Dear Cyndy, Thank you for your letter. Yes, I would like to read your essay on the Jarrow March. I am interested in what you have been up to intellectually, just as you have been concerned about what might have been on my mind sixty years ago. It was another one of those days when I get up at 4:15 a.m. to have breakfast with Klemens at 5, drive with him to the Manchester NH airport, and bring back the car, returning on Route 3 through Nashua with the sun rising brightly and blindingly on my left, and the stream of commuting automobiles becoming progressively thicker until finally, just before Route 128, it congeals into a jam in which for a few moments, nothing moves. At 8 a.m. when I come home, I go back to bed to get another two hours' sleep. I was all the more tired because I lay awake for an hour or two earlier in the night, with legal thoughts criss-crossing my mind. The Easter weekend turned out very different from what I had expected. When I last wrote to you about 5 days ago, the period permitted for oppositions to my Motion for Judgment on the Pleadings was drawing to a close, and I remember having expressed a muted optimism that neither defendant might see fit to challenge my Motion. This turned out not to be the case. The Saturday morning mail brought not only John Updike's final volume of poetry "Endpoint", which my childhood friend Helmut Frielinghaus proposes to translate into German. He finally realizes that I might be of some help to him, and sent me the book as a gift, - the mail also brought a thick manila envelope from Kimberly Saillant, Esq, the middle-aged red haired Boston lawyer who has persuaded Nantucket to let her represent them. It was an 11th hour mailing, - but better almost - than too late. Kimberly's legal work always embarrasses me, because its my task to demonstrate that she's not very good. The instant filings, there were three of them: The Town of Nantucket "Building Department's" Opposition to the Motion for Judgment on the Pleadings, the municipal defendant's Request for Disposition, pursuant to Massachusetts Rule of Civil Procedure 56(c), and Request for Oral Argument The Town of Nantucket "Building Department's" Opposition to the "Motion" to Expand the Record in reference to a pending Motion for Judgment on the Pleadings, and Request for Oral Argument The "Nantucket Building Department's" Appendix in Support of its Opposition to the Plaintiff's Motion for Judgment on the Pleadings all wordy and redundant, full of sound and fury, but not much else. Kimberly does give me credit for being "creative", but her only remedy is to reiterate: "But he is wrong." without being able to articulate why this might be the case. She asked for 15 minutes' oral argument, she's good-looking, an eloquent speaker, and it seems quite possible, so far as the judge is concerned, that in John Updike's words she'll vamp him with her lingo. I still haven't heard from the AG (attorney general) as Kimberly refers to him. Maybe the surprise from him will arrive tomorrow or Wednesday. I had thought it was time for me to assemble my motion, memorandum and exhibit, Kimberly's three contributions, and together with my affidavit swearing I had received nothing from the AG, file all these with the Superior Court Clerk. But after I had finally done my homework, my plans changed. I reviewed again Chapter 30A of the General Laws which treats appeals from administrative proceedings, - and there, buried in multiple wrappings of legal prose was a partial answer to something that had been puzzling me: How to reconcile the circumstance that MGL 30A requires service of process not only on the agency (The Board of State Examiners of Plumbing and Gas Fitters) but also on all participants in the proceedings before it, while at the same time restricting Board's Answer to the Complaint to a filing of its administratiev record. What answer was to be expected of the participants, in my case, the Nantucket Building Department, who had, if any, a separate administrative record? Were they expected to adopt the agency's defense? or put forward one of their own? or none at all? The answer, it turns out, is that the participants in the proceedings before the agency become inactive participants in the Superior Court appeal. The inactive participants have a legal right to become active and to intervene in the appeal, but to exercise that right, to become active, the participants must file early in the appeal, a motion to intervene, and accompany that motion with a pleading for the relief they seek. This is the procedural facet that Kimberly overlooked; she didn't file a timely motion to intervene; so now she's out in the cold, so to speak, with her triple motions, they ought not be part of the record, unless, of course, she vamps the judge with her lingo. My first reaction was not to say anything