Filed 3:58 PM. July 25, 2003
DISTRICT OF VERMONT
E.ON AG (successor in interest to VEBA AG) and
Ulrich Hartmann (former VEBA
Chief Executive Officer), and
VEBA subsidiary Stinnes Corporation and
Michael Moebius, its former President,
and Dr. Hans-Juergen Knauer, its former
Chairman, and Stanley L. Goodman, their
counsel and Grotta, Glassman & Hoffman,
P.A., their law firm,
Defendants singly, severally and jointly
BODILY INJURY COMPLAINT
Trial by Jury Demanded
PETER D. MOSS, PRO SE
Federal Diversity Jurisdiction . . . . . . . . . . . 2
Jury Nullification of erroneous prior decisions . . 27
AMOUNT IN CONTROVERSY
4. The matter in controversy exceeds seventy-five thousand dollars ($75,000) exclusive of interest and costs.
5. The Vermont Constitution, Chapter I, Article 4th provides in relevant part that "Every person within this state ought to find a certain remedy by having recourse to the laws, for all injuries or wrongs which one may receive in person ... "
6. Under 12 V.S.A. §512(4): "Except as otherwise
provided in this chapter, injuries to the person suffered by
the act or default of another person, provided that the cause
of action shall be deemed to accrue as of the date of the discovery
of the injury;. .." The earliest date of discovery is August
8, 2000, when Dr. Edward L. Schumer, D.M.D., removed the bridge
and found that teeth 27 & 28 were fractured at the gum line
(Plaintiff's Exhibit A, attached), because until that date the
loose bridge could have been due to nothing more than broken
cement, in which case the bridge could be simply re-cemented.
Therefore, this complaint is timely if filed at any time before
August 8, 2003, the statutory deadline.
When my wife Barbara and I filed an ADEA complaint on May 26, 1992 as co-plaintiffs because the defendants reduced us from a two-paycheck family to a one-paycheck family and for emotional and other damages, the defendants retaliated to destroy my wife's employability, followed by systematically and intention-ally inflicted emotional harm by tormenting us to destroy our will to exercise our lawful right to make ourselves whole, but also seriously impairing our physical and emotional health over the 8 years, from 1991 to 1999, caused by malicious prosecution using willfully false and defamatory fabrications perpetrated by the defendants, their witnesses, and their attorneys, under color of a defense.
The defendants and their attorney never admitted the simple truth that defendant Moebius wanted a 27-year old single secretary, not my then 54-year old wife with 30 years of U.S. business experience. All of the slanderous and perjurious defense fabrications and numerous obstruction of justice crimes have enabled the defendants to postpone judgment day for 8 years, and then extract a confidential settlement (which will be produced if this Court so orders) which I did not sign. My wife Barbara sent out over 1000 resumes in 8 years, which resulted in a total of 2 jobs. One lasted for 2 days, as secretary to the president of a German bank where Defendant Stinnes was a client. The other job lasted for 2 weeks, as secretary in a German consultant's office where VEBA was a client or prospect. Defendant Moebius admitted badmouthing my wife in the German American executive community in the New York metropolitan area, which was Barbara's primary job market. One employment agent said that "all the Moebiuses are talking." Also, we were forced to provide intrusive and irrelevant discovery including our tax, bank and credit card records, while the defendants never had to and never did produce numerous relevant and crucial discovery that would harm or destroy the defense. The documentation of the defendants' crimes, torts, and ethical violations fills 8 transfer files, each 14 inches deep. It documents the principal corporate defense method used by the defendant attorney and his law firm: scour the victim's history for anything that can be misrepresented to a jury to set it against the victim, and at the same time subject the victim to years of intrusive depositions and document production, all the while insisting on "mitigation" by forcing a fruitless job search while working behind the scenes to prevent re-employment of the victim. Also, whenever we left town for a few days of respite, the defendants complained that my wife was vacationing instead of job hunting for mitigation. From eight years of such mental torture, Barbara and I, the plaintiff herein, were diagnosed with post traumatic stress syndrome. Plaintiff's Exhibit B and C. In addition, I sustained Prinzmetal's angina, symptomatically akin to angina pectoris, but without organic heart damage (Plaintiff's Exhibit D and E), and nocturnal bruxism, an involuntary gritting of teeth during sleep, a complaint which continues on and on, and furnishes the 3-year statute of limitations making this action timely.
