Frolic of His Own (25 page)

—Is this all? Where's the rest of it. Where's my grandfather.

—Get to those details later Oscar, all we want now's a complaint they can't claim is defective on its face when they cite grounds for dismissal and you lose before you begin.

—Well it all just sounds muddy and repetitious. If you can explain it as we go along maybe I can help you cut down some of these tedious lines where you keep repeating yourself and save some money.

—Look, what you've got here is this judge sitting there reviewing this complaint and their answer under Rule 12 of the Federal Rules of Civil Procedure looking for grounds for dismissal where they try to claim it's
legally insufficient, like it doesn't state a cause of action for a claim where relief can be granted, or they say it fails to allege an essential element of the claim or it alleges some element defectively here where there's these different kinds of damages you're asking for, see you're alleging general damages, compensatory damages, special damages, punitive damages, you comply with these procedural necessities for each one or you're out on your ass.

—Oh. All right but listen, that last part there I certainly don't want to be credited with creating this revolting spectacle, isn't that one of the things we're suing them for in the first place? Byron did it didn't he? Lord Byron, did you know that? A bad poem going around with his name on it and he sued them, took them to court and cut them right down, connecting my name with this mindless trash like Errol Flynn in The Charge of the . . .

—Would have made a great movie now wouldn't it, Errol Flynn playing Lord Byron don't worry about it, they're not just about to put your name up there in lights, see we're just putting them on notice here under Section 502 where once we start this action we get an injunction pulling it out of the theatres all over the country, impound their prints, masters, negatives any time while the action is pending, you see where they sold thirty one million dollars in tickets over the weekend? over a hundred million now in just the first ten days?

—A hundred million dollars!

ANSWER TO COMPLAINT

Defendant named herein as KIESTER for his answer to Complaint herein alleges as follows:

1) Denies the allegations contained in paragraphs (1-5) according to knowledge and information sufficient to form a belief.

2) Denies the allegations contained in . . .

—Herein, herein, the same repetitious hereins what comes next.

FIRST AFFIRMATIVE DEFENSE

Plaintiff has been guilty of such laches as to bar any recovery herein . . .

—We settled that right at the start didn't we? that we wouldn't let them get us on this laches business Harry warned me about when you talked about holding back and letting their profits pile up so we could . . .

—Not quite how I remember it Oscar, but . . .

—Yes well it doesn't really matter, I'm just trying to keep the record straight but when do we stop wasting time with this name calling and go to court, stop wasting time and money passing papers back and forth and do something.

—Going through the motions, that's where you get that phrase just going through the motions, next thing they'll want a bill of particulars to get the facts established and make a motion for summary judgment under Rule 56, trying to keep you out of court Oscar not get you in it.

PLEASE TAKE NOTICE that the undersigned hereby demand that you serve upon them within twenty days particulars of the Complaint herein as follows:

1) With respect to the allegations contained in paragraph (3-5) of the Complaint, state separately with regard to each alleged negotiation:

a. the date and place;

b. the name and address of each person, other than plaintiff and defendant, who was present or participated in the negotiations;

c. the substance of statements made by each participant in the negotiations;

d. whether the negotiations were evidenced in whole or in part by written documents, and, if so, annex a true and complete copy of each such document . . .

—They're steaming right along here Oscar, you find that rejection letter yet?

—Not, no I . . .

—What I'm trying to tell you, see that can be crucial, the judge sees that letter and it proves they had access, makes it a fact they can't argue with. See what they're doing here is they moved to dismiss our complaint under Rule 12 but they stuck some other documents in there where if this judge has to go look beyond the pleadings at these other affidavits their motion to dismiss gets converted automatically into a motion for summary judgment under Rule 56 where the court reaches a decision without going to trial once there's no more questions of facts for some jury to dick around with, get these cleared up in an Amended Bill of Particulars and your depositions and . . .

—And it's all just more words and more words until everything gets buried under words, you said . . .

—Said you wanted me to explain every step as we went along didn't
you? hoped you could find a few short cuts where you could maybe save some money?

—Yes but now it's probably beginning to cost more to explain it than anything I could save when these words all begin to sound the same and cancel each other out, that's what I . . .

—Get to these depositions Oscar, you haven't seen anything yet. What I tried to tell you right from the start. Words, words, words, that's what it's all about.

PLEASE TAKE NOTICE, that pursuant to Article 31 of the Civil Practice Law and Rules, defendant KIESTER named herein will examine plaintiff Oscar L CREASE as the adverse party, by taking his deposition upon oral questions at 8295 Sunset Boulevard, Los Angeles, California 90046, before a notary public of the State of California or before some other person authorized to administer oaths, in compliance with Rule 3113(a) of the Civil Practice Law and Rules.

The aforesaid party is to be examined regarding all evidence material and necessary in the prosecution or defense of the above captioned action and is required to produce the following items or copies thereof:

All books, papers, writings, letters, written communications and records of oral or written communications, including, but not limited to, bank records, contracts, diaries, recordings, log books, call slips, memoranda, drafts, and worksheets, and other documents or things which pertain to all such evidence . . .

—California? When you can't even walk across the room? Have you tried?

—Tried what.

—Walking across the room she said, doing so herself just then to lower a blind where pale sun streaked the chair she'd been sitting in shuffling papers, —worksheets, drafts and other documents, old concert programs? Just ship those boxes in the hall out to California the way they are, old Playbills? menus? invitations? they don't know what they're in for, what about those family letters that doddering historical society is wheezing over down there? and that rejection letter, had he found that? —I mean it's Exhibit A isn't it?

