Free Answer to Complaint - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action Nos. 03-CV-0607-JLK and 05-CV-1295-JLK (consolidated) DOMINION VIDEO SATELLITE, INC., Plaintiff, v. ECHOSTAR SATELLITE L.L.C., Defendant. ______________________________________________________________________________ DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT; CASE NO. 05-CV-1295 ______________________________________________________________________________ Defendant EchoStar Satellite L.L.C. ("EchoStar"), by and through counsel, hereby files this Answer to the Complaint filed by Plaintiff Dominion Video Satellite, Inc. ("Dominion"), in the consolidated action; Case No. 05-CV-1295. Previously, EchoStar filed an Answering Statement and Counter Demand for Arbitration with the American Arbitration Association in response to Dominion's July 12, 2005 Demand for Arbitration. Unless specifically admitted, EchoStar denies each and all material allegations contained in Plaintiff's Complaint. INTRODUCTION 1. EchoStar avers that paragraph 1 of Plaintiff's Complaint asserts a conclusion of law

to which not response is necessary; however, to the extent an answer is required, EchoStar admits only that Dominion previously sought injunctive relief while it initiated an arbitration proceeding against EchoStar. As evidenced by the Court's July 20, 2005 Order approving the parties' Stipulated Settlement and Voluntary Dismissal of Motion for Preliminary Injunction, this issue is moot.

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Except as so admitted, EchoStar denies the material allegations contained in paragraph 1 of Plaintiff's Complaint. JURISDICTION AND VENUE 2. EchoStar avers that paragraph 2 of Plaintiff's Complaint asserts a conclusion of law

to which not response is necessary; however, to the extent an answer is required, EchoStar responds that it is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 2 of Plaintiff's Complaint and therefore denies the allegations therein. 3. EchoStar avers that paragraph 3 of Plaintiff's Complaint asserts a conclusion of law

to which not response is necessary; however, to the extent an answer is required, EchoStar admits only that it is an entity incorporated pursuant to the laws of the State of Colorado. Except as so admitted, EchoStar denies the material allegations contained in paragraph 3 of Plaintiff's Complaint. PARTIES 4. 5. Admit. EchoStar admits only that it is a duly organized limited liability corporation pursuant

to the laws of the State of Colorado, with its principal place of business at 9601 Meridian Boulevard, Englewood, Colorado. Except as so admitted, EchoStar denies the material allegations contained in paragraph 5 of Plaintiff's Complaint FACTUAL BACKGROUND A. Dominion's Agreement with EchoStar. 6. Upon information and belief, EchoStar admits the allegations contained in paragraph

6 of Plaintiff's Complaint.

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7.

Upon information and belief, EchoStar admits the allegations contained in paragraph

7 of Plaintiff's Complaint. 8. 9. 10. 11. Admit. Admit. Admit. EchoStar admits only that the terms of the Agreement, and amendments thereto,

speak for themselves. Except as so admitted, EchoStar denies the material allegations contained in paragraph 11 of Plaintiff's Complaint. 12. EchoStar admits only that the terms of the Agreement, and the amendments thereto,

speak for themselves. Except as so admitted, EchoStar denies the material allegations contained in paragraph 12 of Plaintiff's Complaint. 13. EchoStar admits only that the EchoStar III satellite is positioned at the 61.5 degree

orbital slot. Except as so admitted, EchoStar denies the material allegations contained in paragraph 13 of Plaintiff's Complaint. 14. EchoStar admits only that the terms of the Agreement, and the amendments thereto,

speak for themselves. Except as so admitted, EchoStar denies the material allegations contained in paragraph 14 of Plaintiff's Complaint. 15. EchoStar admits only that the terms of the Agreement, and the amendments thereto,

speak for themselves. Except as so admitted, EchoStar denies the material allegations contained in paragraph 15 of Plaintiff's Complaint.

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B.