WRONGFUL CONDUCT BY EACH DEFENDANT
8. The general rule is that tort liability is established when unlawful acts and violations of statutes are the proximate cause of an injury. 74 Am. Jur.2d, TORTS, §29 at 644. In this cause, my ongoing dental, cardiac, and related conditions were caused by the defendants' ceaseless abuses causing us post traumatic stress syndrome
E.ON AG (formerly VEBA) has financed and maintained their frivolous obstruction for eight years which is malicious prosecution in the guise of a defense. Moreover, E.ON AG is responsible under the respondeat superior doctrine, E.ON being the sole and whole owner of Defendant Stinnes Corporation, so Defendant E.ON AG (VEBA's successor in interest) is the main real party in interest.
VEBA's previous chairman, Klaus Pilz, died on April 13, 1993 in a fatal skiing accident. Ever since then, Defendant Ulrich Hartmann has headed and/or chaired VEBA AG, and has financed and maintained for eight years Defense Counsel Goodman's frivolous action which is malicious prosecution in the guise of a defense. Moreover, when I was removed as a co-plaintiff from my wife's action, not being a party, I could and did write Defendant Hartmann a conciliatory letter dated April 13, 1998, offering to settle the litigation under permanent confidentiality, but also putting him on notice that if we cannot settle, I will have no choice but to commence a civil action of my own (which is the action at bar). The reply came not from Defendant Hartmann but from Defendant Goodman, threatening me with F.R.Civ.P. Rule 11 sanctions should I exercise my right under New York C.P.L.R. 205(a).
Defendant Stinnes Corporation is, of course, the platform from which all offenses, criminal and tortious, as well as the 8-year frivolous defense has been schemed, mounted, and financed.
Defendant Moebius conspired (18 U.S.C. §241 and 42 U.S.C. §1985(3)) with Defendant Knauer to violate the Age Discrimination in Employment Act(29 U.S.C. §623(a)(1) and §623(a)(2)) by replacing my then 54 year old wife with a 27 year old alien woman so unqualified she was denied a working visa. Defendant Moebius signed under penalty of perjury a petition to Immigration and Naturalization Service containing about a dozen willful falsehoods (18 U.S.C. §1546(b)(3) and 28 U.S.C. §1746) to obtain a three-year visa as transfer employee for the 27-year old who had already entered illegally and had taken my wife's job. Defendant Moebius suborned (18 U.S.C. §1622) perjurious testimony by Margot Koch, executive vice president of Koch Travel, to slander my wife with the false accusation that my wife solicited a kickback, in exchange for the $300,000 a year travel account of Defendant Stinnes. As part of the deal, Defendant Moebius extracted a 4% kickback from Koch (18 U.S.C. Sentencing Guideline 2(B)4.1) and pocketed about $48,000 in kickbacks over 4 years, calculated from figures which are accurate according to Defendant Goodman. Before coming to the U.S., Defendant Moebius had a kickback deal with Koch Travel in Hamburg for many years. Defendant Moebius admitted under oath slandering my wife to the German American executive community in the Metropolitan New York area and in retaliation (29 U.S.C. §623(d)) for our attempt to make ourselves whole, Defendant Moebius refused a useable reference to deny my wife gainful employme
End run is a character trait of Defendant Michael Moebius. Character traits are admissible under Evidentiary Rules 405 and 406. Item: When Moebius asked Rita Doehring for a kickback, she said no. Rita told me and my wife that when Moebius threatened to take the $300,000 Stinnes travel account to another agency, Rita refused, gun to her head, to use Rita's phrase. So Moebius called in Margot Koch and got more than a kickback agreement; Moebius also suborned Koch to perjure herself to accuse my wife Barbara of soliciting a kickback for herself when in fact my wife refused Koch's kickback offer when Koch thought she could buy the account from my wife. Item: When the U.S. Embassy in Bonn denied an E-2 working visa for lack qualifications, Moebius imported the object of his desire, then-27-year old Manuela Eckert Andersen to take my then 54-year-old wife's position. While Manuela worked for months without a visa and was paid by cash advances for lack of a Social Security number, Moebius then hired an immigration attorney to procure an L-1 visa filing a totally perjured application grossly overstating Manuela's qualifications and signed by Moebius under penalty of perjury punishable by $10,000 or 5 years in jail or both. Moebius testified that when Manuela came for an interview to New York, he first interviewed her in his hotel where Moebius was living at the time. Item: Since an L-1 visa requires continuity in employment, a "contract" between Manuela Eckert and Stinnes AG was produced for misleading the INS into believing that Manuela was still employed by Stinnes AG and would have a job there upon expiration of the L-1 visa. Manuela told Evette Madison, a bilingual employment agent in Manhattan, that she had no idea what would happen to her once she returned after just 5 months in the U.S. on a 3-year L-1 visa. Sure enough, by the time Moebius was deposed some few