Answer to Complaint and Counterclaim With 25 Pg Attachment

STATE OF NEW MEXICO

SECOND JUDICIAL DISTRICT COURT

COUNTY OF BERNALILLO

DIEGO ESPINOZA,

Plaintiff-Counter Claim Defendant

v. No. D-202-CV-2014-01829

DAVID CLEMENTS, a candidate for the JURY TRIAL DEMANDED

United States Senate from New Mexico,

CLEMENTS FOR NEW MEXICO, INC., and

BOB C. DOE, and JANE C. DOE,

unknown political consultants for the

Clements for New Mexico campaign,

Defendants-Counter Claim Plaintiffs

ANSWER TO CIVIL COMPLAINT FOR DAMAGES AND COUNTERCLAIM FOR

MALICIOUS ABUSE OF PROCESS

Defendants David Clements and Clements for New Mexico, Inc., and for no other persons,

firms and/or entities, in Answer to Plaintiff’s Civil Complaint for Damages, states as follows:

INTRODUCTION

1. Defendants deny the averments contained in paragraph 1 of the Complaint.

2. Defendants admit that a felony offense is a crime punishable by jail. Defendants

deny the remaining averments contained in paragraph 2 of the Complaint.

PARTIES AND JURISDICTION

3. Defendants admit the averments contained in paragraph 3 of the Complaint.





STATEMENT OF ALLEGATIONS



10. Defendants deny issuing a press release to the public via email, titled “All the

Documents We Have.” Defendants admit sending an email titled “All the

Documents We Have” to a list of duly elected delegates and Republican Party

officers. Defendants deny all other averments contained in paragraph 10 of the

Complaint.


12. Defendants admit that the “Bernalillo Cover-Up” website states “Diego Espinoza,

the [Allen] Weh campaign manager, abused the Clements email system and used it

to resend the open letter to multiple delegates.


14. Defendants deny Plaintiff’s first statement found in paragraph 14 of the Complaint

as it misstates the documented cited. Defendants admit that the document cited

states, “The [[email protected]] subscriber was forwarding the email that he

received on February 17th 2014 at 03:31 PM with the unique identifier code

[sG4dVY6] hundreds of times to contacts inside and outside the original population

of recipients. Recipients who report receiving the email numerous times have a very

high likelihood of receiving it from [[email protected]/ sG4dVY6], as the

[Clements] email distribution system did not blast the email a second time to the

lists.”





19. Defendants admit that the Internet service provider message does not use the word

“hack.” Defendants deny that the Internet service provider documents state that

Diego Espinoza “merely forwarded certain emails.” Defendants affirmatively state

that the same Internet service provider message provides an explanation as to how

Diego Espinoza’s email was received by delegates without any visual cues indicating

that the message was being repeatedly forwarded by Plaintiff. The Internet service

provider message states, “[[email protected]/ sG4dVY6] could have used the

“share with a friend” or simply masked his own email address when forwarding the

html-version of email 20601347 embedded with his unique identifier code.”



22. Defendants admit “hacking” is a very commonly used word. Defendants admit

unauthorized computer use may be a crime under both state and federal law.

Defendants deny all other averments contained in paragraph 22 of the Complaint.

23. Defendants deny they have continued to send press releases and links to the Bernalillo

Cover-Up” website to media and television news stations throughout the state of New

Mexico. Defendants admit sending an email titled “All the Documents We Have” to

a list of duly elected delegates and Republican Party officers and posting a link to the

Campaign’s Facebook page. Defendants admit that on March 5, 2014, an NBC affiliate

in Albuquerque, KOB (Channel 4), ran a televised news story surrounding the events

alleged in this case, including Plaintiff attorney’s press announcement that his client

would file a lawsuit for defamation by the end of the week. Defendants deny all other

averments contained in paragraph 23 of the Complaint.


25. Defendants admit creating a website, “The Bernalillo Cover-Up” and sending an

email titled “All the Documents We Have” to a list of duly elected delegates and

Republican Party officers, and posting a link to the Campaign’s Facebook page.

