Google Incorporated, et al v. Leo Stoller
Filing
11
Original record on appeal filed. Contents of record : 1 vol. electronic pleadings; 4 vol. paper loose pleadings; 4 vol. paper transcripts; [6177560-1] [09-3569]
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APPEAL, COLE, REOPEN, TERMED
United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 3.2.3 (Chicago) CIVIL DOCKET FOR CASE #: 1:07-cv-00385 Internal Use Only
Google Inc v. Central Mfg. Inc. et al Assigned to: Honorable Virginia M. Kendall Case in other court: 07-01612 07-01651 09-03569 Cause: 18:1961 Racketeering (RICO) Act Date Filed 02/16/2007 # 30 Page Docket Text 5 OBJECTION by Leo Stoller to Joint Moiton for Entry of Stipulated Permanent Inj8unction and Final Judgment; Notice of filing (Exhibits) (eav, ) (Entered: 02/21/2007) 4 MINUTE entry before Judge Virginia M. Kendall :Motion hearing held. All pending motions are taken under advisement, with a ruling by mail. Status hearing set for 3/13/2007 at 09:00 AM.Mailed notice (gmr, ) (Entered: 02/20/2007) 54 REPLY by Defendant Leo Stolla to Trustee's Ominibus response in opposition to motions of debtor Leo Stoller to: (1) Intevene; (II) Interplead; (III) Suspend proceeding for sixty days to retain counsel, for defendants; (IV) Suspend pending appeal to lift automactic stay for Google to sue the debtor; and (V) Suspend pending trademark trial and appeal Board's decision for defendants' motion for summary judgment and joinder of responses by Google, Inc.; Notice of filing (eav, ) (Entered: 02/26/2007) 76 MOTION by Defendant Leo Stolla to dismiss for failure to join a party under Rule F.R.C.P. 19 (eav, ) (Entered: 03/05/2007) 80 REPLY by Defendant Leo Stolla to Google Inc.'s combined opposition to debtor Leo Stoller's motions (1) to intervene, (2) to interplead, (3) to suspend for sixty days to retain counsel for defendants and (4) to suspend pending appeal to lift automatic stay for Google to sue the debtor ; Notice of filing (eav, ) (Entered: 03/06/2007) 162 REPLY by Movant Leo Stoller to Google Inc.'s opposition to debtor Leo Stoller's motion to suspend pending the trademark trial and appeal board's decision on defendant's motion for summary judgment 21 (Exhibits); Notice. (smm) (Entered: 03/08/2007) 79 MINUTE entry before Judge Virginia M. Kendall :On March 2, 2007, Leo Stoller ("Stoller") filed a Motion to Dismiss for failure to join a party -- himself -- pursuant to Fed. R. Civ. P. 19. Stoller Date Filed: 01/19/2007 Date Terminated: 10/16/2009 Jury Demand: None Nature of Suit: 470 Racketeer/Corrupt Organization Jurisdiction: Federal Question
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previously filed a motion to intervene in this action on February 6, 2007. The Court has not yet ruled upon that motion. As such, Stoller remains a non-party and lacks standing to file a motion pursuant to Rule 19. See Arrow v. Gambler's Supply, Inc., 55 F.3d 407, 409 (8th Cir. 1995) ("only a party may make a Rule 19 motion") (citing Thompson v. Boggs, 33 F.3d 847, 858 n. 10 (7th Cir. 1994) (noting lack of any precedent for granting a non-party's motion for joinder)). Accordingly, Stoller's Motion to Dismiss 32 is stricken and the parties need not appear on March 7, 2007.Mailed notice (gmr, ) (Entered: 03/05/2007) 03/12/2007 37 168 MINUTE entry before Judge Virginia M. Kendall :For the reasons set out in the Memorandum Opinion and Order, Motion to intervene 16 is denied; Motion to interplead 8 is denied; and Motions to suspend 9 , 10 , 11 are denied.Mailed notice (eav, ) (Entered: 03/13/2007) 169 MEMORANDUM Opinion and Order Signed by Judge Virginia M. Kendall on 3/12/2007:Mailed notice(eav, ) (Entered: 03/13/2007) 176 NOTICE of appeal by Leo Stoller regarding orders 37 , 38 ; Notice of Filing (Fee Due) (dj, ) (Entered: 03/15/2007) 180 MOTION by Movant Leo Stoller for leave to appeal in forma pauperis (eav, ) Modified on 5/4/2007 (tg, ). (Entered: 03/16/2007) 186 MOTION by Movant Leo Stoller under FRCP 59 and/or 60 (Exhibits) (eav, ) (Entered: 03/16/2007) 