MIDDLESEX, ss.	SUPERIOR COURT CIVIL ACTION NO. 00-3893
WILLIAM SILVERSTEIN, Plaintiff v. MICROSYSTEMS SOFTWARE, INC., THE LEARNING COMPANY, INC., and MATTEL, INC., Defendants

OPPOSITION TO MOTION FOR MORE DEFINITE STATEMENT

Hearing Requested

The plaintiff, William Silverstein, hereby opposes the defendants' Motion for a More Definite Statement as unjustified and dilatory, as his Complaint and Amended Complaint here (which differ only slightly) are crystal-clear that the basis for this lawsuit is the defendants' abusive and retaliatory libel counterclaim in his prior lawsuit, Middlesex Superior Court Civil Action No. 98-4820 (which was for handicap discrimination), and in particular their refusal to let that counterclaim be dismissed with finality after judgment was entered in his favor in that case. (The allowance to them of a dismissal without prejudice of that counterclaim is presently on appeal.)

William Silverstein brought this lawsuit under the retaliation provisions of several statutes, including the Massachusetts Workers Compensation Law, chapter 151B of the General Laws, the federal Family and Medical Leave Act, and the Americans with Disabilities Act.

The explicit targets of the defendants' libel counterclaim were the opinions set forth on Silverstein's internet website, on which he sets forth the history of his dispute with the defendants. The defendants brought their libel suit--and in particular refused to allow it to be dismissed with prejudice--in retaliation for the plaintiff's successful exercise of his rights under the handicap discrimination laws and his encouragement to others that they do so as well. (He has heard from some who have done so after reading his web site.)

In the prior lawsuit, the defendants served the plaintiff with a Rule 68 Offer of Judgment offering to let him take judgment "in the case" against them. He accepted, and judgment was entered "in the case." (Exhibit 1) They have refused, however--to this day--to let their libel counterclaim be dismissed with prejudice.

Under Rule 12(e):

"(e) If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot be reasonably required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. . . . "

The defendants do not point to any defect in the plaintiff's Complaint or Amended Complaint. They merely pretend not to understand what this lawsuit is about. They even pretend not to understand the procedural requirement of filing a charge with the Massachusetts Commission Against Discrimination before a claim under chapter 151B may be filed in court, implicitly trying to use res judicata to bar suit in court on claims first brought--as required--to the MCAD. Both pretenses of ignorance are easily dispelled, however.

On September 13, 1999, this Court entered judgment in the plaintiff's favor in the original lawsuit. On September 17, 1999, the plaintiff formally notified the MCAD of the resolution of the charge he had filed prior to bringing that lawsuit, and requested that the file on that charge be closed administratively. ⁽¹⁾

On September 20, 1999, three days after the MCAD was notified by the plaintiff to close the file on his original charge, the defendants made clear that they were not letting go of their libel counterclaim. They finally responded to plaintiff's counsel's repeated requests that they agree that the original lawsuit was completely over by sending a settlement demand in connection with their counterclaim: they would dismiss it only if he agreed to stop talking about that case, enforceable by a $50,000 penalty per breach. (A copy of that demand is attached as Exhibit 3.)

In response to plaintiff's counsel's objection to this as improper, the defendants faxed over a letter (also attached) that, in explaining why they needed a "penalty" clause to keep him quiet, noted that the plaintiff ""honestly" believed" what he was saying. That letter also demanded documents in connection with their counterclaim. (See Exhibit 4.) The attempt to use the libel counterclaim--which should have been treated as dismissed--as the basis for a demand for silence was retaliation--and an abuse of process under Near v. Minnesota, 283 U.S. 697 (1931), which prohibits injunctions against libel. It was that outrageous conduct that sparked this case.

On September 27, 1999, the plaintiff brought a new charge (Exhibit 5) under chapter 151B, which focused on that new improper conduct by the defendants (the text of this charge was written by the MCAD's intake officer):

"I, William Silverstein, the Complainant, believe that I was discriminated against by Mattel Inc., Microsystem Software & Learning Co., on the basis of Other. This is in violation of M. G. L. Chapter 151B S4 p4.

