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10-cv-04931-DSD-SER ) More Definite Statement Served 12/17/2010, Plaintiff, ) Diversity of Citizenship Accepted, ) Waiver of Formal Service of Summons. vs. ) ) Memorandum of Law in Opposition, AEROTEK Inc., ) Motion For Entry of Default, or in the ) Alternative For an Answer or Pleading, Defendant. ) Self-Contradiction and Judicial Estoppel. __________________________________________________________________ OBJECTION, AND JUDICIAL NOTICE JUDICIAL ESTOPPEL, BASED UPON INTENTIONAL SELF-CONTRADICTION In response to Defendant, AEROTEK INC’S., Reply in support of its Memorandum of Law for its Motion to Dismiss, the PLAINTIFF, Joshua J. Israel, gives judicial notice of contrary assertions in Defendant’s pleadings, and that the doctrine of judicial estoppel does estop and bar the Defendant’s use of intentional self-contradiction as a means of obtaining an unfair advantage; because, an acceptance of Defendant’s current position does create the perception that this Court was mislead in the first initial proceeding; and thus, any intentional misleading of this Court does pervert the judicial process, and additionally does impose an unfair detriment upon Plaintiff, and of which becomes another fraud upon this Court, and to so demonstrate, Plaintiff states as follows:
1. The doctrine of Judicial Estoppel is evoked where a party assumes a certain position in a proceeding, and if that party succeeds in maintaining that certain position, that party may not thereafter assume a contrary position, especially if it be to the prejudice to the plaintiff who has acquiesced in the position formerly taken by the other party. In addition, judicial estoppel is defined as a general rule that prevents a party from prevailing in one phase of an argument and then relying on a contradictory argument to prevail in another phase on the same issue; therefore, as a result, the rule of judicial estoppel is intended to prevent an improper use of judicial machinery New Hampshire v. Maine, (S. Ct. 2001) 532 U.S. 742, 749. 2. To bring forth the prior position of the Aerotek Defendant, and pursuant to the procedure for Removal of Actions, Section 28 USC 1446(b) sets forth the following procedure for Removal of Actions:
Procedure For Removal. 28 USC 1446(a)(b). (a) A defendant *** desiring to remove a civil action *** from a State court shall file in the district court of the United States for the district or division, within which such action is pending, a notice of removal signed pursuant to Rule 11of the Federal Rules of Civil Procedure *** (b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. ***
3. Therefore, only after the State action has been commenced, and only after the Defendant has received a copy of the initial pleading setting forth a claim for relief upon which such action is based, shall Notice for Removal of a State civil
action be filed in the U. S. District Court, and removed within (30) days after such commencement and service of process Murphy Brothers Inc. v. Michetti Pipe Stringling Inc., (S. Ct. 1999) 526 U.S. 344, 351-353. 4. As a result, it is the Defendant who must meet its burden to establish its right of Removal and compliance with the statute; and in doing so, the Defendant accepted as adequate the commencement in State court and the service of process in the State court; and in doing so, and the Defendant failed to object to any defect in State court, pursuant to 28 USC 1447(c), which sets forth the following procedure after removal:
Procedure After Removal. 28 USC 1447(c). A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under Section 1446(a).
5. Moreover, the Defendant did succeed in maintaining the sufficiency of its Removal to this U. S. Dist. Court, Dawson v. Orkin Extermination Co., (Colo. 1990) 736 F.Supp. 1049, 1050, 1053-1054; and now, the Defendant has claimed that this action should be dismissed because of defects in Removal procedure. Therefore, as a result of this contradiction, the Defendant has either mislead this Court or the Defendant is abusing the judicial process by willful violation of Rule 11(a)(b) of the Federal Rules of Civil Procedure (FRCP). 6. By signing its representations, the Defendant did certify to this Court that the statutory Removal requirement are met, that the Removal is in compliance with
the statute, and that the Removal is adequate and not presented for the purpose of unnecessary delay, or to cause economic harm to Plaintiff. 7. Moreover, since the (30) days for which to remand of this case and the (30) days for an appeal in Case No. 10-cv-04370-DSD-SER has expired, the Defendant’s argument over service of process and commencement of actions is now a moot issue, and Defendant should be judicially estopped from all assertions on commencement and service of process New Hampshire v. Maine, (S. Ct. 2001) 532 U.S. 742, 755-756. 8. To demonstrate the falsity of Defendant claim that this action was commenced of the 11th day of February, 2011, and that the statute of limitations does bar any proceeding herewith, Section 28 USC 1448 does set forth the following procedure for perfection of actions removed to the U. S. District Court:
Process After Removal. 28 USC 1448. In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.
