

-1LYDECKER DIAZ
1221 Brickell Avenue 19th Floor Miami Florida 33131 (305) 416-3180

Case 0:12-cv-61677-MGC Document 17 Entered on FLSD Docket 10/16/2012 Page 2 of 7

4.

Defendants deny the allegations contained in Paragraph 4 and hereby demands

strict proof thereof. 5. The Defendants deny the allegations contained in Paragraph 5 as to unlawful

conduct, and admit as to the relief Plaintiff seeks, but deny the paragraph as to entitlement for relief sought. 6. Defendants admit the allegations contained in Paragraph 6 for jurisdictional

purposes only; denied for any other purpose. 7. Defendants admit the allegations contained in Paragraph 7 for jurisdictional

purposes only; denied for any other purpose. 8. Defendants deny the allegations contained in Paragraph 8 and hereby demands

strict proof thereof. 9. Defendants admit the allegations contained in Paragraph 9 for jurisdictional

purposes only; denied for any other purpose. 10. Defendants admit the allegations contained in Paragraph 10 for jurisdictional

purposes only; denied for any other purpose. 11. Defendants are without knowledge as to the allegations contained in Paragraph 11

and hereby demand strict proof thereof. 12. Defendants are without knowledge as to the allegations contained in Paragraph

12 and hereby demand strict proof thereof. 13. Defendants deny the allegations contained in Paragraph 13 and hereby demands

strict proof thereof. 14. Defendants are without knowledge as to the allegations contained in Paragraph

14 and hereby demand strict proof thereof.

-2LYDECKER DIAZ
1221 Brickell Avenue 19th Floor Miami Florida 33131 (305) 416-3180

Case 0:12-cv-61677-MGC Document 17 Entered on FLSD Docket 10/16/2012 Page 3 of 7

15.

As to the Plaintiff, Defendants are without knowledge as to the allegations

contained in Paragraph 15 and hereby demand strict proof thereof. 16. Defendants deny the allegations contained in Paragraph 16. As to footnote 1

referenced in this paragraph, this allegation is neither relevant nor admissible and as such should be stricken from the Complaint. As to the footnote 2, the webpage is being misconstrued and speaks for itself. 17. Defendants deny the allegations contained in Paragraph 17 and hereby demands

strict proof thereof. 18. Defendants deny the allegations contained in Paragraph 18 and hereby demands

strict proof thereof. 19. Defendants deny the allegations contained in Paragraph 19 and hereby demands

strict proof thereof. 20. Defendants deny the allegations contained in Paragraph 20 and hereby demands

strict proof thereof. 21. Defendants deny the allegations contained in Paragraph 21 and hereby demands

strict proof thereof. 22. Defendants deny the allegations contained in Paragraph 22 and hereby demands

strict proof thereof. 23. Defendants deny the allegations contained in Paragraph 23 and hereby demands

strict proof thereof. 24. Defendants deny the allegations contained in Paragraph 24, and hereby demands

strict proof thereof. 25. Defendants deny the allegations contained in Paragraph 25, and hereby demands

-3LYDECKER DIAZ
1221 Brickell Avenue 19th Floor Miami Florida 33131 (305) 416-3180

Case 0:12-cv-61677-MGC Document 17 Entered on FLSD Docket 10/16/2012 Page 4 of 7

strict proof thereof. 26. Defendants deny the allegations contained in Paragraph 26, and hereby demands

strict proof thereof. 27. Defendants deny the allegations contained in Paragraph 27, and hereby demands

strict proof thereof. 28. Defendants deny the allegations contained in Paragraph 28, and hereby demands

strict proof thereof. 29. Defendants deny the allegations contained in Paragraph 29, and hereby demands

strict proof thereof. 30. Defendants deny the allegations contained in Paragraph 30, and hereby demands

strict proof thereof. 31. Defendants deny the allegations contained in Paragraph 31, and hereby demands

strict proof thereof. 32. Defendants admit that the Plaintiff is seeking Relief under Federal Rule of Civil

Procedure 23 (b)(2) and 23(b)(3); denied that Plaintiff is entitled to the relief sought. 33. Defendants deny the allegations contained in Paragraph 33, and hereby demands

strict proof thereof. 34. Defendants deny the allegations contained in Paragraph 34, and hereby demands

strict proof thereof. 35. Defendants deny the allegations contained in Paragraph 35, and hereby demands

strict proof thereof. 36. Defendants deny the allegations contained in Paragraph 36, including all

subparagraphs (a) through (d) and hereby demands strict proof thereof.

