08-3187 Volume Appendix15.pdf - Medical Supply Chain

PLAINTIFF’S REPLY TO DEFENDANTS’ MOTION TO DISMISS
Comes now the plaintiff Samuel K. Lipari appearing pro se and makes the following response to the
defendants’ second motion to dismiss the plaintiff’s initial and un-amended complaint.
The plaintiff renews his objection to a second motion to dismiss where the Federal Rules of Civil
Procedure permit only one. The defendants’ current dismissal is a prohibited second Rule 12 motion to
dismiss. Palermo, Federal Pretrial Practice: Basic Procedure & Strategy 2001 states at page 21; “Rules
12(g) and 12(h), read together, provide in general, there shall not be more than one Rule 12 motion to
dismiss....All defenses and grounds “then available” shall be asserted in the one motion; certain defenses
shall be asserted in the Rule 12 motion, or in the initial responsive pleading (or amendment thereof) under
threat of waiver.”
The plaintiff is also aware of this court’s disposition toward him and his claims embodied by the
court’s January 24 th , 2008 decision to over rule the Magistrate Judge’s case management schedule and
require this answer by February 2, 2008.
An impartial observer could find that the issuance of a minute order changing the schedule without
accompanying documentation could prejudice a pro se defendant excluded from the electronic case
management system.
The plaintiff has no doubt as to what would have been in store for his claims or his future ability to
enter the hospital supply market and compete against US Bancorp’s co-conspirator Novation LLC had he
not made the deadline.
I. Plaintiff's Complaint states colorable claims and demonstrates a plausible entitlement to relief:
The defendants through their agents the law firm of Shughart Thomson & Kilroy, PC and the firm’s
State of Missouri licensed attorneys Mark A. Olthoff KS # 70339, Andrew M. Demarea KS #16141, and
Jay E. Heidrick KS #20770 have misrepresented to the court the content and words clearly on the face of
the plaintiff’s complaint and have falsely stated the complaint does not state elements that it clearly does. 1
1 The court would have been reversed on the most recent appeal for adopting Mark A. Olthoff KS # 70339,
and Andrew M. Demarea KS #16141 repeated misrepresentations that the elements of the plaintiff’s
antitrust and racketeering claims were not pled when in fact they were and appeared where the table of
contents stated they were. The defense counsel were unable to support this court’s rulings in total.
See Applt Br at pages 19-31: http://www.medicalsupplychain.com/pdf/Novation%20Appeal%20Brief.pdf
Applee Br at http://www.medicalsupplychain.com/pdf/Novation%20&%20US%20Bank%20Reply%20Brief.pdf
1
Exb 5
08-3187 Medical Supply Chain vs. Neoforma Volume XV 5741