"I filed a claim with the MCAD in 3/97 thereafter I filed in Middlesex Superior Court. Entry of Judgment was entered in my favor on March [sic] 09/13/99. However, on 12/8/98 Respondent filed a libel counter claim against me alleging that my public statements (newspaper & website), complaining that they violated 151B and ADA were false. Most recently on September 21, 1999, they demanded production of documents therefore, their continued request constitutes an on going violation of MGL, 151B, S4 P4. Therefore, I charge them with a seperate [sic] act of retaliation in violation of MGL, C151B, s4, P4." ⁽²⁾

After the defendants let the time for response go by with no answer, the investigator contacted them and asked them if they were going to submit a position statement. Instead, they made demand for more a definite statement (Exhibit 6). They wanted to know:

"(1) the specific group qualifying for protection under G.L. c.151B, § 4 (the "Statute") that Claimant alleges he is a part of, (2) the factual basis for claimed protected status, (3) the Claimant's qualification for the employment that he claims he was denied by the Respondents, and (4) the basis upon which Claimant claims he was wrongfully terminated."

After objecting to the defendants' dilatory conduct and seeking a default against them under the MCAD's rules, the plaintiff pointed out (Exhibit 7) that his charge was perfectly clear as to points 1 and 2, and that points 3 and 4 were obviously inapplicable:

"Questions 1 and 2 were fully answered by the Complaint, and there is no reason why the respondents needed to seek a more definite statement:

"(1) the protected group for a complaint of retaliation for the exercise of a right protected by chapter 151B is, by definition, a person who has exercised a right protected by chapter 151B.

"(2) the Complaint clearly set forth that I had complained of violations of chapter 151B in a lawsuit, which is unquestionably an exercise of a right protected by chapter 151B that puts me in the protected group. In my lawsuit and publicly via my website, which are unquestionably exercises of the act.

"Questions (3) and (4) are, to put it simply, red herrings, as this Complaint is not based on any allegation that I was fired or denied employment, nor is the Complaint susceptible of any such inference. It clearly alleges that the basis of the charge is the libel counterclaim that was filed in retaliation for my and my website."

No ruling was made, and the parties showed up for an investigative conference. At that conference, counsel for the respondents claimed to have no idea what the case was about, and the investigator asked the plaintiff to provide a more definite statement.

The plaintiff objected, but he complied (Exhibit 8). (He also sought sanctions for the defendants having sent representatives who had not taken the time to become familiar with the facts of the case, which was a violation of yet another MCAD rule, and for one of the defendants' failure to appear at all, in person or in writing.) On page 3 of his response he set forth:

"To the extent that an a more definite statement in response to questions 1 and 2 is desired, the following is submitted, but it is also submitted that this is repetitive of the complaint itself:

"(1) the protected group for a complaint of retaliation for the exercise of a right protected by chapter 151B is a person who has exercised a right protected by chapter 151B.

"(2) I am a member of the protected group because I had complained of violations of chapter 151B publicly on my website and in a lawsuit, which are unquestionably exercises of rights protected by chapter 151B that put me in the protected group. As noted in the Complaint, the claim of libel by the website was not asserted until I filed the lawsuit, as a counterclaim, making it an act of retaliation for the lawsuit as well as the website.

"Questions (3) and (4), which ask about my "qualification for employment that he claims he was denied" and "the basis on which the Complainant claims he was wrongfully terminated," are totally inapplicable to this Complaint, as this Complaint is not based on any allegation that I was fired or denied employment, nor is the Complaint susceptible of any such inference. It clearly alleges that the basis of the charge is the libel counterclaim that was filed in retaliation for my website and the lawsuit I brought charging violation of chapter 151B."

In a footnote on page 2 of that response, he also brought the MCAD up to date on the continuing retaliatory conduct of which he complained:

 

"3. When the complaint was filed on September 27, 1999, the last act was the refusal to dismiss the counterclaim unless I agreed to silence about my case, coupled with a demand for additional discovery on the counterclaim. (See the attached copy of that correspondence.)