9. As a result of 28 USC 1448, when the Clerk of U. S. District Court did require Plaintiff to file his More Definite Statement as a New Process (arising out of Case No. 10-cv-04370-DSD-SER) this new case assignment is statutorily protected Velten v. Daughtrey, (U. S. Dist. 1964) 226 F.Supp. 91, 92-93, and
saved from the statute of limitations, and Plaintiff cannot be penalized for complying with and satisfying the requirements of the Clerk Of U. S. Dist. Court, in order to formally accept the diversity jurisdiction of this Court Beecher v. Wallace, (9th Cir. 1967) 381 F.2d 372, 373. 10.In addition, pursuant to FRCP Rule 81(c)(1)(2), the following mandate declares the following procedure for removed actions:
Federal Rules of Civil Procedure, Rule 81(c)(1)(2). Removed Actions. (c)(1) These rules apply to a civil action after it is removed from a state court. (2) Further Pleading. After removal re-pleading is unnecessary unless the Court orders it. A defendant who did not answer before removal must answer or present other defenses or objections under these rules within the longest of these periods: (A) 21 days after receiving *** a copy of the initial pleading stating the claim for relief.
As a result, since the Defendant refused to answer its own requested More Definite Statement after 21 days from receiving it, the Defendant is in default. Moreover, this Court has the power to order service of process to be completed, after it is removed, or to order a new process be issued, in the same manner as if the civil action was originally filed Wright v. Xerox Corp. (U. S. Dist. NJ 1995) 882 F.Supp.399, 410-411. 11.Since the Aerotek Defendant’s Motion To Dismiss does admit the allegations in the Complaint herewith, and since the Defendant’s statute of limitations defense cannot preempt Section 28 USC 1448, the Motion To Dismiss should be denied, and Plaintiff should be awarded an entry of default.
12.Finally, since this Court did eliminate any confusion on the issues of this case during the hearing, on 12/17/2010, and since the Defendant has again asserted an intent to raise 1983 and 1985 issues again, this Court should utilize judicial estoppel to bar the Defendant from any further actions to raise 1983 and 1985 issue in this diversity of citizenship civil action. 13.Wherefore, Plaintiff objects to intentional self-contradictory assertions by the Defendant that either misleads this Court or does abuse the judicial process, and Plaintiff does plead with the court to utilize judicial estoppel to bar the Defendant from assuming a contradictory argument or a contradictory position to cause delays and economic harm to Plaintiff.
By:______________________________ Joshua J. Israel / Plaintiff x. x. Box xxx, xxxxx, MN xxxx (xxx) xxx xxxx
Proof Of Service This Objection and Judicial Notice is hand delivered the Defendant during the hearing on the 20th day of May, 2011, and this objection is hand delivered to the U. S. District Court Judge during said hearing, on said date, and the Defendant is afforded an opportunity to respond hereto, during the hearing.