The Exclusivity Provision 16. EchoStar admits only that the terms of the Agreement, and the amendments thereto,

speak for themselves. Except as so admitted, EchoStar denies the material allegations contained in paragraph 16 of Plaintiff's Complaint. 17. EchoStar admits only that the terms of the Agreement, and the amendments thereto,

speak for themselves. Except as so admitted, EchoStar denies the material allegations contained in paragraph 17 of Plaintiff's Complaint. C. The Family Pack dispute 18. EchoStar admits only that the language contained in the alleged November 12, 2004

letter from Dominion to EchoStar speaks for itself. Except as so admitted, EchoStar denies the material allegations contained in paragraph 18 of Plaintiff's Complaint. 19. EchoStar admits only that the language contained in the alleged e-mails between

Dominion and EchoStar speak for themselves. Except as so admitted, EchoStar denies the material allegations contained in paragraph 19 of Plaintiff's Complaint. 20. EchoStar is without knowledge or sufficient information to form a belief as to

Dominion's alleged "long-term contracts with certain programmers, including Fox News, the Hallmark Channel, and Home and Garden Television (`HGTV')." Except as so stated, EchoStar denies the material allegations contained in paragraph 20 of Plaintiff's Complaint. 21. EchoStar is without knowledge or sufficient information to form a belief as to the

allegations contained in paragraph 21 of Plaintiff's Complaint and therefore denies all allegations contained therein.

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22.

EchoStar is without knowledge or sufficient information to form a belief as to the

allegations contained in paragraph 22 of Plaintiff's Complaint and therefore denies all allegations contained therein. 23. EchoStar is without knowledge or sufficient information to form a belief as to the

allegations contained in paragraph 23 of Plaintiff's Complaint and therefore denies all allegations contained therein. 24. EchoStar is without knowledge or sufficient information to form a belief as to the

allegations contained in paragraph 24 of Plaintiff's Complaint and therefore denies all allegations contained therein. 25. EchoStar is without knowledge or sufficient information to form a belief as to the

allegations contained in paragraph 25 of Plaintiff's Complaint and therefore denies all allegations contained therein. 26. EchoStar is without knowledge or sufficient information to form a belief as to the

allegations contained in paragraph 26 of Plaintiff's Complaint and therefore denies all allegations contained therein. 27. EchoStar is without knowledge or sufficient information to form a belief as to the

allegations contained in paragraph 27 of Plaintiff's Complaint and therefore denies all allegations contained therein. 28. EchoStar admits only that the language contained in the alleged June 15, 2005 letter

from EchoStar to Dominion speaks for itself. Except as so admitted, EchoStar denies the material allegations contained in paragraph 28 of Plaintiff's Complaint.

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29.

EchoStar admits only that the language contained in any written communications

between EchoStar and Dominion speaks for itself, and that representatives from both Dominion and EchoStar met in Colorado. Except as so admitted, EchoStar denies the material allegations contained in paragraph 29 of Plaintiff's Complaint. 30. EchoStar admits only that Dominion is in breach of the Agreement, and amendments

thereto, and therefore, entitled to all remedies prescribed by the Agreement. Except as so admitted, EchoStar denies the material allegations contained in paragraph 30 of Plaintiff's Complaint. 31. EchoStar admits only that the language contained in Dominion's July 12, 2005

Demand for Arbitration speaks for itself. Except as so admitted, EchoStar denies the material allegations contained in paragraph 31 of Plaintiff's Complaint. 32. EchoStar admits only that it agreed to the terms of the parties' Stipulated Settlement

and Voluntary Dismissal of Motion for Preliminary Injunction, which was approved by the Court on July 20, 2005. Except as so admitted, EchoStar denies the material allegations contained in paragraph 32 of Plaintiff's Complaint. D. Contractual Dispute Resolution Provisions 32. (sic) EchoStar admits only that the terms of the Agreement, and the amendments thereto, speak for themselves. Except as so admitted, EchoStar denies the material allegations contained in paragraph 32 (sic) of Plaintiff's Complaint. 33. EchoStar admits only that the terms of the Agreement, and the amendments thereto,

speak for themselves. Except as so admitted, EchoStar denies the material allegations contained in paragraph 33 of Plaintiff's Complaint.

