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 03/19/2007 03/19/2007 03/19/2007 # 51 52 56 Page Docket Text 5 SUPPLEMENTAL NOTICE of appeal by Leo Stoller regarding orders 46 , 34 ;(Fee Due) (dj, ) (Entered: 03/20/2007) 10 DESIGNATION by Leo Stoller of the content of the record on appeal : USCA Case No. 07-1569 (dj, ) (Entered: 03/20/2007) 59 MINUTE entry before Judge Virginia M. Kendall :Motion hearing held on 3/19/2007. For the reasons stated on the record in open court, movant Stoller's motion for permission to appeal in forma pauperis 41 is granted.Mailed notice (eav, ) (Entered: 03/20/2007) 60 REPLY by Movant Leo Stoller to Google's opposition to motion for permission to appeal in forma pauperis (eav, ) Modified on 5/17/2007 (vcf, ). (Entered: 03/22/2007) 75 SUPPLEMENTAL NOTICE of appeal by Leo Stoller regarding orders 58 , 57 ; (Fee Due) (dj, ). (Entered: 03/23/2007) 84 DESIGNATION of the content by Leo Stoller of record on appeal : USCA Case No. 07-1651 (dj, ) (Entered: 03/28/2007) 101 DESIGNATION by Leo Stoller of Additional Content of the Record on Appeal. (rp, ) (Entered: 03/30/2007) 110 DESIGNATION by Leo Stoller of additional content of the record on appeal 46 : USCA Case No. 07-1651 (hp, ) (Entered: 04/12/2007) 112 MOTION by Movant Leo Stoller for leave to file designation of supplemental content of record on appeal. (smm) (Entered: 05/11/2007) 120 DESIGNATION of supplemental content of record on appeal by Leo Stoller; Notice. (smm) (Entered: 05/16/2007) 114 Date Filed: 01/19/2007 Date Terminated: 10/16/2009 Jury Demand: None Nature of Suit: 470 Racketeer/Corrupt Organization Jurisdiction: Federal Question 03/19/2007 60 03/21/2007 03/27/2007 03/28/2007 04/10/2007 63 67 69 70 05/10/2007 75 05/10/2007 05/11/2007 79 77 RESPONSE by Google Incin Opposition to MOTION by Movant Leo Stoller for leave to file 75 (Barrett, William) (Entered: 05/11/2007) 05/14/2007 78 119 MINUTE entry before Judge Virginia M. Kendall :Motion for leave to file designation of supplemental content of record on appeal 75 is denied as moot.Mailed notice (gmr, ) (Entered: 05/14/2007) 123 DESIGNATION of additional content of the record on appeal by Leo Stoller (Exhibit); Notice. (smm) (Entered: 05/18/2007) 151 DESIGNATION of supplemental content of record on appeal by Leo Stoller (Exhibits); Notice. (smm) (Entered: 05/18/2007) 271 MOTION to withdraw as attorney for Plaintiff, Google, Inc. (Barrett, William) (Entered: 05/12/2008) 272 MOTION by Plaintiff Google Inc to substitute attorney, MOTION by counsel for Plaintiff Google Inc to withdraw as attorney (Cyrluk, Jonathan) (Entered: 05/14/2008) 274 MINUTE entry before the Honorable Virginia M. Kendall: Status hearing held. Plaintiff's Motion to Withdraw Attorney William J. Barrett 88 and to Substitute Jonathan M. Cyrluk as Local Counsel 91 are granted. The Motion to Intervene is reinstated. Plaintiff to supplement the Motion by 6/9/2008; response due 6/30/2008; reply due 7/7/2008. Defendant must pay the fine as ordered by the 7th Circuit by 6/9/2008 or this case will be dismissed. Mailed notice. (kw, ) Modified on 5/23/2008 (kw, ). (Entered: 05/16/2008) 275 MINUTE entry before the Honorable Virginia M. Kendall: Minute entry 93 is amended to reflect that the Defendant must pay his fine prior to the filing of any papers in this case. In all other respects the minute entry stands. Mailed notice. (kw, ) (Entered: 05/16/2008) 276 MINUTE entry before the Honorable Virginia M. Kendall: It has been brought to the Court's attention that electronic notice of minute entry 93 was not distributed. The Court hereby brings notice to all parties of the filing of minute order 93 . Paper copies of minute entries 93 and 94 will be mailed to all parties. Mailed notice. (kw, ) (Entered: 05/23/2008) 277 MOTION by Movant Leo Stoller to Suspend; Notice.( Exhibits)(Poor Quality Original - Paper Document on File)(vcf, ) (Entered: 06/09/2008) 295 MINUTE entry before the Honorable Virginia M. Kendall: Mr. Stoller is advised that all motions shall be presented to the court pursuant to Local Rule 5.3(a and b). Failure to comply with this rule may result in the striking of the motion. A copy of Local Rule 5.3 (a and b) was mailed to Mr. Stoller along with a copy of this order by the court's clerk.Mailed notice (jms, ) (Entered: 05/16/2007 05/16/2007 05/12/2008 05/14/2008 80 81 88 91 05/15/2008 93 05/16/2008 94 05/23/2008 95 06/03/2008 97 06/18/2008 98 06/18/2008) 06/25/2008 06/30/2008 99 101 296 MOTION by Movant Leo Stoller to suspend. (vcf, ) (Entered: 06/26/2008) 301 MINUTE entry before the Honorable Virginia M. Kendall:Motion hearing held. Plaintiff's motion to suspend 99 is entered and continued pending ruling on the pending motion.Advised in open court (jms, ) (Entered: 06/30/2008) 302 RESPONSE by Plaintiff Google Inc to motion to intervene 16 (Attachments: # 1 Declaration Michael T. Zeller, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Cyrluk, Jonathan) (Entered: 06/30/2008) 368 MOTION by Movant Leo Stoller to file reply instanter. (Attachments: # 1 Response)(vcf, ) (Entered: 07/14/2008) 373 MINUTE entry before the Honorable Virginia M. Kendall:Mr. Stoller's motion to file reply instanter 103 is granted. Mailed notice (jms, ) (Entered: 07/14/2008) 374 REPLY by Leo Stoller to Google's response to supplement to motion to intervene 16 . (vcf, ) (Entered: 07/15/2008) 378 MINUTE entry before the Honorable Virginia M. Kendall:Stollers Motion to Suspend [97, 99 is denied without prejudice. For further details see attached minute order.Mailed notice (tlp, ) (Entered: 03/31/2009) 380 MINUTE entry before the Honorable Virginia M. Kendall:Movant Stollers motion to suspend is denied without prejudice. Movant Stoller may refile the motion if this Court allows him to intervene on remand.Mailed notice (jms, ) (Entered: 06/30/2009) 382 MINUTE entry before the Honorable