255 NOTICE by Leo Stoller of filing motion for leave to appeal in forma pauperis 41 (eav, ) (Entered: 03/16/2007) 360 MINUTE entry before Judge Virginia M. Kendall :Joint motion for entry of stipulated permanent injunction and final judgment 23 is granted. Enter permanent injunction and final judgment as to defendants Central Mfg., Inc. and Stealth Industries, Inc.Mailed notice Civil case terminated (eav, ) (Entered: 03/20/2007) 361 PERMANENT INJUNCTION and Final Judgment as to defendants Central Mfg., Inc. and Stealth Industries, Inc. Signed by Judge Virginia M. Kendall on 3/15/2007:Mailed notice(eav, ) (Entered: 03/20/2007) 256 MINUTE entry before Judge Virginia M. Kendall :For the reasons stated below, Movant Stoller's motion to reconsider 43 is denied. The presentment date of 3/19/2007 for said motion is hereby stricken.Mailed notice (gmr, ) Additional attachment(s) added on 3/16/2007 (gmr, ). (Entered: 03/16/2007) 259 RESPONSE by Google Incin Opposition to MOTION by Movant Leo Stoller for leave to appeal in forma pauperis 41 (Barrett, William) (Entered: 03/16/2007) 263 DECLARATION of Michael T. Zeller regarding response in
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opposition to motion 47 by Google Inc (Attachments: # 1 Exhibit A-G# 2 Exhibit H-J)(Barrett, William) (Entered: 03/16/2007) 03/16/2007 50 357 NOTICE by Google Inc re declaration 49 Notice of Filing (Barrett, William) (Entered: 03/16/2007)
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UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois - CM/ECF LIVE, Ver 3.0 Eastern Division Google Inc Plaintiff, v. Central Mfg. Inc., et al. Defendant. Case No.: 1:07-cv-00385 Honorable Virginia M. Kendall
NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Tuesday, February 20, 2007: MINUTE entry before Judge Virginia M. Kendall :Motion hearing held. All pending motions are taken under advisement, with a ruling by mail. Status hearing set for 3/13/2007 at 09:00 AM.Mailed notice(gmr, )
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information. For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.
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UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois - CM/ECF LIVE, Ver 3.0 Eastern Division Google Inc Plaintiff, v. Central Mfg. Inc., et al. Defendant. Case No.: 1:07-cv-00385 Honorable Virginia M. Kendall
NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Monday, March 5, 2007: MINUTE entry before Judge Virginia M. Kendall :On March 2, 2007, Leo Stoller ("Stoller") filed a Motion to Dismiss for failure to join a party -- himself -- pursuant to Fed. R. Civ. P. 19. Stoller previously filed a motion to intervene in this action on February 6, 2007. The Court has not yet ruled upon that motion. As such, Stoller remains a non-party and lacks standing to file a motion pursuant to Rule 19. See Arrow v. Gambler's Supply, Inc., 55 F.3d 407, 409 (8th Cir. 1995) ("only a party may make a Rule 19 motion") (citing Thompson v. Boggs, 33 F.3d 847, 858 n. 10 (7th Cir. 1994) (noting lack of any precedent for granting a non-party's motion for joinder)). Accordingly, Stoller's Motion to Dismiss [32] is stricken and the parties need not appear on March 7, 2007.Mailed notice(gmr, )
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information. For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.
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Order Form (01/2005)
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United States District Court, Northern District of Illinois
Name of Assigned Judge or Magistrate Judge
Virginia M. Kendall 07 C 0385
Sitting Judge if Other than Assigned Judge
CASE NUMBER CASE TITLE
DOCKET ENTRY TEXT
DATE Google, Inc. Vs. Central Mfg. Inc., et al.
3/12/2007
For the reasons set out in the Memorandum Opinion and Order, Motion to intervene [16] is denied; Motion to interplead [8] is denied; and Motions to suspend [9][10][11] are denied.
O [ For further detail see separate order(s).]
Docketing to mail notices.
