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Zittrain Torts Playlist Spring 2013

II. Wishnatsky's (Plaintiff's) Amended Complaint

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STATE OF NORTH DAKOTA COUNTY OF CASS



Martin Wishnatsky,
Plaintiff,
vs.
David W. Huey,
Defendant.



IN DISTRICT COURT EAST CENTRAL JUDICIAL DISTRICT



Civil No.

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AMENDED COMPLAINT

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Plaintiff for his complaint, states and alleges as follows:

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Parties

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1. He is a resident of Cass County, North Dakota.
2. Defendant David W. Huey is an assistant attorney general for the state of North Dakota and a resident of Bismarck. Defendant is being sued in both his individual and official capacities. Jurisdiction
3. This action arises under the common law of torts.

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Events

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4. Plaintiff has his office on the third floor of 16 Broadway in Fargo and provides paralegal services to attorney Peter Crary whose office is on the same floor. It is very common and a matter of routine for the plaintiff to be in and out of Mr. Crary's office during the day.
5. On Wednesday morning, January 10th, 1996, at approximately 10:00 a.m. during normal business hours the plaintiff entered Mr. Crary's office to give him certain papers that had been requested. Mr. Crary was speaking with defendant David Huey at the time. As the plaintiff began to enter the office, Mr. Huey snarled: "You get out of here." Simultaneously the defendant threw his body weight against the door to prevent the plaintiff from entering Mr. Crary's office. The pressure of the door being forced against his body by Mr. Huey overcame plaintiff’s forward movement and he was physically forced backwards and out into the hall.
6. The plaintiff had not said a word to Mr. Huey to provoke this attack. He had done nothing more than to open the door and to begin to walk into Mr. Crary's office, something he routinely did many times every work day.
7. The plaintiff was shocked and frightened by Mr. Huey's physical attack upon him. In all the time he had been providing paralegal services to Mr. Crary, he had never been physically assaulted or spoken to in a harsh and brutal manner. Plaintiff’s blood pressure began to rise. His heartbeat accelerated and he experienced waves of fear in the pit of his stomach. Plaintiff’s hands also began to shake and his body trembled.
8. Composing himself, the plaintiff reentered Mr. Crary's office to deliver the papers to him and made a brief and respectful statement to Mr. Huey that as a public servant he had an obligation to treat the public with respect and courtesy. Mr. Huey then went into a tirade, stating that he would no longer discuss anything with Mr. Crary, that his time was too valuable, etc. He then stormed out into the hall. The plaintiff then gave Mr. Crary the papers he had originally entered his office to provide and left.
9. After this experience it took the plaintiff a considerable amount of time to settle down and get into his work routine. He was emotionally upset and frightened by the abusive behavior of the state's representative.

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Cause of Action for Battery

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10. By the actions described in paragraphs 5-8, the defendant intentionally and in anger engaged in violent, offensive, insulting, uninvited and unwanted physical contact with the plaintiff.
11. This unpermitted contact, as described above, was reasonably offensive to the plaintiffs sense of personal dignity, was unwarranted by the social usages prevalent in an office environment and in the legal community, and was contrary to all good manners.
12. This offensive contact constituted a battery upon the person of the plaintiff.
13. Defendant's actions constitute malfeasance in that the battery was a wholly wrongful and unlawful act.

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Damages

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14. Plaintiff is entitled to nominal damages for the battery itself and compensatory damages for the emotional upset, fear and distress caused by the defendants' actions.
15. Plaintiff requests a trial by jury and such other and further relief as the court may deem suitable.

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Dated this 2nd day of August, 1996.

Martin Wishnatsky