IN THE UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA __________________________________________________________________ JOSHUA J. ISRAEL, ) Case No. 10-cv-04931-DSD-SER ) More Definite Statement Served 12/17/2010, Plaintiff, ) Diversity of Citizenship Accepted, ) Waiver of Formal Service of Summons. vs. ) ) Forma Pauperis Granted, AEROTEK Inc., ) Pro-Se Project Participation, ) Motion for Entry of Default, or in the Defendant. ) Alternative for an Answer or Response. __________________________________________________________________ To: the Defendant, AEROTEK INC., and Clerk of U. S. Dist. Court. NOTICE OF MOTION In opposition to Defendant, AEROTEK INC., Motion to Dismiss, and during a hearing scheduled by the Defendant, on May 20, 2011, at 10:30 a.m., the opportunity to be heard and to defend of PLAINTIFF, Joshua J. Israel, will include a motion for an Entry of Default, pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure, for Defendant’s failure to file a written response to the More Definite Statement (in case 10-cv-4370-DSD-SRN), and attached herewith is Plaintiff’s Motion setting forth litigation abuse and deliberate, intentional, bad faith conduct for Entry of Default. By: _________________________
Joshua J. Israel / Plaintiff Pro-Se X. X. XXX xxx, Xxxxxxx, XN XXXX Ph.(XXX) XXX-XXX
IN THE UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA __________________________________________________________________ JOSHUA J. ISRAEL, ) Case No. 10-cv-04931-DSD-SER ) More Definite Statement Served 12/17/2010, Plaintiff, ) Diversity of Citizenship Accepted, ) Waiver of Formal Service of Summons. vs. ) ) Forma Pauperis Granted, AEROTEK Inc., ) Pro-Se Project Participation, ) Motion for Entry of Default, or in the Defendant. ) Alternative for an Answer or Response. __________________________________________________________________ RESPONSE TO MOTION TO DISMISS, MOTION APPLICATION FOR DEFAULT JUDGMENT OR IN ALTERNATIVE FOR AN ANSWER IN 14 DAYS
STATE OF MINNESOTA COUNTY OF HENNEPIN ) ) ss. )
AFFIDAVIT OF JOSHUA J. ISRAEL In response to Defendant, AEROTEK INC’S., Motion to Dismiss, the PLAINTIFF, Joshua J. Israel, moves this Court for Entry of Default, pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure (FRCP); or in the alternative, Plaintiff moves the Court for an Answer to the More Definitive Statement, Pursuant to FRCP Rule 12(a)(4)(B ). Plaintiff does seek Entry of Default because of litigation abuse and bad faith conduct by the Defendant to subvert and ignore the legal process, and because of Defendant’s prior actions to aid, abet, obstruct and prejudice the rights of Plaintiff; therefore, to demonstrate that the Defendant is
in default for reasons other than failure to appear, and to set forth the criteria for a Contested Entry of Default, Plaintiff states as follows: CRITERIA FOR CONTESTED ENTRY OF DEFAULT 14.Since an entry of default is not a final judgment, for appeal purposes, the entry of default is only a prerequisite for a judgment of default at a later time; and it is in effect, akin to a finding of liability with the final judgment yet to come. In addition, the party against whom a default is entered must have been properly served with process (Defendant’s Waiver of Formal Service, Exhibit B), and the District Court must enjoy subject matter jurisdiction and personal jurisdiction over the defaulting party; and additionally, the Clerk of Court must also be satisfied, by the moving party’s process to move for entry of default Ortiz v. Lasker, (U.S. Dist. N.Y. 2008) 590 F.Supp.2d 423, 425. 15.When a motion for entry of default is opposed by a party who has entered its appearance, this Court may apply the following criteria: (1) whether the default was willful, (2) prejudice to the adversary, (3) whether a meritorious defense is presented, (4) nature of explanation for default, (5) good faith of the parties, (6) amount of money involved, (7) timing of motion, and (8) general philosophy favoring decision on the merits Schmir v. Prudential Insurance Company of America, (U. S. Dist. ME 2004) 220 F.R.D. 4, 5, Docket No. 3-cv-187-P-S.