Courtroom Deputy Initials:
GR
07C0385 Google, Inc. Vs. Central Mfg. Inc., et al.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION GOOGLE, INC., Plaintiff, v. CENTRAL MFG. INC. a/k/a CENTRAL MFG. CO., a/k/a CENTRAL MFG. CO.(INC).,a/k/a CENTRAL MANUFACTURING COMPANY INC. and a/k/a CENTRAL MFG. CO. OF ILLINOIS; and STEALTH INDUSTRIES, INC. a/k/a RENTAMARK and a/k/a RENTAMARK.COM, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No: 07 C 385 Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER Plaintiff Google Inc. ("Google") has filed this civil RICO action against Defendants Central Mfg. Inc. ("Central") a/k/a Central Mfg. Co. a/k/a Central Mfg. Co.(Inc.) a/k/a Central Manufacturing Company Inc. a/k/a Central Mfg. Co. of Illinois and Stealth Industries, Inc. ("Rentamark") a/k/a Rentamark a/k/a Rentamark.com (collectively, "Defendants") alleging, among other things, that Defendants and their purported principal, Leo Stoller ("Stoller"), are engaged in a scheme of falsely claiming trademark rights for the purpose of attempting to extort money out of legitimate commercial actors. More specifically, Google alleges that Defendants aimed their continuing scheme in its direction by first seeking to oppose Google's application for registration of the "Google" trademark based upon a fraudulent claim of common law rights in or to that mark and then sending settlement communications to Google that offered to resolve the "registerability controversy" if Google would, among other things, agree to: (1) abandon its trademark application;
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(2) pay a 5% royalty for use of the "Google" mark; and (3) pay $100,000.00 to Rentamark.com and acknowledge Rentamark.com's exclusive ownership of the "Google" mark. On December 20, 2005, Stoller filed a voluntary petition for relief under Chapter 13 of the United States Bankruptcy Code (the "Code"). On motion of one of Stoller's creditors, Stoller's bankruptcy case, styled In re Stoller, No. 05-64075 in the United States Bankruptcy Court for the Northern District of Illinois, was converted to a case under Chapter 7 of the Code on September 1, 2006. The property of Stoller's estate in bankruptcy includes, among other things, the stock and interests of incorporated and unincorporated businesses, including Stoller's wholly-owned interest in the Defendants. On September 6, 2006, the United States Trustee for Region 11 appointed Richard M. Fogel ("Trustee") as trustee to administer Stoller's estate in bankruptcy. Stoller's bankruptcy case remains pending before Bankruptcy Judge Jack B. Schmetterer. Now before this Court is Stoller's motion to intervene in this action pursuant to Fed. R. Civ. P. 24. In addition to the motion to intervene, Stoller, who is not (and never has been) a party to this action, has also filed motions: (1) to interplead; (2) to suspend these proceedings for sixty days to retain counsel for defendants; (3) to suspend these proceedings pending an appeal of the decision of the bankruptcy court to permit Google to initiate this action; and (4) to suspend these proceedings pending the Trademark Trial and Appeal Board's decision on Defendants' motion for summary judgment in the proceedings related to the "Google" mark. For the reasons set forth below, each of Stoller's motions is denied. DISCUSSION I. Intervention as of Right Under Rule 24(a). Under Rule 24, intervention may be as of right or it may be permissive. Heartwood v. U.S. Forest Service, Inc., 316 F.3d 694, 7000 (7th Cir. 2003). A party seeking to intervene as of right 2
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must satisfy four requirements: (1) the motion to intervene must be timely; (2) the party seeking to intervene must claim an interest related to the property or transaction which is the subject of the action; (3) the party seeking to intervene must be so situated that the disposition of the action may as a practical matter impair or impede the party's ability to protect that interest; and (4) the existing parties must not be adequate representatives of the applicant's interest. Fed. R. Civ. P. 24(a); see also Skokaogon Chippewa Community v. Babbitt, 214 F.3d 941, 945-46 (7th Cir. 2000). Failure to satisfy any one of the four requirements for intervention as of right is sufficient grounds to deny a motion to intervene. United States v. BDO Seidman, 337 F.3d 802, 808 (7th Cir. 2003). A party seeking to intervene in a case must assert an interest in the action that is a "direct, significant legally protectible" one. Reich v. ABC/York-Estes Corp., 64 F.3d 316, 322 (7th Cir. 1995) (quoting Am. Nat'l Bank v. City of Chicago, 865 F.2d 144, 146 (7th Cir. 1989)). In the Seventh Circuit, this inquiry focuses "on the issues to be resolved by the litigation and whether the potential intervenor has an interest in those issues." Id. (citing Am. Nat'l Bank, 865 F.2d at 147). In this case, Stoller has not identified any direct, significant legally protectible interests in these proceedings that would provide him with a right to intervene. Stoller argues