Virginia M. Kendall: Stollers motion to Iniervene is denied. The parties are directed to submit position papers regarding the extent to which Stollers corporations are subject to suit and when this case arose and as such the propriety of the involvement of the bankruptcy estate. The parties must submit such position papers by 9/9/2009.Mailed notice (jms, ) (Entered: 08/17/2009) 383 MEMORANDUM Opinion and Order Signed by the Honorable Virginia M. Kendall on 8/17/2009:Mailed notice(jms, ) (Entered: 08/17/2009) 392 MOTION by Movant Leo Stoller for reconsideration regarding its opinion dated August 17, 2009 109 (Exhibit) (hp, ) (Entered: 08/24/2009) 405 MINUTE entry before the Honorable Virginia M. Kendall:Mr. Stoller's motion for reconsideration 111 is taken under advisement. Response is to be filed by 9/9/2009. Reply is to be filed by 9/16/2009. Mr. Stoller's motion for an extension of time 06/30/2008 102 07/11/2008 07/14/2008 103 105 07/14/2008 03/31/2009 106 107 06/30/2009 108 08/17/2009 109 08/17/2009 110 08/24/2009 111 08/25/2009 113 to file his position brief pursuant to this court's order of 8/17/2009 111 is granted in part. The parties are given to 9/30/2009 to file their position briefs on the extent to which Stollers corporations are subject to suit and when this case arose and as such the propriety of the involvement of the bankruptcy estate. Mailed notice (jms, ) (Entered: 08/25/2009) 09/09/2009 114 406 RESPONSE by Google Incin Opposition to MOTION by Movant Leo Stoller for reconsideration regarding terminate motions, 109 111 Google Inc.'s Response to Motion for Reconsideration (Zeller, Michael) (Entered: 09/09/2009) Case 1:07-cv-385 Document 51 Filed 03/19/2007 Page 1 of 5 Case 1:07-cv-385 Document 51 Filed 03/19/2007 Page 2 of 5 Case 1:07-cv-385 Document 51 Filed 03/19/2007 Page 3 of 5 Case 1:07-cv-385 Document 51 Filed 03/19/2007 Page 4 of 5 Case 1:07-cv-385 Document 51 Filed 03/19/2007 Page 5 of 5 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 1 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 2 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 3 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 4 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 5 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 6 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 7 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 8 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 9 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 10 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 11 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 12 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 13 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 14 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 15 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 16 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 17 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 18 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 19 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 20 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 21 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 22 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 23 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 24 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 25 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 26 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 27 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 28 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 29 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 30 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 31 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 32 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 33 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 34 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 35 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 36 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 37 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 38 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 39 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 40 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 41 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 42 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 43 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 44 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 45 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 46 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 47 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 48 of 49 Case 1:07-cv-385 Document 52 Filed 03/19/2007 Page 49 of 49 Order Form (01/2005) Case 1:07-cv-385 Document 56 Filed 03/19/2007 Page 1 of 1 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. 3/19/2007 Motion hearing held. For the reasons stated on the record in open court, Movant Stoller's motion for permission to appeal in forma pauperis [41] is granted. Docketing to mail notices. 