FACTUAL BACKGROUND Failure To File A Responsive Pleading and Dilatory Tactics 16.After being granted the right to proceed in Forma Pauperis, and after a diligent effort to seek legal counsel produced negative results, necessity does compel Plaintiff to proceed as a Pro-Se Litigant (Exhibit PA-4). 17.This cause of action arises out of the Minnesota Department of Human Rights (MDHR), where Plaintiff alleged discrimination and reprisals under the MHRA, and where the Aerotek Defendant refused answer the MDHR Charge of Discrimination, within the 20 days allowed by statute, and where the MDHR Commissioner exceeded its authority, and was without statutory jurisdiction to Dismiss the Charge of Discrimination (Defendant’s Exhibit A-4). 18.After dismissal of said MDHR Charge, Plaintiff did commence a civil action, in the State Court, within the State’s (45) day limitations period (Plaintiff Exhibit PA-1); however, the complaint was defective because Plaintiff sought to give judicial notice of a process that did enforce a criminal enterprise, of aiding and abetting and obstruction of justice against Plaintiff (Case No. 10-cv-4370-DSDSRN); and thereafter, Plaintiff did seek judicial aid to proceed further, and Plaintiff did receive Leave of Court to amend and correct his process and procedure Kulinski v. Medtronic Bio-Medicus, (8th Cir, MN S. Ct. 1998) 557 N.W.2d 499, 504, (Plaintiff’s Exhibit PA-3, p.4).
19.After the State civil action was filed, the Defendant gave notice and removed this action to the U. S. District Court, due to a diversity of citizenship (Case No. 10-cv-4370), and after Plaintiff made the mistake of opposing said Removal from the State court, a hearing for Defendant’s Motion To Dismiss was held on the 17th day of December, 2010. 20.Since the Defendant requested a More Definite Statement, in said Motion, Plaintiff did personally serve a More Definite Statement (as an Amended Complaint), upon Defendant’s Legal Counsel, Shannon M. McDonough, and William E. Corum (Exhibit PA-3, page 1), during the hearing on 12/17/2010. 21.After William E. Corum and Shannon M. McDonough did decline this Court’s invitation to respond to the More Definite Statement, on the record in open court, William E Corum did state that he would file his response at a later time. Therefore, service of process was properly had upon the Aerotek Defendant, and no (45) day statute of limitation was recognized or asserted regarding commencement and fair notice of fact. 22.After more than 35 days had past, and on 1/25/2011, the Defendant had not served any written response to the More Definite Statement, and this refusal to comply with the (14) day mandate of FRCP Rule 12(a)(4)(B) is now a BINDING issue of Default upon the Aerotek Defendant.
23. Since the Clerk of Court has statutory authority to enter a finding of default, pursuant to Rule 55(b)(1) of the FRCP, and since the Clerk of Court did Not have record of formal service of summons upon Defendant, by U. S. Marshall, the Plaintiff filed and served upon the Defendant a FRCP, Rule 4(d)(1) Form for Waiver of Formal Service, on the 25th day of January, 2011. 24. On the 11th day of February, 2011, the Aerotek Defendant did respond and did send notice that it would Waive Formal Service of Summons, and that Defendant would file an Answer or Defense to its requested More Definite Statement, within 60 days of date 1/25/2011 (Defendant’s Exhibit B). 25.Thereafter, on the 14th day of March, the Defendant filed and served a Motion To Dismiss its own requested More Definitive Statement (as Complaint 10-cv04931-DSD-SER) based upon a (45) day statute of limitation; however, the Defendant has ignored its Rule 12(a)(4)(B) mandate to file and serve a written answer or response to the More Definite Statement no later than the 2nd day of January 2011; and additionally, the Defendant failed to raise this (45) day limitation defense before this Court, when an opportunity was afforded, during the hearing on 12/17/2010. 26. For purposes of entry of default requirements, and in all times hereafter, the Aerotek Defendant is not in military service.
