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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

:   Answer to Second
:   Amended Complaint
:


For their answer to the Second Amended Complaint ("Complaint"), defendants Microsystems Software, Inc., the Learning Company, Inc. and Mattel, Inc. (collectively, "Mattel") hereby respond to the numbered paragraphs of the Complaint as follows:

Introduction

1. Paragraph 1 of the Complaint contains a statement of plaintiff's claims and incorrect conclusions of law to which no response is required. To the extent a response is required, Mattel denies the allegations in paragraph 1 of the Complaint.

Parties

2. Mattel lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 2 of the Complaint and therefore denies those allegations.

3. Denied.

4. Paragraph 4 of the Complaint contains conclusions of law to which no response is required. To the extent a response is required, Mattel denies the allegations in paragraph 4 of the Complaint.

5. Denied.

6. Paragraph 6 of the Complaint contains conclusions of law to which no response is required. To the extent a response is required, Mattel denies the allegations in paragraph 6 of the Complaint.

7. Denied.

8. Paragraph 8 of the Complaint contains conclusions of law to which no response is required. To the extent a response is required, Mattel denies the allegations in paragraph 8 of the Complaint.

9. Admitted.

10. Paragraph 10 of the Complaint contains conclusions of law to which no response is required. To the extent a response is required, Mattel denies the allegations in paragraph 10 of the Complaint.

11. Denied.

12. Paragraph 12 of the Complaint contains conclusions of law to which no response is required. To the extent a response is required, Mattel denies the allegations in paragraph 12 of the Complaint.

13. Denied.



Facts

14. Mattel admits that plaintiff filed an action, entitled Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior CA No. 98-4820, respectfully refers the Court to the pleadings in that action, which pleadings speak for themselves, and denies the remaining allegations in paragraph 14 of the Complaint.

15. Mattel lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 15 of the Complaint and therefore denies those allegations.

16. Mattel states that the counterclaim filed in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior CA No. 98-4820, speaks for itself, respectfully refers the Court to that counterclaim for a full and complete statement of its terms, and denies the remaining allegations in paragraph 16 of the Complaint.

17. Denied.

18. Mattel states that the Offer of Judgment tiled in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior CA No. 98-4820, speaks for itself, respectfully refers the Court to that Offer of Judgment for a full and complete statement of its terms, and denies the remaining allegations in paragraph 18 of the Complaint.

19. Mattel states that judgment entered in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior CA No. 98-4820, speaks for itself, respectfully refers the Court to that judgment for a full and complete statement of its terms, and denies the remaining allegations in paragraph 19 of the Complaint.

20. Denied.

21. Mattel lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 21 of the Complaint and therefore denies those allegations.

22. Mattel states that the draft settlement agreement speaks for itself, respectfully refers the Court to the draft settlement agreement for a full and complete statement of its terms, and denies the remaining allegations in paragraph 22 of the Complaint.

23. Mattel states that the draft settlement agreement speaks for itself, respectfully refers the Court to the draft settlement agreement for a full and complete statement of its terms, and denies the remaining allegations in paragraph 23 of the Complaint.

24. Mattel states that the letter dated September 21, 1999 speaks for itself, respectfully refers the Court to that letter for a full and complete statement of its terms, and denies the remaining allegations in paragraph 24 of the Complaint.

25. Denied.

26. Denied.

27. Denied.

28. Mattel states that the motion for summary judgment filed in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior CA No. 98-4820, speaks for itself, respectfully refers the Court to that motion and supporting papers for a full and complete statement of their terms, and denies the remaining allegations in paragraph 28 of the Complaint.

29. Mattel lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 29 of the Complaint and therefore denies those allegations.

30. Mattel admits that the counterclaim was dismissed without prejudice and denies the remaining allegations in paragraph 30 of the Complaint.

31. Denied, except that Mattel admits that Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior CA No. 98-4820 currently is on appeal, and Mattel respectfully refers the Court to the briefs filed in the appeal captioned Silverstein v. Microsystems Software, Inc., et al., No. 2000-P-1005 (Mass. App. Ct., filed April 21, 2000).

