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Superior Court of California
San Diego County
Paul Andrew Mitchell, ) Case No. GIC807057
Plaintiff, ) PLAINTIFF’S REPLY TO ANSWER
v. ) OF DEFENDANT MSEN, INC.:
AOL Time Warner, Inc., et al., ) 18 U.S.C. 1964;
) CCC 22.2
Defendants. ) (common law is rule of decision).
COMES NOW Paul Andrew Mitchell, Plaintiff in the above entitled case, Citizen of California, Private Attorney General and Federal Witness, to file his REPLY TO ANSWER OF DEFENDANT MSEN, INC. (“MSEN”).
Plaintiff begins with generic rebuttals, then follows with specific rebuttals to each affirmative defense as stated in MSEN’s untimely answer.
1. There is no evidence on record that Mr. Lawrence F. Meyer is properly licensed to practice law in California courts. A State Bar Number (“SB”) is not a license to practice law. A certificate of oath must be indorsed upon all licenses to practice law. See § 6067 of the California Business and Professions Code (“CBPC”). Also, Bar cards make no mention whatsoever of any State or federal constitutions.
On July 10, 2003 A.D., Plaintiff lawfully demanded that Mr. Meyer exhibit a proper certificate of oath no later than 5:00 p.m. on Monday, July 21, 2003 A.D. See Attachment “A”. To date, Plaintiff has received no reply to that demand from Mr. Meyer. Plaintiff expressly reserves his Right to move this court for an order striking MSEN’s answer entirely, for having been filed by an unlicensed representative without any lawful powers of attorney to do so.
2. The date of MSEN’s answer ‑‑ July 7, 2003 ‑‑ is far beyond the deadline for answers as stated on the original SUMMONS issued in this case. That SUMMONS clearly stated that MSEN had “30 CALENDAR DAYS” after the SUMMONS was served to file a typewritten response at this court. The SUMMONS and Initial COMPLAINT were mailed via Certified U.S. Mail from downtown San Diego on April 17, 2003 A.D. The United States Postal Service PS Form 3811 return receipt (“green card”) was postmarked April 23, 2003 A.D. See Attachment “B”.
3. Plaintiff is entitled to the requested relief, and to all other relief which this honorable Court deems just and proper.
4. In further reply to MSEN’s untimely answer, Plaintiff now incorporates the following additional Attachments by reference, as if set forth fully here:
“C” Network Solutions WHOIS database entry for domain MSEN.COM
“D” DEMAND FOR AUTHORIZATION, July 13, 1998 A.D. (Exhibit K-30)
“E” “The Federal Zone” Copyright Amnesty Program, as mailed on
June 27, 1999 A.D. to CEO, Msen, Inc., Troy, Michigan, e.g.:
“F” U.S. Copyright Office, Directory of Service Provider Agents for
Notification of Claims of Infringement (no entry for MSEN)
“G” referral to related folders in database of evidence
“H” MIRANDA WARNING, to CEO, Msen, Inc., Feb. 18, 2001 A.D.
“I” NOTICE OF INTENT TO SUE, to CEO, Msen, Inc., Feb. 18, 2001 A.D.
“J” DEMAND FOR SUBSCRIBER IDENTITY, to CEO, Msen, Inc., May 7, 2001
“K” NOTICE OF DEFAULT, July 16, 2001 A.D.
“L” COVER LETTER, NOTICE OF LAWSUIT AND REQUEST FOR WAIVER OF SERVICE OF SUMMONS, and federal Clerk’s notice changing docket number
“M” copies of federal SUMMONS IN A CIVIL CASE, RETURN OF SERVICE, U.S. Postal Service Delivery Confirmation Receipt, and USPS Shipment History #0301 0120 0007 0064 3353
“N” copy of letter dated Jan. 25, 2002 from Kiernan F. Cunningham, Strobl Cunningham Caretti & Sharp, and draft NOTICE OF VOLUNTARY DISMISSAL with Plaintiff’s annotation: “REFUSED FOR CAUSE”
“O” SUBPOENA IN A CIVIL CASE, DEMAND FOR SUBSCRIBER IDENTITY dated Dec. 4, 2001 A.D., and PROOF OF SERVICE:
“P” NOTICE OF JUDICIAL DEFAULT, dated Feb. 1, 2003 A.D.