that he has such an interest in this action because: (1) he was the sole shareholder of Defendants; (2) he was the party that filed a petition for cancellation of the Google trademark registration; (3) he was the party that communicated with Google's counsel regarding the registerability controversy; (4) he was the party that claimed rights in and to the Google trademark; and (5) absent his involvement in this case, the corporate defendants will not be adequately represented. Each of these arguments fails. First, Stoller's concern that the corporate defendants will not receive adequate representation without his involvement does not suffice to provide him with a right to intervene because it is based upon the Defendants' rights, not upon his own. Reich, 64 F.3d at 322. True, Stoller asserts that he 3
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was once the sole shareholder of the corporate defendants, but that is no longer the case.1 The Defendants are now part of Stoller's Chapter 7 bankruptcy estate. Accordingly, Stoller no longer holds any interest in the Defendants. See Spenlinhauer v. O'Donnell, 261 F.3d 113, 118 (1st Cir. 2001) ("The advent of the chapter 7 estate and the appointment of the chapter 7 trustee divest the chapter 7 debtor of all right, title and interest in nonexempt property of the estate at the commencement of the case."). At this juncture, it is the Trustee, and not Stoller, that has the authority to administer all aspects of Defendants' business, including this lawsuit. See Cable v. Ivy Tech State College, 200 F.3d 467, 472 (7th Cir. 1999) (in Chapter 7 bankruptcy proceedings, "only the trustee has standing to prosecute or defend a claim belonging to the estate.") (emphasis in original) (citing In re New Era, Inc., 135 F.3d 1206, 1209 (7th Cir. 1998) for the proposition that "Chapter 7 trustee has exclusive right to represent debtor in court"). Stoller also argues that he has an interest in this action because: he was the party that filed a petition for cancellation of the Google trademark registration; he was the party that communicated with Google's counsel regarding the registerability controversy; and he was the party that claimed rights in and to the Google trademark. Each of these assertions is contradicted by the record. The record demonstrates that it was defendant Central, and not Stoller, that filed a petition for cancellation of the Google trademark registration and that claimed rights in and to the Google trademark. (Zeller Declaration, Exhs. 8-10.) Nor did Stoller communicate in his individual capacity
Indeed, it may never have been the case. On October 20, 2006, during proceedings before the Chapter 7 T r u s te e , Stoller asserted Fifth Amendment rights and refused to answer the question whether he had any proof of o w n e r s h i p of Defendants. Stoller's refusal to answer that question may give rise to an inference that no such proof exists. S e e Harris v. City of Chicago, 266 F.3d 750, 753 (7 th Cir. 2001) (citing LaSalle Bank Lake View v. Sequban, 54 F.3d 3 8 7 , 389-91 (7 th Cir. 1995) for the proposition that "[t]he rule that adverse inferences may be drawn from Fifth A m e n d m e n t silence in civil proceedings has been widely recognized by the circuit courts of appeals, including our o w n .." ) .
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with Google regarding the purported registerability controversy - he did so in his capacity as president of one or both of the defendants. See Cplt., Exhs. O, R & S. Stoller's failure to assert a significant, legally protectible interest in these proceedings is fatal to his motion to intervene as of right under Rule 24(a). BDO Seidman, 337 F.3d at 808. Accordingly, there is no need for this Court to consider whether Stoller can satisfy the other requirements for intervention as of right. II. Permissive Intervention Under Rule 24(b). Permissive intervention is allowed under Rule 24(b) upon a timely application demonstrating that the "applicant's claim or defense and the main action have a question of law or fact in common." Skokaogon Chippewa Community, 214 F.3d at 949. "Permissive intervention under Rule 24(b) is wholly discretionary." Id. (citing Keith v. Daley, 764 F.2d 1265, 1272 (7th Cir. 1985)). In exercising its discretion to grant or deny permissive intervention, a district court "shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Rule 24(b); Heartwood, 316 F.3d at 701. As a party to or participant in various lawsuits in this district, Stoller "has earned a reputation for initiating spurious and vexatious federal litigation" and has demonstrated "an appalling lack of regard for [courts in this district] and a lack of respect for the judicial process." Central Mfg. Co. v. Pure Fishing, Inc., No. 05 C 725, 2005 U.S. Dist. LEXIS 28280, *2-4, 17-18 (N.D. Ill. Nov. 16, 2005) (citing Central Mfg. Co. et al. v. Brett, No. 04 C 3049, 2005 U.S. Dist. LEXIS 23379, *2 (N.D. Ill. Sept. 30, 2005) (Coar, J.) ("Stoller appears to be running an industry that produces often spurious, vexatious, and harassing federal litigation."); S. Indus. Inc. v. Stone Age Equip., Inc., 12 F. Supp.2d 796, 798 (N.D. Ill. 1998) (Castillo, J.) (Stoller initiates "litigation lacking in merit and approaching harassment."); S. Indus. Inc. v. Hobbico, Inc., 940 F. Supp. 210, 211 (N.D. Ill. 1996) 5