PREJUDICE TO PLAINTIFF, BY LITIGATION ABUSE 27. That at all times herein and hereafter, a Minnesota Unemployment Law Judge found that Plaintiff maintains a disability back-injury and physical impairment to the T-12 to L-2 region of his vertebrae, which does limit the physical labor capability of Plaintiff (Exhibit PA-5); and prior to said aggravation of injury that lead to said judgment, the Plaintiff did find suitable employment (doing detail work under a microscope for 100% of the work day) with the Aerotek Defendant, which did Not aggravate the back-injury of Plaintiff; however, said employment accommodation was lost when Aerotek wrongfully discharged Plaintiff (Exhibit PA-7), and Plaintiff has been collecting Un-Employment Benefits and Food Stamps to this present day. 28. In addition, since the Aerotek Defendant deprived Plaintiff of his right to a reasonable accommodation, under Minn. Stat. 363A.08(3)(6), MDHR Mediation Administrator, Kathi Booth, is the witness for the 363A.08(3)(6) violation by Aerotek; because, the Defendant refused to participate in any interactive process for a reasonable accommodation (Exhibit PA-6); therefore, this act of “bad-faith” is now BINDING upon the Defendant and their attorney. 29. In addition, after the Aerotek Defendant did refuse other employment opportunity to Plaintiff, a Minnesota Unemployment Law Judge found that
Plaintiff was discharged for a single incident of unsatisfactory work performance that was Not intentional Nor caused by negligence or indifference, and which did Not have any significant negative effect on the employer, and as a result, this conclusive judgment is now a BINDING fact of wrongful discharge upon the Aerotek Defendant, and their attorney (Exhibit PA-7). 30. Moreover, after the Aerotek Defendant refused to answer the Minnesota Department of Human Rights (MDHR) Charge of Discrimination, within the 20 days mandated by Minn. Rule 5000.1200, a MDHR investigator, named Steve Lapinski, did aid and abet with the Defendant, in violation of Minn. Stat. 363A.14(3) to obstruct the right of Plaintiff to a default judgment, and Steve Lapinski did aid and abet with the Defendant to obtain an unsigned and unverified generalized statement, from Aerotek, at a later time, over the objection of Plaintiff (Plaintiff’s Exhibit PA-8, Defendants Exhibit A-4). 31. That Aerotek’s written Response to Steve Lapinski is invalid incompetent evidence, because it is a generalized statement prepared by a person who has no personal knowledge of anything alleged in the Charge of Discrimination, and by a person who is Not a witness to anything alleged in the Charge; moreover, the MDHR Commissioner used inadmissible hearsay statements to falsely claim that this matter was a complex case, and then fail to investigate, and said
Commissioner considered said statements as a valid truth of matters stated therein Vicksburg & M. R. Co. v. Obrien, (S. Ct. 1886) 119 U.S. 99, 105. 32. That after cooperating with the excessive (1) year and (3) month delay in the MDHR process and procedure, the Defendant failed to move for dismissal of this Charge of Discrimination, and the Aerotek Defendant has Not claimed any prejudice by the delay that went beyond (12) months. 33. As a result, said delay did prejudice the economic stability of the Plaintiff and the personal financial condition of Plaintiff; said delay did prejudice the prospective future re-employment of Plaintiff, and this intentional “bad-faith” litigation abuse has the aim to completely destroy the Plaintiff Brock v. Roadway Express Inc., (S. Ct. 1987) 481 U. S. 252, 258-259, 261-263, 267. PREJUDICE TO PLAINTIFF BY FRAUD UPON THIS COURT 34. Now that the Defendant has introduced its MDHR No Probable Cause Determination to support its Motion To Dismiss, and since this No Probable Cause adjudication has been manufactured to obstruct justice and prevent Plaintiff from complying with the provisions of the MHRA, Plaintiff will demonstrate that the MDHR Commissioner’s adjudication is a non-binding deliberate sham that is purposely devised to favor the private interests of the
Defendant; therefore, the following mandate of the Minnesota Legislature does invalidate said adjudication:
Minn. Stat. 645.16 Legislative Intent Controls. The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions. When the words of the law in their application to an existing situation are clear and free from ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit. Minn. Stat. 645.17 Presumptions In Ascertaining Legislative Intent. In ascertaining the intention of the legislature the courts may be guided by the following presumptions: (1) The Legislature does not intend a result that is absurd, impossible of execution, or unreasonable; (2) The Legislature intends the entire statute to be effective and certain; (3) The Legislature does not intend to violate the Constitution of the United States or of this State; (5) The Legislature intends to favor the public interest as against any private interest.