months later, Manuela was no longer employed by Stinnes AG. We can only imagine what Manuela's personnel file at Stinnes AG contained. After a long drawn out discovery dispute, we were denied discovery of her file. People who have nothing to hide don't go to a lot of trouble to hide it. Item: Stacey Lopez was a salesperson at Denis Florists which had the Stinnes account. When Moebius insisted on a live Christmas tree in the 44th floor office of Stinnes, Stacey explained to Moebius about the New York City fire ordinance. Not impressed, Moebius contacted Greenwich Orchids near Moebius's home and gave Ted Siegel and Wendy Siegel the Stinnes flower account. Ted Siegel brought in a large, fresh Christmas tree wrapped in a black plastic garbage bag, as well as live Christmas wreaths with wax candles for the desk of every Stinnes executive. This incendiary material had to be locked in a closet over the weekend or whenever a building employee came to the office. -- Anybody would go to a nearby supermarket or drug store for an item the first one did not have. The issue is not an end run in itself. The issue is that Moebius's end runs are always illegitimate and habitually criminal. Since commercial kickbacks are punishable under the Title 18 Sentencing Guidelines, the "handshake agreement" with Koch Travel is prima facie criminal. Rita's refusal (Pistole am Kopf) simply encouraged Moebius to make an end run around Rita to extort criminal kickbacks from Koch as he had done for years at Koch Hamburg where he was house counsel for Stinnes Interoil. If Moebius thought the E-2 denial was erroneous, he would have appealed it. After being told that the E-2 denial was correct, and then applying for an L-1 with heavily perjured claims to deceive the INS is again criminal.
Applying for a working visa for a person rejected on truthful qualifications is criminal when a forged "contract" is fabricated to establish employment continuity for Manuela. Contracting with Ted Siegel to smuggle a live Christmas tree and wreaths with wax candles to the 44th floor Stinnes offices is a criminal violation of the NYC fire code, and reckless after being told of the NYC fire code by Stacey Lopez and the building management. Item: The Maginot line was built against Nazi invasion all along the French-German border but the Germans made an end run going around the Maginot line through Holland and Belgium and occupied France anyway. The end run seems to be a character trait of the German ruling class. Such people should not be allowed to do business in the United States breaking U.S. criminal and civil law.
Defendant Knauer conspired (18 U.S.C. §241 and 42 U.S.C. §1985(3)) with Defendant Moebius to violate the Age Discrimi-nation in Employment Act (29 U.S.C. §623(a)(1) and (2)). Moreover, Defendant Knauer is responsible under the respondeat superior doctrine since he hand-picked Defendant Moebius to be president of Defendant Stinnes Corporation and at all relevant times, Moebius reported to Knauer and Knauer supported Moebius and supported the financing of all of the tortious conduct still causing me physical harm discovered less than 3 years ago, of which I am complaining and for which I now claim compensation. Thus Defendant Knauer is responsible for aiding and abetting the tortious acts of Defendants Moebius and Goodman. Defendant Knauer was managing the acquisition of Schenkers International Forwarders of Jersey City in the late 1980s, completing the acquisition in 1991. During that period, 12 senior German American executives complained of age discriminatory discharge by Schenkers, apparently undertaken to make the acquisition more attractive to Knauer. I have copied some of the Schenkers victims' papers still in Federal, N.Y. State and N.Y. City court files. I have found no evidence of vindication or recovery by any of the Schenkers victims. Thus Defendant Knauer had good reason to believe that the defendants would get away with his conspiracy with Defendant Moebius before leaving Germany for the U.S., to violate the Age Act with impunity, and apparently reinforced the widely held view that in "Amerika" all problems can be fixed by throwing enough money at them. This is supported by a statement made by Defendant Goodman on the record on July 6, 1992 during the deposition of Manuela Andersen, the object of Defendant Moebius's desire: Defendant Goodman said that money is of no concern to him, apparently referring to the unlimited litigation budget offered by Defendant Stinnes Corporation
Defendant Stanley L. Goodman, counsel for defendants, slandered my wife to Rita Doehring, the travel agent preceding Koch, hoping to induce Rita to accuse my wife of soliciting or accepting kickbacks. Initially Rita Doehring offered to testify for my wife and told us she refused Defendant Moebius's kickback demand but after Defendant Goodman tampered (18 U.S.C. §1512) with Rita Doehring and canceled her subpoena for a deposition, Rita refused to testify. Defendant Goodman also claimed he obtained an affidavit, which he later changed to a certification (18 U.S.C. §1623), in which Doehring allegedly testified that Goodman did not tamper with her, but Goodman avoided production if indeed any such document ever existed.