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(Shadur, J.) (Stoller "appears to have entered into a new industry -- that of instituting federal litigation.")). Stoller has given this Court no reason to believe that he would behave differently than he has in the past were he to be granted permission to intervene in this action. To the contrary, as noted above, several of the bases for Stoller's motion to intervene including that Stoller "was the party that filed a petition for cancellation of the said Google registration" and that "Leo Stoller is the party who claimed rights in and to the Google trademark" are squarely contradicted by the record, including pleadings filed by Stoller on Central's behalf with the Trademark Trial and Appeal Board. Moreover, in his reply brief in support of his several pending motions, Stoller claims without providing any evidence that the Trustee and counsel for Google have conspired to defraud this Court and Stoller. Stoller further claims also without providing any evidentiary support that the Trustee has engaged in a scheme to defraud Stoller's estate in bankruptcy, Stoller himself, this Court, and the "U.S. Bankruptcy System."2 This behavior is also, unfortunately, not unprecedented for Stoller. See Pure Fishing, Inc., 2005 U.S. Dist. LEXIS 28280 at *18 ("Mr. Stoller accused this Court and opposing counsel of participating in a scheme to defraud the federal courts and others and of engaging in unprofessional and unethical conduct."). The parties to this action have negotiated a settlement agreement that contemplates a release of Google's monetary claims against Defendants and against Stoller's estate in bankruptcy.3 (Zeller Declaration, Exh. 7.) That release is contingent upon the entry, in this case, of a stipulated
In an apparent attempt to intimidate Google and the Trustee, Stoller sent a copy of his reply brief and the u n s u p p o r t e d allegations contained therein to the office of the United States Attorney for the Northern District of Illinois. M r . Stoller would do well to recall that pro se litigants are subject to Fed. R. Civ. P. 11 and that making claims not w a r r a n t e d by existing law or making allegations without evidentiary support may subject him to sanctions.
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The settlement agreement has been approved by the bankruptcy court. (Zeller Declaration, Exh. 6.)
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permanent injunction and final judgment. Id. Working toward that end, the parties filed, on February 12, 2007, a joint motion for entry of stipulated permanent injunction and final judgment. The Court has no doubt that permitting Stoller to intervene in this action would frustrate the parties' efforts to resolve this matter by settlement. Accordingly, Stoller's motion to intervene under Rule 24(b) is denied. III. Stoller's Motions to Interplead and to Suspend these Proceedings. Stoller has not identified - and this Court is not aware of - any procedural mechanism by which a non-party may file a motion to suspend ongoing proceedings without intervening therein. Accordingly, Stoller's motions to suspend these proceedings are denied. The Court finds that Stoller's motion to "interplead as a necessary party" amounts to nothing more than a motion to intervene. As such, it is duplicative of Stoller's Rule 24 motion and, for the reasons stated above, that motion is also denied. So ordered.
________________________________________ Virginia M. Kendall, United States District Judge Northern District of Illinois Date: March 12, 2007
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UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois - CM/ECF LIVE, Ver 3.0 Eastern Division Google Inc Plaintiff, v. Central Mfg. Inc., et al. Defendant. Case No.: 1:07-cv-00385 Honorable Virginia M. Kendall
NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Friday, March 16, 2007: MINUTE entry before Judge Virginia M. Kendall :For the reasons stated below, Movant Stoller's motion to reconsider [43] is denied. The presentment date of 3/19/2007 for said motion is hereby stricken.Mailed notice(gmr, )
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information. For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.
Order Form (01/2005)
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United States District Court, Northern District of Illinois
Name of Assigned Judge or Magistrate Judge
Virginia M. Kendall 07 C 385
Sitting Judge if Other than Assigned Judge
CASE NUMBER CASE TITLE
DOCKET ENTRY TEXT
DATE Google, Inc. vs. Central Mfg. Inc., et al.
3/16/2007
For the reasons stated below, Movant Stoller's motion to reconsider [43] is denied. The presentment date of 3/19/2007 for said motion is hereby stricken. O[ For further details see text below.]
