COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURT
CIVIL ACTION
WILLIAM SILVERSTEIN,  Plaintiff:
v.:     Civil Action NO. 00-3893

MICROSYSTEMS SOFTWARE, INC.,
THE LEARNING COMPANY, INC., and
MATTEL, INC., defendants



:

DEFENDANTS OPPOSITION TO PLAINTIFF’S MOTION
TO STRIKE AFFIRMATIVE DEFENSES IN DEFENDANTS’ ANSWER

Defendants Microsystems Software Inc., The Learning Company Inc. and Mattel, Inc. (collectively, the "defendants"), hereby respond to Plaintiff’s Motion to Strike Affirmative Defenses in Defendants’ Answer ("Motion to Strike") as follows:

(1) The defendants served a motion to dismiss on or about January 11, 2001. On March 26, 2001, the Court denied the motion to dismiss without prejudice, subject to its renewal after resolution of the appeal of a prior, related action. See March 26, 2001 Order, Zobel, J.

(2) On or about April 1, 2001, the defendants served a motion to stay all discovery in this case. The Court allowed the defendants’ motion to stay. See April 13, 2001 Order, Zobel, J.

(3) In spite of these orders, and with absolutely no authority or legal precedent, the plaintiff now seeks to strike the defendants’ affirmative defenses.

(4) Nonsense. Affirmative defenses provide notice to the plaintiff of defenses that will be raised. Mass. R. Civ. Proc. 8(c); Demoulas v. Demdulas, 428 Mass. 555, 575 (1998) (holding the plaintiff was on notice that an affirmative defense was to be made); Anthony’s Pier Four. Inc. v. HBC Assoc., 411 Mass 451, 471 (1991) (holding that failure to plead an affirmative defense results in a waiver and exclusion of the defense from the case)

(5) The defendants, however, advance their affirmative defenses in good faith. Plaintiff may not seek to discover into the factual basis for the affirmative defenses by seeking to strike them and attempt to circumvent the order staying discovery.

WHEREFORE, the defendants respectfully request that the plaintiff’s motion to strike affirmative defenses be denied. A proposed order is enclosed herewith.

 

Dated: May 8 , 2001

 

Mattel, Inc., Microsystems Software Inc. and The Learning Company

By their attorneys,

Laura N. Kling  

Laura N. Kling BBO#548763
SCHWARTZ and NYSTROM, LLC
419 Boylston Street
Boston, Massachusetts 02116
(617) 421-1800
(617) 421-1810 (fax)
mailbox@schwartz-nystrom.com