NO. 99-BEM-2634

WILLIAM SILVERSTEIN, Plaintiff

v.

MICROSYSTEMS SOFTWARE, INC., THE LEARNING COMPANY, INC., MATTEL INC,  Respondents

OPPOSITION TO RESPONDENTS' REQUEST FOR MORE DEFINITE STATEMENT, AND CROSS-MOTION TO DEFAULT THE RESPONDENTS

The only purpose for the request for a more definite statement--which is, on its own merits, legally insupportable--is to cause delay and additional expense for me, and to distract the Commission from the respondents' failure to respond within the time required, which expired on May 11, 2000 with no response of any sort. It was left to the Commission to contact the respondents on May 15, 2000 to inquire about an answer! Under 804 CMR 1.07(2), as the respondents did not even request an enlargement of time before the expiration of the time allowed, the respondents are not even permitted to file this request for a more definite statement unless they have been granted an enlargement of time on the basis of a motion showing a sufficient basis for the Commission to find excusable neglect. ⁽¹⁾

The instant request for a more definite statement is consistent with the respondents' penchant for taking frivolous and abusive positions in litigation. ⁽²⁾

A request for a more definite statement is appropriate when the charge is so "vague or ambiguous that the Respondent cannot reasonably be expected to take an informed legal position" 804 CMR 1.13(6). The four numbered questions posed by Mattel and MSI are not justified by any showing of vagueness or ambiguity in the charge that would prevent them from being able to frame a responsive pleading.

The respondents assert, with no explanation, that my Complaint does not comply with 804 CMR 1.10(5), which requires only that the Complaint set forth:

 "(a) the date(s) on which the unlawful discriminatory acts occurred; or, where the acts are of a continuing nature, the period of time during which acts occurred;

"(b) a concise statement of the alleged discriminatory acts;

"(c) if appropriate, a statement indicating that the complaint constitutes a class action as provided in 804 CMR 1.09(4);

"(d) appropriate identification of the Complainant(s) and the person(s) alleged to have committed unlawful discriminatory acts (hereinafter referred to as the Respondent(s)), unless proceeding by use of pseudonym, pursuant to 804 CMR 1.10(5)(d);..."

My complaint, which was drafted by the MCAD for my signature, clearly met these requirements:

(a) My Complaint clearly set forth the date on which the libel counterclaim that is the basis for this Complaint was filed and that the use of that counterclaim to retaliate against me is continuing.

(b) My Complaint clearly set forth that the alleged discriminatory acts were the bringing and maintaining of the counterclaim, which the respondents--even after the filing of the Complaint here--continue to refuse to allow to be dismissed with finality.

(c) My complaint is not a class action, and no allegation that it is could be read into it, so this paragraph is inapplicable.

(d) My Complaint explicitly identified myself and the respondents by name.

Thus, the initial allegation in the request for a definite statement, that I have not complied with 804 CMR 1.10(5), is simply false. Their pretended need for clarification is simply disingenuous:

(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. I brought charging violation of chapter 151B. ⁽³⁾

If the respondents' counsel truly did not understand the charges, all he had to do was read the legal theories posted on my website. The respondents were well-aware of the Complaint and the allegations underlying both the original lawsuit and this retaliation claim, both because they were explained on my website--which was the basis of their libel claim in the first place--and because I asserted a defense against their counterclaim that it was a prohibited act under chapter 151B, ⁽⁴⁾ and in fact discussed this in my summary judgment memoranda seeking dismissal of their libel counterclaim with prejudice.

The respondents' further request that I be required to brief a question of law with respect to the Commission's jurisdiction in my Complaint is not only subject to the same objection but is, to put it simply, putting the cart before the horse. If they present a legal argument that their actions in abusively putting me to expense and inconvenience to defend a lawsuit that was brought in violation of chapter 151B is somehow outside this Commission's jurisdiction, I will examine the authorities they present in support of such a defense and respond to them. It is not my obligation to present legal argument in the Complaint to anticipate and avoid a defense, particularly since no type of legal argument is required in a Complaint, the function of which is merely to put a respondent on notice of the nature of the claim. ⁽⁵⁾

As the respondents neither filed a response or even requested an enlargement of time to do so, they should be defaulted. Under 804 CMR 1.16(1), the Investigating Commissioner may impose sanctions upon them in this situation.

Given that they have gone beyond simple default to engaging in an abusive motion designed to try to improperly shift the onus for their default to me, I request that the Investigating Commissioner impose the sanction authorized under subsection (a) of 804 CMR 1.16(1):

"(a) Said failure shall result in the matters regarding the complaint being taken as established for the purposes of the case in accordance with the claims of the Complainant;"

Such sanctions and a finding of probable cause is appropriate in this case. There is no dispute I publicly complained of violations of MGL c.151B on my website. The defendants cannot dispute that they filed a lawsuit against me because of my complaints on the website.

Wherefore, I request that the commission default all the defendants and make an immediate finding that probable cause exists to support my claims in this matter.