00:07 Courtroom Deputy Initials: GR 07C385 Google Inc. Vs. Central Mfg. Inc., et al. Page 1 of 1 Case 1:07-cv-385 Document 60-2 Filed 03/19/2007 Page 1 of 15 Case 1:07-cv-385 Document 60-2 Filed 03/19/2007 Page 2 of 15 Case 1:07-cv-385 Document 60-2 Filed 03/19/2007 Page 3 of 15 Case 1:07-cv-385 Document 60-2 Filed 03/19/2007 Page 4 of 15 Case 1:07-cv-385 Document 60-2 Filed 03/19/2007 Page 5 of 15 Case 1:07-cv-385 Document 60-2 Filed 03/19/2007 Page 6 of 15 Case 1:07-cv-385 Document 60-2 Filed 03/19/2007 Page 7 of 15 Case 1:07-cv-385 Document 60-2 Filed 03/19/2007 Page 8 of 15 Case 1:07-cv-385 Document 60-2 Filed 03/19/2007 Page 9 of 15 Case 1:07-cv-385 Document 60-2 Filed 03/19/2007 Page 10 of 15 Case 1:07-cv-385 Document 60-2 Filed 03/19/2007 Page 11 of 15 Case 1:07-cv-385 Document 60-2 Filed 03/19/2007 Page 12 of 15 Case 1:07-cv-385 Document 60-2 Filed 03/19/2007 Page 13 of 15 Case 1:07-cv-385 Document 60-2 Filed 03/19/2007 Page 14 of 15 Case 1:07-cv-385 Document 60-2 Filed 03/19/2007 Page 15 of 15 Case 1:07-cv-385 Document 63 Filed 03/21/2007 Page 1 of 9 Case 1:07-cv-385 Document 63 Filed 03/21/2007 Page 2 of 9 Case 1:07-cv-385 Document 63 Filed 03/21/2007 Page 3 of 9 Case 1:07-cv-385 Document 63 Filed 03/21/2007 Page 4 of 9 Case 1:07-cv-385 Document 63 Filed 03/21/2007 Page 5 of 9 Case 1:07-cv-385 Document 63 Filed 03/21/2007 Page 6 of 9 Case 1:07-cv-385 Document 63 Filed 03/21/2007 Page 7 of 9 Case 1:07-cv-385 Document 63 Filed 03/21/2007 Page 8 of 9 Case 1:07-cv-385 Document 63 Filed 03/21/2007 Page 9 of 9 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 1 of 17 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 2 of 17 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 3 of 17 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 4 of 17 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 5 of 17 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 6 of 17 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 7 of 17 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 8 of 17 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 9 of 17 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 10 of 17 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 11 of 17 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 12 of 17 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 13 of 17 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 14 of 17 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 15 of 17 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 16 of 17 Case 1:07-cv-385 Document 67 Filed 03/27/2007 Page 17 of 17 Case 1:07-cv-385 Document 69 Filed 03/28/2007 Page 1 of 9 Case 1:07-cv-385 Document 69 Filed 03/28/2007 Page 2 of 9 Case 1:07-cv-385 Document 69 Filed 03/28/2007 Page 3 of 9 Case 1:07-cv-385 Document 69 Filed 03/28/2007 Page 4 of 9 Case 1:07-cv-385 Document 69 Filed 03/28/2007 Page 5 of 9 Case 1:07-cv-385 Document 69 Filed 03/28/2007 Page 6 of 9 Case 1:07-cv-385 Document 69 Filed 03/28/2007 Page 7 of 9 Case 1:07-cv-385 Document 69 Filed 03/28/2007 Page 8 of 9 Case 1:07-cv-385 Document 69 Filed 03/28/2007 Page 9 of 9 Case 1:07-cv-385 Document 70 Filed 04/10/2007 Page 1 of 2 Case 1:07-cv-385 Document 70 Filed 04/10/2007 Page 2 of 2 Case 1:07-cv-385 Document 75 Filed 05/10/2007 Page 1 of 2 Case 1:07-cv-385 Document 75 Filed 05/10/2007 Page 2 of 2 Case 1:07-cv-385 Document 77 Filed 05/11/2007 Page 1 of 5 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 Hearing Date: May 14, 2007 Hearing Time: 9 a.m. GOOGLE INC.'S RESPONSE TO NON-PARTY LEO STOLLER'S MOTION FOR LEAVE TO FILE DESIGNATION OF SUPPLEMENTAL CONTENT OF RECORD ON APPEAL Non-party Leo Stoller has filed, but not served, a motion styled as a request for "leave to file designation of supplemental content of record on appeal." Without any explanation or citation to authority, the motion itself states that Stoller "moves to supplement" the appeal record and then lists three documents. Although far from clear, Stoller's motion appears to be potentially making two starkly different requests. To the extent that Stoller is merely asking that he be permitted to designate these three documents pursuant to Circuit Rule 10(a) beyond the deadline so that they can be transmitted to the Court of Appeals if they have not already been transmitted,1 then Google does Circuit Rule 10(a), entitled "Record Preparation Duties," provides in material part: "The clerk of the district court shall prepare within 14 days of filing the notice of appeal the original papers, transcripts filed in the district court, and exhibits received or offered in evidence (with the exceptions listed below). The transcript of a deposition is "filed" within the meaning of this rule, and an exhibit is "received or offered," to the extent that it is tendered to the district court in support of a brief or motion, whether or not the rules of the district court treat deposition transcripts or exhibits as part of the record. These materials may be designated as part of the record on appeal without the need for a motion under Fed. R. App. P. 10(e). Counsel must ensure that exhibits and transcripts to be included in the record which are not in the possession of the district court clerk are furnished to the clerk within ten days after the filing of the notice of appeal. The following items will not be included in a record unless specifically requested by 1 20056/2119945.1 1 Case 1:07-cv-385 Document 77 Filed 05/11/2007 Page 2 of 5 not necessarily oppose that request (subject to further clarification at the hearing as to what Stoller contends the issue is). On the other hand, if Stoller is asking to alter the state of the record by "supplementing" it with the documents so that they may be considered in connection with the Court's March 12, 2007 Order denying his motion to intervene (the "Order"), the request is inappropriate and should be denied. It is important to note that two of the documents that are the subject of Stoller's request here -- the December 12, 2006 and February 15, 2007 transcripts of hearing before the Bankruptcy Court -- were submitted by Stoller for the first time on, and only in connection with, his motion for reconsideration of this Court's Order.2 Thus, those transcripts may not properly be considered on appellate review of the Court's Order, since appellate review of that Order is limited to the record that was presented to the District Court as of the time it issued the Order. E.g., Snodgrass v. Lanphere Enterprises, Inc., 62 Fed.Appx. 148, 149 n.2 (9th Cir. 2003) ("The plaintiffs base their October 1999 argument on an excerpt from a deposition that was first presented to the district court in