35. As a result of said Legislative guidance, when Commissioner, James Kirkpatrick, refused to reconsider its finding of No Probable Cause a second time, James Kirkpatrick willfully and deliberately favored the private interests of Aerotek, over the public interests of the MHRA; and when James Kirkpatrick ignored and disregarded the mandatory interpretation of the Minnesota Supreme Court in Beaulieu v. Jose’s Bar & Grill, (Minn. S. Ct. 1996) 552 N.W.2d 695, 701-704; (which removed all ambiguity, uncertainty, or confusion regarding the (1) year MDHR jurisdiction), James Kirkpatrick maliciously re-interpreted the mandate of the Minnesota Supreme Court to favor the private interests of Aerotek; and, said Commissioner did violate 363A.14(3) so as to obstruct justice and prevent Plaintiff from complying with the provisions of the MHRA.
36. To violate Minn. Stat. 645.16, and 645.17, so as to favor Aerotek, the MDHR Commissioner made the following adjudication, “The Minn. Supreme Court does not hold that MDHR’s failure to make a probable cause finding within the twelve-month period, established by the MHRA, was per-se prejudicial to the respondent, nor did it hold that the MDHR necessarily looses all jurisdiction over a case once the twelve-month period has ended.” As a result, said Commissioner, did subvert Legislative construction and overruled the explicit judgment of the Minnesota Supreme Court that was rendered upon the following equal protection statute:
Minn. Stat. 363A.29.(2) Hearings 180 days after the charge. At any time after 180 days from the filing of a charge, if there has been neither a finding of probable cause nor of no probable cause, the charging party may file a request with the commissioner to appear at a hearing on the party’s own behalf *** The commissioner shall make a determination of probable cause or no probable cause within one year of the filing of a case *** certified as complex.
37. In addition, to subvert, and overrule the Minnesota Supreme Court, James Kirkpatrick re-interpreted the following explicit mandate of legislative interpretation that was settled by the Minnesota Supreme Court:
Beaulieu v. Jose’s Bar & Grill, (Minn. S. Ct. 1996) 552 N.W.2d 695, 701-704, “The Legislature’s clear purpose in enacting 363.06(4)(1) was to expedite the resolution of discrimination charges filed with the MDHR (page 701). When the MDHR’s probable cause determinations are delayed, that purpose is frustrated. *** MDHR’s efforts to have us construe Minn. Stat. 363.06 (4)(1), as directory are misguided. *** The commissioner shall make a [no probable cause] determination within 12 months after a charge is filed (emphasis added). The word “shall” is mandatory. This court is not at liberty to ignore the legislative’s plain and unambiguous language. *** We find nothing in the HRA which suggests that the MDHR’s failure to make a timely [no probable cause] determination is a jurisdictional bar to further proceedings. At most, the 17
delay and any resulting prejudice raise equitable defenses to be resolved by the ALJ (page 702). [FN 7] We also note that the charging party has the ability, and to some extent the responsibility, to do what it can to minimize the impact of the MDHR’s inaction. (case citation). Charging Party has no absolute right to wait until proceedings conclude and does have an obligation to monitor agency’s progress. *** (p. 703) Such unnecessary and unreasonable delay results in harm to charging parties and respondents alike. ** (p. 704) Coyne Justice (dissenting). Ruling that the commissioner loses jurisdiction over the claim if he or she fails to meet the statutory time frame *** rewards the dilatory bureaucrat.” ***
38. As a result, to disregard the Minnesota Legislature, and to re-interpret the explicit mandate of the Minnesota Supreme Court, so that Aerotek can introduce a sham adjudication before this Court, and so that Aerotek can support its Motion To Dismiss with an adjudication that is manufactured for obstruction of justice, is willful and deliberate litigation abuse to prejudice the mind of this Court against Plaintiff, with an unconscionable scheme that commits a fraud upon this Court Hazel Atlas Glass Co. v. Hartford-Empire Co., (S. Ct. 1944) 64 S. Ct. 997, 1001 1004; Pumphrey v. K. W. Thompson Tool Co., (9th Cir. 1995) 62 F.3d 1128, 1130-1134. As a result, said No Probable Cause Determination is NOT a binding adjudication upon this Plaintiff. 39. That after commencing a civil action in State court, the Aerotek Defendant did Remove this civil action to this U. S. District Court, and now Defendant has again ignored the legal process by disregarding FRCP Rule 12(a)(4)(B), which does mandate a written answer or response within (14) days; therefore, the