Defendant Goodman also tampered (18 U.S.C. §1512) with Anna Berger, another travel agent, to induce Berger to change her testimony and to create a wage theft smear against my wife. This time Defendant Goodman succeeded in suborning a perjurious affidavit from Berger which states that Goodman did not tamper with her.
Defendant Goodman also tampered (18 U.S.C. §1512) with Juergen Kley, Moebius's predecessor, to testify falsely that Barbara's German spelling was inadequate (disproven by a letter from Barbara to Kley where a translator recommended by the German Consulate certified that the spelling was correct). Defendant Goodman also suborned (18 U.S.C. §1622) Kley to perjure himself and claim that Barbara was "confused" at executives' meetings but thank-you gifts from VEBA Corp. executives for whom Barbara hosted functions discredited the Kley perjuries.
Defendant Goodman also tampered (18 U.S.C. §1512) with Theodore H. Siegel and Wendy H. Siegel, proprietors of Greenwich Orchids that Defendant Moebius selected as florists for the office. The tampering was to convince the Siegels to deny statements of account, to deny paying Moebius a kickback for the Stinnes account, and to deny providing a live Christmas tree and live Christmas wreaths adorned with wax candles to the 44th floor Stinnes offices in violation of fire ordinances.
There are 8 transfer files accumulated over 8 years that document Defendant Goodman's criminal, tortious, unethical and immoral conduct.
Defendant Goodman coached every defense witness in this action and improperly interfered with every deposition upon oral examination. Upon my removal from the action by order dated January 28, 1993, U.S.D.C./S.D.N.Y. 92 Civ. 3788 (JFK), I had to sit mute through all those abusive depositions (and in-court conferences) as a silent observer. This was an ordeal so sickening that I cannot fully describe it. There are whole pages of transcript where Defendant Goodman, to prevent the witness from uttering damaging testimony, falsely claims that Goodman does not understand the question (28 U.S.C. Rule 37(a)(3)).
After 10 motions over 7 years for permission to file a motion for partial summary judgment on liability, Defendant Goodman blackmailed us (18 U.S.C. §873) with a $15,000 sanction if we don't withdraw the motion, solely because he had no defense or even colorable defense against the violations of the Age Discrimination in Employment Act. This blackmail transpired in open court on January 11, 1999 and is preserved in an official transcript by a court reporter. That transcript is incorporated here by reference.
Needless to say, Defendant Goodman also violated numerous provisions of the New York Code of Professional Responsibility: DR 1-102 which prohibits dishonesty, fraud, deceit, misrepresentation and conduct prejudicial to the administration of justice.
DR 2-109 which prohibits conducting a defense by harassing and maliciously injuring a person and DR2-110(B) which mandates withdrawal of the lawyer from such a defense. Defendant Goodman's answer to my letter to Defendant Hartmann shows that far from withdrawing, Goodman encouraged Hartmann to continue their outrageous defense. EC 7-1 requires lawyers to act within the bounds of the law. EC 7-26 prohibits the use of fraudulent, false or perjured testimony. DR 7-102 prohibits conducting a defense and delaying a trial to harass or maliciously injure another and prohibits use of perjured testimony, false evidence and other acts of dishonesty. DR 9-101 prohibits even the appearance of impropriety.
Defendant Grotta, Glassman & Hoffman, P.C., the defendants' law firm, aided and abetted the entire tortious conduct by Defendant Goodman, instead of taking remedial action as required by DR 1-104(2). Defendant Grotta, Glassman & Hoffman, P.C. is also responsible under the respondeat superior doctrine. Defendant Grotta, Glassman & Hoffman, P.C. also provided other staff members from the firm to conduct this malicious prosecution under the guise of a defense. Marvin M. Goldstein, Jonathan Ramsfelder and Heather R. Boshak come to mind. Also, my wife and I were not the only ones forced to provide irrelevant personal financial documents including our tax, bank and credit card records. I will submit affidavit of additional verified case verified that this kind of irrelevant, intrusive, invasive and insulting discovery of personal financial documents is a corporate policy of Defendant Grotta, Glassman & Hoffman, P.C. to humiliate and intimidate the victims of their clients. Plaintiff's Exhibit F.