Defendant David Clements admits conducting interviews with reporters and

answering truthfully about the state primary convention results and email abuse

caused by Plaintiff. Defendants deny all other averments contained in paragraph 25

of the Complaint.



28. Defendants are without knowledge or information sufficient to form a belief as to the

truth of the averments contained in paragraph 28 of the Complaint.





31. Defendants admit that communications remain publicly available through media, e-

mail, Internet and television, and affirmatively state that those communications are

truthful. Defendants deny all other averments contained in paragraph 31 of the

Complaint.

32. Defendants deny making any defamatory accusations that Plaintiff engaged in

cyber-criminal activity for the purpose of political gain, and affirmatively state that

all statements were truthful. Defendants admit that Plaintiff’s conduct has subjected

himself to criminal and civil liability.





35. Paragraph 35 of the Complaint requests relief from the Court, and does not require a

response from Defendants. Insofar as a response is required, Defendants deny the

averments in paragraph 35 of the Complaint.

AFFIRMATIVE DEFENSES

AFFIRMATIVE DEFENSE 1

The Complaint fails to state facts sufficient to constitute a cause of action against these

Defendants in that the statements alleged to be defamatory are true statements of fact.



Defendants in that the statements alleged to be defamatory are expressions of opinion.


The Complaint fails to state a claim upon which relief can be granted and should

therefore be dismissed.



Defendants as it fails to allege that these Defendants broadcast the allegedly defamatory

statements with knowledge of their falsity or with reckless disregard for their truth.


Plaintiff’s claim is barred by the substantial truth doctrine.


Plaintiff has failed to mitigate his damages.


Plaintiff is a limited public figure, and as such is unable to meet his heightened burden

of proof to sustain the claim of defamation.


Plaintiff has failed to allege facts constituting actual malice.


The Defendants’ statements are not properly subject to a defamation suit because they

contain no provably false assertions of fact.


The Defendants’ statements concerning Plaintiff abusing the Clements Campaign Email

system concern matters which affect the interests of the general public and election integrity.

These statements were made in good faith with the proper motives of informing duly elected

Republican delegates who were harassed with duplicative emails, and to inform Republican

officers. Therefore the Defendants’ statements are protected by both qualified and conditional

privilege.


The Defendants’ statements are protected by the fair comment privilege.


Plaintiff’s claim is barred under the equitable doctrine of unclean hands.


Plaintiff’s claim is barred under the doctrine of illegality.


Plaintiff’s claim of defamation is a strategic litigation against public participation (SLAPP)

suit and seeks to impose or threaten large costs and attorney fees on a political opponent in having

to defend against an unwarranted and specious lawsuit, and therefore should be dismissed.

COUNTERCLAIM FOR MALICIOUS ABUSE OF PROCESS

Defendants-Counter Plaintiffs David Clements and Clements for New Mexico, Inc.,

having Answered the Complaint, and having set forth their Affirmative Defenses, file a

Counterclaim and sue Plaintiff-Counter Defendant Diego Espinoza, and allege:

PARTIES AND JURISDICTION

1. Defendant-Counter Plaintiff David Clements (“Clements”) is a resident of Dona Ana

County.

2. Defendant-Counter Plaintiff Clements for New Mexico, Inc., is a political organization

located in Dona Ana County.

3. Plaintiff-Counter Defendant Diego Espinoza (“Espinoza”) is a resident of Bernalillo

County.

4. The events giving rise to this lawsuit occurred within all 33 counties of the State of

New Mexico, including Dona Ana and Bernalillo counties. Accordingly, venue and

jurisdiction are appropriate.

STATEMENT OF ALLEGATIONS

5. Espinoza is the campaign manager for Allen Weh’s U.S. Senate race.

6. Espinoza is well known in Republican state politics. Espinoza previously worked as

Allen Weh’s campaign manager in a high profile gubernatorial race against Governor

Susana Martinez in 2010.

7. As campaign manager, Espinoza routinely produces and distributes press releases,

utilizing different forms of media, and interacts with the voting public across the state

of New Mexico.