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COUNT I - REQUEST FOR PRELIMINARY INJUNCTION IN AID OF ARBITRATION 34. EchoStar incorporates each and every response to paragraphs 1 through 33 as set

forth herein in response to paragraph 34 of Plaintiff's Complaint. 35. EchoStar admits only that Dominion previously sought injunctive relief while it

initiated an arbitration proceeding against EchoStar. As evidenced by the parties' Stipulated Settlement and Voluntary Dismissal of Motion for Preliminary Injunction, approved by the Court on July 20, 2005, the parties settled Count I of Plaintiff's Complaint. Therefore, a response to paragraph 35 of Plaintiff's Complaint is not necessary; however, to the extent an answer is required, EchoStar denies the material allegations contained in paragraph 35 of Plaintiff's Complaint. 36. EchoStar admits only that Dominion previously sought injunctive relief while it

initiated an arbitration proceeding against EchoStar. As evidenced by the parties' Stipulated Settlement and Voluntary Dismissal of Motion for Preliminary Injunction, approved by the Court on July 20, 2005, the parties settled Count I of Plaintiff's Complaint. Therefore, a response to paragraph 36 of Plaintiff's Complaint is not necessary; however, to the extent an answer is required, EchoStar denies the material allegations contained in paragraph 36 of Plaintiff's Complaint. 37. EchoStar admits only that Dominion previously sought injunctive relief while it

initiated an arbitration proceeding against EchoStar. As evidenced by the parties' Stipulated Settlement and Voluntary Dismissal of Motion for Preliminary Injunction, approved by the Court on July 20, 2005, the parties settled Count I of Plaintiff's Complaint. Therefore, a response to paragraph 37 of Plaintiff's Complaint is not necessary; however, to the extent an answer is required, EchoStar denies the material allegations contained in paragraph 37 of Plaintiff's Complaint.

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38.

EchoStar admits only that Dominion previously sought injunctive relief while it

initiated an arbitration proceeding against EchoStar. As evidenced by the parties' Stipulated Settlement and Voluntary Dismissal of Motion for Preliminary Injunction, approved by the Court on July 20, 2005, the parties settled Count I of Plaintiff's Complaint. Therefore, a response to paragraph 38 of Plaintiff's Complaint is not necessary; however, to the extent an answer is required, EchoStar denies the material allegations contained in paragraph 38 of Plaintiff's Complaint. 39. EchoStar admits only that Dominion previously sought injunctive relief while it

initiated an arbitration proceeding against EchoStar. As evidenced by the parties' Stipulated Settlement and Voluntary Dismissal of Motion for Preliminary Injunction, approved by the Court on July 20, 2005, the parties settled Count I of Plaintiff's Complaint. Therefore, a response to paragraph 39 of Plaintiff's Complaint is not necessary; however, to the extent an answer is required, EchoStar denies the material allegations contained in paragraph 39 of Plaintiff's Complaint. 40. EchoStar admits only that Dominion previously sought injunctive relief while it

initiated an arbitration proceeding against EchoStar. As evidenced by the parties' Stipulated Settlement and Voluntary Dismissal of Motion for Preliminary Injunction, approved by the Court on July 20, 2005, the parties settled Count I of Plaintiff's Complaint. Therefore, a response to paragraph 40 of Plaintiff's Complaint is not necessary; however, to the extent an answer is required, EchoStar denies the material allegations contained in paragraph 40 of Plaintiff's Complaint. 41. EchoStar admits only that Dominion previously sought injunctive relief while it

initiated an arbitration proceeding against EchoStar. As evidenced by the parties' Stipulated Settlement and Voluntary Dismissal of Motion for Preliminary Injunction, approved by the Court on July 20, 2005, the parties settled Count I of Plaintiff's Complaint. Therefore, a response to