“Q” FIRST ADJUSTED INVOICE to Msen, Inc., Jan. 15, 2003 A.D.:
“R” NOTICE OF INTENT TO SUE FOR RACKETEERING AND RELATED CLAIMS,
to Msen, Inc., January 20, 2003 A.D.:
“S” SECOND ADJUSTED INVOICE to Msen, Inc., Aug. 1, 2003 A.D.:
Plaintiff now replies in sequence to each of MSEN’s affirmative defenses:
REPLY TO FIRST AFFIRMATIVE DEFENSE
Plaintiff’s COMPLAINT and each cause of action stated therein do state facts sufficient to constitute a cause of action against MSEN. See verified evidence in all Attachments incorporated supra, and in all Exhibits formally incorporated in Plaintiff’s Initial COMPLAINT.
REPLY TO SECOND AFFIRMATIVE DEFENSE
No allegations or causes of action in the COMPLAINT are barred by any applicable statutes of limitation. MSEN’s failure to answer a proper and lawful SUBPOENA IN A CIVIL CASE, issued and served pursuant to 17 U.S.C. 512(h), implicates obstruction of justice and hindering the apprehension and prosecution of all subscribers suspected of committing RICO predicate acts against Plaintiff. “Pattern of racketeering” is defined to mean any two (2) predicate acts committed during any given ten (10) year period. All events in question are alleged to have occurred subsequent to March 12, 1993 A.D. (i.e. ten (10) years prior to commencement of this action). See 18 U.S.C. 1961 et seq.
REPLY TO THIRD AFFIRMATIVE DEFENSE
Plaintiff has made every possible effort to mitigate his damages, and damages against MSEN should not be barred or limited. For example, Plaintiff went to extraordinary lengths to prepare and transmit his Copyright Amnesty Program to MSEN. See Attachment “E”. MSEN likewise failed to reply to that Copyright Amnesty Program.
REPLY TO FOURTH AFFIRMATIVE DEFENSE
Plaintiff is not barred from seeking relief against MSEN due to any equitable doctrine of laches. Plaintiff has not neglected or omitted to assert any of his Rights at issue here. On the contrary, Plaintiff has expressly reserved All Rights on the caption pages of all pleadings. That reservation is sufficient. The sheer number and extent of racketeering predicate acts committed against Plaintiff by all named Defendants has created extraordinary burdens for Plaintiff. It was never Plaintiff’s obligation to police the Internet.
REPLY TO FIFTH AFFIRMATIVE DEFENSE
Plaintiff is not barred from seeking relief against MSEN due to any equitable doctrine of estoppel. Plaintiff has never knowingly, intentionally or voluntarily adopted any inconsistent positions, attitudes or courses of conduct to the obvious detriment of MSEN.
REPLY TO SIXTH AFFIRMATIVE DEFENSE
Plaintiff is not barred from seeking relief against MSEN due to any equitable doctrine of unclean hands. Plaintiff categorically denies having unclean hands for any reasons in this case. On the contrary, Plaintiff has gone to extraordinary lengths to maintain a consistent posture of full and honest disclosure, and conscientious compliance with all applicable laws, at all times and places.
REPLY TO SEVENTH AFFIRMATIVE DEFENSE
Plaintiff is not barred from seeking relief against MSEN due to any knowing, intentional or voluntary waiver of any rights or claims. On the contrary, Plaintiff has never knowingly, intentionally or voluntarily waived any rights at issue here. Waivers of fundamental Rights can never be presumed.
REPLY TO EIGHTH AFFIRMATIVE DEFENSE
Damages caused to Plaintiff were caused by acts and omissions of MSEN, and not only by persons and entities other than MSEN. For example, MSEN’s failure to register an Agent for Notification of Copyright Infringement Claims was a deliberate omission. That omission now bars MSEN from claiming any of the statutory immunities that are available to all Internet Service Providers (“ISP”) who did comply in good faith with the federal copyright laws in this regard. See the controlling federal statute at 17 U.S.C. 512, in chief.
REPLY TO NINTH AFFIRMATIVE DEFENSE
As an ISP, MSEN did have a specific legal obligation to disclose the identities of all subscribers suspected of infringing Plaintiff’s exclusive copyrights, particularly after being served with a proper civil SUBPOENA for such suspects’ identities. MSEN’s failure to do so implicates obstruction of justice and hindering the apprehension and prosecution of those subscribers. As an ISP, MSEN also had a legal obligation to police the Internet; it was never Plaintiff’s obligation to police the Internet. See Exhibit L‑11, in chief, for responsibilities of ISP’s, and Attachment “J” for court authorities pertinent to discovery of racketeering evidence.
REPLY TO TENTH AFFIRMATIVE DEFENSE
Plaintiff has suffered extensive damages that are recoverable from MSEN et al. as a matter of fact and law. The civil RICO statute at 18 U.S.C. 1964 authorizes this court to award triple damages to Plaintiff for all damages sustained in connection with all racketeering activities and with all predicate acts committed to further the racketeering enterprise properly alleged in Plaintiff’s Initial COMPLAINT.