8. As campaign manager for two of the State’s highest profile political races over the past

5 years, Espinoza has been conferred with a public figure status, or alternatively, a

limited public figure status.

9. Allen Weh (“Weh”) is the Republican primary opponent of Clements.

10. Both Weh and Clements seek the Republican nomination for the U.S. Senate race in

New Mexico.

11. Weh is the owner and Chief Executive Officer of CSI Aviation. Espinoza is also an

employee of CSI Aviation.

12. Espinoza alleges that he will be limited in his advancement at CSI Aviation due to the

controversy surrounding the instant case.

13. Upon information and belief, Espinoza has not been suspended or placed on

administrative leave from his position as the Weh campaign manager, or as a CSI

employee arising from the controversy surrounding the instant case.

14. During the U.S. Senate race, Clements and Weh were tasked with persuading

approximately 804 Republican delegates for their vote in order to gain access to the

primary ballot.

15. The 804 delegates were elected and certified from each of the 33 counties throughout

New Mexico. These delegates were then able to vote for the candidate of their choice

at the state primary convention, held March 1, 2014.

16. Candidates must receive at least 20% of the vote to qualify for access to the ballot for

the primary election. Candidates that receive 51% of the vote gain top of the ballot

placement.

17. The candidate who receives top ballot placement has an inherent advantage in the

primary election.

18. The process of contacting and persuading elected delegates for their vote to ensure

ballot access can be both expensive and time consuming.

19. Bernalillo County is the most populous county in New Mexico, with approximately

one third (257) of the total convention delegates.

20. The Bernalillo County pre-convention was held on February 5, 2014 and was

surrounded by controversy, in large part, because of the actions of Espinoza.

21. At the Bernalillo pre-convention, 227 of the 257 delegate positions were elected

through ward caucus elections, leaving approximately 30 “at-large” delegate slots

available to vote at the state convention.

22. Under the Republican Party Bernalillo County Special rules, proxy votes are strictly

prohibited, and under convention precedent, “at-large” delegates are typically elected

from those remaining in person at the county convention. See Ex. 1, “Bernalillo Special

Rules.”

23. The convention process ensures that at-large delegate nominees are in fact registered

Republicans prior to votes being cast; have paid the required convention registration

fees; and participated in the pre-convention to fill out nomination forms. Participation

in the Bernalillo pre-convention ensures that elected delegates represent a cross

section of Bernalillo Republicans at the state convention. See id.

24. Upon information and belief, Espinoza was observed by Bernalillo pre-convention

attendees handing a list containing approximately thirty names to the convention

chair.

25. The list provided by Espinoza included persons not present at the convention, and/or,

included persons that did not register and pay the required fees. Espinoza’s actions

violated the County rules and convention precedent. See id.

26. The names on Espinoza’s list were reduced to individual ballots and observed being

secured by Weh’s campaign staff.

27. After securing the ballots, many convention attendees requested a ballot count. The

convention chair requested that no staff or volunteers from either campaign count the

ballots.

28. Weh campaign members wearing blue staff polo-shirts disregarded the convention

chair’s instructions and were observed counting ballots. See Ex. 2, Dr. Tipton Email

titled “What I saw” and Ex. 3, “Photograph of Weh Staffer.”

29. County officials reported that 90 ballots were submitted. Bernalillo county rules

chairman, Dr. Tipton, reported the number of ballots doubled or tripled the number

of individuals present. See Ex. 2.

30. Dr. Tipton described there being no ballot security at the Bernalillo pre-convention.

Id.

31. Upon information and belief, convention participants that remained to be elected as

at-large delegates were supplanted by Espinoza’s illegitimate slate of approximately

30 delegates. Because of the controversy surrounding the at-large election, the

Bernalillo convention did not conclude until the next day, February 6, 2014 at

approximately 12:30 a.m. in the morning.

32. A written protest disputing the at-large election and lack of ballot security was filed

by Bernalillo convention attendee, Mike Nagel. Id.

