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STATE OF MINNESOTA FIRST JUDICIAL DISTRICT

COUNTY OF SCOTT DISTRICT COURT _____________________________________________________________________________

Case type: Civil, Employment

Case No. 70-CV-11-9335

JOSHUA J. ISRAEL,

Plaintiff, REPLY To Motion To Dismiss and

Objection to Enlargement of Time

vs.

Motion To Disqualify Counsel or For

PIERSON PIZZA Inc., Judicial Estoppel or A Mistrial

Defendant. Judge ___________________________

_____________________________________________________________________________

To: the Defendant, PIERSON PIZZA, and Clerk of Court of First Judicial District.

NOTICE OF MOTIONS

PLEASE TAKE NOTICE, that on July 13, 2011, at 9:00 A.M., the Defendant did

schedule a hearing for a Motion To Dismiss, Consolidation, and Enlargement of Time;

therefore, in Reply to said motions, Plaintiff, Joshua J. Israel, will include a Motion To

Disqualify Counsel or alternatively for Judicial Estoppel or Mistrial, an Objection to said

Enlargement, a Motion to Set Aside Judgment, and A Motion for Judgment on Prior Motion.

Pursuant to Minnesota Rules of Civil Procedure, Rules 7.2 and 60.02, these Motions are

brought forth because Plaintiff is prejudiced by denial of merit determinations on his Claims and

Motions filed and served, herewith, and since the Appellate Court cannot have original

jurisdiction of a motion, matters are now manipulated to obstruct the administration of justice for

Plaintiff. In addition, the court calendar will not be disturbed, neither party will be prejudiced by

delay, and this Reply is served and filed in accordance with Minn. Gen. Pr. Rule 115.03.

Dated: June 30, 2011

By: _______________________________

Joshua J. Israel / Plaintiff Pro-Se

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STATE OF MINNESOTA FIRST JUDICIAL DISTRICT

COUNTY OF SCOTT DISTRICT COURT _____________________________________________________________________________

Case type: Civil

Case No. 70-CV-11-9335 Civil, Employment

JOSHUA J. ISRAEL,

Plaintiff, REPLY , and Motion To Disqualify Counsel

Based on Principles of Judicial Estoppel, or

vs. in the Alternative For a Mistrial, and

Objection to an Enlargement of Time.

PIERSON PIZZA Inc.,

Defendant. Judge, ___________________________

_____________________________________________________________________________

REPLY TO MOTION TO DISMISS AND FOR ENLARGEMENT OF TIME,

MOTION TO DISQUALIFY DEFENDANT’S LEGAL COUNSEL BASED

ON PRINCIPLES OF JUDICIAL ESTOPPEL, OR A MISTRIAL,

OBJECTION TO ENLARGEMENT OF TIME

The PLAINTIFF, Joshua J. Israel, brings his Motion To Disqualify Legal Counsel, by

authority of Rule 60.02(c) of the Minn. R. of Civil Procedure, because lawyers of the Fafinski,

Mark, & Johnson Law Firm are likely to be called as a necessary witness to give testimony that

is adverse and prejudicial to the interests of Defendant, PIERSON PIZZA; therefore, instead of

its recusal from representation herewith, said counsel has engaged in actions prejudicial to the

administration of justice to compel and mislead the Court to dismiss claims where said counsel

can be called as a necessary witness. At present, another Motion To Dismiss has been brought

forth to obstruct access to witnesses and evidence where counsel is again likely to be called as

the necessary witness to prove employment constructive discharge, as an element of liability

under the Whistleblower Act and the Minnesota Human Rights Act, and to define and identify

said counsel’s personal pecuniary interests and calculated tactics that violate the Rules of

professional conduct, Plaintiff states as follows:

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FACTUAL BACKGROUND HISTORY

1. On the 23rd

day March, 2011, during a hearing on Defendant’s Motion To Dismiss before

Scott County Judge, Michael A. Fahey, in Case No. 70-CV-11-186, Plaintiff, Joshua J. Israel,

did commence this instant action when the attempt was made to consolidate this instant case

with case 70-CV-11-186; however, Judge, Michael A. Fahey refused Plaintiff his right to

consolidate said cases because the Defendant’s legal counsel, Sarah West Hauble, adamantly

objected to consolidation of this instant case, and Defendant’s Counsel, Sarah West Hauble,

specifically requested this instant civil action be commenced as a separate action.

2. During said hearing, on 3/23/11, and even though this Court allowed Plaintiff to be subjected

to numerous abusive confrontational challenges form Sarah West Hauble, which are intended

to manufacture and fabricate evidence to sustain lawyer testimony for the Defendant,

Plaintiff did persist to file and served a Motion To Strike exhibits of Defendant, because said

exhibits are defamatory hearsay testimony made by counsel for the Defendant who was not

part of the res gestae, and because said statement is prejudicial lawyer testimony that is based

upon facts not in evidence (Defendant’s Exhibits B and B).

3. However, this Court refused Plaintiff’s right to a determination on the merits of the Motion

To Strike, this Court only declared that Plaintiff’s motion is without basis in fact or law, and

this Court rendered no other merit determination (Def. Exhibit F. ¶ 5).

4. In addition, in said motion, Plaintiff raised another issue setting forth that Defendant is in

violation of the Order of Judge, Rex Stacy, to re-introduce the decision of the Minnesota

Department of Human Rights (MDHR) into this proceeding; because, Judge Stacy declared

that MDHR process is incompetent evidence in the district court (Def. Ex. E). [As a

necessary side note, when initially filing this actiont, the intention of Plaintiff was to give

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judicial notice of a willful obstruction of justice by the MDHR and Defendant’s counsel;

because, Judge Rex Stacy has a duty to report violations of law to the appropriate authority,

under Cannon 2, Rule 2.15; and because Plaintiff was attempting to secure a just, speedy,

and inexpensive determination on the merits of this action; because, there was no genuine

dispute regarding the material facts, and Plaintiff was entitled to judgment as a matter of law

DLC Inc., v. Russ, (MN S. Ct. 1997) 566 N.W.2d 60, 69].

5. After oral argument on the 3/23/11 hearing, and after this Court did take matters under

advisement, Plaintiff did formally commence this instant case, a second time, on the 27th

day

of April, 2011(Plaintiff’s Exhibit, PA-4), because this Court had not rendered a determined

on the Motion To Strike (Def. Exhibit F. ¶ 5, signature date). Thereafter, Scott County Court

Administration required (6) days to process Plaintiff’s application to proceed in Forma

Pauperis, and Plaintiff did receive Notice from the Court on the 5th

day of June, 2011.