In the first place he wasn't going to California he told her, in the second place no, he hadn't found the letter but Basie said they could try putting in a sworn affidavit, see if they could get it admitted in evidence, as for that damned historical society no action for infringement can be started
until the copyright claim is registered and if the Copyright Office turns it down Basie can start an action by serving a notice on the Register of Copyrights with a copy of the complaint, it was our family's correspondence wasn't it? letters between that uncle with the coal mines in Pennsylvania and Grandfather's mother and father, when they went to France in that diplomatic post where he died —and that's all I know except the rights, there's no question about the rights descending directly to me through Father on this per stirpes basis where the . . .

—Oscar please. Don't explain it. Obviously you can't go to California so the whole thing . . .

—I thought Harry must have told you. They've just retained his firm, they've retained Swyne & Dour where Basie said they've put some snooty Hindu on it and I thought maybe I'd ask Harry to sort of get him aside and . . .

—Don't you dare ask Harry to get anyone aside, my God. He got you a lawyer, isn't that what you wanted?

—Look Christina, here's Harry with this blue ribbon law firm and I ask him to help me and end up with Mister Basie, meanwhile who ends up with the blue ribbon law firm?

—You asked him for a Jewish law firm Oscar, I was standing right here I heard you.

—And what's Mister Basie then, one of the lost tribes? That's why I'm not going to go to California, because they're coming out here to take this deposition, do you think I'd ever collect a penny for all this pain and suffering if anybody saw me up running around the room? Five hundred dollars, that's what they offered me Christina, the insurance company said they'd settle for five hundred dollars and pay these terrible hospital bills now they're trying to get my claims dismissed completely by pleading immunity under these No Fault statutes and if they saw me up running around the room they'd . . .

—They'd think you were exercising your common law rights, wasn't that what you wanted? It's not your constitutional rights this socalled lawyer is asserting, can't you see? He's asserting his own right to exploit your misery for every dollar he can, it's not his pain and suffering is it? his brilliant lecturing career that's in jeopardy? Is he going to pay your hospital bills when you lose? doctor bills? lab bills? this therapist? By the time you get into a courtroom that scar will look like you fell off your tricycle when you were five, think about it, when you start getting bills from Mister Basie sitting here with his clock running and these people taking your deposition, who's paying for all that?

—It's right there in the complaint, it's even stated right there in the copyright law, we're not just suing for damages you put in reasonable attorney fees too, that's part of the . . .

—If attorneys' fees were reasonable do you think Harry would be driving around in a car like ours? If they offer to settle for enough to get you out of the hole you're digging yourself into he thinks you should take it, just forget this fifty million dollars damages you're dreaming about.

—I don't know where you got fifty million dollars, we haven't even . . .

—The story in the paper.

—I haven't seen the paper. It's in the kitchen drying out, Ilse has to walk all the way out to the end of the driveway to get it and after a rain like last night, who told them fifty million dollars?

—I assume it's your friend Mister Basie, he couldn't let you sound like a piker could he? with this other ghoul suing them for twenty?

—What do you mean this other ghoul, who.

—Whatever his name is, he's suing over that revolting sledgehammer scene in Uburubu or whatever it is. He claims your friend Kiester commissioned him to go over there and set the whole thing up, paid all his expenses and promised him some earth shaking fee. It's obviously a better story than someone suing over an old play, your suit was just tacked on.

—Well what did it say Christina. About me, what did it say about me?

—Simply that, Oscar. That you're suing them, that your father's the judge in the Cyclone Seven mess and a little headline, CYCLONE SEVEN SEEKS NEW HOME. I'll get the phone.

—Well wait, wait if it's . . .

—If it's collect from Disney World she's probably seen your name in the paper with that fifty million dollar pricetag. Shall I just tell her the check is in the mail? And then, —hello? Oh, it's you . . . Yes . . . Yes I can take care of it tomorrow, it's not . . . Well it's really not that important Harry, don't worry about it . . . No, everything's fine, he's right here working himself into a state over this deposition they're coming for . . . Coming here yes, they've retained your firm, did you know? He says Basie tells him they've put some snotty Hindu on it and he hoped you might get him aside and . . . Well of course, he knows that . . . I'll tell him . . . Yes I'll tell him that . . . I hope so yes, as soon as you can . . . God, I do too . . . and she hung it up. —That was Harry.

—What did he . . .

—He said to tell you to relax about your deposition, just remember to tell the truth and don't volunteer. This Hindu is probably just their third world payback for being handed a token black. Just tell Oscar to tell the truth and don't volunteer.

—What, answers? I don't know what he thinks I . . .

—It's that fifty million dollars, Oscar. They're beginning to take you seriously.

APPEARANCES:

Messrs. LEPIDUS, HOLTZ, BLOMEFELD, MACY & SHEA

Attorneys for plaintiff

12 West 43d Street

New York, N.Y. 10036

BY: HAROLD BASIE, ESQ.,

Of Counsel

Messrs. SWYNE & DOUR

Attorneys for defendants

450 Park Avenue

New York, N.Y. 10022

BY: JAWAHARLAL MADHAR PAI, ESQ.

J. VENNER SMITH, ESQ.

Of Counsel

OSCAR L. CREASE, plaintiff, called as a witness by defendants, being duly sworn testified as follows:

MR. BASIE: Before we start, but on the record, I should like notice to be taken of Mr. Crease's physical condition confining him to a wheelchair in an almost prone position thus preventing the free expression of his feelings under the stress occasioned by this procedure in the hope of seeing it conducted as expeditiously as possible.

MR. MADHAR PAI: May I remind counsel for the record that it is plaintiff himself who in bringing this action has already seriously inconvenienced others to the degree of journeying some distance to his residence to examine him in taking this deposition at his convenience, and if he now feels suddenly reluctant to confront the possible rigours of a legal procedure which he himself has . . .