33. On February 10, 2014, Bernalillo County Chairman Frank Ruvolo announced that the

at-large delegates had been improperly elected and could not be certified. See Ex. 4.,

email titled “Bernalillo County Convention, pg.1”

34. The next day, Ruvolo reversed his decision citing “many conversations” with County

and State rules officials, but provided no explanation to the Clements campaign

concerning the particular rule that prompted the reversal. See Ex. 5., email titled,

“Bernalillo County,” pgs. 1-2.

35. At no time after the Bernalillo convention did Espinoza dispute the aforementioned

events. Rather, Espinoza simply asserted that the Clements campaign failed to file a

timely protest. See Ex. 6A, “Espinoza Email dated February 17th, 2014,” pg.3.

36. The approximately 30 at-large delegates hand-picked by Espinoza and the Weh

campaign would have a significant effect on the ultimate outcome of the March 1,

2014, state primary convention.

37. This number of delegates on the Espinoza slate is equivalent to the entire delegation

of 7 of New Mexico’s smaller counties.

38. The Clements campaign exhausted all viable internal party procedures to obtain an

equitable remedy for the flagrant rule violations that occurred at the Bernalillo pre-

convention.

39. After exposing the violations, Espinoza misinformed delegates and party officers

throughout the State that there was no merit to the controversy surrounding

Bernalillo, and that if there was a real controversy, a formal protest would have been

filed by the Clements campaign. Id.

40. A formal protest, as well as an amended protest, was in fact timely filed. See Ex. 7,

“Bernalillo Protest.”

41. Due to Espinoza and the Weh campaign’s deliberate misinformation to delegates and

party officers, Clements quickly responded to Espinoza’s allegations providing

supporting documentation. See Ex. 6B.

42. Espinoza continued to misinform delegates and Clements released an open letter to

Allen Weh on February 17th, 2014, informing him of what had occurred in Bernalillo

County, and sought the opportunity to work together to find an equitable solution.

43. The letter was released through an email to a list of the elected delegates and officers

titled “Fraudulent Convention Delegates – a must read (hereinafter “Fraudulent

Delegates email”).” Ex. 8.

44. On the morning of February 21, 2014, the Clements campaign staff began receiving

emails, texts, and phone calls with complaints from delegates about receiving the same

Fraudulent Delegates email multiple times.

45. Delegate Janice Arnold Jones reported receiving the same Fraudulent Delegates email

three times. The Clements campaign inquired whether the email was forwarded to

her from another sender.

46. Ms. Jones reported that the email contained no visual cues of it being forwarded and

that she received the email from “David Clements <[email protected]>" on

each occasion.

47. Immediately after receiving Ms. Jones’ complaint, the Clements campaign asked that

she forward the emails she received.

48. The Clements campaign forwarded Ms. Jones emails to Streamsend, its internet

service provider, with instructions to investigate the cause of the Fraudulent Delegates

email going out multiple times.

49. Streamsend reported that the February 17th Fraudulent Delegates email blast was sent

one-time at 1:30 p.m. MST/3:30 EST, and that any subsequent emails had to come from

another source. See Ex. 9., “Analysis of Views of Blast 20601347. Pgs. 1-2.”

50. Ms. Jones produced a Fraudulent Delegates email on February 17th at 1:30 p.m., and

another February 21st email at 6:37 a.m. See Ex.’s 10, pgs. 1-3 and 11, pgs. 1-3

respectively.

51. Each email appeared to come from David Clements<[email protected]>, but

there were notable differences between the two emails. Id.

52. The February 21st email contains different formatting and ordering of the “From, To,

Sent, Date, and Subject” fields than the February 17th email. Id.

53. The February 17th email contains "Date,” whereas the February 21st email contains the

word “Sent” in its place. Id.

54. The February 21st email represents itself as an “Original Message,” even though Ms.

Jones had received the same email February 17th.

55. Ms. Jones informed the Clements campaign that her husband and delegate, John Jones,

had also received the Fraudulent Delegates email on February 21st, within a few hours

of her receiving a third copy of the email. See Ex. 12, pgs. 1-4.