"However, this is a systemic continuing violation, and more wrongful acts have happened since. The respondents opposed the motion I served and filed seeking summary judgment against the counterclaim, and then moved successfully, over my opposition, to be allowed to dismiss the counterclaim "without prejudice"--which would allow them to use the threat to revive their libel claim to demand that I agree to silence. I am currently appealing from the court's letting them dismiss without prejudice and refusing to rule on my motion for summary judgment, which would have ended that case for real. Unless they let my appeal proceed unopposed they will continue to be acting in furtherance of that continued threat--and even if they sit on their hands and do nothing to oppose my appeal, I will have to bear the cost of that appeal, which I regard as additinal damages from their retaliatory conduct."

After receiving the plaintiff's more definite statement before the MCAD, the defendants were able to answer. A copy of the text of that answer (titled, in MCAD parlance, "Position Statement") is attached hereto as Exhibit 9.

In that Position Statement, the defendants made it clear that they knew that the protected acts included his prior claim:

"Microsystems does not dispute that Silverstein's complaint to the MCAD constituted protected activity or that Microsystems was aware of Silverstein's complaint." (at page 6)

They also knew that he was basing this case on a claim of retaliation by counterclaim:

"The mere fact that Microsystems filed a counterclaim against Silverstein after Silverstein filed his First MCAD Complaint is insufficient to support a claim of retaliation." (at page 7)

Thus, the defendants' claim of not being able to tell the difference between this lawsuit and the prior lawsuit for handicap discrimination is a sham.

Review of the complaints in this case makes it excruciatingly clear that the basis of this lawsuit is the defendants' retaliatory counterclaim. The Amended Complaint briefly mentions the basis for the original lawsuit in four paragraphs (¶ 9 through ¶ 12) in order to establish that the actions of the defendants here complained of were undertaken in retaliation for that lawsuit. The rest of that 134 paragraph complaint focuses on the conduct of the defendants in bringing and refusing to let go of their groundless libel counterclaim.

The defendants know perfectly well what this case is about, and how and why it differs from the first lawsuit.

2. The defendants' pretense of ignorance about the relationship between this lawsuit and the MCAD charge that preceded it.

The defendants have now, for the second time, tried to act as if they didn't know that an MCAD charge is a procedural prerequisite to a lawsuit under chapter 151B.

At the emergency motion hearing called by the defendants on October 18, 2000, their counsel argued that

"This is the fourth action filed by this plaintiff against these defendants. First he went to the MCAD, then he came here. Then he went to the MCAD again, and now he's here again."

Anyone familiar with how chapter 151B works must shake their head at this. Since an MCAD charge is a condition precedent to a chapter 151B lawsuit, this is only the second action filed by the plaintiff against the defendants.

Continuing their pose of confusion on that score, however, in their current motion for a more definite statement, the defendants demand that the plaintiff set forth "(2) the specific acts, not alleged in any of the three prior actions, that Silverstein claims constitute retaliation by the Defendants." (at pages 2 and 7).

Clearly, Silverstein could not, in his complaint in his first lawsuit, have complained of events that had not yet happened: the defendants' abusive bringing and refusal to dismiss with prejudice their counterclaim. However, to demand that he set forth acts here that he did not include in the MCAD charge that is a required prerequisite to this action--but which is, under the defendants' method of counting, one of the "three prior actions"--is to demand that he base this action solely on acts that he had not brought to the MCAD, and thus would not be allowed to make the basis of a chapter 151B lawsuit.

Before the Court puts this down to ignorance on the part of defendants' counsel, the Court should be aware that in the same envelope in which this motion for a more definite statement was served, the defendants served another motion as well: a motion before the MCAD seeking sanctions for the plaintiff's having filed this lawsuit eleven months after filing of the MCAD charge without getting advance permission from the MCAD to do so. A copy of that motion is attached as Exhibit 10. The frivolous and abusive nature of that motion will be argued fully to the MCAD. ⁽³⁾

What is significant here is that their motion for sanctions before the MCAD makes it clear that the defendants do understand that there is a "condition precedent" relationship between an MCAD charge and a chapter 151B lawsuit.

Thus their pose of ignorance is revealed to be, in all respects, a facade.