6. On Friday, the 6th

day of May, 2011, Plaintiff received the Order of Judge, Michael A.

Fahey, and Plaintiff was directed to Amend this instant complaint to eliminate references to

race discrimination, and to eliminate an independent count of constructive discharge; and

therefore, Plaintiff did comply with said Order before Summons and Complaint was

delivered to the Scott County Sheriff, on Monday, the 9th

day of May, 2011.

7. Seven days later, on May 16, 2011, the Summons and Complaint was served upon the

Defendant, by Sheriff, and then (21) twenty one days later, on the 6th

day of June, 2011, the

Defendant served Plaintiff with Notice of a Hearing date, a Notice of Motion setting forth an

intent to file and serve a Memorandum of Law in support of its Motion To Dismiss; at a later

time, and additionally to seek a Consolidation of cases, and an enlargement of time to

Answer the complaint and engage in discovery.

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8. After serving the Memorandum in support of Motion To Dismiss upon Plaintiff, on the 15th

day of June, 2011, the Defendant raises frivolous issues of untimely commencement outside

statute of limitations, and the Defendant raises frivolous issues pertaining to constructive

discharge as a stand alone or free-standing cause of action.

9. Since Plaintiff was prevented from consolidating this instant case with Case No. 70-CV-11-

186, during the hearing on 3/23/2011, and since Sarah West Hauble objected to consolidation

of cases on said date, the Court was mislead to dismiss with prejudice a claim under the

Minnesota Human Rights Act (MHRA) because counsel for the Defendant did assume an

inconsistent and contradictory position to prevail on her objection Not to consolidate the

instant case on 3/23/2011, and now counsel for the Defendant pursues a contradictory

position to prevail of its MOTION TO CONSOLIDATE Case 70-CV-11-186 with the instant

case; herewith, but only if the 2nd

MHRA claim is dismissed. Therefore, this calculated tactic

is intended to cover-up counsel’s violation of Minnesota Lawyer Rules of Professional

Conduct (MLRPC) Rule 3.9, R. 3.3(a)(3), and R. 3,4(a), before the MDHR, and to have all

MHRA claims dismissed so that counsel of Defendant cannot be called as a necessary

witness, which will deprive Plaintiff of his right to a fair trial on all MHRA claims.

10. To violate MLRPC, counsel for the Defendant gave false defamatory lawyer testimony for

the Defendant, in violation of MLRPC Rules, 3.3(a)(3), and Rule 3.4(a), and did convince the

MDHR to accept the position of the Defendant, and to dismiss the Charge of Discrimination

based upon libelous facts not in evidence (Def, Exhibit’s B and B).

11. As a result of violating said rules of professional conduct, the personal pecuniary interests of

Defendant’s counsel is to obstruct Plaintiff from having access to necessary witness

testimony that will prove constructive discharge, as an element of a MHRA claim; and

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additionally, since counsel of Defendant was successful at convincing the MDHR into

adopting its position on the MHRA Charge, judicial estoppel is required herewith so that

Plaintiff’s right to a fair trial will be afforded in the District Court.

12. In proceedings before administrative agencies, Rule 3.9 mandates that counsel for the

Defendant shall conform to the same ethical standard as lawyers represent clients before

judicial district courts; and, that a lawyer shall conform to Rule 3.3, Rule 3.4, of the MLRPC.

Since counsel for the Defendant, testified for the Defendant, and injected false defamatory

prejudicial declarations to the MDHR, and since lawyers are forbidden to testify for their

clients, said counsel has convinced this Court to overlook and condone its practice to violate

MLRPC rules, and to prejudice the right of Plaintiff to a fair trial.

13. Since the allegations of constructive discharge are sufficient to demonstrate that counsel for

the Defendant did advise and did assist the Defendant in its employment constructive

discharge of Plaintiff (2nd

Amen. Comp. ¶44-48, ¶71-72, ¶82-83), the Defendant’s legal

counsel is the element of constructive discharge in the instant complaint (Amend. Comp.

¶44-45), and the personal pecuniary interest of Defendant’s counsel is to mislead the Court to

deprive Plaintiff of a fair trial by dismissing claims where Defendant’s counsel is likely to be

called as a necessary witness, and to induce the Court to cover-up counsel’s willful violation

of Lawyer Rules of Professional Conduct.

14. Since it is a violation of Rule 3.3(a)(3) and Rule 3.9 for lawyers to testify for their clients

before the MDHR, and since it is a violation of Rule 3.7 for a lawyer to advocate in a case in

which the lawyer is likely to be called as a necessary witness; and, since every former lawyer

who has represented the Defendant has failed to make their recusal from this case a matter of

record; and, since the Fafinski Law Firm is prohibited by Rule 1.6 from giving testimony that

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is prejudicial to and adverse to the Defendant’s interests, and it is a violation of the MLRPC,

Rule 3.7, for current counsel to remain as advocate for the Defendant.

15. As a consequence to testifying for the Defendant in proceedings before the MDHR, and to

establish its evidentiary proof and foundation of knowledge for its testimony, said counsel

must testify as to whether any one of them gave advise and assisted the Defendant’s

constructive discharge of Plaintiff, and said lawyers must testify as to their own

investigation, their own findings, and their own evidence that warranted their testimony made

before the MDHR. Since said evidence is admissible herewith by Minnesota Evidence Rule

616, all evidence of witness bias against the right of Plaintiff to a fair trial does disqualify the

Fafinski Law Firm in all proceedings in this case, under MLRPC Rule 3.7, and R. 1.6.

16. Since the Fafinski Law Firm did testify for the Defendant with defamatory prejudicial

testimony and did win a favorable judgment from the MDHR; and, since the Fafinski Law

Firm did additionally convince this District Court to protect the interests of the Fafinski Law

Firm by dismissing MHRA Charges, it is the duty of this Court, under Cannon 2, Rule 2.15,

to disqualify the Fafinski Law Firm as advocate for the Defendant in all matters regarding

Israel v. Pierson Pizza Inc.