For purposes of this complaint, it does not matter that the defendants have not been indicted or convicted for any of the Title 18 and other misconduct enumerated above. It is sufficient that the violations are indisputably documented and that they are the proximate cause for my suffering, illnesses, losses and claims, as established by the entire record including the medical and psychiatric testimony, among other things.
The behavior of Defendant Goodman and Defendant Grotta, Glassman & Hoffman is no more supportable than murder by a professional hit man who is "only doing his job." I believe the criminal, tortious, unethical and immoral conduct by these defendants does not qualify as "only doing his job." They have done a job on me and on my wife and on our marriage and we can never be whole again, except posssibly financially.
The sustained behavior of the defendants at bar is so outrageous in character, and so extreme in degree , as to go beyond all possible bounds of decency, and must be regarded as atrocious and utterly intolerable in a civilized community. The defendants' misconduct is also contrary to not only statute law and case law but also contrary to public policy and should be discouraged by all the means at the Court's disposal
9. Plaintiff's compensable losses include:
FIRST CAUSE OF ACTION: DENTAL DAMAGE
Due to the years of abuse by the defendants and their attorney, I have developed post traumatic stress disorder. The diagnosis of Leonard P. Henschel, M.D., diplomate of the American Board of Psychiatry and Neurology, states in relevant part:
"Nightmares occur at least weekly wakening in cold sweat and gritting his teeth. This bruxism has become a serious problem, he says, requiring a prosthesis." Plaintiff's Exhibit B. Dr. Edward Schumer, D.M.D. removed a bridge on August 8, 2000 and found that teeth 27 and 28 were fractured at the gum line and tooth 31 was not suited for a posterior abutment. He therefore referred me to Dr. William D. Purdy, an oral surgeon. Plaintiff's Exhibit A.
Dr. Purdy confirmed Dr. Schumer's diagnosis and on September 5, 2000, he extracted teeth 27, 28 and 31. After a period of healing, on March 14, 2001, Dr. Purdy placed four implants in sockets 27, 28, 30 and 31. Plaintiff's Exhibit G. After a period of healing, on December 7, 2001, Dr. Schumer took impressions for a five unit bridge for my lower right jaw and on January 23, 2002, the bridge was cemented on the new implants. Plaintiff's Exhibit H.
On May 28, 2002, I went to Dr. Schumer with the bridge on my lower left loose but he was unable to remove it without damaging it. On September 6, 2002, the bridge was loose enough to remove, and it was sent to the laboratory for reglazing. Plaintiff's Exhibit H.
While I was without the bridge, the gums overgrew the implants
which were installed in 1996 by Dr. Weiztman of Forest Hills.
N.Y. Dr. Purdy phoned Dr. Weitzman to ascertain the implant brand
he used, and although the original manufacturer had merged into
another company, the correct healing caps were still available.
On September 19, 2002, Dr. Purdy cut off the excess gum and installed
the healing caps and sutured the soft tissue around the transmucosal
necks using dissolving sutures. Plaintiff's Exhibit I. On October
16, 2002, Dr. Schumer re-cemented the reglazed bridge, using
the specially ordered new screws for the implant posts. Dr. Schumer
concludes: "I do have concerns with his long term prognosis
due to his history of bruxism, which most likely was the etiology
for the failure on the lower left." Plaintiff's Exhibit
SECOND CAUSE OF ACTION: LOSS OF CONSORTIUM AND LOSS OF SEX OF LIFE
As part of my post traumatic stress disorder, I developed Prinzmetal's angina, symptomatically akin to angina pectoris, but without organic heart damage (Plaintiff's Exhibit D), diagnosed by my first cardiologist, Dr. Lawrence M. Weinstein, in 1997. Plaintiff's Exhibit D. My next cardiologist, Dr. David J. Schneider, writes: "Also during the November 16, 2000 visit, Mr. Moss complained of erectile dysfunction for the first time, not uncommon in a man aged 72, and asked me to prescribe Viagra. I had to decline and warned Mr. Moss that Viagra must never be used by men who are taking any form of nitrates, including nitroglycerin, because Viagra can cause a sudden drop in blood pressure to unsafe and even life-threatening levels. Thus Mr. Moss's need to take nitroglycerin and to avoid Viagra has in effect denied him a normal sex life prematurely." Plaintiff's Exhibit E.
