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June 2015 - Millar’s Jurisdiction: Extra Sensory Perception

Extra Sensory Perception

Robert Frost, who penned Mending Wall a hundred years ago, famously observed that “good fences make good neighbors.” While this was not an original thought, it may be the most eloquent expression—although Benjamin Franklin is attributed as saying “love your neighbor, yet don’t pull down your hedge.”

At any rate, I have it on good authority (and not my own recollection) that throughout history neighbors have been a problem. And, one not solved by fences or hedges, or even walls or parapets. Good neighbors come and go, while bad neighbors stay put forever.

And sometimes they sue. In pro per.

That has to be the trifecta from Hell: (1) being sued (2) by your neighbor (3) in pro per. As always, a case in point.

Like most stories, this one starts out well but, as you know, a good beginning does not insure a good ending.

In 2008, Arthur Firstenberg placed an ad on Craigslist for a personal cook. Raphaela Monribot responded. He hired her to cook his meals, which he ate in her house in Santa Fe, New Mexico. This lasted about a month, and then Ms. Monribot went to Europe for four months. While she was gone, she sublet her house to Mr. Firstenberg, who later bought it.

About a year later (which would be the end of the good beginning), she returned to Santa Fe and rented a house next door to the formerly hungry Mr. Firstenberg. (I am sure she has been kicking herself around the block for that decision, but I digress.) According to Mr. Firstenberg, the very day after she moved in, he “became so ill that he thought he ‘could die.’” Melding propinquity and timeliness, he concluded, as would anyone under the circumstances, that the hapless Ms. Monribot was the cause of his illness.

Well, it wasn’t actually she, herself; it was what she did in her house. I know you will share my outrage when I report that she—are you ready—used her cell phone, her computer, her Wi-Fi, and to add insult to injury, her dimmer switches. Not that most of us would have dimmer switches outside, but all of this was inside her house.

Mr. Firstenberg did what every red-blooded American would do when faced with a neighbor using dimmer switches inside her house. He sued for injunctive relief and monetary damages under “theories of nuisance and prima facie tort,” whatever that is. His damage claim was a carefully selected 1.43 million buckaroos. That should be enough to make anybody turn up their lights.
Mr. Firstenberg, it seems, suffers from self-diagnosed, and medically unrecognized, electromagnetic sensitivity (EMS) which, according to him, is caused by radiation from Ms. Monribot’s devices “‘entering’ and ‘leak[ing]’ into his house.” Because of this, he was unable to use his house for more than a few minutes at a time without suffering from EMS symptoms.

Reportedly, Mr. Firstenberg was well known to the denizens of Santa Fe, if not to Ms. Monribot, as he had previously fought the installation of Wi-Fi in various Santa Fe public buildings.

If you thought that he was nuts and that his lawsuit would be dismissed immediately, you would be only half right. His request for a preliminary injunction was denied as he was unlikely to prevail, but his suit lingered on with a second and third amended complaint and numerous pretrial hearings.
He had “experts”: a treating holistic physician, and a neurotoxicologist. She had a psychologist who said that his symptoms were psychological and “caused by an undifferentiated somatoform disorder, the latter of which (somatoform, not disorder) I had to look up. I am still not sure what it means, but I’m going with it.

Both of his experts were ruled unqualified to testify and summary judgment was entered against him.
Despite having no lawyer and no expert that could even meet the threshold of being able to testify, he appealed. Pro per cases have their own life spans.

In March 2015, over five years since the filing of his complaint, the New Mexico Court of Appeals affirmed.

I am now worried about our own courthouse . . . with all that e-filing leaking into the courtrooms. 

Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.
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