17. Since it is proper procedure for the entire Fafinski Law Firm to recuse itself from all legal

representation herewith, the personal pecuniary interests of the Fafinski Law Firm did

mislead this Court into a cover-up of violations of MLRPC Rules 3.3(a)(3), Rule 3.4(a), Rule

3.7(a), and Rule 3.9 with a dismissal of MHRA claims, with prejudice. However, such

manipulations of the judicial system has violated Cannon 1, Rule 1.2 & Rule 1.3, to deny

Plaintiff his right to a fair trial, and of which has prejudiced the right of Plaintiff to an

opportunity to be heard in accordance with Cannon 2, Rule 2.6.

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18. Since this Court has not disqualified the Fafinski Law Firm, and since counsel for the

Defendant have not entered their recusal into the record, the aforesaid conflict of interest and

the personal pecuniary interests of the Fafinski Law Firm is to deprive Plaintiff of a fair trial

by engaging in conduct that is prejudicial to the administration of justice; because, the

Fafinski Law Firm is prohibited by Rule 1.6 from giving testimony that is adverse to the

Defendant, and are prohibited from attacking work previously done for the Defendant; and

consequently, since this prohibition applies to the five prior associates of the Fafinski Law

Firm, the prohibition under Rule 3.7 applies to all associates of said law firm.

ISSUES OF LAW AND FACT

MOTION TO DISQUALIFY COUNSEL BASED UPON JUDICIAL ESTOPPEL

19. The doctrine of judicial estoppel does forbid counsel for the Defendant from assuming

inconsistent or contradictory positions during the course of a lawsuit, and the purpose of

judicial estoppel is to protect the integrity of the judicial process from a party who plays “fast

and loose” with the courts Bauer v. Blackduck Ambulance Ass. Inc., (MN App. 2000) 614

N.W.2d 747, 749. For judicial estoppel to apply, a subsequent position must be clearly

inconsistent with it’s original position. In addition, the doctrine is aimed at preventing bad-

faith abuses of the judicial system where a party asserts one theory to prevail at one time,

then cynically switches to an inconsistent theory to win in a subsequent proceeding.

Moreover, it must be shown that the party did convince the court to adopt its position and

obtained a judgment that is inconsistent to the one in question State v. Pendleton, (MN S. Ct.

2005) 706 N.W.2d 500, 507-508.

As a result, to demonstrate a contradictory and inconsistent position, during the hearing

on 3/23/2011, counsel for the Defendant, Sarah West Hauble, strenuously objected to the

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consolidation of this instant case with Case 70-CV-11-186, and declared that this instant case

must be filed as a separate action. Since this Court refused the attempt of Plaintiff to enter

the MDHR Dismissal Notice into the Court record; and thereafter, when this Court did

dismiss the MDHR claim, Plaintiff was refused the right to demonstrate that the doctrine of a

continuing violation does toll the statute of limitations which would have worked to

consolidate both MHRA claims into Case No. 70-CV-11-186. Now that Plaintiff has been

prejudiced with dismissal of his first MHRA claim, counsel for the Defendant moves the

Court to consolidate this instant action with Case No 70-CV-11-186, but only after the 2nd

MHRA claim be dismissed. However, this cynical maneuver has prejudice the right of

Plaintiff to a fair trial on claims under the MHRA; because, Judge Rex Stacey did not

prejudice the right of Plaintiff to commence another proceeding to secure the results sought

in the initial commencement of a MHRA claim (Def. Exhibit E). As such, the seeds to revive

Case 70-CV-10-25301 is the consolidation with Case No. 70-CV-11-186 under the doctrine

of a continuing violation that tolls the statute of limitation Brotherhood of RY Clerks v. State,

(MN S. Ct. 1973) 229 N.W.2d 3, 9-13. Now that counsel for the Defendant seeks

consolidation of cases, the Courts prior dismissal, with prejudice, must be set aside because

this Court has been mislead by the personal pecuniary interests of the Fafinski Law Firm,

who seeks to remain as counsel for the Defendant when it is likely that said counsel will be a

necessary witness to sustain its evidence and foundation of knowledge to warrant its

testimony for the Defendant, and to prove the constructive discharge as an element of the

Whistleblower act and the MHRA. In addition, since evidence of witness bias, under Minn.

Evidence Rule 616, is admissible evidence herewith the Fafinski Law Firm is hereby

disqualified by the advocate-witness-rule, and all prior procedure by the Fafinski Law Firm is

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hereby invalidated; because, the Fafinski Law Firm is prevented from attacking the work that

they have previously done for the Defendant In Re Southern Kitchens Inc., (Bankr. Ct. MN

1998) 219 BR 819, 831; and because, the Fafinski Law Firm is motivated by its own personal

pecuniary interests rather than advocacy Northbrook Digital LLC v. Vendio Services Inc.,

(U.S. Dist. MN 2008) 625 F.Supp.2d 728, 732, 745-748. Furthermore, if the Fafinski Law

Firm is permitted to continue its representation of the Defendant, the doctrine of judicial

estoppel must strike-out and invalidate the lawyer testimony in Exhibits B and B that violates

Rule 3.9, and then counsel for the Defendant must be required to violate Rule 1.6 and Rule

3.7 to attack its own work for the Defendant, all of which will be reversed on appeal.

ISSUE OF LAW AND FACT

CURATIVE MEASURES BEFORE DECLARING A MISTRIAL

20. A mistrial is an appropriate remedy for highly prejudicial and incurable errors that demand

court proceeding should be stopped due to unfair proceedings that make an impartial

judgment impossible, or where a judgment could be reached but would be reversed on appeal

due to obvious errors in process and procedure Arizona v. Washington, (S. Ct. 1978) 434 U.S.

497, 514-517. A mistrial has been analyzed by three factors (Mosley Factors), 1) the severity

of the misconduct; 2) the isolated or the repeated or the pattern of conduct; and 3) the

curative measures initiated by the Court Hawkins v. State of Texas, (Tex App. 2004) 13

S.W.2d 72, 77-85. To examine this instant situation, the severity of the misconduct is

brought forth by repeated violations of the Minn. Lawyers R. of Prof. Conduct which has

been shown to violate public policy; which has been shown to construct the employment

discharge of Plaintiff; which has been shown to testify for the Defendant; which has been

shown to inject defamatory prejudicial statements based on facts not in evidence; and which

has been shown to obstruct access to necessary witness testimony that will prove constructive

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discharge under the MHRA; and all of these MLRPC violations are within the statutory

purview of this Court under Cannons 1, Rule 1.2 &1.3; and, Cannon 2. Rule 2.6 & Rule 2.7

& 2.15 Maher v. Roisner, (MN S. Ct. 1953) 57 N.W.2d 810, 239 Minn. 115, 116-117.