ERRONEOUS DENIAL BY SECOND CIRCUIT
10. Since the defendants are sure to raise erroneous and adverse prior rulings in prior causes, it is necessary to address these issues at this point. It is well to recall now that the present cause at bar has nothing to do with ADEA but is a bodily injury complaint under Vermont law, and any defense attempts to drag in now irrelevant prior erroneous rulings must be firmly rejected.
I was an original co-plaintiff in USDC/SDNY 92 Civ. 3788 (JFK), but was erroneously removed by the District Court using F. R. Civ. P. 12(c), because I was never employed by Defendant Stinnes Corporation. It is true that the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §623, does not provide for "direct action" by injured spouses but mine was not direct but pendent on my wife's action so my removal was clearly erroneous. ADEA obviously does not prohibit "pendent" action by spouses, although case law was made against victims such as myself. The absence in the ADEA of specific remedies for injured spouses was of course not because Congress did not intend it. Rather, there are plenty of other laws to redress co-victim injuries inflicted by unlawful corporate age discrimination. For one thing, our complaint sought equitable relief which the District Court could have granted but erroneously ignored. Even better, the District Court could have permitted my permissive joinder under F. R. Civ. P. 20(a) but erroneously denied it to me. Since a jury trial was timely demanded, it was a third error for the Court to rule that I have shown "no right to relief," which was a question for a jury (empaneled seven years later). A fourth error was that the Court should have permitted me to intervene under F. R. Civ. P. 24(a)(2): "... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest,..." Clearly I had a right to intervene but of course the judge and the defendants wanted me out. "Defendants' real concern is that if they cannot intimidate and overwhelm the stand-alone pro se Barbara Moss, they may lose an impartial jury trial," we argued.
The existence of Rule 24 is also a good explanation why Congress did not provide for spousal remedies in ADEA in Title 29 when Rule 24 in Title 28 does it so well. I did not press my rights because my wife, the primary victim and surviving plaintiff, firmly believed that to do so would alienate the judge with dire consequences for both of us. She even said that I was removed because I "come on too strong" and that could alienate the jury and the judge wanted to spare her that fate.
The years passed and the debilitating torture by the defense
attorney and his clients continued. In April of 1997, over six
years after my wife's lawless victimization by the defendants
at bar, I could take no more and sought psychiatric help. The
results are summarized in Plaintiff's Exhibit B. Sleeplessness
and violent nightmares, painful angina pectoris and my dentition
destroyed by nocturnal bruxism, restless leg syndrome, and other
symptoms: "Posttraumatic Stress Disorder with Depression
and Obsessive Thinking," the psychiatrist wrote. On April
21, 1997, I submitted this diagnosis to the District Court.
On August 26, 1997, my wife Barbara was diagnosed by the same psychiatrist who saw me in April 1997. Diagnosis: Posttraumatic Strees Disorder with obsession, anxiety and depression. Panic Disorder Without Agoraphobia. Plaintiff's Exhibit C.
Upon the denial of my motion to intervene in my wife's case
(not direct action) under Fed. R. Civ. P. 24, Intervention, I
appealed to the U.S. Court of Appeals for the Second Circuit.
"Plaintiff-appellant Peter D. Moss, appearing pro se, appeals from an order of the United States District Court for the Southern District of New York (Keenan, J.), denying plaintiff-appellant's motion to intervene in his wife Barbara M. Moss's action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the New York State Human Rights Law ("HRL"), N.Y. Exec. Law § 290 et seq.
We hold, as have all other courts that have considered the question, that neither the ADEA nor the HRL, affords a direct cause of action to a non-employee due to discrimination against his spouse. Moreover, neither statute provides for a claim for a loss of consortium. Accordingly, we affirm the order denying intervention for substantially the reason stated by the district court. See Moss v. Stinnes Corp. No. 92 Civ. 3788, 1997 WL 530113 (S.D.N.Y. Aug. 25, 1997); see also Moss v. Stinnes Corp., No. 92 Civ. 3788, 1993 WL 33591 (S.D.N.Y. Jan. 29, 1993)."
There are many errorrs in this decision.
Second error: under Second Circuit case law, once a direct action is established, subsequent plaintiffs, by joinder or intervention, are not required to establish again that a valid cause of action exists.
