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; include a Motion To

therefore, in Reply to said motions, Plaintiff, Joshua J. Israel, will

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

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 DEFENDANTS 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 counsels personal pecuniary interests and calculated tactics that violate the Rules of professional conduct, Plaintiff states as follows:

FACTUAL BACKGROUND HISTORY 1. On the 23rd day March, 2011, during a hearing on Defendants 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 Defendants legal counsel, Sarah West Hauble, adamantly objected to consolidation of this instant case, and Defendants 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 (Defendants Exhibits B and B). 3. However, this Court refused Plaintiffs right to a determination on the merits of the Motion To Strike, this Court only declared that Plaintiffs 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 Defendants 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(Plaintiffs 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 Plaintiffs 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-11186, 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 counsels 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, Exhibits B and B). 11. As a result of violating said rules of professional conduct, the personal pecuniary interests of Defendants 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 Plaintiffs 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 Defendants legal counsel is the element of constructive discharge in the instant complaint (Amend. Comp. 44-45), and the personal pecuniary interest of Defendants counsel is to mislead the Court to deprive Plaintiff of a fair trial by dismissing claims where Defendants counsel is likely to be called as a necessary witness, and to induce the Court to cover-up counsels 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 Defendants 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 Defendants 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 its original position. In addition, the doctrine is aimed at preventing badfaith 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

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

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 Plaintiffs 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 sets 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 (Defendants 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 Partys 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 Partys 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 lawyers 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 defendants 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 counsels 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 counsels 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 Defendants counsel that has mislead this Court to overlook Professional Conduct Rule violations, and dismiss Plaintiffs 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 Fafinski Mark & Johnson, P.A. Flagship Corporate Center 775 Prairie Center Drive , Suite 400 Eden Prairie, MN 55344

Hand Delivery Clerk of Court Scott County District Court 200 Fourth Avenue West JC 115 Shakopee, MN 55379

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, Plaintiff, vs. Case No. 70-CV-11-9335

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 Defendants 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 Defendants counsel, and being duly advised in the merits of the Motions, It Is Hereby ORDERED: 1. That the merits of Plaintiffs motion to disqualify defendants 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, Plaintiffs 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.
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3. That Defendants 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 Defendants 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 Defendants 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

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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 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 Courts 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 Courts original jurisdiction to determine the motions of Plaintiff on its merits, Plaintiff states as follows:

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FACTUAL BACKGROUND HISTORY 1. On the 23rd day March, 2011, during a hearing on Defendants 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 Defendants 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;
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Defendants 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 Defendants Exhibit E clearly demonstrates Judge Rex Stacys dismissal did not determine the merits of the MDHR claim, and its dismissal was made on grounds that Plaintiffs remedy was mistaken and that Plaintiff maintained the right to commence other

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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 Courts 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 [Defendants] 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 judges 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

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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 Defendants 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 Defendants lawyers 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 Defendants 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 Partys charges are not

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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 Partys allegations // p.5 // Piersons 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 Partys assertions // Pierson is not aware of any case in which the Charging Partys 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 Partys 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 Defendants 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.

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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 Plaintiffs 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

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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 Plaintiffs motions and MHRA claims without the trial courts 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 Fafinski Mark & Johnson, P.A. Flagship Corporate Center 775 Prairie Center Drive , Suite 400 Eden Prairie, MN 55344

Hand Delivery Clerk of Court Scott County District Court 200 Fourth Avenue West JC 115 Shakopee, MN 55379

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, Plaintiff, vs. Case No. 70-CV-11-9335

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 Defendants 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 Plaintiffs 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 Plaintiffs 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
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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 Plaintiffs motion to strike Defendants 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 Plaintiffs prior motion to strike inadmissible evidence exhibits of Defendant has been determined on its merits; and therefore, Plaintiffs 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 Defendants 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, Defendants 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

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