PLAINTIFF'S RESPONSE TO

"DEFENDANTS' MOTION TO STRIKE EVIDENCE
CONCERNING SETTLEMENT NEGOTIATIONS"

AND THE PLAINTIFF'S
CROSS-MOTION TO STRIKE AND FOR SANCTIONS

The plaintiff, William Silverstein, hereby responds to the February 5, 2001 motion of the defendants "to strike evidence concerning settlement negotiations."

As that motion is, with respect to the legal arguments it advances, lifted directly from page 4 to 6 of the pending Motion to Dismiss, he incorporates by reference, as his opposition to the instant Motion to Strike, the relevant portions of the opposition to that motion that he will be filing on the schedule set by the Court in January: in time to be submitted to the Court on March 15, 2001.

This is done, among other reasons (described below) to avoid making Judge Zobel read the same arguments twice--here and in the Opposition to the motion to dismiss.

On January 17, 2001, the parties appeared before Judge Zobel for a status conference. Judge Zobel, having reviewed the motion to dismiss that had been served by the defendants on January 11, 2001, advised the defendants that their motion to dismiss was improper, as it went beyond the pleadings. He stated that it would be treated instead as a motion for summary judgment, to be heard on March 20, 2001 with the Rule 9A package due March 15, 2001. The plaintiff was granted until then to respond, in order to obtain discovery to respond to the motion's new posture as one for summary judgment.

The defendants asked if they could redraft their motion as a motion for summary judgment but were told by Judge Zobel that they could not. They also asked if they could respond to the plaintiff's opposition and were told that they could not do that either.

However, on February 5, 2001, the defendants served the instant Motion to Strike, in express violation of both of those prohibitions. The motion explicitly stated, in its first footnote, that it was a pre-emptive response to the plaintiff's anticipated opposition to its Motion to Dismiss:

"______________________

1 Silverstein has not yet filed his opposition to the Microsystems Defendants' Motion to Dismiss, which the Court converted to a motion for summary judgment. Given the briefing schedule set by the Court, the Microsystems Defendants respectfully submit this motion prospectively to strike any evidence submitted in opposition to the motion concerning the parties' settlement negotiations."

The basic text of the instant Motion to Strike is lifted almost verbatim from pages 4 to 6 of the text of the defendants' January 11, 2001 Motion to Dismiss.

The instant Motion to Strike does go beyond the original Motion to Dismiss in what it seeks, however, looking to strike not only Exhibits 1 and 2 to the Second Amended Complaint but also many more paragraphs of the text of that complaint and "any other evidence offered by Silverstein concerning the confidential settlement negotiations between the parties." Thus, the instant Motion to Strike is not only a pre-emptive response but also an expansion upon the original motion to dismiss--both of which were forbidden by Judge Zobel on January 17, 2001.

What's more, the defendants may have intended, after serving this motion, to respond to any substantive opposition the plaintiff made, on the theory that they had not explicitly been denied permission for that--not having asked.

The plaintiff will not assist the defendants in this violation of Judge Zobel's orders, which is the other reason--beyond making the Judge read the same thing twice--why the plaintiff is here using an incorporation by reference of the cognate portions of the opposition he will make, on the schedule set by the Court in January, to the defendants' Motion to Dismiss.

For the reasons set forth above, this Court should strike the defendants' February 5, 2001 Motion to Strike.

In addition, however, this Court should seriously consider how that motion fits into an overall strategy of brinkmanship and delay pursued by the defendants in this proceeding and its predecessor proceedings:

1. In the original lawsuit, after giving the plaintiff "judgment in the case," the defendants refused to agree that their counterclaim had been disposed of with prejudice, forcing the plaintiff to prepare and present a full-dress motion for summary judgment on that counterclaim, but then pulled the ripcord on that proceeding during oral argument when they were asked what statements of the plaintiff were libellous. They instead offered to dismiss voluntarily, ducking review by the judge of the merits of their counterclaim.

2. The defendants then submitted a motion to dismiss without prejudice, ⁽¹⁾ the grant of which is presently on appeal.

3. When the plaintiff filed the MCAD charge of retaliation that was the condition precedent to this lawsuit, the defendants did not respond until after the time for response was over and the MCAD investigator had contacted them for a response.

4. Instead of a substantive response, the defendants filed a motion for a more definite statement, claiming lack of understanding of the difference between the original charge of handicap discrimination and the new charge stemming from the libel counterclaim.

5. When the plaintiff did make a more definite statement, the defendants filed substantive responses which objected that their counterclaim in Superior Court could not be the basis for a new retaliation claim before the MCAD--showing that they understood full well what this case was about. ⁽²⁾

6. Upon the plaintiff's filing here, Laura Kling--the same defense attorney who had answered substantively before the MCAD--repeated the process, once again moving for a more definite statement on the now obviously feigned basis of not being able to see the difference between this complaint and the original complaint for handicap discrimination.

7. The motion for a more definite statement was served together with a motion before the MCAD for sanctions for the plaintiff's having gone to court eleven months after filing there (well over the required 90 day waiting period), requiring the plaintiff to file a substantive opposition before the MCAD.

8. The motion for a more definite statement here was followed by a request to stay all discovery until it had been ruled upon, ⁽³⁾ and by non-responses to discovery that referenced the request for stay. ⁽⁴⁾

9. On December 4, 2000, noting that the defendants should have been able to understand the complaint, Judge Zobel requested that--for the benefit of the Court--the plaintiff's counsel prepare a shortened version of what the plaintiff had filed pro se. Judge Zobel took no formal action on the defendants' motions for a more definite statement or for a stay of discovery.

10. On December 27, 2000, the plaintiff served a shortened version of the complaint--his Second Amended Complaint--in hand on the defendants' counsel. By the logic of the defendants' own--never acted on--motion for a stay, this should have prompted responses to the plaintiff's outstanding discovery.

11. Instead of making substantive responses to the plaintiff's discovery however, on January 17, 2001 the defendants--after Judge Zobel had converted their motion to dismiss to one for summary judgment--asked that he "continue" the stay of discovery he had never formally granted in the first place, apparently hoping both to run out the clock on discovery--which closes in this proceeding on June 18, 2001 unless extended--and to put the plaintiff in a box with respect to a summary judgment response. Judge Zobel instead told the defendants to give the plaintiff what he needed to respond to the motion.

12. As noted on pages 1 to 3 above, even though Judge Zobel had prohibited the defendants from expanding upon their motion to dismiss or responding to the plaintiff's opposition, they served the instant Motion to Strike, violating both of those prohibitions.

13. The plaintiff called on them to withdraw it by a letter faxed and mailed to them on February 13, 2001, a copy of which is attached.

14. As of today, February 21, 2001, over a week later, no response has been received by the plaintiff to that request, necessitating the service of this opposition and cross-motion,

NOW THEREFORE the plaintiff asks that his counsel be awarded $4,463.50 in attorneys fees and costs--plus such additional amount as the Court considers appropriate to deter the defendants (which include Mattel, Inc.) from further litigation abuse--as a sanction for the defendants' frivolous and dilatory practices before this Court. An itemized bill for $4,463.50, confined to extra time and expenses imposed by the defendants' litigation abuse in this proceeding alone, is attached. ⁽⁵⁾