56. John Jones provided feedback that many delegates who previously indicated their

support of the Clements campaign were now turned off due to a “series of emails”

that appeared to be sent by the Clements campaign. See id.

57. That same morning, a weekly Republican breakfast at the Golden Corral took place.

Ms. Jones was in attendance and reported that many present discussed the issue of

receiving the same email multiple times.

58. Upon information and belief, delegates Robert Michelson, Linda Barber, Carolyn

Freeman, and many others were in attendance at the Republican breakfast, and

reported receiving the same Fraudulent Delegates email on more than one occasion.

59. During the breakfast, the Clements campaign exchanged emails with Ms. Jones to

troubleshoot the problems that the delegates were complaining about. Ms. Jones

asked if the Clements email system was being “hijacked.” See Ex. 12.

60. Ms. Jones further reported that many delegates she spoke with would no longer vote

for David Clements as a result of receiving the same email numerous times. See Ex.

10.

61. In Las Cruces, Clements campaign phone banker, James Shult, was tasked with calling

through the entire 804 person delegation twice to determine which candidate they

would support at the state convention.

62. While calling, Shult reported receiving numerous complaints from delegates who had

received duplicative emails February 17th through February 26th. Shult described that

David Clements’ favorability among delegates dropped from 75 percent to 50 percent

while making his second series of calls.

63. During the time period described by James Shult and numerous elected delegates,

Streamsend tracked the views of the Fraudulent Delegates email.

64. To track views, StreamSend loads a 1x1 clear pixel into each email it sends. Part of the

image path in the HTML code contains a tracking hash which is used to identify each

individual subscriber. See Ex. 9, Ex. 13, “Espinoza Subscriber Report,” Ex. 14,

“Espinoza View Report.”

65. Each time the Fraudulent Delegates email was viewed with images enabled,

Streamsend can see that the image is loaded and can identify the subscriber. See Ex.

9.

66. An email address identified as [email protected] with the unique identifier code

sG4dVY6 had an open rate of the Fraudulent Delegates email in excess of 500 times as

of February 21, 2014. The next highest open rate was in the single digits. See Ex.’s 14

and Ex. 15, “Espinoza report ending February 26th, 2014”.

67. Every email Streamsend delivers is uniquely tagged to the recipient, including

Espinoza. When the email is opened by Espinoza or someone he “forwarded” the

email to, Streamsend receives notice that this unique recipient, Espinoza, has opened

the email.

68. The Fraudulent Delegates email sent by Espinoza was viewed 167 times on February

17th, 168 times on February 18th, and 181 times on February 19th, a total of 516 views.

By February 26th, Espinoza had sent the email 660 times.

69. Upon information and belief, the Fraudulent Delegates email sent by Espinoza was

sent at a much higher rate than the 500 views reported by February 21st, 2014.

70. The Clements Campaign requested from Streamsend the average open rate of its email

to date. Streamsend informed the Clements campaign that the average open rate of

the emails sent out was 15%.

71. Based on the open rate percentage, the Fraudulent Delegates email is estimated to

have been sent by Espinoza 2,000 to 4,000 times by February 21st.

72. The Clements Campaign asked Streamsend for an explanation on why the emails

received by the delegates did not appear to be “forwards.”

73. Streamsend explained that no advanced technical knowledge is necessary to mask the

identity of the Sender.

74. All that was necessary was for Espinoza to download the Fraudulent Delegates email

received February 17th to his Outlook account, and change the “From:

[email protected]” email address to “From: David

Clements<[email protected]>" in the account settings. Streamsend

reported that the “Share with a Friend” function within the Fraudulent Delegates

email could also be used to alter the sender’s address.

75. The 660 emails “forwarded” by Espinoza and received between February 17th and

February 26th would have appeared to come from the Clements email system.

76. With just days before the state convention, the Clements campaign created the website

BernalilloCoverUp.com, detailing the controversy surrounding the Bernalillo pre-

convention and the abuse of its email system, in efforts to refute claims that the

Clements campaign was harassing delegates with repeat emails.

