IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________

WIZKIDS CREATIONS CO., :

:

Plaintiff, :

: CIVIL ACTION No. 02-CV-4358

 v. :

:

C.B.S. INC. and :

COLUMBIA BROADCASTING :

SERVICES, INC., :

:

Defendants. :

____________________________________:

RESPONSE OF DEFENDANT

COLUMBIA BROADCASTING SERVICES, INC.

TO PLAINTIFF’S MOTION TO DISMISS

Defendant Columbia Broadcasting Services, Inc. (“CBS”) hereby responds to

plaintiff’s motion to dismiss and respectfully requests that the Court deny plaintiff’s motion and

grant defendant’s pending motion to dismiss plaintiff’s Complaint for the reasons set forth below

and in its opening motion:

On September 24, 2002, CBS filed a motion to dismiss plaintiff’s Complaint. The

grounds for the motion were (1) that plaintiff had failed to adhere to the terms of two injunctions

entered against him by Judges Bechtle and Yohn (“the Orders”) requiring him to seek leave of

court before filing another complaint based on the purported infringement of the copyrighted

“Flying Carpet” or “People Mover”; and (2) that the Complaint failed to state a claim for

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copyright infringement against defendants. Copies of the Orders are attached as exhibits to the

memorandum of law accompanying CBS’ Motion to Dismiss.

Instead of filing a response to the motion, plaintiff has filed a motion of his own

“to dismiss defendants’ motion to dismiss.” In his motion, plaintiff alleges that the Orders have

been “satisfied” and purports to quote from an order by Judge Dalzell in another case to lend

credibility to this assertion. However, the Order by Judge Dalzell, attached hereto as Exhibit A,

does nothing of the kind. It dismissed plaintiff’s complaint against Judge Yohn as “frivolous”:

“[A] complaint, containing as it does both factual allegations and

legal conclusions, is frivolous where it lacks an arguable basis

either in law or in fact . . . .”;

“[J]udges of courts of superior or general jurisdiction are not liable

to civil actions for their judicial acts, even when such acts are in

excess of their jurisdiction, and are alleged to have been done

maliciously or corruptly”;

Because the Complaint (as far as we can decipher it) refers only to

Judge Yohn’s judicial actions, and thus Judge Yohn is immune

from suit founded upon those actions, the Complaint has no

arguable basis in law, and we therefore dismiss this action as

frivolous under 28 U.S.C. § 1915(e)(2) . . . .

Hackney v. Yohn, No. 02-1820, April 15, 2002 (Dalzell, J.).

Plaintiff thus misrepresents Judge Dalzell’s Order. Indeed, insofar as CBS is

aware, the Orders are still in full effect. In fact, in another case brought by plaintiff and currently

pending in this Court, Hackney v. SEPTA, No. 02-CV-03249 (assigned to Judge Hutton),

SEPTA has moved to dismiss based in part on this Court’s “standing order.” See docket sheet,

entry no. 7, attached hereto as Exhibit B.

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Nothing else in plaintiff’s motion, to the extent it is comprehensible, is responsive

to CBS’s pending motion to dismiss.

For all of the reasons set forth above and in CBS’s motion to dismiss, CBS

respectfully requests that the Court dismiss plaintiff’s Complaint.

Dated: October 11, 2002 Respectfully submitted,

___________________________________

Gayle Chatilo Sproul

DECHERT PRICE & RHOADS

4000 Bell Atlantic Tower

1717 Arch Street

Philadelphia, PA 19103

Attorney for Defendant

Columbia Broadcasting Services, Inc.

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792821.1.50 10/11/02 11:06 AM

CERTIFICATE OF SERVICE

I hereby certify that I have this date caused a copy of the response of Defendant

Columbia Broadcasting Services, Inc. to Plaintiff’s Motion to Dismiss to be served by first-class

mail upon the plaintiff pro se as follows:

WizKids Creations Co.

c/o Larry Hackney

5422 Chester Avenue

Philadelphia, PA 19143

Dated: October 11, 2002 ___________________________

Gayle Chatilo Sproul

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