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paragraph 41 of Plaintiff's Complaint is not necessary; however, to the extent an answer is required, EchoStar denies the material allegations contained in paragraph 41 of Plaintiff's Complaint. 42. EchoStar admits only that Dominion previously sought injunctive relief while it

initiated an arbitration proceeding against EchoStar. As evidenced by the parties' Stipulated Settlement and Voluntary Dismissal of Motion for Preliminary Injunction, approved by the Court on July 20, 2005, the parties settled Count I of Plaintiff's Complaint. Therefore, a response to paragraph 42 of Plaintiff's Complaint is not necessary; however, to the extent an answer is required, EchoStar denies the material allegations contained in paragraph 42 of Plaintiff's Complaint. 43. EchoStar admits only that Dominion previously sought injunctive relief while it

initiated an arbitration proceeding against EchoStar. As evidenced by the parties' Stipulated Settlement and Voluntary Dismissal of Motion for Preliminary Injunction, approved by the Court on July 20, 2005, the parties settled Count I of Plaintiff's Complaint. Therefore, a response to paragraph 43 of Plaintiff's Complaint is not necessary; however, to the extent an answer is required, EchoStar denies the material allegations contained in paragraph 43 of Plaintiff's Complaint. COUNT II - REQUEST FOR REFERRAL TO ARBITRATION AND CONFIRMATION OF ARBITRATION AWARD 44. EchoStar incorporates each and every response to paragraphs 1 through 43 as set

forth herein in response to paragraph 44 of Plaintiff's Complaint. 45. EchoStar admits only that the terms of the Agreement, and the amendments thereto,

speak for themselves. Except as so admitted, EchoStar denies the material allegations contained in paragraph 45 of Plaintiff's Complaint. 46. EchoStar avers that paragraph 46 of Plaintiff's Complaint asserts a conclusion of law

to which not response is necessary; however, to the extent an answer it required, EchoStar admits 9

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only that the terms of the Agreement, and the amendments thereto, speak for themselves. Except as so admitted, EchoStar denies the material allegations contained in paragraph 46 of Plaintiff's Complaint. 47. EchoStar avers that paragraph 47 of Plaintiff's Complaint asserts a conclusion of law

to which not response is necessary; however, to the extent an answer it required, EchoStar admits only that the terms of the Agreement, and the amendments thereto, speak for themselves. Except as so admitted, EchoStar denies the material allegations contained in paragraph 47 of Plaintiff's Complaint. 48. EchoStar admits only that the language contained in Dominion's Notice of

Arbitration speaks for itself. Except as so admitted, EchoStar denies the material allegations contained in paragraph 48 of Plaintiff's Complaint. REQUEST FOR RELIEF EchoStar admits that Dominion previously sought injunctive relief while it initiated an arbitration proceeding against EchoStar. However, as evidenced by the parties' Stipulated

Settlement and Voluntary Dismissal of Motion for Preliminary Injunction, approved by the Court on July 20, 2005, the parties settled Count I of Plaintiff's Complaint. Therefore, Dominion's request for preliminary injunctive relief is moot. Further, EchoStar admits that the terms of the Agreement, and the amendments thereto, speak for themselves. Except as so admitted, EchoStar denies that Dominion is entitled to any of the relief requested in its Request for Relief.

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DATED: August 5, 2005. Respectfully submitted, s/Ross W. Wooten, Esq. Ross W. Wooten, Esq. Richard R. Olsen, Esq. T. Wade Welch & Associates 2401 Fountainview, Suite 700 Houston, Texas 77057 Telephone: (713) 952-4334 Fax: (713) 952-4994 Email: [email protected] [email protected] Attorneys for Defendant EchoStar Satellite L.L.C.

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CERTIFICATE OF SERVICE I hereby certify that on August 5, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email address: Thomas D. Leland, Esq. [email protected] Mark D. Colley, Esq. [email protected] Cameron W. Fogle, Esq. [email protected] s/Ross W. Wooten, Esq. Ross W. Wooten, Esq. Attorney for Defendant T. Wade Welch & Associates 2401 Fountainview, Suite 700 Houston, Texas 77057 Telephone: (713) 952-4334 Fax: (713) 952-4994 Email: [email protected]

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