The curative measures denied to Plaintiff’s in his Motion To strike has now allowed

counsel for the Defendant to mislead the Court and continue to prejudice to the right of

Plaintiff to a fair trial on the 2nd

MHRA claim; has allowed the Defendant to refuse its

statutory obligation, under Gen. Practice Rule 114 and Rule 115 to engage in ADR and

Settlement before pursuing its 2nd

motion to dismiss; and this Court has not made a merit

determination on the motion of Plaintiff to strike inadmissible hearsay evidence where

lawyer defamatory testimony is based upon facts not in evidence. If this Court would

consider the mandate of the Minn. Supreme Court in State v. Ramey, the plain error doctrine

set’s forth three factors to consider, 1) error, 2) that is plain, 3) and the error must affect

substantial rights. As such, the error herewith is willful violations of the MLRPC, this error

is plain because the MLRPC forbids a lawyer from testifying for its client with false and

defamatory statements that are based upon facts not in evidence. When a lawyers has made

such defamatory statements, this Court is to shift the burden of proof upon counsel for the

Defendant to show lack of prejudice in its prior testimony. The Minn. Supreme Court also

declared that the District Court has a duty to intervene and caution the lawyer, even in

absence of objection State v. Ramey, (MN S. Ct. 2006) 721 N.W.2d 294, 298-303. As a

result, the procedure before this Court to cure this high degree of prejudice against Plaintiff

has not been forthcoming because the personal pecuniary interests of the Fafinski Law Firm

does violate the advocate-witness-rule Northbrook Digital LLC v. Vendio Services Inc., ( U.

S. Dist MN 2008) 625 F.Supp.2d 728, 732.

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To demonstrate the personal pecuniary interests that motivate the highly prejudicial

errors of the Fafinski Law Firm, the following lawyer testimony for the Defendant, in

(Defendant’s Exhibit B, p.2) are brought forth to clearly demonstrate prejudicial defamations

that violate of Rule 3.9 and 3.3 and 3.4 and 3.5 of MLRPC:

(((page 2 // Charging Part is not easy to manage or handle // Pierson

appropriately and fairly handled the situation without discriminatory or retaliatory

intent // Charging Party claims he was disciplined // the following facts demonstrate //

Charging Party was instructed to review the delivery labels and confirm accuracy //

Charging Party became upset // Charging Party started arguing with his managers //

page 3 // Charging Party grabbed the PIP from her and left the office // Charging

Party acted in an insubordinate manner and needed to be disciplined // the discipline

was for his conduct, not his race // Charging Party’s continued belligerence and

attitude // page 3-legal analysis // Charging Party was not discriminated against based

on his race // page 4, B // Charging Party was not retaliated against // page 5 //

Charging Party has failed to offer any evidence // there is no evidence that this

constituted as adverse employment action // it had nothing to do with the fact the he

filed a discrimination charge // such issuance was warranted based on Charging

Party’s conduct // charging party engaged in unacceptable conduct and was

appropriately disciplined for same // there is no evidence whatsoever that he was

disciplined because of a charge made with the MDHR // there is no evidence that

Pierson discriminated against the Charging Party // By Edward E. Beckmann)))

As a result of this highly prejudicial lawyer testimony for the Defendant, the personal

pecuniary interests of the Defendant is to urge upon this Court that the lawyer’s side of issue

is to found to be established beyond question. However, since this kind of lawyer testimony

on the facts of a case is prohibited by MLRPC, every fair minded tribunal in the judiciary has

declared that counsel for a defendant may not inject into his argument his own personal

opinion concerning the merits of a case, counsel for a defendant may not express his own

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opinion as to the credibility of witnesses, and an attorney may not inject into his own

argument any extrinsic or prejudicial matter that has no basis in the evidence. This is the law

in civil suits as well as criminal suits and for a plaintiff as well as a defendant’s attorney

United States v. Morris, (5th

Cir. 1978) 568 F.2d 396, 400-402; United States v Emery, (5th

Cir. 1982) 682 F.2d 493, 501. [[MLRPC Rule 3.3(a), A lawyer shall not knowingly make (1)

make a false statement of fact or law to a tribunal; Rule 3.4(e), A Lawyer shall not allude to

any matter that the lawyer does not reasonably believe is relevant or that will be supported

by admissible evidence, assert personal knowledge of facts in issue *** or state a personal

opinion as to the justness of a cause, the credibility of witnesses, the culpability of a civil

litigant, or the guilt or innocence of the accused; Rule 4.1, A lawyer shall not knowingly

make a false statement of fact or law]]. Therefore, this Court should cure this extreme

prejudice by disqualification of the Fafinski Law Firm form all representation herewith.

OBJECTION TO ENLARGEMENT OF TIME

21. An attorney does have a duty to represent its client zealously, however, the lawyer must do

so within the bounds of the law (MLRPC Rule 3.4(e) State v. Olkon, (MN S. Ct. 1980) 299

N.W.2d 89, 107. To first move for an untimely statute of limitations defense and then move

for an enlargement of time to Answer, at the same time, requires the Court to exercise

judicial estoppel against the Defendant for filing inconsistent frivolous actions. In its Motion

To Dismiss the Defendant claims this case was untimely filed and then Defendant sets forth

reasons to enlarge the court schedule in Case No. 70 CV-11-186. In is Motion For

Consolidation OF Cases, the Defendant additionally claims that investigation, research, and

discovery is necessary to prepare this case for trial; however, counsel for the Defendant has

already conducted its investigation, has already completed its research, and has already

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compiled its own discovery in order to testify for the Defendant before the MDHR (Exhibit

B). Therefore, the doctrine of judicial estoppel forbids a party from assuming inconsistent or

contradictory claims or positions during the course of a lawsuit Bauer v. Blackduck

Ambulance Assoc. Inc., (MN App. 2000) 614 N.W.2d 747, 749. For counsel of Defendant to

take the position that no investigation, no discovery, and no proof has been obtained at this

point, would mean that counsel’s testimony for the Defendant (Def. Exhibit B) is unfounded

and based upon facts not in evidence, and is known to be prejudicial and defamatory; and to

show inconsistency, when this Court does shift the burden of proof upon counsel for the

Defendant to prove a lack of prejudice, said counsel must set forth its existing evidence

where an enlargement of time is unnecessary, or said counsel must be disqualified and

reported for deceiving the Court, under Minn. Stat. 481.07, and 481.071.