plaintiffs' motion for reconsideration. Appellate review, however, 'is limited to the record presented to the district court at the time of summary judgment.'" (quoting Nat'l Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496, 500 (9th Cir. 1997)); see also Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1078 (7th Cir. 1988) ("Papers submitted to the district court after the ruling that is challenged on appeal should be stricken from the record on appeal." (emphasis in original)); Martin v. U.S., 833 F.2d 655, 662 (7th Cir. 1987) ("Generally, we should not consider facts that the district court did not have an opportunity to consider."). Stoller may not evade this rule through a request to "supplement" the record to the extent that he is seeking to have these transcripts -- submitted only after-the-fact on reconsideration -deemed part of the record for purposes of appellate review of the Court's Order or any other Order entered prior to his submission of those transcripts. Federal Rule of Appellate Procedure 10, which governs supplementation of the appellate record, allows a district court to correct the record "if anything material to either party is omitted from or misstated in the record by error or accident...." F.R.A.P. (e)(2). Its purpose is "to ensure that the court on appeal has a complete a party by item and date of filing within ten days after the notice of appeal is filed or unless specifically ordered by this court: briefs and memoranda, notices of filings, subpoenas, summonses, motions to extend time, affidavits and admissions of service and mailing, notices of settings, depositions and notices, and jury lists." 2 See Stoller Motion for Reconsideration, filed March 15, 2007 [Docket No. 43]. 20056/2119945.1 2 Case 1:07-cv-385 Document 77 Filed 05/11/2007 Page 3 of 5 record of the proceedings leading to the ruling appealed from, not to facilitate collateral attacks on the verdict" (United States v. Hillsberg, 812 F.2d 328, 336 (7th Cir. 1987)), and it does not allow a litigant to expand on the record as it existed in the District Court. Shasteen v. Saver, 252 F.3d 929 (7th Cir. 2001).3 As this also makes clear, supplementation cannot be used to alter the record that existed as of the time of the ruling appealed from: [A] district court is correct in denying a motion under Rule 10(e) when an appellant simply wishes to add further support for his theories on appeal by adding material which was not before the district court when the district court reached its substantive ruling. United States v. Elizalde-Adame, 262 F.3d 637 (7th Cir. 2001). The job of an appellate court is to evaluate the soundness of the trial court's decision based on the evidence that was considered by the trial court. Id. at 641. An accurate record of the evidence that was before the trial court, and only the evidence which was before the trial court, is critical to enable the appellate court to make this evaluation. Id. Little v. Mitsubishi Motor Mfg. of America, Inc., 2007 WL 1232097, at *1 (C.D. Ill. 2007) (emphasis added). Stoller's motion here discloses no argument or evidence that there was any error or inaccuracy in record keeping with respect to any of the three documents he identifies. He therefore is not entitled to any supplementation of the record. Id. at *2 ("Since Plaintiff has not pointed to any error in record keeping or other error from mistakenly relying upon a document which was not in the record, Plaintiff's numerous motions seeking to supplement the record on appeal are denied."); see also Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007, 1012 (6th Cir. 2003) (denying Rule 10(e) motion to supplement the record because the motion was "not aimed towards correcting some misstatement or omission in the district court's record"); Wegner v. Barnhart, 2004 WL 1490414, at * 1 (W.D. Wis. 2004) ("Rule 10(e) exists to allow a party to correct differences that might exist between the record that is forwarded to the court of appeals and the actual record in the district court"; denying motion to supplement where movant "does not contend that the record as submitted to the court of appeals does not truly disclose Accord U.S. v. Rivera-Rosario, 300 F.3d 1, 9 (1st Cir. 2002) ("A 10(e) motion is designed to only supplement the record on appeal so that it accurately reflects what occurred before the district court. It is not a procedure for putting additional evidence, no matter how relevant, before the court of appeals that was not before the district court." (quotation marks and citation omitted)); Wright, Miller & Cooper, 16A Federal Practice and Procedure � 3956.4 ("Rule 10(e)'s purpose is not to provide a means for the court of appeals to consider evidence that was not submitted to the district court. Rather, Rule 10(e)'s purpose is to provide a means to ensure that the record before the court of appeals accurately reflects what occurred before the district court."). 3 20056/2119945.1 3 Case 1:07-cv-385 Document 77 Filed 05/11/2007 Page 4 of 5 what occurred in this court"); Jones v. Berge, 2003 WL 23208957, at *1 (W.D. Wis. 2003) ("The record on appeal should include only those matters that were before the trial court. Supplementing the record to add something that was not before the trial court would be a misstatement of the record."); Taylor v. Dube, 2003 WL 23162307, at *2 (W.D. Wis. 2003) (denying motion to supplement appellate record where document at issue had "not been omitted from the appeal record erroneously."). Accordingly, Google respectfully submits that, at a minimum, Stoller's motion must be denied to the extent it is seeking to supplement the appellate record in this case. DATED: May 11, 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) 20056/2119945.1 4 Case 1:07-cv-385 Document 77 Filed 05/11/2007 Page 5 of 5 CERTIFICATE OF SERVICE I, William J. Barrett, certify