at this time, and to save my objections to a later date, when curing the defects of Kimberly's Motions would be even more awkward. But then, as I reread Rule 9a of the Superior Court Rules about the filing of motions, I realized such a strategy might boomerang, and Kimberly's oppositions might be allowed because I failed to file a timely motion to have them stricken. So that's what I did this morning. I'll append the day's legal work for your reading pleasure. If I mailed my motion to Kimberly, she would have thirteen days to reply. In order to shorten the wait to ten days, I took the motions to her office, "hand served" them, as the lawyers say. Her firm is Deutsch, Williams, Brooks, DeRensis & Holland PC. at One Design Center Place near the harbor where large warehouses still line the waterfront. Guided by Google, I followed the Turnpike into East Boston, then a few short laps on wide treeless avenues in a newly gentrified factory district, I found the place in which she and her fellow lawyers are ensconced, a luxurious spacious glass fronted office on the sixth floor of a renovated industrial building. I was the only visitor. The receptionist who seemed lonely, became suspicious when I asked, as a receipt, for her signature on a duplicate of my motion. She made a telephone call, and in no time, red-haired Kimberly appeared. We greeted each other like old friends, -almost - but not quite embracing. She and I both understand that I am responsible for many if not all the 185 dollar hours that she bills the Town of Nantucket. It's pathetic how important it is to the Town, how much tax money they're willing to spend, to have me put down. When Kimberly saw the contents of my two page Trojan Horse, she remained as non-chalant as ever. She instructed me to file promptly the motions she had mailed; I protested that the Rules require the filing of all documents together. If she were willing, I would wait, while she prepared an answer. No, she would have to think about it. She dated and initialed my duplicate; we shook hands with lawyerlike sincerity. Then nodding a quick good-bye to the receptionist, I limped to the elevator, down through the luxurious lobby and out into the bright brisk April afternoon. Tomorrow morning I'll take his copy of the Motion to the AG. Then home for a noon-time patient, and after that I'll try to turn off the legal thoughts for the next two weeks, when it will finally be time to file everything in the Clerk's office. That filing will occur thirteen days before the scheduled hearing, - which I very much hope will not be postponed, because I'd like to go to Konnarock as soon as possible. Below is my motion, - and I'm too saturated with legalese to be able to think of - or write about anything alse. Stay well and give my best to Ned. Jochen Commonwealth of Massachusetts Superior Court Suffolk, ss. Civil Action No. SUCV2008-05664-E _____________________________________ | Ernst J. Meyer, | plaintiff | v. | Nantucket Building Department | and | Board of State Examiners of Plumbers | and Gasfitters,| respondents | _____________________________________| Plaintiff's Motion to Strike Documents filed by the Nantucket Building Department in Opposition to Plaintiff's Motion for Judgment on the Pleadings The Plaintiff moves the Court to strike the following Documents received by him on April 11, 2009. The Town of Nantucket "Building Department's" Opposition to the Motion for Judgment on the Pleadings, the municipal defendant's Request for Disposition, pursuant to Massachusetts Rule of Civil Procedure 56(c), and Request for Oral Argument The Town of Nantucket "Building Department's" Opposition to the "Motion" to Expand the Record in reference to a pending Motion for Judgment on the Pleadings, and Request for Oral Argument The "Nantucket Building Department's" Appendix in Support of its Opposition to the Plaintiff's Motion for Judgment on the Pleadings The reasons for this Motion to Strike are: a) the Nantucket Building Department is not an active party to these proceedings. The Nantucket Building Department is not the Agency whose Administrative Record constitutes the Answer to the Plaintiff's complaint, and not having intervened in the action, the Nantucket Building Department has no right to oppose the Plaintiff's Motion for Judgment on the Pleadings. b) the Nantucket Building Department has not exercised its right to intervene in this proceeding and has not complied with MRCP 4(c) which states: A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. c) An Opposition to the Plaintiff's Motion for Judgment on the Pleadings by a person who is neither an active party to, nor an intervenor in these proceedings is fatally prejudicial to the Plaintiff's procedural rights. Ernst J. Meyer pro se 174 School Street Belmont MA 02478 617-484-8109 ernstmeyer@earthlink.net