Notices mailed by Judicial staff.
STATEMENT On March 12, 2007, this Court issued a Memorandum Opinion and Order denying Leo Stoller's ("Stoller") motions to: (1) intervene; (2) interplead; (3) suspend the proceedings for sixty days to retain counsel for defendants; (4) suspend the proceedings pending an appeal of the decision of the bankruptcy court to permit plaintiff Google Inc. ("Google") to initiate this action; and (5) to suspend the proceedings pending the Trademark Trial and Appeal Board's decision on a motion for summary judgment in the proceedings related to the Google trademark. On March 15, 2007, Stoller filed a motion asking this Court to reconsider its decision to deny Stoller's motion to intervene. Stoller's motion to reconsider reads, in its entirety: NOW COMES Leo Stoller and submits to the Court transcripts of proceedings before Judge Schmetterer dated December 12, 2006 and February 15, 2007. Leo Stoller requests that the Court reconsider its decision denying Stoller the right to intervene based upon the attached transcripts. "Motions to reconsider are rarely granted -- they serve a narrow function and must be supported by a showing of extraordinary circumstances." Trading Techs. Int'l, Inc. v. eSpeed Inc., No. 04 C 5312, 2007 U.S. Dist. LEXIS 12965, *10 (N.D. Ill. Feb. 21, 2007) (citing Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996)). In order to succeed on a motion to reconsider, the movant "must clearly establish either a manifest error of law or fact or must present newly discovered evidence." LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995) (citing FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)). Stoller's motion presents no newly discovered evidence, nor does he attempt to identify any manifest error of law or fact. Instead he has simply submitted nearly 60 pages of transcripts from bankruptcy proceedings before Judge Schmetterer without making any effort whatsoever to direct the Court to the portions thereof that he deems relevant to his motion to reconsider.
Having reviewed the aforementioned transcripts in search of potential bases for Stoller's motion to
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STATEMENT reconsider, this Court has identified only one potential area and assumes that Stoller relies primarily upon the following passage: MR. STOLLER: The problem is not that they withdraw their monetary claims. It's a civil RICO action where I'm mentioned 15 times in a complaint in which I am deprived of defending myself. I'm not even listed in it. THE COURT: You have a right, I suppose, to seek to intervene in that case and to defend any interest of yours personally, but I see no reason why I should authorize you to hire lawyers on behalf of the companies. MR. STOLLER: Because if - THE COURT: If you feel that the action indirectly impinges on your rights, nothing stops you from doing that. (Transcript of Proceedings before the Honorable Jack B. Schmetterer, Feb. 15, 2007 at p. 10:12-20). Setting to one side the fact that Stoller's motion to intervene was before this Court and not before Judge Schmetterer, this Court does not read Judge Schmetterer's comments above as any indication that Stoller has a right to intervene in this case. Judge Schmetterer correctly advised Stoller that he had a right to seek to intervene in this action. Stoller did seek intervention as of right in this action but, because he was not able to identify any significant, legally protectible interest in these proceedings, that motion was denied. Stoller also sought permissive intervention but, because the Court found that permitting Stoller to intervene in this action would frustrate the parties' efforts to resolve this matter by settlement, that request was denied as well. Stoller's Motion to Reconsider does not establish any manifest error of law or fact associated with this Court's denial of his motion to intervene. Accordingly, Stoller's motion to reconsider is denied.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION GOOGLE INC., ) ) Plaintiff, ) ) vs. ) ) CENTRAL MFG. INC. a/k/a CENTRAL ) MFG. CO., a/k/a CENTRAL MFG. CO. ) (INC.), a/k/a CENTRAL ) MANUFACTURING COMPANY, INC. ) and a/k/a CENTRAL MFG. CO. OF ) ILLINOIS; and STEALTH INDUSTRIES, ) INC. a/k/a RENTAMARK and a/k/a ) RENTAMARK.COM, ) ) Defendants. ) Civil Action No. 07 CV 385 Hon. Virginia M. Kendall Date: March 19, 2007 Time: 9 a.m.