that on May 11, 2007, I caused to be served on the parties on the following Service List, via email transmission, a copy of the foregoing GOOGLE INC.'S RESPONSE TO NON-PARTY LEO STOLLER'S MOTION FOR LEAVE TO FILE DESIGNATION OF SUPPLEMENTAL CONTENT OF RECORD ON APPEAL. /s/ William J. Barrett William J. Barrett SERVICE LIST Mr. Leo Stoller 7115 W. North Ave., #272 Oak Park, IL 6030 Via email to ldms4@hotmail.com Richard M. Fogel Janice Alwin Shaw Gussis Fishman Glantz Wolfson & Towbin LLC 321 N. Clark St., Suite 800 Chicago, IL 60610 Via email to jalwin@shawgussis.com and rfogel@shawgussis.com, rfogel@ecf.epiqsystems.com 20056/2119945.1 5 Case 1:07-cv-385 Document 78 Filed 05/14/2007 Page 1 of 1 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, May 14, 2007: MINUTE entry before Judge Virginia M. Kendall :Motion for leave to file designation of supplemental content of record on appeal [75] is denied as moot.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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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: May 15, 2008 Time: 9:00 a.m. MOTION TO WITHDRAW AS COUNSEL FOR PLAINTIFF The law firm of Barack Ferrazzano Kirschbaum & Nagelberg LLP ("Barack") and William J. Barrett move to withdraw as counsel in this matter for Plaintiff, Google Inc. Barack has previously given Google notice of Barack's intention to resign from this matter. Dated: May 12, 2008 at Chicago, Illinois. By /s/ William J. Barrett William J. Barrett (ARDC No. 6206424) BARACK, FERRAZZANO, KIRSCHBAUM, & NAGELBERG, LLP 200 West Madison Street, Suite 3900 Chicago, IL 60606 (312) 629 5170 488325v1 Case 1:07-cv-385 Document 91 Filed 05/14/2008 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION GOOGLE, INC., Plaintiff, v. CENTRAL MFG., INC., et al. Defendants. ) ) ) ) ) ) ) ) No. 07 CV 00385 Honorable Virginia M. Kendall MOTION FOR LEAVE TO WITHDRAW AND SUBSTITUTE LOCAL COUNSEL Plaintiff, Google, Inc. ("Google"), pursuant to Local Rule 83.17, respectfully requests the Court to grant attorney Jonathan M. Cyrluk leave to file his appearance as new local counsel for Google, Inc, and William Barrett leave to withdraw as local counsel. In support of the instant motion, Google, Inc. respectfully states as follows: 1. Google's lead counsel in this case is Michael T. Zeller of the Los Angeles office of Quinn, Emanuel, Urquhart, Oliver & Hedges, LLP. 2. Google, Inc. has been represented locally by William John Barrett of Barack Ferrazzano Kirschbaum & Nagelberg LLP. 3. Mr. Barrett seeks to withdraw as local counsel for Google. Google has engaged Jonathan M. Cyrluk, a member of Stetler & Duffy, Ltd., to act as Google's local counsel. 4. The addition of Mr. Cyrluk as local counsel to Google will not delay this case as Mr. Zeller and Quinn, Emanuel, Urquhart, Oliver & Hedges, LLP will remain as lead counsel. Case 1:07-cv-385 Document 91 Filed 05/14/2008 Page 2 of 2 Wherefore, Plaintiff Google, Inc. respectfully requests the Court to grant Jonathan M. Cyrluk leave to file his appearance as local counsel and William Barrett leave to withdraw as local counsel. Dated: May 14, 2008 Respectfully submitted, GOOGLE, INC. By: /s/ Jonathan M. Cyrluk One of its Attorneys Jonathan M. Cyrluk STETLER & DUFFY, LTD. 11 S. LaSalle Street Suite 1200 Chicago, Illinois 60603 (312) 338-0200 2 Case 1:07-cv-385 Document 93 Filed 05/15/2008 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois - CM/ECF LIVE, Ver 3.1.3 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 Thursday, May 15, 2008: MINUTE entry before the Honorable Virginia M. Kendall: Status hearing held. Plaintiff's Motion to Withdraw Attorney William J. Barrett [88] and to Substitute Jonathan M. Cyrluk as Local Counsel [91] are granted. The Motion to Intervene is reinstated. Plaintiff to supplement the Motion by 6/9/2008; response due 6/30/2008; reply due 7/7/2008. Defendant must pay the fine as ordered by the 7th Circuit by 6/9/2008 or this case will be dismissed. Mailed notice. (kw, ) 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. Case 1:07-cv-385 Document 94 Filed 05/16/2008 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois - CM/ECF LIVE, Ver 3.1.3 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, May 16, 2008: MINUTE entry before the Honorable Virginia M. Kendall: Minute entry [93] is amended to reflect that the Defendant must pay his fine prior to the filing of any papers in this case. In all other respects the minute entry stands. Mailed notice. (kw, ) 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. Case 1:07-cv-385 Document 95 Filed 05/23/2008 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois - CM/ECF LIVE, Ver 3.1.3 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, May 23, 2008: MINUTE entry before the Honorable Virginia M. Kendall: It has been brought to the Court's attention that electronic notice of minute entry [93] was not distributed. The Court hereby brings notice to all parties of the filing of minute order [93]. Paper copies of minute entries [93] and [94] will be mailed to all parties. Mailed notice. (kw, ) 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. Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 1 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 2 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 3 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 4 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 5 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 6 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 7 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 8 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 9 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 10 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 11 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 12 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 13 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 14 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 15 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 16 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 17 of 18 Case 1:07-cv-385 Document 97 Filed 06/03/2008 Page 18 of 18 Case 1:07-cv-385 Document 98 Filed 06/18/2008 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois - CM/ECF LIVE, Ver 3.2.1 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 Wednesday, June 18, 2008: MINUTE entry before the Honorable Virginia M. Kendall: Mr. Stoller is advised that all motions shall be presented to the court pursuant to Local Rule 5.3(a and b). Failure to comply with this rule may result in the striking of the motion. A copy of Local Rule 5.3 (a and b) was mailed to Mr. Stoller along with a copy of this order by the court's clerk.Mailed notice(jms, ) 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. Case 1:07-cv-385 Document 99 Filed 06/25/2008 Page 1 of 5 Case 1:07-cv-385 Document 99 Filed 06/25/2008 Page 2 of 5 Case 1:07-cv-385 Document 99 Filed 06/25/2008 Page 3 of 5 Case 1:07-cv-385 Document 99 Filed 06/25/2008 Page 4 of 5 Case 1:07-cv-385 Document 99 Filed 06/25/2008 Page 5 of 5 Case 1:07-cv-385 Document 101 Filed 06/30/2008 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois - CM/ECF LIVE, Ver 3.2.1 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, June 30, 2008: MINUTE entry before the Honorable Virginia M. Kendall:Motion hearing held. Plaintiff's motion to suspend [99] is entered and continued pending ruling on the pending motion.Advised in open court (jms, ) 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. Case 1:07-cv-385 Document 102 Filed 06/30/2008 Page 1 of 7 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 GOOGLE'S RESPONSE TO SUPPLEMENT TO MOTION TO INTERVENE Plaintiff Google Inc. ("Google") respectfully submits this Response to Leo Stoller's ("Stoller") Supplement to Motion to Intervene (the "Supplement"). Preliminary Statement Stoller's Motions to (1) Intervene and (2) Interplead (collectively, the "Motions") should be denied because he has failed to produce any evidence demonstrating that he has a cognizable interest necessary to support intervention under the law. In the Supplement, Stoller simply incorporates arguments made in the Motions, quotes the Seventh Circuit's April 2, 2008 Order, and then asserts -- without proof and in conclusory fashion -- that he "should be permitted to intervene". Supplement at 1-2. Contrary to Stoller's apparent contention, the Seventh Circuit's April 2, 2008 Order does not direct this Court to grant the Motions and allow Stoller to intervene in this suit. Rather, the Seventh Circuit remanded for the Court to resolve, among other things, whether Defendants are sham corporations used by Stoller for his own individual business activities such that Stoller and the corporations are essentially indistinguishable. Now on remand, even though Stoller bears the burden of proving that he has the required interest for intervention, he offers no evidence to demonstrate that he and Defendants are so intertwined as to be indistinguishable as he claimed to the Seventh Circuit and that he is a proper intervenor in this suit. Case 1:07-cv-385 Document 102 Filed 06/30/2008 Page 2 of 7 Stoller's lack of demonstrated interest is fatal. Stoller's Motions should be denied.1 Argument I. STOLLER HAS FAILED TO DEMONSTRATE THAT DEFENDANTS ARE INDISTINGUISHABLE FROM STOLLER AND THUS FAILED TO PROVE HE HAS AN INTEREST REQUIRED FOR INTERVENTION On appeal to the Seventh Circuit, Stoller argued that this Court erred in denying the Motions because Stoller and Defendants are purportedly indistinguishable and, on that basis, Stoller is the real party in interest. By way of example, Stoller argued in his appeal brief that he "is indistinguishable from the corporate entities, Central Mfg. Inc. and Stealth Industries, Inc." and that "Central Mfg. Inc. and Stealth Industries, Inc., were not being represented at all and were so indistinguishable and inseparable as to be one with Stoller".2 Stoller continued this argument in his appeal reply brief, including by stating that "the [corporate] defendants in the civil RICO action are the alter-egos of Leo Stoller."3 Because these were not questions that had been specifically addressed in the prior District Court proceedings, the Seventh Circuit remanded for further consideration. In doing so, the Seventh Circuit necessarily required Stoller to demonstrate that, as he asserted on appeal, he was the real party in interest because the corporations were just shams through which Stoller conducts business as an individual.4 The Seventh Circuit made clear that it was not making any such determination, but instead was "leav[ing] for the district court to resolve in the first instance" these and related issues.5 Stoller bears the burden of showing that all four criteria for intervention as of right are met, including by proving that he has an interest relating to the property or transaction which is the subject of the action. Reid L. v. Illinois State Bd. of Educ., 289 F.3d 1009, 1017 (7th Cir. 2002). To prevail on the theory he espoused to the Seventh Circuit, Stoller accordingly must To avoid burdening the Court with repetition of its prior briefing, Google respectfully incorporates its 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, dated February 12, 2007; and the February 12, 2007 Declaration of Michael T. Zeller and exhibits attached thereto. 2 Declaration of Michael T. Zeller, dated June 30, 2008 and filed concurrently herewith ("Zeller Decl."), Exh. 1 at pp. 6, 7. 3 Zeller Decl., Exh. 2 at p. 1. 4 Zeller Decl., Exh. 3 at p. 5. 5 Id. at p. 7. 