|MIDDLESEX, ss.|| SUPERIOR COURT|
|WILLIAM SILVERSTEIN, Plaintiff||)|
MICROSYSTEMS SOFTWARE, INC.,
DEFENDANTS' OPPOSITION TO PLAINTIFF'S CROSS-MOTION
TO STRIKE AND FOR SANCTIONS
Defendants Microsystems Software Inc., The Learning Company Inc. and Mattel, Inc. (collectively, the "defendants"), hereby respond to Plaintiff's Cross-Motion to Strike and For Sanctions ("Motion for Sanctions") as follows:
(1) The defendants served a motion to dismiss on January 11, 2001.
(2) At the status conference held on January 17, 2001, the Court converted defendants' motion to a motion for summary judgment.
(3) Here, the complaint contains inadmissible evidence of settlement negotiations. As such, the defendants' objection to the Court's consideration of inadmissible settlement negotiations in the complaint in the context of a motion for summary judgment is appropriate. Mass. R. Civ. P. 56(e) (evidence considered on summary judgment must be "admissible in evidence")
(4) Nevertheless, citing no legal authority, Silverstein asks this Court to strike the defendants' motion to strike and assess sanctions of $4,463.50. Plaintiff's cross-motion is meritless and should be denied.
(5) Moreover, sanctions are not warranted because defendants' motion to strike is grounded in Massachusetts law and is not frivolous or advanced in bad faith. Mass. R. Civ. P. 11 (requiring counsel to certify that motions have "good ground to support it . . . [and not be] . . . interposed for delay")
WHEREFORE, the defendants respectfully request that the plaintiff's cross-motion to strike and for sanctions be denied.
|Dated: March 5 , 2001||Laura N. Kling |
Mattel, Inc., Microsystems Software Inc. and The Learning Company
By their attorneys,
Irwin B. Schwartz BBO#548763