NO. 99-BEM-2634

WILLIAM SILVERSTEIN, Plaintiff

v.

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

RESPONSE TO RESPONDENTS' OPPOSITIONS TO MOTION FOR SANCTIONS AGAINST RESPONDENTS ATTORNEY

Respondents fail to provided any justification for their attorney's failure to comply with the time restrictions and to make reasonable inquiry into the facts of the complaint. Their two defenses were that they were confused, that I didn't provide evidence of their improper motive.

Respondents claim that 804 CMR 1.13(6) permits the respondents to request a more definitive statement. It does not!

"If a complaint is so vague or ambiguous that the Respondent cannot reasonably be expected to take an informed legal position concerning the relevance of evidence sought" ⁽¹⁾

When viewed in the light of 804 CMR 1.10(5) this would require an attorney, to do some investigation before throwing up their hands claiming to be confused. Though one could argue that the complaint could have more clear, the complaint did comply with 804 CMR 1.10(5). ⁽²⁾ Respondents' attorney never deny that they failed to minimally investigate the complaint before making the motion for more definitive statement. ⁽³⁾ The attorney for the respondents' had an affirmative duty to do some investigation before filing a motion for more definitive statement, they did not.

• That respondents' attorney failed to make reasonable inquiry,

or,

• interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

In the regulation, the two parts are joined by "and," which would require respondents' counsel to comply with both parts. Thus, by failing to satisfy any one part or the regulation the respondents have violated the regulation.

There respondents' attorney offer no defense to ignoring the time limits. The respondents request for more definitive statement was made after the time to respond had expired. The respondents' attorney does not argue that a motion for more definitive statement automatically tolls their time to respond. The respondents' attorney acknowledges their is no defense, in that they offered none.

It is also interesting to note, that I have complied with commission regulations. I am able to, without legal staff or legal training, to respond within time limits. I received the packet from the respondents on July 3, 2000 and responded by July 7.

Wherefore, plaintiff again requests that the commission sanction respondents' attorney.