Aerotek Defendant has again subverted the FRCP to initiate another dilatory tactic to prejudice the Plaintiff before this Court. 40. Finally, and in conclusion, when Aerotek did refuse to Answer a Minnesota Unemployment Request For Information, Minnesota Unemployment issued an Eligibility Finding against the Defendant (PA-7). When Aerotek did aid and abet with MDHR Steve Lapinski to introduce an inadmissible hearsay statement so that MDHR can falsely claim that this matter is a complex case, and then fraudulently extend MDHR jurisdiction from 180 days to (1) year; said MDHR dilatory tactic did prejudice the Plaintiff, and did favor Aerotek. Thereafter, when the Aerotek Defendant additionally refused to file a written response to its own requested More Definite Statement, the Defendant has set forth a clear pattern of litigation abuse that refuses to plead or otherwise defend. 41. Wherefore, Aerotek has been afforded (3) opportunities to provide a responsive pleading, and each time the Defendant has ignored the legal process to deliberately delay proceedings with litigation abuse. Furthermore, the
Defendant has introduced a malevolent scheme to commit a fraud upon this Court; because, the MDHR No Probable Cause adjudication is invalidated by the Minnesota Legislature and the Minnesota Supreme Court Uselman v. Uselman, (MN S. Ct. 1990) 464 N.W.2d 130, 145-146.
RELIEF SOUGHT, LOST WAGES, FRONT PAY, 42. As a result of the aforesaid delays, said dilatory tactics, and the bad faith conduct to refuse to engage in an interactive process for a reasonable accommodation; and as a result of the willful and intentional refusal to Answer or file and serve responsive pleadings, the Plaintiff has suffered two years of lost wages to equal $46,925.00 (PA-9); the Plaintiff has suffered out of packet expenses, lost personal property, and self treatment costs to equal $15, 656.00, and since Plaintiff is suffering from a back injury disability impairment where gainful employment is severely limited, Plaintiff is entitled to a two year front pay for re-education and re-training necessary to become gainfully re-employed to equal $46,925.00. Therefore, the total wage claim of Plaintiff for money damages is $109,506.00. 43. Moreover, in the alternative, Plaintiff does plead with the Court to enter an order requiring the Defendant to file an Answer or Responsive Pleading within (14) days of this hearing date; and if no answer is forthcoming, then necessity compels a judgment of default to be entered and enforced. By:______________________________ Joshua J. Israel / Plaintiff Pro-Se X. X. Xxx xxx Xxxxxx, XN XXXXX (XXX) XXX-XXXX
IN THE UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
_____________________________________________________________________________ JOSHUA J. ISRAEL, ) Case No. 10-cv-04931-DSD-SER ) More Definite Statement Served 12/17/2010, Plaintiff, ) Diversity of Citizenship Accepted, ) Waiver of Formal Service of Summons. vs. ) ) Forma Pauperis Granted, AEROTEK Inc., ) Pro-Se Project Participation, ) Motion For Entry of Default, or in the Defendant. ) Alternative For an Answer or Response. _____________________________________________________________________________
AFFIDAVIT OF JOSHUA J. ISRAEL STATE OF MINNESOTA COUNTY OF HENNEPIN ) ) SS )
Plaintiff, Joshua J. Israel, have read this default application. To the best of my knowledge, information, and belief, the information contained in this application is well grounded in fact and is warranted by existing law, and there is no issue of military service as to any of the parties. I have not been determined by any court in Minnesota, or in any other state to be a frivolous litigant, and I am not a subject of an Order precluding me from serving or filing this document. I am not serving this document for any improper purpose, such as to harass the other party, or to cause delay or needless increase in the cost of litigation, or to commit fraud on the Court. I understand that if I am not telling the truth, or if I am misleading or deceiving the Court, or if I am serving this application for default Judgment for an improper purpose, the Court can order me to pay money to the other party, including the reasonable expenses incurred by the other party because of the serving or the filing of this application for default judgment, court costs, and reasonable attorney fees.
