Koubriti v. Convertino et al

Filing 46

ANSWER to Amended Complaint with Affirmative Defenses with Jury Demand by Michael Thomas. (Swick, Richard)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KARIM KOUBRITI,
Plaintiff,

Case No. 2:07-cv-13678

v.
The Honorable Marianne O. Battani
RICHARD CONVERTINO,
MICHAEL THOMAS and
HARRY RAYMOND SMITH,
Jointly and Severally
and in their Individual Capacities
Defendants.
________________________________________________________________________
Ben M. Gonek (P43716)
Ben M. Gonek, P.C.
615 Griswold Street
1300 Ford Building
Detroit, MI 48226
[phone]
Attorney for Plaintiff

Robert S. Mullen (P54827)
Progressive Legal Services
800 Starkweather St.
Plymouth, MI 48170
[phone]

Richard L. Swick
Swick & Shapiro, P.C.
1225 Eye St., NW
Suite 1290
Washington, D.C. 20005
[e-mail]
202-842-0300
Fax [phone]
Attorney for
Defendant Michael Thomas

LENORE M. FERBER (P24223)
801 W. Ann Arbor Trail, Suite 233
1225 Eye Street, NW, Suite 1290 Plymouth,
Michigan 48170
Washington, D.C. 20005 [phone]
[phone]

Attorney for Defendant Richard
Convertino

Attorney for Defendant Richard
Convertino

________________________________________________________________________
DEFENDANT MICHAEL THOMAS’
ANSWER TO FIRST AMENDED COMPLAINT

Defendant Michael Thomas, by and through counsel, responds to Plaintiff Karim
Koubriti’s First Amended Complaint, in accordance with the numbered paragraphs of that
Complaint, as follows:
1.

Jurisdictional allegation, no response required.

2.

Jurisdictional allegation, no response required.

3.

Defendant Thomas lacks sufficient knowledge or information in order to admit or
deny the allegations of this paragraph and therefore denies same.

4.

Defendant Thomas lacks sufficient knowledge or information in order to admit or
deny the allegations of this paragraph and therefore denies same.

5.

Admitted.

6.

Denied.

7.

Defendant Thomas admits this First Amended Complaint purports to sue him in
his individual capacity. The remainder of the paragraph is denied.

8.

Admitted.

9.

Denied.

10.

Admitted.

11.

It is admitted that Plaintiff was arrested and that Plaintiff was initially detained,
without bail, on a criminal offense of document fraud. The remainder of the
paragraph is denied.

12.

Admitted.
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13.

Denied.

14.

Admitted.

15.

Denied.

16.

Admitted.

17.

Admitted.

18.

Admitted.

19.

It is admitted that the Government at the trial offered the testimony of Yousif
Hmimssa concerning Plaintiff and other co-defendants' being "Islamic
fundamentalist" and "involved in terrorist activities." The remainder of the
paragraph is denied.

20.

Denied.

21.

Defendant Thomas lacks personal knowledge upon which to admit or deny the
basis for the jury's returning a verdict to convict, and thus denies this paragraph's
allegations.

22.

It is admitted that "Plaintiff and his co-defendants" filed motions and made claims,
that there were responses to the motions filed, and that there was one or more
evidentiary hearing on motion(s). The allegations, inferences and facts otherwise
alleged in this paragraph are denied.

23.

It is admitted that Judge Rosen made findings and rulings and issued an order;

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those matters are in the record of the district court proceeding. Concerning this
paragraph's summary and characterization of the proceedings, Defendant Thomas
reserves the right to challenge the substance of this paragraph, and thus denies the
allegations and declared facts set forth in this paragraph.
24.

Admitted.

25.

The fact that the statements were made is admitted. All other factual allegations
and inferences are denied.

26.

The fact that the statements were made is admitted; the fact of the Order on June 1,
2006 is admitted. All other factual allegations and inferences are denied.

27.

Denied.

28.

Denied.

29.

Defendant admits and denies the allegations of this compound paragraph as
follows:
Defendant denies "willfully and intentionally with[holding] exculpatory evidence

or fabricated evidence."
A.

Denied.

B.

Denied.

C.

Denied.

D.

Denied.

E.

Denied.

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F.

Denied.

G.

Defendant admits that he did not make 302's of meetings with Hmimssa,
but denies that he had a duty to do so.

H.

Denied.

30.

Denied.

31.

Defendant incorporates by reference his responses to Paragraphs 1-30, inclusive.