REPLY TO ELEVENTH AFFIRMATIVE DEFENSE
MSEN’s actions and omissions were not all reasonable or justified under the circumstances, nor were they always committed in the exercise of good faith or with sufficient probable cause.
REPLY TO TWELFTH AFFIRMATIVE DEFENSE
MSEN’s actions and omissions were not committed in the exercise of a good faith reliance upon the acts of others. MSEN can not claim ignorance of the applicable State and federal laws. MSEN’s retained an unlicensed attorney to represent it in the federal case. It was never Plaintiff’s obligation actively to police unlicensed attorneys. MSEN also failed to disclose evidence that it had delegated any powers of attorney to unlicensed attorneys. Plaintiff was entitled to expect that MSEN and its agents were obeying all applicable State and federal laws at all times. See Exhibit M‑4.
REPLY TO THIRTEENTH AFFIRMATIVE DEFENSE
None of Plaintiff’s claims and causes of action in the COMPLAINT against MSEN is barred, in whole or in part, by any conduct of Plaintiff, and none is barred by the conduct of any of Plaintiff’s agents, representatives or material witnesses. In point of fact, Plaintiff had no “employees” as such during the period in question.
REPLY TO FOURTEENTH AFFIRMATIVE DEFENSE
The causes of action in the COMPLAINT against MSEN are not barred for any reason, because MSEN and its officers, employees and contract agents did breach their duty to obey all pertinent laws at all times.
REPLY TO FIFTEENTH AFFIRMATIVE DEFENSE
The damages caused to Plaintiff by MSEN were caused by persons and entities that are also named Defendants in this action. MSEN did have control over some of those Defendants. See Attachment “G”, and Exhibit L‑11 in particular (enumerating affirmative obligations of ISP’s). MSEN is not entitled to indemnity from these other Defendants. Respondeat superior. See also Exhibit N‑124.
REPLY TO SIXTEENTH AFFIRMATIVE DEFENSE
Plaintiff’s federal case was not dismissed, in part because there is no Presidential Commission in evidence for Messrs. Dale A. Drozd, William B. Shubb or Stephen S. Trott. Moreover, the United States District Court lacked original jurisdiction over the initial complaint in Plaintiff’s federal case. See 60 Stat. 440, as fully discussed in Plaintiff’s PETITION FOR WRIT OF CERTIORARI TO THE NINTH CIRCUIT, docketed by the Clerk of the Supreme Court of the United States on June 27, 2003 A.D. This latter PETITION has also been filed in the instant case as the SECOND SUPPLEMENT TO MOTION TO BAR REMOVAL in support of Plaintiff’s MOTION FOR PRELIMINARY INJUNCTION BARRING REMOVAL INTO FEDERAL COURT. Plaintiff’s DEMAND FOR RULING on same is now outstanding.
REPLY TO SEVENTEENTH AFFIRMATIVE DEFENSE
MSEN may not raise additional defenses to the COMPLAINT, based upon subsequent investigation of this litigation, due to the fact that MSEN’s answer was not timely, and MSEN is now in default.
WHEREFORE, defendant MSEN is not entitled to any of the relief requested in its untimely answer.
The Undersigned hereby verifies, under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that the above statement of facts and laws is true and correct, according to the best of his current information, knowledge and belief, so help me God, pursuant to 28 U.S.C. 1746(1). See Supremacy Clause in the Constitution for the United States of America, as lawfully amended, i.e. Constitution, Laws and Treaties of the United States are all the supreme Law of this Land.
Dated: July 21, 2003 A.D.
Signed: /s/ Paul Andrew Mitchell
Printed: Paul Andrew Mitchell, B.A., M.S., Sui Juris
I, Paul Andrew Mitchell, Sui Juris, hereby certify, under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that I am at least 18 years of age, a Citizen of ONE OF the United States of America, and that I personally served the following document(s):
PLAINTIFF’S REPLY TO ANSWER
OF DEFENDANT MSEN, INC.:
18 U.S.C. 1964; CCC 22.2
(common law is rule of decision)
by placing one true and correct copy of said document(s) in first class United States Mail, with postage prepaid and properly addressed to the following:
c/o Lawrence F. Meyer
500 North Brand Blvd., Suite 920
[Please see USPS Publication #221 for “addressing” instructions.]
Dated: July 21, 2003 A.D.
Signed: /s/ Paul Andrew Mitchell
Printed: Paul Andrew Mitchell, B.A., M.S., Sui Juris