Glassey et al v. Microsemi Inc et al

Filing 109

ORDER STRIKING COMPLAINT AND VACATING HEARINGS re 63 , 73 , 90 , 104 , and 107 .. Signed by Judge Alsup on October 30, 2014. (whalc1, COURT STAFF) (Filed on 10/30/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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TODD S. GLASSEY and MICHAEL E. MCNEIL,

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No. C 14-03629 WHA

Plaintiffs,

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v.

ORDER STRIKING COMPLAINT
AND VACATING HEARINGS

MICROSEMI INC, THE IETF AND ISOC, AND
THE US GOVERNMENT AND INDUSTRY
PARTNERS (INCLUDING BUT NOT LIMITED TO
APPLE, CISCO, EBAY/PAYPAL, GOOGLE,
JUNIPER NETWORKS, MICROSOFT, NETFLIX,
AND ORACLE), USPTO ALJ PETER CHEN ESQ.,
AND TWO INDIVIDUALS (MARK HASTINGS
AND ERIK VAN DER KAAY) AS “NAMED
DOES,”
Defendants.
/

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INTRODUCTION

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Two pro se plaintiffs allege that “the entire world has become an infringer” based on a

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technology that allegedly controls “most all online commerce globally.” They have sued a litany

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of individuals and entities, including numerous technology companies, federal agencies, the

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Governor of California, and the President of the United States. Six defendants have filed motions

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to dismiss. No defendants have filed an answer. For the reasons stated herein, the first amended

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complaint is hereby STRICKEN.

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STATEMENT
Pro se plaintiffs are Todd S. Glassey and Michael E. McNeil.* The first amended

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complaint alleges as follows.

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In October 1998, plaintiffs say they entered into an agreement in which Digital Delivery,

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Inc. (“DDI”) allegedly agreed to submit a “Controlling Access” patent application. DDI then

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became a wholly-owned subsidiary of Datum, Inc., which then commenced a lawsuit against

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plaintiffs (and Glassey-McNeil Technologies), which settled. In pertinent part, as part of that

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settlement in 1999, plaintiffs say they agreed to assign all rights to the “Controlling Access”

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patent and “Phase II Technology” to Datum. U.S. Patent Nos. 6,370,629 and 6,393,126 issued in
2002. Datum was identified as the assignee on the face of both patents.

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For the Northern District of California

United States District Court

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In October 2013, Mr. Glassey and Mr. McNeil (via counsel) commenced an action against

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Symmetricom, Inc., which allegedly acquired the “assets and liabilities of Datum” in 2002.

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Glassey, et al. v. Symmetricom, Inc., No. 3:13-cv-04662-NC (N.D. Cal.) (Judge Nat Cousins)

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(Dkt. Nos. 1, 40, 45). The action was voluntarily dismissed without prejudice, after an order to

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show cause regarding subject-matter jurisdiction issued.

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In August 2014, Mr. Glassey and Mr. McNeil — now proceeding pro se — commenced

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this action. The first amended complaint is fifty pages. In essence, to the extent comprehensible,

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it alleges that Datum interfered with plaintiffs’ efforts to license the “Phase II Technology, as

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embodied in the ’629 Patent” (Amd. Compl. ¶ 122). The agreements from the late 1990s were

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allegedly “breached” by defendant Microsemi Inc. The “Phase II Technology” was and is

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allegedly “inside the machines” adopted by the “Internet Engineering Task Force” (“IETF”), a

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“global standards organization.” “The functional result is that everyone using the Local Area

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Networking Protocols outside the Internet is also an infringer” (Amd. Compl. ¶¶ 37–39).

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*

Mr. Glassey has commenced several actions in our district. See, e.g., Glassey v. Amano Corp., et al.,
No. 04-05142 (N.D. Cal. Bankr.) (Judge Marilyn Morgan); Glassey v. National Institute of Standards &
Technologies, et al., No. 5:04-cv-02522-JW (N.D. Cal.) (Judge James Ware); Glassey v. Amano Corporation, et
al., No. 5:05-cv-01604-RMW (N.D. Cal.) (Judge Ronald Whyte); Glassey v. D-Link Corporation,
No. 4:06-cv-06128-PJH (N.D. Cal.) (Judge Phyllis Hamilton); Glassey, et al. v. Symmetricon, Inc.,
No. 3:13-cv-04662-NC (N.D. Cal.) (Judge Nathanael Cousins).

