The Remedy For Lawyer Litigation Abuse, If The Judge Will Do His Part

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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. )

) 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:

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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

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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

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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

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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.

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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.

_________________________________

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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

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vs. )



) 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 )

) ss.

COUNTY OF HENNEPIN )

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

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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.

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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-DSD-

SRN); 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).

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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.

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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-cv-

04931-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.

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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

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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

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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

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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.

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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

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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

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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.

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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

21


DISTRICT OF MINNESOTA _____________________________________________________________________________





vs. )



) Motion For Entry of Default, or in the

Defendant. ) Alternative For an Answer or Response.

_____________________________________________________________________________


STATE OF MINNESOTA )

) SS

COUNTY OF HENNEPIN )

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.

Dated: _______________________ __________________________________

Joshua J. Israel / Plaintiff Subscribed and sworn to before me

on this 10th day of April, 2010

______________________________

Notary Public 207-39-0/347097

22







vs. )





__________________________________________________________________


State of Minnesota )

) ss

County of Hennepin )

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:

23

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

24







vs. )





__________________________________________________________________

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 Shannon M. McDonough

Minneapolis Division Attorney at Law

U. S. District Court FAFINSKI, MARK, & JOHNSON P.A.

300 South 4th

Street 775 Prairie Center Drive

Suite #202 Suite #400

Minneapolis, MN Eden Prairie, MN

55415-2297 55344

_______________________________________

Joshua J. Israel / Plaintiff Pro-Se

Documents

The Remedy For Lawyer Litigation Abuse, If The Judge Will Do His Part