1 Case 1:07-cv-385 Document 102 Filed 06/30/2008 Page 3 of 7 obtain a Court finding here that Defendants are mere alter egos of Stoller. He nevertheless has failed to make such a factual showing. Stoller's Supplement does nothing more than incorporate the arguments in the Motions and include excerpts from the Seventh's Circuit's April 2, 2008 Order. Supplement at 1-2. As noted, however, Stoller is incorrect in his apparent view that the Seventh Circuit directed that he be allowed to intervene without proof that he and the corporate Defendants are indistinguishable. To the contrary, the Seventh Circuit explicitly stated that the issues concerning Stoller's intervention were for this Court to determine in the first instance. Stoller's original Motions are devoid of any evidence demonstrating that the Defendants are mere sham corporations used for his individual business activities,6 and his Supplement similarly offers no proof on this subject either. Stoller thus has failed to demonstrate that he has an "interest relating to the property or transaction which is the subject of the action". Heartwood, Inc. v. U.S. Forest Service, Inc., 316 F.3d 694, 700 (7th Cir. 2003). Because the burden of proof is on Stoller, the Motions should be denied. Reid L. v. Illinois State Bd. of Educ., 289 F.3d at 1017. Moreover, because Stoller has not shown standing, and cannot show independent jurisdiction, permissive intervention should also not be granted. Security Ins. Co. of Hartford v. Schipporeit, Inc., 69 F.3d 1377, 1381 (7th Cir. 1995) (proposed intervener has to demonstrate that there is (1) a common question of law or fact and (2) independent jurisdiction for permissive intervention under Rule 24(b)). II. THE BANKRUPTCY PROCEEDING DID NOT ESTABLISH THAT STOLLER HAS AN INTEREST Nor can Stoller evade his burden of proving that he and the corporate Defendants are indistinguishable by asserting the Bankruptcy Court's decision to convert his Chapter 13 bankruptcy to a Chapter 7 as evidence that he has an interest sufficient to allow intervention. He is not entitled to rely on that ruling against him, and Google furthermore is not collaterally estopped by that determination. First, even assuming that the Bankruptcy Court had ruled that Stoller's failure to abide by corporate formalities meant Defendants were his alter egos for all purposes, Stoller cannot use the decision as a sword or obtain benefits which he is not otherwise entitled to under the law. The Motions merely include (1) unsupported claims that Stoller is the sole shareholder and sole employee of Defendants; and (2) claims that the bankruptcy court found Stoller to be "intertwined" with Defendants. See January 30, 2007 Motion to Interplead at p. 1; February 6, 2007 Motion to Intervene at pp. 1, 3, 4. 6 Case 1:07-cv-385 Document 102 Filed 06/30/2008 Page 4 of 7 Because the "rules relating to piercing of the corporate veil are designed to protect those relying on the existence of a distinct corporate entity," courts hold that "[g]enerally, the corporate veil is never pierced for the benefit of the corporation or its stockholders". In re Rehabilitation of Centaur Ins. Co., 158 Ill.2d 166, 173-4, 632 N.E. 2d 1015, 1018 (1994) (internal quotation marks and citations omitted). Or, put differently, a party "cannot assert the equitable doctrine of piercing the corporate veil to disregard the separate corporate existence of a corporation he himself created to gain an advantage". Main Bank of Chicago v. Baker, 86 Ill.2d 188, 206, 427 N.E.2d 94, 102 (1981). Stoller's inappropriate attempt to benefit from the ruling against him should be rejected. Second, and independently, Google is not collaterally estopped by the Bankruptcy Court's ruling, so Stoller's efforts to rely on it in this proceeding are misplaced for this reason as well. Under Seventh Circuit law, collateral estoppel requires satisfaction of four requirements: (1) the party against whom the doctrine is asserted was a party to the earlier proceeding; (2) the issue was actually litigated and decided on the merits; (3) the resolution of the particular issue was necessary to the result; and (4) the issues are identical. Appley v. West, 832 F.2d 1021, 1025 (7th Cir. 1987); see also Freeman United Coal Mining Co. v. Office of Workers' Compensation Program, 20 F.3d 289, 293-94 (7th Cir. 1994). Stoller bears the burden of proving that collateral estoppel applies. Freeman United Coal Mining Co., 20 F.3d at 294 (party asserting collateral estoppel has burden of establishing its applicability). Here, Google was not a party to -- and did not even participate in -- the Chapter 7 conversion motion that resulted in the Bankruptcy Court's ruling.7 Indeed, not only did Google file no papers in connection with the motion, but Google first appeared in the bankruptcy proceeding only after the motion was brought.8 Google's lack of participation is dispositive. "A person who was not a party to a suit generally has not had a 'full and fair opportunity to litigate' the claims and issues settled in that suit. The application of claim and issue preclusion to nonparties thus runs up against the 'deep-rooted historic tradition that everyone should have his own day in court.'" Taylor v. Sturgell, --- U.S. ---, 2008 WL 2368748, at *9 (June 12, 2008) (applying federal collateral estoppel law; quoting Richards v. Jefferson County, 517 U.S. 793, 7 8 Zeller Decl., � 5. Id., � 6. Case 1:07-cv-385 Document 102 Filed 06/30/2008 Page 5 of 7 798 (1996)).9 Bankruptcy courts follow the same rule. "A federal court's resolution of specific issues may never be used against someone who was not a party to prior litigation" or a privy to a party to prior litigation. In re Teknek, LLC, 354 B.R. 181, 206 n.10 (Bkrtcy. N.D. Ill. 2006).10 Stoller accordingly cannot rely on the Bankruptcy Court's ruling to evade his burden of establishing, with evidence, the theory that he is indistinguishable from the corporate Defendants as