OPPOSITION TO MOTION OF NON-PARTY LEO STOLLER FOR PERMISSION TO APPEAL IN FORMA PAUPERIS Plaintiff Google Inc. ("Google"), by its attorneys, respectfully submits this Opposition to the Motion of Non-Party Leo Stoller for Permission to Appeal in Forma Pauperis. Mr. Stoller's motion fails to meet the requirements for permission to appeal in forma pauperis. Indeed, his alleged (un-notarized) "affidavit" here is virtually identical to the "affidavit" he submitted in the Pure Fishing litigation and that Judge Lindberg found was legally insufficient. In denying Mr. Stoller's in forma pauperis motion in that case, Judge Lindberg ruled: Mr. Stoller failed to file the required "affidavit accompanying motion for permission to appeal in forma pauperis," copies of which are available in the clerk's office for the Seventh Circuit Court of Appeals. Mr. Stoller did attach an affidavit in support of his motion. However, the affidavit Mr. Stoller created does not answer many of the questions contained in the appellate court's form affidavit. In his affidavit, Mr. Stoller states that he "has no assets which have not been made part of the Chapter 7 bankruptcy," but fails to specifically identify any of his assets. Mr. Stoller also fails to address whether he has any current sources of money and/or income. The information Mr. Stoller provided to the court is incomplete at best, and quite possibly misleading and/or false. In light of the incomplete nature of Mr. Stoller's affidavit and his history of attempting to
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mislead the court in this case and the bankruptcy court in In re Leo Stoller, 05 B 64075 (Schmetterer, J.), the motion for permission to appeal in forma pauperis is denied.1 The same defects are present in Mr. Stoller's virtually identical "affidavit" in the present action. As in Pure Fishing, his "affidavit" here fails to specifically identify any of his assets. It also, again, fails to state whether he has any current sources of money and/or income. Because his "affidavit" is deficient for the reasons found in Pure Fishing, his motion here likewise should be denied. Although this alone warrants rejection of Mr. Stoller's motion, there is ample reason to believe the omissions in his "affidavit" are intentional and that it is materially false. First, only recently, Mr. Stoller represented to the Bankruptcy Court that he had assets enough that were not part of the bankruptcy estate to pay for a lawyer.2 Second, in a recent case before the Seventh Circuit, Mr. Stoller in fact retained a lawyer to represent him.3 Indeed, in the Pure Fishing case, after Judge Lindberg denied Mr. Stoller's in forma pauperis motion as noted above, Mr. Stoller suddenly found the wherewithal to pay the required filing fee for his appeal.4 Third, the Bankruptcy Court found in connection with its decision to convert Mr. Stoller's bankruptcy from Chapter 13 to Chapter 7 that there were in excess of $150,000 in monies that had gone to Mr. Stoller that were not accounted for.5 As this Court is aware, Mr. Stoller also has refused in his bankruptcy on Fifth Amendment grounds to answer questions about his current income and finances,6 which gives rise to an inference that he in fact has undisclosed assets.7 In short, while Judge Lindberg's December 8, 2006 Order in Pure Fishing is attached hereto as Exhibit A to the Declaration of Michael T. Zeller, dated March 16, 2007 and filed concurrently herewith ("Zeller Dec."). Mr. Stoller's denied in forma pauperis motion in Pure Fishing -- with his supporting "affidavit" that is substantively identical to his affidavit in the present case -- is attached as Exhibit B to the Zeller Dec. Judge Lindberg's denials of Mr. Stoller's two subsequent, repetitive in forma pauperis motions in Pure Fishing, are attached as Exhibits C and D to the Zeller Dec. 2 Zeller Dec., Exh. E at page 1. 3 Zeller Dec., Exh. F, at Docket Entry for 2/7/07. 4 Zeller Dec., Exh. F at Docket Entry for 1/10/07. 5 E.g., Zeller Dec., Exh. G at Findings of Fact Nos. 11, 13-19, 20-22, 23-24, 38, 42-43, 53, 61, 74-80, 109-110, 117. 6 Zeller Dec., Exh. H at p. 9 (refusing to answer question about receipt of $20,000 in connection with payment of legal fees), p. 10 (refusing to answer question about income) & p. 11 (same); see also id., Exh. G, at pages 24-25 (Bankruptcy Court's determinations that Leo Stoller's financial disclosures to the Court "are replete with false statements, misleading information, and omissions of material facts.").