Third error: under a Second Circuit rule, only the entire active bench sitting en banc can change Second Circuit case law. Since they failed to do so (why bother for a pro se), I moved for a rehearing en banc. This got even shorter shrift: my motion was denied by "the judges for the court in regular active service and to any other judge that heard the appeal and that no such judge has requested that a vote be taken thereon." Docket 97-9450, filed June 7, 1999. This reminded me of the dog who defecates on a concrete surface and then kicks twice with a hind leg. Not very effective.
Fourth error: If the defendants had assassinated me instead of just sickening me, the Second Circuit would have decided, using the same logic, that the ADEA and the HRL affords no protection for the life of a non-employee due to discrimination against his spouse. Here the Second Circuit pretends that the age acts suspend all other laws, but courts (like all lawyers) only cite those laws that support their case or decisions, not those required to administer justice. The Conference on Critical Legal Studies has recognized that the law is not for administering justice but is a political tool to protect the privileges of the ruling class.
A fifth error in the above decision: the coerced, confidential settlement with my wife Barbara clearly states that "The parties acknowledge that the settlement payment is not payment for lost wages but rather is for Moss' claims for compensatory damages based upon her claims of physical injuries, emotional distress and pain and suffering." All of the medical certifications on which this settlement was based were in evidence before the Second Circuit when it made its erroneous decisions. The Second Circuit did not provide the equitable remedies that defendants were even willing to offer in settlement, for reasons more fully discussed below.
It is not widely known but the U.S. Supreme Court denies 99% of the petitions for certiorari, and mine was no exception. Docket 99-303.
ERRONEOUS DENIAL BY SOUTHERN DISTR. OF NEW YORK
11. Once we decided to move to Vermont, I filed a complaint
in Albany, NY, in the Northern District of New York. Docket 00-CV-0488(LEK)(RWS)(N.D.N.Y.
Apr. 26, 2000). After a year of no meaningful action, the Northern
District judge was apparently instructed to send me back to Southern
District, to finish me off. Judge Keenan wanted nothing further
to do with me, so then-Chief Judge Michael B. Mukasey delivered
the coup de grace (Docket 01 CIV. 2043) by Order of Dismissal
dated March 12, 2001. Judge Mukasey cited pages of unrelated
case law for res judicata and collateral estoppel. My wife's
case was settled, not adjudicated, and thus created no res judicata.
Even if it had ended in a judgment, it was an age bias case,
not personal injury, as is my case. I am not assuming that Judge
Mukasey did not perceive these irrelevancies, but it does show
the contempt judges have for underdog pro se's intelligence.
JURY NULLIFICATION OF ERRONEOUS PRIOR DECISIONS
12. All of which will raise some questions in the mind of any fair jury. (1) Why do corporate defense lawyers and judges fight age discrimination claims and victims so hard, and so much harder than, say, race or sex discrimination complaints? Answer: because age bias is extremely profitable. In a typical case, a 55-year old managerial, administrative or professional earning $60,000 per year is replaced by a 30-year old earning $30,000. To the $30,000 difference must be added another $10,000 in fringe benefits. Over the next ten years, the discriminator pockets $400,000 tax free. By contrast, a female or minority earning $30,000 cannot be replaced by a white or male for $15,000, and even if that were possible, the savings would only be $200,000 which could easily be wiped out by lawyers' fees and "amicable" settlement costs.
(2) Why is up to a decade of debilitating "discovery" granted when the discriminators jolly well know that they violated the age law, long before they are served an age bias complaint and summons? Answer: because age violators have no real or even colorable defense, so they keep up aggressive "discovery" over many years which will either sicken or pummel the victim into submission, or at least produce some event in the vitim's history that can be misrepresented to a jury to turn it against the victim. Failure to try to mitigate by documented job searches in a market where millions are unemployed and nobody seeks elderly applicants; résumé "fraud" by accusing victims of overstating qualifications, or any unfavorable "witness" that is willing to badmouth the victim for a consideration, etc.