32.

Denied.

33.

Denied.
AFFIRMATIVE DEFENSES
First Affirmative Defense
By way of affirmative defense, Defendant alleges he was justified in his conduct

and acts and therefore is not liable to the Plaintiff as alleged in the Complaint.
Second Affirmative Defense
By way of affirmative defense, Defendant alleges that his actions and conduct
were performed according to and protected by law and/or legal process, and that therefore
the Plaintiff cannot recover.
Third Affirmative Defense
By way of affirmative defense, Defendant alleges he was privileged in his conduct
and acts and that therefore the Plaintiff cannot recover.

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Fourth Affirmative Defense
By way of affirmative defense, Defendant is entitled to immunity based upon good
faith in that the harm suffered by Plaintiff was not a result which a reasonable person in
Defendant's position would have known to result from his actions.
Fifth Affirmative Defense
By way of affirmative defense, Defendant alleges that at all times relevant hereto
he acted without malice toward the Plaintiff and that Defendant's actions relative to the
Plaintiff were privileged by virtue of his acting reasonably and in good faith within the
scope of his authority as a federal law enforcement agent.
Sixth Affirmative Defense
By way of affirmative defense, Defendant alleges he had qualified immunity from
this suit as the alleged acts complained of occurred within the scope of Defendant's
official duties and Defendant had no knowledge that said alleged acts were illegal and/or
unconstitutional nor were said alleged acts clearly violative of Plaintiff's rights at the time
they were committed.
Seventh Affirmative Defense
By way of affirmative defense, Defendant alleges that the damages, if any,
sustained by Plaintiff were caused by the acts or omissions of himself or third parties for
whose conduct Defendants are not legally responsible.

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Eighth Affirmative Defense
By way of affirmative defense, Defendant alleges Plaintiff's Complaint, and each
allegation of the Complaint, fail to state a claim upon which relief may be granted.
Ninth Affirmative Defense
By way of affirmative defense, Defendant alleges Plaintiff is barred from recovery
by the doctrine of unclean hands.
Tenth Affirmative Defense
By way of affirmative defense, Defendant alleges Plaintiff is barred from recovery
by the doctrine of estoppel.
Eleventh Affirmative Defense
By way of affirmative defense, Defendant alleges Plaintiff is barred from recovery
by the doctrine of waiver.
Twelfth Affirmative Defense
By way of affirmative defense, Defendant alleges Plaintiff lacks standing to pursue
the instant action.
Thirteenth Affirmative Defense
By way of affirmative defense, Defendant alleges absolute immunity.
Fourteenth Affirmative Defense
By way of affirmative defense, Defendant alleges qualified immunity.

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Fifteenth Affirmative Defense
By way of affirmative defense, Defendant alleges Plaintiff has not exhausted the
applicable administrative remedies.
Sixteenth Affirmative Defense
By way of affirmative defense, Defendant alleges Plaintiff’s claims are barred by
the applicable statute(a) of limitation.
Seventeenth Affirmative Defense
By way of affirmative defense, Defendant alleges he acted in reasonable good faith
in the matters of conduct or misconduct alleged against him.
DEMAND FOR JURY TRIAL
Defendant demands a jury trial on all triable issues.
WHEREFORE Defendant prays this Court deny each of the Plaintiff’s prayers for
relief and award Defendant his costs, fees and any other relief this Court deems
appropriate.
Respectfully submitted,
By: s/ Richard L. Swick
Richard L. Swick
Counsel for Defendant Michael Thomas
Swick & Shapiro, P.C.
1225 Eye Street, N.W. Ste 1290
Washington, D.C. 20005
Tel: [phone]
E-mail: [e-mail]
Date:

May 8, 2008
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CERTIFICATE OF SERVICE
I hereby certify that on May 8, 2008, 2008, I presented the foregoing Defendant Michael
Thomas’ Answer to First Amended Complaint, and Certificate of Service to the Clerk
of the Court for filing and uploading to the ECF system which will send notification of
such filing to the following
Ben Gonek [e-mail], [e-mail],
Robert S. Mullen ([e-mail])
Respectfully attested:
SWICK & SHAPIRO, P.C.
By: s/ Richard L. Swick
Richard L. Swick
Counsel for Defendant Michael Thomas
Swick & Shapiro, P.C.
1225 Eye Street, N.W. Ste 1290
Washington, D.C. 20005
Tel: [phone]
E-mail: [e-mail]

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