he posited before the Seventh Circuit. Having failed to prove it here in this Court, Stoller's request to intervene fails. Conclusion For the foregoing reasons, Google respectfully requests that the Court deny the Motions. DATED: June 30, 2008 Respectfully submitted, GOOGLE INC. By: ___/s/ Jonathan M. Cyrluk________________ 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) Jonathan M. Cyrluk (ARDC No. 6210250) STETLER & DUFFY, LTD 11 South LaSalle Street, Suite 1200 Chicago, Illinois 60603 (312) 338-0200 (312) 338-0070 (fax) See also Via v. Lagrand, 2007 WL 495287, at *2 (N.D. Ill. Feb. 12, 2007) ("The general rule under Illinois law, however, is that issue preclusion may not be used 'offensively' (i.e., by a party with the burden of proof) against a non-party to the prior suit, unless the non-party is considered to be in privity with the party to the prior suit."); Coles v. City of Chicago, 2005 WL 1785326, at *4 (N.D. Ill. July 22, 2005) ("It is well-settled that a prior judgment 'will not be given collateral estoppel effect ..., where the party against whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court.'") (quoting Haring v. Prosise, 462 U.S. 306, 313 (1983); internal quotation marks omitted). 10 Of course, under the established rule of non-mutuality, the converse is not true. "Nonparties are usually . . . allowed to use collateral estoppel defensively" against one who had litigated an issue and lost in a prior proceeding. Newman v. State of Indiana, 129 F.3d 937, 942 (7th Cir. 1997) (citing Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971)). 9 Case 1:07-cv-385 Document 102 Filed 06/30/2008 Page 6 of 7 CERTIFICATE OF SERVICE I, Jonathan Cyrluk, an attorney, certify that I caused copies of the foregoing GOOGLE'S RESPONSE TO SUPPLEMENT TO MOTION TO INTERVENEto be served via the Court's CM/ECF system unless otherwise indicated on the attached service list this 30th day of June, 2008. /s/ Jonathan M. Cyrluk Jonathan M. Cyrluk Case 1:07-cv-385 Document 102 Filed 06/30/2008 Page 7 of 7 Service List Case No.: 07 CV 00385 Via U.S. Mail and E-Mail Leo Stoller 7115 W. North Avenue, #272 Oak Park, IL 60302 E-Mail: ldms4@hotmail.com Via U.S. Mail Richard M. Fogel, Trustee Shaw, Gussis, Fishman, Glantz, Wolfson & Towbin, LLC 321 North Clark Street, Suite 800 Chicago, IL 60610 E-Mail: rfogel@shawgussis.com and rfogel@ecf.epiqsystems.com VIA E-mail Michael T. Zeller Quinn Emanuel Urquhart Oliver & Hedges, LLP 865 South Figueroa Street, Tenth Floor Los Angeles, CA 90017 E-Mail: michaelzeller@quinnemanuel.com Via U.S. Mail Janice A. Alwin Shaw, Gussis, Fishman, Glantz, Wolfson & Towbin, LLC 321 North Clark Street, Suite 800 Chicago, IL 60610 E-Mail: jalwin@shawgussis.com Case 1:07-cv-385 Document 102-2 Filed 06/30/2008 Page 1 of 2 Case 1:07-cv-385 Document 102-2 Filed 06/30/2008 Page 2 of 2 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 1 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 2 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 3 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 4 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 5 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 6 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 7 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 8 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 9 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 10 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 11 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 12 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 13 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 14 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 15 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 16 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 17 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 18 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 19 of 20 Case 1:07-cv-385 Document 102-3 Filed 06/30/2008 Page 20 of 20 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 1 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 2 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 3 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 4 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 5 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 6 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 7 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 8 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 9 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 10 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 11 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 12 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 13 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 14 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 15 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 16 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 17 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 18 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 19 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 20 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 21 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 22 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 23 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 24 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 25 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 26 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 27 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 28 of 29 Case 1:07-cv-385 Document 102-4 Filed 06/30/2008 Page 29 of 29 Case 1:07-cv-385 Document 102-5 Filed 06/30/2008 Page 1 of 8 Case 1:07-cv-385 Document 102-5 Filed 06/30/2008 Page 2 of 8 Case 1:07-cv-385 Document 102-5 Filed 06/30/2008 Page 3

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