22. If counsel for the Defendant fails its burden to produce evidence to sustain its testimony for

the Defendant (Def. Ex. B), then this Court must Strike all of the exhibits that counsel for the

Defendant has entered into the record, as a violation of MLRPC Rule 3.4(e) and Rule 3.9.

Since the Fafinski Law Firm does refuse its mandatory duty to recuse itself from these

proceedings, under Rule 3.7 and Rule 1.6, and since the Defendant is misleading and

deceiving the Court and Plaintiff so as to urge dismissal MHRA claims and obstruct access to

evidence, this Court can make the inference that counsel’s testimony for the Defendant (Def.

Exhibit B and B) is Not based upon any evidentiary proof, and that Fafinski Law Firm must

fabricate evidence and manufacture false evidence to prejudice the right of Plaintiff to a fair

trial. As such, this Court is bound by Cannon 2, Rule 2.15, to disqualify the Fafinski Law

Firm and report said counsel to the Lawyers Professional Responsibility Board.

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23. Finally, the Defendant argues that this case was commenced on the 9th

day of May, 2011 and

that the statute of limitations ended on the 5th

day of May, 2011; however, Court

Administration records show that the case was filed on the 27th

day of April, 2011 (PA-4),

the application to proceed in Forma Pauperis was granted by Judge, Michael A Fahey, on the

28th

day of April (PA-5), and that Court Administration did complete its case processing on

the 3rd

day of May, 2011 (PA. 4-5). Therefore, this action was timely commenced before the

5th

day May, 2011; thereafter, an Amended Complaint was served on the 9th

day of May,

2009, so as to be in compliance with the 5/3/11 Order of Judge, Michael A. Fahey (Def. Ex.

F), (to remove racial discrimination from the complaint, and to remove a Count of

constructive discharge under the MHRA), and Plaintiff could not have been foreseen this

necessity. Therefore, exceptional circumstances are the factors that must be considered

herewith; because, unlike the litigant in Chappell v. Butterfield-Odin, Plaintiff did not wait

until the last day to file his action. In fact, counsel for the Defendant argued against the

consolidation of this instant action with Case 70-CV-11-186 during the hearing on

3/23/2011, and this Court would not allow the MDHR notice to be entered into the record on

said date (which would have saved court costs and expenses). Thereafter, Plaintiff filed this

instant case as a new action on 4/27/2011, which is (9) days before the limitations period had

run; and thereafter, Plaintiff received notice from Court Administration on Friday, the 6th

day

May, 2011, which is after the limitations period had run (PA-6). Under these exceptional

circumstances, this instant action was commenced on the 27th

day of April, 2011 (PA-4), and

since the Defendant did prevail on its objection to consolidation during the hearing on

3/23/11, it is only the personal pecuniary interests of Defendant’s’ counsel that has mislead

this Court to overlook Professional Conduct Rule violations, and dismiss Plaintiff’s claims

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under the MHRA so that counsel for the Defendant cannot be called as a necessary witness.

Since counsel for the Defendant is a necessary witness that must testify as to the veracity of

its lawyer testimony for the Defendant, these exceptional circumstances are the result of

counsel engaging in actions prejudicial to the administration of justice In Re Discipline of

Dedefo, (MN S. Ct. 2008) 752 N.W.2d 523, 528-532; Holt v. Swenson, (MN S. Ct. 1958) 252

Minn. 510, 514; 90 M.W.2d 724.

By: ________________________________________

Joshua J. Israel / Plaintiff Pro-Se

x. x. xxx xxx, xxxxx, xx xxxxx

(xxx) xxx-xxxx

PROOF OF SERVICE

Plaintiff, Joshua J. Israel, certifies that a true copy of this Motion To Disqualify Counsel Or For A

Mistrial, Objection to Enlargement Of Time, and Motion For Judgment On Motion is served upon

Defendant, by placing same in an envelope addresses to Defendant, and by service through th U. S. Postal

service, on the 30th day June 2011, at the following address:

Sarah West Hauble

Shannon M. McDonough Hand Delivery Clerk of Court

Fafinski Mark & Johnson, P.A. Scott County District Court

Flagship Corporate Center 200 Fourth Avenue West JC 115

775 Prairie Center Drive , Suite 400 Shakopee, MN 55379

Eden Prairie, MN 55344

By: ____________________________________

Joshua J. Israel / Plaintiff-Pro-Se

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STATE OF MINNESOTA FIRST JUDICIAL DISTRICT

COUNTY OF SCOTT DISTRICT COURT _____________________________________________________________________________

Case type: Civil Employment

JOSHUA J. ISRAEL, Case No. 70-CV-11-9335

Plaintiff,

vs. ORDER (PROPOSED)

PIERSON PIZZA Inc.,

Defendant. Judge, ___________________________

_____________________________________________________________________________

The above entitled matter having come forward for hearing before the undersigned

Judge of the First Judicial District Court, of Scott County, Minnesota, on July 13, 2011,

and for the Motion of Plaintiff to Disqualify Defendant’s Legal Counsel, Or For Curat ive

Measures Other Than Mistrial, and an Objection To Enlargement Of Time.

The Plaintiff, Joshua J. Israel, appeared pro-se, and Sarah West Hauble, appeared on

behalf of Defendant, PIERSON PIZZA INC.,

The Court having read and taking notice of the Motions and having heard arguments

of Plaintiff, and arguments of Defendant’s counsel, and being duly advised in the merits of

the Motions, It Is Hereby ORDERED:

1. That the merits of Plaintiff’s motion to disqualify defendant’s counsel has been

determined on its merits, and the motion does demonstrate violations of the Rules of Professional

Conduct and a conflict of interest that has rendered prejudicial to the administration of justice;

and therefore, Plaintiff’s Motion is GRANTED.

2. That curative measures have been taken to provide Plaintiff with a fair opportunity to

be heard, and the right to a fair trial; therefore, a mistrial is unnecessary, at this time.

18

3. That Defendant’s motion to consolidate cases is GRANTED, with the exception that

claims under the Minnesota Human Rights Act are not dismissed for such consolidation.