Subscribed and sworn to before me on this 10th day of April, 2010
__________________________________ Joshua J. Israel / Plaintiff
______________________________ Notary Public
IN THE UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA __________________________________________________________________ JOSHUA J. ISRAEL, ) Case No. 10-cv-04931-DSD-SER ) More Definite Statement Served 12/17/2010, Plaintiff, ) Diversity of Citizenship Accepted, ) Waiver of Formal Service of Summons. vs. ) ) Forma Pauperis Granted, AEROTEK Inc., ) Pro-Se Project Participation, ) Motion For Entry of Default, or in the Defendant. ) Alternative For an Answer or Response. __________________________________________________________________ AFFIDAVIT OF JOSHUA J. ISRAEL
State of Minnesota County of Hennepin ) ) ss )
I am the Plaintiff Pro-Se, Joshua J. Israel, and being aware of the penalties for fraud and false statements, under 18 USCA 1001, the Plaintiff does affirm that the attached exhibits are a true and accurate copy of records, in my possession, received from process and procedure before Minnesota Unemployment Insurance, from before Minnesota Department of Human Rights, from the Aerotek Payroll Department, and from this Court’s Pro-Se Project, and to submit said exhibits to support Plaintiff’s Motion For Entry of Default, Plaintiff does introduce as follows: 1. The following exhibits are designated as PA, which means (P)laintiff’s (A)ppendix, and the Exhibits are numbered as follows:
2. Exhibit PA-4, is a copy of the email correspondence from Tiffany Sanders concerning attempts by Tiffany to obtain legal counsel for Plaintiff. 3. Exhibit PA-5, is a copy of the Findings Of Fact and Decision of Minnesota Unemployment Insurance, regarding matters of unsuitable employment that aggravated the back-injury of Plaintiff. 4. Exhibit PA-6, is a copy of Notice mailed to the Plaintiff, from MDHR Mediation Administrator, Kathi Booth, concerning the Defendant’s refusal to Mediate and engage in an Interactive-Process for a Reasonable Accommodation. 5. Exhibit PA-7, is a copy of Determination of Eligibility for unemployment compensation benefits, regarding Aerotek’s discharge from employment. 6. Exhibit PA-8, is a copy of the Aerotek unsigned and unverified generalized statement, which was used to as a dilatory tactic to prejudice Plaintiff. 7. Exhibit PA-9, is a copy of the Aerotek employee payroll statement that sets forth Plaintiff’s wage rate, in the year 2008. Wherefore the aforesaid exhibits attached herewith are the true and accurate copies to the best of my knowledge, information, and belief.
By: ______________________________ Joshua J. Israel/Plaintiff Pro-Se __________ ____________________ Notary Public ________________ Date
IN THE UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA __________________________________________________________________ JOSHUA J. ISRAEL, ) Case No. 10-cv-04931-DSD-SER ) More Definite Statement Served 12/17/2010, Plaintiff, ) Diversity of Citizenship Accepted, ) Waiver of Formal Service of Summons. vs. ) ) Forma Pauperis Granted, AEROTEK Inc., ) Pro-Se Project Participation, ) Motion For Entry of Default, or in the Defendant. ) Alternative For an Answer or Response. __________________________________________________________________ PROOF OF SERVICE The Plaintiff, Joshua J. Israel, certifies that he did serve a true and accurate copy of his Memorandum of Law in Opposition to Defendant’s Motion to Dismiss, and a true and accurate copy of Plaintiff’s Motion for Entry of Default, together with supporting exhibits upon the Defendant. To service said documents, the Plaintiff did place said documents in a properly addressed stamped envelope, and did deliver these document to the Defendant through the U. S. Postal Service, by first class postage, on the 14th day of April, 2011, to the following addresses:
Clerk OF Court Minneapolis Division U. S. District Court 300 South 4th Street Suite #202 Minneapolis, MN 55415-2297 Shannon M. McDonough Attorney at Law FAFINSKI, MARK, & JOHNSON P.A. 775 Prairie Center Drive Suite #400 Eden Prairie, MN 55344 _______________________________________ Joshua J. Israel / Plaintiff Pro-Se
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