77. Hacking is broadly defined as “turning a system against itself, through the process of

using existing code, comments, and technology for more than what their original

authors intended.”

78. The Clements campaign intended to send the Fraudulent Delegates email to its

intended recipients one time on February 17th, 2014, not hundreds, or thousands of

times.

79. On February 28th, 2014, the night before the state convention, David Clements met

with hundreds of delegates in his campaign’s hospitality suite.

80. Dozens of delegates complained about the Clements campaign refusing to let the

Bernalillo matter rest, referring to repeat emails sent by the campaign.

81. David Clements spent hours explaining to delegates throughout the evening that the

campaign sent one email describing what happened at the Bernalillo pre-convention

on February 17th, 2014, and that other emails were sent by another source.

82. Despite the Bernalillo controversy, abuse of the Clements email system, and being

significantly outspent by the Weh campaign, on March 1st, 2014, the Clements

campaign shocked the State convention attendees and political observers by obtaining

nearly 47% of the delegate vote.

83. The margin of Weh’s victory was decided by less than 50 votes despite Espinoza’s

handpicked slate of 30 delegates from the Bernalillo pre-convention, and a loss of

delegate votes due to Espinoza’s hijacking of the Clements email system.

84. Days later, while in Washington D.C., David Clements learned of Diego Espinoza’s

intention to file a lawsuit for defamation.

85. Upon return to New Mexico, Clements contacted attorney for Plaintiff to determine

the basis for the lawsuit. Attorney for Plaintiff discussed meeting with both Espinoza

and Weh before filing the instant lawsuit.

86. Counter Plaintiffs affirmatively state that Espinoza’s lawsuit, backed by

multimillionaire Weh, is a strategic lawsuit that provides political cover for Espinoza

and the Weh campaign’s misconduct during the primary race.

87. In this judicial proceeding, Espinoza has misused or actively participated in misusing

the legal process.

88. Espinoza’s primary motive in misusing the legal process was to accomplish an

illegitimate end, namely, to overwhelm and harass a grassroots political opponent

with a costly and timely lawsuit during a crucial time period leading up to the primary

election.

89. The conduct of Counter-Defendant Espinoza has caused damages to Counter-

Plaintiffs David Clements and Clements for New Mexico, Inc.

90. Because of Espinoza’s actions, on March 10, 2014, Clements contacted the Criminal

Investigation Division of the Dona Ana Sheriff’s Office. A criminal investigation has

been initiated over the abuse of the Clements’ campaign’s email system.

91. Accordingly, Defendants-Counter-Plaintiffs requests all allowable compensatory

damages, including expenses for Espinoza’s malicious abuse of process, damages

suffered by David Clements and to his candidacy, incidental expenses and punitive

damages as well as reasonable attorney’s fees, costs, pre and post-judgment interest.

REQUEST FOR RELIEF

WHEREFORE, Defendants-Counter Plaintiffs respectfully seek the following relief:

(A) Dismiss Plaintiff-Counter Defendant’s lawsuit for Defamation with Prejudice;

(B) Declare Plaintiff-Counter Defendant’s actions unlawful;

(C) Order Plaintiff-Counter Defendant to pay such compensatory and punitive

damages as the jury may award;

(D) Order the Plaintiff-Counter Defendant to pay Defendants-Counter Plaintiffs’

expenses, costs, and attorneys’ fees.

(E) Award pre and post-judgment interest;

(F) Defendant Counter Plaintiffs request a trial by jury; and

(G) Grant such other and further relief as this Court deems just and proper.

Respectfully submitted,

By: /s/David Clements David Clements, Pro Se 2251 La Paloma Dr. Las Cruces, New Mexico 88011 575-202-8001 [email protected]

CERTIFICATE OF DELIVERY

I hereby certify that a true and correct copy of the foregoing pleading was e-mailed to the following persons on this 7th day of April, 2014: Colin Hunter 1905 Wyoming Boulevard NE Albuquerque, NM 87112 [email protected] /s/ Electronically filed 04-07-14 DAVID K. CLEMENTS

mailto:[email protected]