4. That Defendant’s motion to enlarge the existing trial schedule illuminates an

inconsistent and contradictory position, where previous lawyer testimony must have been made

upon evidence to sustain it before lawyer testimony was made; since Defendant has made no

showing to the contrary, the motion for enlargement of time is DENIED.

5. That Defendant’s Motion To Dismiss is DENIED, and that Defendant has failed to

comply with its obligation under Minnesota General Rules of Practice, Rule 114, and Rule

115.10, for alternative dispute resolution and settlement efforts.

JUDGMENT IS HEREBY ENTERED ACCORDINGLY.

Dated: ______________________, 2011 BY THE COURT

____________________________________________

The Honorable

________________________________

Judge of First District Court

19

STATE OF MINNESOTA FIRST JUDICIAL DISTRICT

COUNTY OF SCOTT DISTRICT COURT _____________________________________________________________________________

Case type: Civil

Case No. 70-CV-11-9335 Civil, Employment

JOSHUA J. ISRAEL,

Plaintiff, REPLY and Motion For Determination

on the Merits of Prior Motion, and

vs. Motion To Set Aside Prior Judgment

on Dismissal Without Deciding Merits.

PIERSON PIZZA Inc.,

Defendant. Judge, ___________________________

_____________________________________________________________________________

REPLY TO MOTION TO DISMISS AND FOR ENLARGEMENT OF TIME

MOTION FOR JUDGMENT ON A PRIOR MOTION,

MOTION TO SET ASIDE PRIOR JUDGMENT

In Reply to the Motion To Dismiss all claims under the Minnesota Human Rights Act,

and by authority of Rule 60.02(c), the PLAINTIFF, Joshua J. Israel, must bring his Motion For

Judgment On Prior Motion and his Motion To Set Aside Prior Judgment; because, Plaintiff is

entitled to the exercise of this Court’s consideration and duty to decide the merits of motions, so

that Plaintiff can prepare his case for a trial or an appeal; and additionally, because the appellate

court cannot pass upon the merits of a motion (as an original proposition) and then determine

that Plaintiff had not been prejudiced by denial of that motion. Therefore, since Plaintiff has

been denied his right to first have his Motion determined on its merits, the Defendant is now

compounding this prejudice to Plaintiff, and counsel for the Defendant has taken prejudicial

action to obstruct the right of Plaintiff to a fair trial by misleading the Court to dismiss claims

where counsel for the Defendant must be called as a necessary witness; therefore, to demonstrate

Plaintiff right to the exercise of this Court’s original jurisdiction to determine the motions of

Plaintiff on its merits, Plaintiff states as follows:

20

FACTUAL BACKGROUND HISTORY

1. On the 23rd

day March, 2011, during a hearing on Defendant’s Motion To Dismiss, in Case

No. 70-CV-11-186, Plaintiff, Joshua J. Israel, did file and served a Motion To Strike the

evidentiary exhibits of Defendant due to being inadmissible hearsay evidence; because, one

of the evidentiary exhibits is hearsay testimony prepared by legal counsel who was not part

of the res gestae; and because, lawyers are forbidden to testify for their clients (Minnesota

Lawyer Rules of Professional Conduct, (MLRPC) Rule 3.4(e).

2. Thereafter, since Plaintiff is refused his right to a determination on the merits of said Motion

(Cannon 2, Rule 2.7), and denied the Motion on ground that it is without basis in law or fact

(Def. Exhibit F. page 3, ¶5); and, since dismissal was not and adjudication on the merits of

inadmissible hearsay made by an attorney who was not part of the res gestae, Plaintiff has

been prejudiced by the Defendant’s subsequent compilation of lawyer testimony that has no

evidentiary value but to prejudice the rights of Plaintiff to a fair trial (Exhibit B and B);

therefore, a determination on the merits of Motions is the exclusive duty of the trial court for

proper case management and proper trial preparation, which does afford Plaintiff a right to

merit determinations on his Motions to properly manage and prepare his case for a fair trial

(Cannon 1, Rule 1.3, Cannon 2 Rule 2.2, R. 2.3).

3. That the inadmissible hearsay statements of Defendant has no evidentiary value, and cannot

serve any evidentiary purpose in this action; because, the statement is not a sworn affidavit;

and thereby, the Defendant cannot be impeached with said exhibits or held accountable for

anything stated therein; because, the statement is lawyer testimony for its client (Exhibits B

and B). Moreover, in this written testimony for the Defendant, counsel for the Defendant

expressed its own opinion concerning the merits of this case and the credibility of witnesses;

21

Defendant’s lawyer testified as to the facts of this case, and counsel for the Defendant did

express and inject into her testimony prejudicial matters that are based upon facts not in

evidence; and testified that her side of the issue is to be found to be established beyond

question. In addition, since Plaintiff did demonstrate that said evidence cannot be considered

by this Court because counsel for the Defendant has not met their burden of proof to

demonstrate the lack of prejudice in its testimony, and because the doctrines of judicial

notice, or basis of knowledge, or incorporation by reference cannot accept prejudicial lawyer

testimony for its client, the advocate-witness-rule does demand that the Fafinski Law Firm

recuse itself from this proceeding due to the likelihood that counsel for the Defendant will be

called as a necessary witness to set forth its investigation findings and the veracity of their

testimony for the Defendant. Furthermore, since the advocate-witness-rule does also demand

that the Fafinski Law Firm recuse itself from representation herewith, the personal pecuniary

interests of the Fafinski Law Firm is to obstruct and prejudice the right of Plaintiff to a fair

trial, instead of advocacy.

ISSUES OF LAW AND FACT

MOTION FOR JUDGMENT ON PRIOR MOTION

MOTION TO SET-ASIDE PRIOR ORDER TO DISMISS

4. As evidence of law, the Minnesota Supreme Court mandated that a party is entitled to have

its motions heard and determined on the merits, and a denial of that motion, without

prejudice to a right to commence other proceedings to secure the results sought by motion is

erroneous (Def. Exhibit E), Cornish v. Coates et al., (MN S. Ct. 1903) 97 N.W. 579, 580.