(3) And most importantly, how does the ruling class served
by corporate defense lawyers and judges implement their obviously
unjust control on the legal and judicial machine? Answer: the
ruling class effectively controls the judicial selection and
appointment process, and has unlimited stockholder funds to pay
exorbitant fees to "labor lawyes representing management
exclusively." There are about 10 such firms with offices
nationwide, and they do mostly age bias victim battering. Millions
of older, higher paid managerial, administrative and professional
staff have been replaced with half-as-old staff at half the pay
since the ADEA was enacted in 1967. How is that possible? Because
judges have not created effective financial deterrents to discourage
and stamp out age bias as Congress intended. On the contrary,
the Supreme Court fashioned the McDonnel-Douglas scheme to insure
that victims cannot "prove" age bias. The general public
is told that age bias is "hard to prove." The truth
is that the courts have made age discrimination hard to prove,
to protect the power of corporations to profit from age discrimination.
Once a fair jury understands these answers to these questions, the outcome of this cause is not in question. To obtain jury nullification of the injustices exposed above, I must answer these questions to the jury. When I last looked on May 10, 2001, Lexis-Nexis listed 905 authorities on the subject of "jury nullification" which is available for both case law and statute law. Obviously I have not perused these 905 items but suffice it to say that among the 905 citations, there is sufficient support to justify a jury trial and a verdict based on jury nullification. There is no other way to make me whole and to discourage job ageism and the sickening and debilitating abuses employed by corporate defense lawyers. I am a candidate for U.S. Senate in 2004 and a candidate for the Vermont Senate in 2004, to introduce legislation to enact jury nullification to overcome age bias and other ruling class privileges. At the very least, I will start the national debate going.
JURY NULLIFICATION OF VERMONT TIME LIMITATION
13. If the jury agrees with me and nullifies the erroneus decisions in this case, I will seek jury nullification of the time limitation on prior injuries suffered at the hands of the defendants at bar. The 3 year time limitation I seek to nullify is contained in V.S.A. Title 12, Chapter 23, Section 512. Additional injury claims, if the jury nullifies the 3 year time limitation: restless leg syndrome occasionally falling off the bed, excessive startle response, nightmares, fear of finding adverse mail in the mailbox late in the day which would keep us awake all night debating possible responses, angry outbursts at old friends who defend lawyers and judges and corporate power, difficulty concentrating, depressed mood, all starting with and caused by the shock of the sudden termination of my wife, then 54, on the evening of November 11, 1991, solely to be replaced by a 27-year old unqualified and therefore undocumented alien woman, followed by retaliation to destroy my wife's employability, followed by systematically and intentionally inflicted emotional harm to destroy our will to exercise our lawful right to make ourselves whole, but also seriously impairing our health over 8 years of "discovery," all of which were caused by malicious prosecution using wilfully false and defamatory fabrications perpetrated by the defendants, their witnesses, and their attorneys, under color of a defense. The record shows that during a conference, Defendant Goodman referred to me as an ugly little old man. On another occasion, he referred to me as a court jester. I can understand the frustration of overpaid counsel representing a giant global corporation, but in this country even pro se's have some rights, even though they may not be easily or quickly enforced.
14. Plaintiff herein respectfully demands a trial by jury of all issues. Under the 7th Amendment, my claims should be decided by a jury on damages, not by the defendants' false arguments. The defendants' disingenuity that I have no valid claims, has been further underscored by trying to avoid a jury determination of my claims. If the defendants believed that I have no valid claims, they would have argued that to the jury instead of trying to squeeze me out by sickening and debilitating misrepresentations.
PRAYER FOR RELIEF
15. Plaintiff seeks the following relief:
$1,000,000 compensation for nocturnal bruxism caused by abuse by the defendants, causing cost, pain and suffering of extraction of natural dentition and cost, pain and suffering of replacement by implants and prostheses, impairing chewing ability and the enjoyment of food for the rest of my life.
If the jury nullifies the 3 year statute of limitations, 12 V.S.A. §512 (4), I also claim $1,000,000 compensation for posttraumatic stress disorder caused by abuse by the defendants with evil intent to break my will to enforce lawful right to make myself whole.
16. Judicial notice is respectfully directed to the attached
reports by cardiologists, specialized dentists, and a psychiatrist
diagnosing me and my wife with posttraumatic stress disorder
inflicted upon us by the defendants' sustained misconduct. Reports
on my wife Barbara by a cardiologist, a dermatologist, and an
internist are incorporated here by reference, to establish the
defendants' debilitating misconduct.
I declare under penalty of perjury that the foregoing is true and correct, to the best of my knowledge and belief.
DATED: Fairfax, Vermont
July 25, 2003
LIST OF PLAINTIFF'S EXHIBITS
A. Diagnosis dated May 9, 2001 by Dr. Edward L. Schumer