32. Denied.

33. Denied.

34. Denied.



Damages

35. Denied.

 

Count I
Workers Compensation - Retaliation
Massachusetts General Laws Chapter 152, 75B

36. Mattel repeats, realleges and incorporates by reference herein the responses in paragraphs 1 through 35 above as if fully stated here.

37. Denied.

38. Denied.

39. Denied.

Count II
Retaliation
Massachusetts General Laws Chapter l5lB 4

40. Mattel repeats, realleges and incorporates by reference herein the responses in paragraphs 1 through 39 above as if fully stated here.

41. Denied.

42. Denied.

43. Denied.

 

Count III

Retaliation
Family and Medical Leave Act - 29 U.S.C. 2601 at seq.

44. Mattel repeats, realleges and incorporates by reference herein the responses in paragraphs 1 through 43 above as if fully stated here.

45. Denied.

46. Denied.

47. Denied.

Count IV
Retaliation
American with Disabilities Act - 42 U.S.C. 12101 at seq.

48. Mattel repeats, realleges and incorporates by reference herein the responses in paragraphs 1 through 47 above as if fully stated here.

49. Denied.

50. Denied.

51. Denied.

52. Denied.

53. Denied.

54. Mattel lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 54 of the Complaint and therefore denies those allegations.

 

Count V
Abuse of Process

55. Mattel repeats, realleges and incorporates by reference herein the responses in paragraphs 1 through 54 above as if fully stated here.

56. Denied.

57. Denied.

58. Paragraph 58 of the Complaint contains conclusions of law to which no response is required. To the extent a response is required, Mattel denies the allegations in paragraph 58 of the Complaint.

59. Denied.

60. Denied.

Count VI
Negligent or Intentional Infliction of Emotional Distress

61. Mattel repeats, realleges and incorporates by reference herein the responses in paragraphs 1 through 60 above as if fully stated here.

62. Denied.

63. Denied.

64. Denied.

Nonremovability

65. Denied.

66. Denied.

67. Denied.

AFFIRMATIVE DEFENSES

First Affirmative Defense

Plaintiff's allegations against the defendants fail to state a claim upon which relief can be granted.

Second Affirmative Defense

Plaintiff's claims are barred under the doctrines of estoppel, laches, waiver, res judicata and/or unclean hands.

Third Affirmative Defense

Plaintiff released the defendants from any obligations owed to plaintiff.

Fourth Affirmative Defense

The defendants' actions were privileged under the right to petition.

Fifth Affirmative Defense

Plaintiff's claims are barred, in whole or in part, because he suffered no damages from the acts and conduct of which he complains.

Sixth Affirmative Defense

Plaintiff failed to mitigate his damages, if any.

Seventh Affirmative Defense

Plaintiff's claims are barred because the defendants have at all times fulfilled any and all duties they owed to Plaintiff.

Eighth Affirmative Defense

Plaintiff's claims are barred because at all times the defendants acted fairly and equitably toward Plaintiff.

Ninth Affirmative Defense

The defendants' actions did not constitute retaliation under G.L. c. 152, 75B, G.L. c. 151B, 4, 29 U.S.C. 2601 et seq. or 42 U.S.C. 12101 et seq.

Tenth Affirmative Defense

Plaintiff's charges are barred by accord and satisfaction.

Eleventh Affirmative Defense

Plaintiff failed to exhaust all administrative remedies and to satisfy all administrative prerequisites to bringing some or all of his claims.

Twelfth Affirmative Defense

Plaintiff's claims are barred by the doctrines of mootness and ripeness.


Thirteenth Affirmative Defense

The defendants were not, at times pertinent, employers under G.L. c. 152, G.L. c. 15lB, 29 U.S.C. 2601 or 42 U.S.C. 12101.

Fourteenth Affirmative Defense

Plaintiff's claims are time-barred.

Respectfully submitted,

 

Dated: April 5, 2001

 

Mattel, Inc., Microsystems Software Inc. and The Learning Company
By their attorneys,

Laura N. Kling

Irwin B. Schwartz BBO#548763
Laura N. Kling BBO#638313
SCHWARTZ and NYSTROM, LLC
419 Boylston Street
Boston, Massachusetts 02116
(617) 421-1800
(617) 421-1810 (fax)
mailbox@schwartz-nystrom.com