Therefore, as Defendant’s Exhibit E clearly demonstrates Judge Rex Stacy’s dismissal did

not determine the merits of the MDHR claim, and its dismissal was made on grounds that

Plaintiff’s remedy was mistaken and that Plaintiff maintained the right to commence other

22

proceedings to secure the results sought by the first initial proceeding. Since the Defendant

did not acquiesced the Court for any determination on the merits by rejudicata, the claims

under the MHRA has remained a viable action, and dismissal of said claim, with prejudice,

was error because its dismissal is without a determination on its merits Cornish v. Coates,

(MN S. Ct. 1903) 97 N.W. 579, 580. As such, since a wrong decision has been made based

upon the wrong reason for making it, the Appellate Court cannot pass upon the merits of the

MHRA claim as an original proposition, or assume this Court’s original jurisdiction; and

therefore, its is the duty of this Court to decide the determine the MHRA claim on its merits

Cornish v. Coates, (MN S. Ct. 1903) 97 N.W. 579, 580.

5. In addition, when deciding to dismiss an action with prejudice to the right to commence other

proceedings, the U. S. Supreme Court did clarify that when the situation arises with regard to

a determination on which questions of law and fact are to be treated as questions of law or

fact for purposes of appellate review, the situation argues in favor of a differential abuse of

discretion standard of review. Moreover, the U. S. Supreme Court determined that some

elements that bear upon whether the [Defendant’s] position was substantially justified may

only be known to the district court, not infrequently, the question will turn upon not merely

what was the law, but what was the evidence regarding the facts. The [Plaintiff] may have

insights not conveyed by the record, into such matters as to whether particular evidence was

worthy of being relied upon, or whether critical facts could easily have been verified by the

[Defendant]. Furthermore, even where the district judge’s full knowledge of the factual

settings can be acquired by appellate court review, the acquisition will often come at the

usual expense, requiring the court of review to undertake the unaccustomed task of reviewing

the entire record, not just to determine whether there existed the usual minimum support for

23

the merits determination made by the fact-finder below, but to determine whether urging by

the opposite merit determination was substantially justified. As a result, all foreseeable

circumstances and consequences can be substantially reduced or entirely avoided by adopting

an abuse of discretion standard of review Pierce v. Underwood, (S. Ct. 1988) 487 U.S. 552,

559-560.

6. Therefore, in prior proceedings, Plaintiff moved to strike-out the evidentiary exhibits of

Defendant, and Plaintiff did demonstrate that the exhibits are prejudicial matters unwarranted

on the evidence and unwarranted by existing law, and that one of the exhibits (Exhibit B) is

lawyer hearsay testimony for the Defendant. Since MLRPC Rule 3.3(A)(3), Rule 3.4(a), and

Rule 3.7(a) forbids lawyers from testifying on matters that are not the personal knowledge of

the lawyer, and since counsel for the Defendant has failed to meet its burden of proof to

demonstrate the lack of prejudice in its testimony for the Defendant, this lawyer testimony is

prohibited evidence, which must be stricken from the record Maher v. Roisner, (MN S. Ct.

1953) 57 N.W.2d 810, 239 Minn. 115, 116; United States v. Morris, (5th

Cir. 1978) 568 F.2d

396, 400-402. If the motion to strike had been determined on its merits, the Defendant’s

counsel would not be permitted to continue to obfuscate the record with clear violations of

MLRPC Rule 3.3(a)(3), Rule 3.4(a), and Rule 3.9, which only serves to mislead this Court

with lawyer opinions and lawyer arguments that inject prejudicial assertions to urge upon the

Court that the Defendant’s lawyer’s side of the issue is to be found to be established beyond

question, and of which is demonstrated by the following lawyer testimony as transcribed

from Defendant’s Exhibit B, in Case 70-CV-11-186:

(((Exhibit B, page 1 // Pierson never discriminated against Charging Party on any basis //

Charging Party was never retaliated against // there is no direct evidence of discrimination or

retaliation // p.2 // Charging Party brings no evidence // Charging Party’s charges are not

24

grounded in fact, they should be out-rightly dismissed // p.3 // he is not necessarily friendly toward

his co-workers // Charging Party became upset // p.4 // Charging Party has demonstrated that he

has been unwilling and/or unable to satisfactorily accomplish such tasks // there is no basis for

Charging Party’s allegations // p.5 // Pierson’s method for assigning deliveries to drivers is also

fixed and neutral // p.6 // Charging Party receives delivery assignments just like everyone else //

the method by which deliveries are assigned is based on a fair and fixed rotation // it is neutral and

based upon legitimate business reason // p.7 // Charging Party is not easy to work with and is not

as versatile as other employees // p.10 // there is no factual basis for Charging Party’s assertions

// Pierson is not aware of any case in which the Charging Party’s claims has been determined to

have merit // p. 16 // even if he could demonstrate a prima facie case of discrimination (which he

cannot) // Accordingly, his charge should be summarily dismissed // Charging Party brings no

proof of any discriminatory motive by Pierson // p.17 // however, there is no foundation for these

accusations or conclusions // p.18 // Charging Party’s case thus must fail at this initial step // p.19

// combined with his demonstrated lack of veracity //// {end of transcript} //// by Shannon M.

McDonough, Attorney At Law)))

With this example of lawyer testimony for the Defendant, all fair minded tribunals within the

judiciary do hold that a lawyer must not testify as to the facts of a case; that, in its function as

an a lawyer, the attorney is expected to perform as an advocate and not render prejudice to

the administration of justice, and it is improper for an attorney to express its personal opinion

concerning the merits of a case; it is improper for an attorney to express its own opinion as to

the credibility of witnesses; and an attorney may not inject into its argument any extrinsic or

prejudicial matter that has no basis in the evidence. This is the law for civil suits, as well as

criminal proceedings, and for a plaintiff as well for a Defendant’s attorney United States v.

Morris, (5th

Cir. 1978) 568 F.2d 396, 400-401; Arizona v. Washington, (S. Ct. 1978) 434

U.S. 497, 514-517. State v. McDonald, (MN S. Ct. 1974) 215 N.W.2d 607, 608; State v.

Parker, (MN App. 1987) 412 N.W.2d 419, 422.