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The “World’s Internet Standards [have] created three billion daily infringers” and the “net-effect

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is this single Patent now controls (or there are claims for) most all online commerce globally.”

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The antitrust laws allegedly have been violated to prevent plaintiffs from exploiting their “global

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monopoly.” Numerous federal agencies, including the Department of Commerce, Department of

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Energy, Department of Transportation, Department of the Treasury, Department of Defense, and

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so forth, allegedly use “infringing technologies.” Cisco Systems, Inc., Google Inc., Microsoft

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Corp., Oracle Corp., eBay, Inc., PayPal, Inc., Microsemi Inc., and others are also referenced in

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the pleading (Amd. Compl. ¶¶ 17, 18, 163).

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The pleading further alleges that this dispute implicates “national security.” It speculates
that the President of the United States issued a “National Security Letter” to cover up a “fraud”

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For the Northern District of California

United States District Court

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and that this letter “may have been” served on the “California Judiciary” (Amd. Compl. ¶¶

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188–91). This action was reassigned to the undersigned judge in September 2014.

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Plaintiff Mr. Glassey then filed a motion for a “three-judge panel,” which was denied. He
also larded the record with voluminous “exhibits” (Dkt. Nos. 17–31, 53–57).
Now, Cisco Systems, Inc., the Internet Society (and the Internet Engineering Task Force),

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eBay Inc., PayPal, Inc., and Google Inc. move to dismiss the first amended complaint. Mr.

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Glassey opposes (Dkt. Nos. 79, 80, 81, 82, 83, 84, 94, 95). Although he failed to obtain prior

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permission to file a sur-reply, it has been reviewed. Other defendants that have appeared have

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filed stipulations to extend the time to respond to the operative pleading. For example, the

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deadline for the United States to respond is currently December 11. No defendant has filed an

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answer. The parties (that have appeared) have also filed a stipulation to continue the November

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20 case management conference.

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ANALYSIS
The first amended complaint suffers from so many deficiencies that it would be hopeless
to proceed. This order will only address a few of the fundamental difficulties.

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First, the pleading fails to state a claim for relief against the vast majority of the

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“defendants.” For example, Cisco, eBay, PayPal, and Google are mentioned only twice in the

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pleading. There is only a brief reference to whether they are members of a standards organization

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(and whether they are Delaware corporations) and a reference to plaintiffs’ prayer for an “award”

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from “Cisco, Google, Apple, eBay, PayPal, Oracle [and] Microsoft.” This is wholly insufficient.

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Second, the pleading fails to contains sufficient factual matter, accepted as true, to state a

There must be more than mere “labels and conclusions.” Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555, 558 (2007). Plaintiffs’ pleading is so bare that most of the allegations necessary to

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state the litany of claims referenced in passing are missing. In a conclusory fashion, the pleading

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For the Northern District of California

claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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United States District Court

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references “Sherman Act violations,” “constitutional violations” under the Fourth, Fifth, Seventh,

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and Fourteen Amendments, infringement under patent and copyright law, misappropriation of

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trade secrets, breach of contract, unjust enrichment, intentional inference with prospective

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economic advantage, conversion, fraud, and declaratory relief. No claims are properly alleged.

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Third, many of the claims are time barred. Plaintiffs’ dispute centers upon agreements

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allegedly entered in the late 1990s and alleged torts from 2001 and 2004. The limitations period

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passed long ago.

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Fourth, plaintiffs appear to lack standing to assert at least some of the claims. Defendant

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Microsemi Inc. appears to be the assignee of at least one of the patents referenced in the pleading

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and no ownership of a valid copyrighted work is alleged.

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This order highlights some of the fundamental difficulties with plaintiffs’ first amended
complaint but there are many more.
CONCLUSION
Accordingly, for the reasons stated herein, the first amended complaint is hereby

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STRICKEN IN ITS ENTIRETY. There is no operative pleading in this action. Accordingly, the

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November 20 hearing and case management conference, December 4 hearing, and December 11

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hearing are hereby VACATED. Plaintiffs have until NOVEMBER 13, 2014 AT NOON to file a

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proper second amended complaint. It must cure the deficiencies identified herein. Failure to do
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so may well result in dismissal with prejudice. Plaintiffs must plead their best and most plausible

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case and further opportunities to plead will not likely be allowed. This order resolves docket

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numbers 63, 73, 90, 104, and 107.

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IT IS SO ORDERED.

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Dated: October 30, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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