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claiming in this Court with an insufficient "affidavit" that he is too impoverished to pay even the required filing fee for an appeal, he has refused to disclose his assets or even answer questions about those assets in the Bankruptcy Court. Such gaming of the system should not be allowed. Finally, the parties note that Mr. Stoller's motion here violates the Court's notice requirements under Local Rule 5.3, since it was allegedly served by mail on March 15, 2007 and noticed for presentment on less than the required five Court days' notice for mail service. Mr. Stoller is plainly aware of the notice requirements, given that Judge Lindberg previously denied motions by him in Pure Fishing for violating this very rule.8 Nor is this the first of Mr. Stoller's procedural irregularities. The parties, for example, were not served prior to the February 20, 2007 hearing with Mr. Stoller's two filings dated February 15, 2007 and February 16, 2007, and in fact have not been served with those pleadings even as of today. Moreover, because Mr. Stoller did not file them electronically with the Court, they did not show up on PACER until after the February 20, 2007 hearing, and the parties were unaware that Mr. Stoller had made these filing until after the February 20, 2007 hearing. Other Courts have found in the past as well that Mr. Stoller engaged in irregular practices that are apparently designed to take unfair advantage.9
See Court's Memorandum Opinion and Order, dated March 12, 2007, at page 4 n.1 (citing authorities). 8 Zeller Dec., Exh. I. 9 See, e.g., S. Indus. Inc. v. Lamb-Weston Inc., 45 U.S.P.Q.2d 1293, 1295 (T.T.A.B. 1997) (finding Stoller had used "fraudulent and incorrect" dates on certificates of service in Trademark Trial and Appeal Board proceedings); Central Mfg. Co. v. Premium Prods., Inc., No. 91159950, Order of Sept. 29, 2004, at 4-7 (T.T.A.B.) (finding Stoller had engaged in "bad faith" conduct in service of papers and noting "several" other TTAB Orders to the same effect) (copy attached as Exh. J to Zeller Dec.).
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Google respectfully requests that Mr. Stoller's motion be denied. DATED: March 16, 2007 Respectfully submitted, GOOGLE INC. By: s/ William J. Barrett_________________ One of Its Attorneys Michael T. Zeller (ARDC No. 6226433) QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 865 South Figueroa Street, 10th Floor Los Angeles, California 90017 (213) 443-3000/(213) 443-3100 (fax) William J. Barrett (ARDC No. 6206424) BARACK, FERRAZZANO, KIRSCHBAUM, PERLMAN & NAGELBERG, LLP 333 West Wacker Drive, Suite 2700 Chicago, Illinois 60606 (312) 629 5170/(312) 984-3150 (fax)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION GOOGLE INC., ) ) Plaintiff, ) ) vs. ) ) CENTRAL MFG. INC. a/k/a CENTRAL ) MFG. CO., a/k/a CENTRAL MFG. CO. ) (INC.), a/k/a CENTRAL ) MANUFACTURING COMPANY, INC. ) and a/k/a CENTRAL MFG. CO. OF ) ILLINOIS; and STEALTH INDUSTRIES, ) INC. a/k/a RENTAMARK and a/k/a ) RENTAMARK.COM, ) ) Defendants. ) Civil Action No. 07 CV 385 Hon. Virginia M. Kendall Date: March 19, 2007 Time: 9 a.m.
NOTICE OF FILING To: See attached Service List PLEASE TAKE NOTICE that on March 16, 2007, we filed with the Clerk of the United States District Court for the Northern District of Illinois, Eastern Division, Chicago, Illinois, via the Court's CM/ECF system, DECLARATION OF MICHAEL T. ZELLER, a copy of which is hereby served upon you. DATED: March 16, 2007 GOOGLE INC.
By ____/s/ William J. Barrett________ William J. Barrett (ARDC No. 6206424) BARACK, FERRAZZANO, KIRSCHBAUM, PERLMAN & NAGELBERG, LLP 333 West Wacker Drive, Suite 2700 Chicago, Illinois 60606 (312) 629 5170
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Michael T. Zeller (ARDC No. 6226433) QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 865 South Figueroa Street, Tenth Floor Los Angeles, California 90017 (213) 443 3000 Attorneys for Google Inc.
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CERTIFICATE OF SERVICE I, William J. Barrett, certify that on March 16, 2007, I caused to be served on the parties on the following Service List, via electronic mail, a copy of the foregoing NOTICE OF FILING and DECLARATION OF MICHAEL T. ZELLER.
/s/ William J. Barrett William J. Barrett
SERVICE LIST Mr. Leo Stoller 7115 W. North Ave., #272 Oak Park, IL 60302 Email: ldms4@hotmail.com Richard M. Fogel Janice Alwin Shaw Gussis Fishman Glantz Wolfson & Towbin LLC 321 N. Clark St., Suite 800 Chicago, IL 60610 Email: jalwin@shawgussis.com; rfogel@shawgussis.com; rfogel@ecf.epiqsystems.com
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