25

7. If this Court had determined the merits of Plaintiffs motion setting forth lawyer hearsay

testimony, and if the Court had rendered a merit determination based upon the prohibition of

lawyer testimony for its client, counsel for the Defendant would not be afforded an

opportunity to obstruct access to evidence and witness testimony to prejudice the rights of

Plaintiff under Art. 1, §8, of the Minnesota Constitution. Furthermore, the dismissal of

Plaintiff’s MHRA claim, with prejudice, and without a determination on its merits, is

inconsistent with the example of the Chappell Court when dismissing a MHRA claim. In

Chappell, even though the case filed on the last day of the limitations period, the Chappell

Court ruled that Chappell should have filed the action a few days earlier, and then the

Chappell Court wrote an extensive Memorandum Of Law to make a determination on the

merits of the case, before it was dismissed with prejudice Chappell v. Buttefield-Odin School

Dist., (U.S. Dist. MN 2009) 673 F.Supp.2d 818, 833, 842. As such, the Chappell Court

demonstrated the proper use of judicial power, and demonstrated that inherent judicial power

may not be asserted unless constitutional provisions are followed, which does establish valid

precedence, and thereby do become reasonable adjudication for evolution of the legal

process. In addition, in such proceedings, a district court must include a full hearing on the

merits of an action in an adversarial context before an impartial and disinterested Trier of

Fact, and that court shall make findings of fact and conclusions of law and render a

determination on the merits of motions, and the merits of a claim for damages, in accordance

to the clarifications and interpretations of the Minnesota Supreme Court in Clerk of Courts

Compensation of Lyon County v. Lyon County Commissioners, (MN S. Ct. 1976) 241 N.W.2d

781, 786-787. As a result, the Appellate Court cannot determine the correctness of the prior

MHRA claim unless this District Court renders a determination on the merits of the MHRA

26

claim that was dismiss with prejudice; and therefore, said dismissal with prejudice must be

set aside, because dismissal only serves the personal pecuniary interests of counsel for the

Defendant, and the public interests in said claim are prejudiced herewith, Minn. Stat.

645.17(5) Bubs v. State Dept. of Public Welfare, (MN S. Ct. 1981) 306 N.W.2d 127, 129.

8. As a result of the aforesaid issues of fact and law, the Motion To Dismiss of Defendant is a

frivolous action that obfuscates and confuses this proceeding with misleading issues that

cover-up its own violation of many professional conduct rules; in addition, since Plaintiff has

been deprived of his right to a determination on the merits of his prior Motion To Strike; and,

since appellant courts cannot exercise original jurisdiction on Plaintiff’s motions and MHRA

claims without the trial court’s initial determination on the merits of motions and claims;

Plaintiff pleads with the Court to set aside its prior dismissal of the MHRA claim, and to

render a determination on the merits of the motions of Plaintiff, for proper case management

and overall case preparation for a fair trial on its merits.

By _____________________________________

Joshua J. Israel / Plaintiff Pro-Se

PROOF OF SERVICE

Plaintiff, Joshua J. Israel, certifies that a true copy of this Motion To Disqualify Counsel Or For A

Mistrial, Objection to Enlargement Of Time, and Motion For Judgment On Motion is served upon

Defendant, by placing same in an envelope addresses to Defendant, and by service through th U. S. Postal

service, on the 30th day June 2011, at the following address:

Sarah West Hauble

Shannon M. McDonough Hand Delivery Clerk of Court

Fafinski Mark & Johnson, P.A. Scott County District Court

Flagship Corporate Center 200 Fourth Avenue West JC 115

775 Prairie Center Drive , Suite 400 Shakopee, MN 55379

Eden Prairie, MN 55344

By: ____________________________________

Joshua J. Israel / Plaintiff-Pro-Se

27

STATE OF MINNESOTA FIRST JUDICIAL DISTRICT

COUNTY OF SCOTT DISTRICT COURT _____________________________________________________________________________

Case type: Civil Employment

JOSHUA J. ISRAEL, Case No. 70-CV-11-9335

Plaintiff,

vs. ORDER (PROPOSED)

PIERSON PIZZA Inc.,

Defendant. Judge, ___________________________

_____________________________________________________________________________

The above entitled matter having come forward for hearing before the undersigned

Judge of the First Judicial District Court, of Scott County, Minnesota, on July 13, 2011,

and for the Motion of Plaintiff to Disqualify Defendant’s Legal Counsel, Or For Curative

Measures Other Than Mistrial, and an Objection To Enlargement Of Time.

The Plaintiff, Joshua J. Israel, appeared pro-se, and Sarah West Hauble, appeared on

behalf of Defendant, PIERSON PIZZA INC.,

The Court having read and taking notice of the Motions and having heard arguments

of Plaintiff, and arguments of counsel for the Defendant, and being duly advised in the

merits of the Motions, It Is Hereby ORDERED:

1. That the merits of Plaintiff’s motion for judgment on prior motion been determined on

its merits, and the merits of the motion does demonstrate that this Court has original jurisdiction

of motions; and for appeal purposes, the motions of Plaintiff must be determined on its merits.

2. That the merits of Plaintiff’s motion has been determined on its merits, and the motion

does demonstrate that this Court was mislead to dismiss claims under the Minnesota Human

Rights Act because counsel for the Defendant has a personal pecuniary interest in obstructing the

28

right of Plaintiff to a fair trial, of which does violate the witness-advocate-rule before this Court,

and which does disqualify counsel as advocate for the Defendant.

3. This Court hereby finds that Plaintiff’s motion to strike Defendant’s exhibits should be

granted because lawyer testimony that is prejudicial and defamatory and does not appear to be

based upon an investigation or discovery of relevant evidence.

4. That the merits of Plaintiff’s prior motion to strike inadmissible evidence exhibits of

Defendant has been determined on its merits; and therefore, Plaintiff’s motion is GRANTED.

5. That the motion to Set-Aside the prior Order To Dismiss claims under the Minnesota

Human Rights Act is hereby GRANTED so that Plaintiff may be afforded the right to a fair trial

on all claims under the Minnesota Human Rights Act.

6. This Court finds that Defendant’s motion to dismiss claims under the Minnesota

Human Rights Act are grounded upon personal pecuniary interests that has mislead the Court to

dismiss with prejudice said claims; therefore, Defendant’s motion is DENIED.

7. This Court additionally finds that Defendant has failed to comply with its obligation

under Minnesota General Rules of Practice, Rule 114, and Rule 115.10, for settlement efforts.

JUDGMENT IS HEREBY ENTERED ACCORDINGLY.

Dated: ______________________, 2011 BY THE COURT

____________________________________________

The Honorable

________________________________

Judge of First District Court