-4LYDECKER DIAZ
1221 Brickell Avenue 19th Floor Miami Florida 33131 (305) 416-3180

Case 0:12-cv-61677-MGC Document 17 Entered on FLSD Docket 10/16/2012 Page 5 of 7

37.

Defendants deny the allegations contained in Paragraph 37, and hereby demands

strict proof thereof. COUNT I 38. Defendants incorporate by reference its Answer to Paragraphs 1-37 including all

subparagraphs as is fully alleged herein. 39. Defendants deny the allegations contained in Paragraph 39, and hereby demands

strict proof thereof. 40. Defendants deny the allegations contained in Paragraph 40, and hereby demands

strict proof thereof. 41. Defendants deny the allegations contained in Paragraph 41, and hereby demands

strict proof thereof. 42. Defendants deny the allegations contained in Paragraph 42, and hereby demands

strict proof thereof. 43. Defendants deny the allegations contained in Paragraph 43, and hereby demands

strict proof thereof. 44. Defendants deny the allegations contained in Paragraph 44, and hereby demands

strict proof thereof. Each and every allegation in Plaintiffs complaint which is not admitted, denied or otherwise controverted above is hereby denied. WHEREFORE, Defendants, ACQUINITY INTERACTIVE, LLC, a Delaware limited liability company, and MODERNAD MEDIA, LLC, a Florida limited liability company, hereby respectfully request Judgment in their favor and denial of all relief sought by the Plaintiff, along with all other relief deemed just and proper.

-5LYDECKER DIAZ
1221 Brickell Avenue 19th Floor Miami Florida 33131 (305) 416-3180

Case 0:12-cv-61677-MGC Document 17 Entered on FLSD Docket 10/16/2012 Page 6 of 7

AFFIRMATIVE DEFENSES 45. As its first affirmative defense, Defendants state that Plaintiffs claims are barred

to the extent Plaintiff waived any claims regarding the conduct surrounding the occurrences alleged in the complaint. 46. As its second affirmative defense, Defendants state that Plaintiffs TCPA claim is

barred in whole or in part because no privacy rights were affected. 47. As its third affirmative defense, Defendants state that Plaintiffs TCPA claim is

barred in whole or in part because Plaintiff opted-in to receiving the text, had a prior business relationship, and/or otherwise consented to receiving the text message. 48. As its fourth affirmative defense, Defendants state that any alleged texts made to

Plaintiff did not constitute unsolicited advertising. 49. As its fifth affirmative defense, Defendants state that the alleged texts were made

by others beyond Defendants control and that Defendants have no vicarious responsibility for the actions alleged in the complaint. 50. As its sixth affirmative defense, Defendants state that Plaintiff was not charged

for the text and Plaintiff has not been damaged. 50. As its seventh affirmative defense, Defendants state that the requested class

certification is improper in this matter as the requisite typicality, predominance, adequate representation, and commonality are not present. 51. As its eighth affirmative defense, Defendants state that class certification is

improper as it would deprive Defendants of due process. 52. Defendants reserve the right to raise additional Affirmative Defenses, or file any

applicable pleadings, as discovery may reveal necessary or appropriate.

-6LYDECKER DIAZ
1221 Brickell Avenue 19th Floor Miami Florida 33131 (305) 416-3180

Case 0:12-cv-61677-MGC Document 17 Entered on FLSD Docket 10/16/2012 Page 7 of 7

DEMAND FOR JURY TRIAL Defendants demand trial by jury on all matters so triable as a matter of right.

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail, facsimile, and electronic mail on this 16th day of October, 2012 to: Stefan Coleman, Esq., Law Office of Stefan Coleman, PLLC, One of the Counsels for Plaintiff, 1072 Madison Avenue, Suite 1, Lakewood, NJ 08701; Jay Edelson, Rafey S. Balbanian, and Christopher L. Dore, Esq., Edelson McGuire LLC, 350 North LaSalle Street, Suite 1300, Chicago, IL 60604. LYDECKER DIAZ, LLC. 1221 Brickell Avenue, 19th Floor Miami, Florida 33131 Counsel for Defendant Telephone No.: (305) 416-3180 Facsimile No.: (305) 416-3190

BY:

/s/ Eric McAliley, Esq. ERIC L. MCALILEY, ESQ. Florida Bar No.: 174343 ONIER LLOPIZ, ESQ. Florida Bar No.: 579475

-7LYDECKER DIAZ
1221 Brickell Avenue 19th Floor Miami Florida 33131 (305) 416-3180