Trujillo v. Apple Computer, Inc. et al

Filing 878

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA Plaintiff, vs. GLOBAL DISTRIBUTORS, INC., and JOHN ASOOFI Defendants/Third Party Plaintiffs, vs. NASER ALI, ALI ALADIMI, and TWIN WHOLESALE, INC., Third-Party Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 02 C 7992 Hon. Blanche M. Manning

DEFENDANTS JOHN ASOOFI AND GLOBAL DISTRIBUTORS, INC.'S MOTION FOR STATUS HEARING, FOR LEAVE TO SUBSTITUTE COUNSEL, AND FOR RELIEF FROM JUDGMENT Defendants JOHN ASOOFI and GLOBAL DISTRIBUTORS, INC., by their attorneys, COTSIRILOS, TIGHE & STREICKER, LTD., respectfully moves this Honorable Court to set a status hearing in this case, and to allow undersigned counsel to file their appearance on behalf of Defendants. In support of this motion, Defendants state as follows: I. BACKGROUND 1. The government brought a civil action against Defendants Global Distributors, Inc.

and John Asoofi alleging, in essence, that Asoofi and his business, Global Distributors Inc., sold "threshold quantities" of pseudoephedrine on at least eight occasions and failed to obtain appropriate identification of the recipient, as required by 21 U.S.C. §830(a)(3). See Complaint.

2.

On October 28, 2003, Defendants Global Distributors and Asoofi filed an Amended

Third Party Complaint against third-party defendants Naser Ali, Ali Aladimi, and Twin Wholesale, Inc. [Docket No. 30]. Attorney Robert Aronson filed an appearance on behalf of third-party defendant Naser Ali. [Docket No. 23]. It is unclear whether the other two third-party defendants were properly served nor what, if any, efforts were made to do so. 3. On August 18, 2005, the Court entered summary judgment against Defendants and

in favor of Plaintiffs [Dist. Ct. Docket No. 48], and on October 17, 2005, the Court denied Defendants' motion to reconsider that ruling [Dist. Ct. Docket No. 56]. On November 16, 2005, the Court entered an order assessing civil penalties against Global Distributors, Inc. and John Asoofi, jointly and severally, in the amount of $200,000.00, the maximum amount allowable. [Dist. Ct. Docket No. 63]. Finally, on December 12, 2005, "the Court, sua sponte, revisit[ed]its prior interlocutory orders denying Ali's motion to dismiss the third party complaint against him" and dismissed the third-party complaint as against Naser Ali. [Docket No. 71]. That Order did not address the third-party complaint as against the other two third-party defendants, Ali Aladimi and Twin Wholesale, Inc., neither of whom appeared in the district court in response to the third-party complaint. 4. Defendants filed a notice of appeal, but that appeal was recently dismissed by the

Seventh Circuit as premature, and the case remanded to this Court. II. REQUEST FOR STATUS HEARING AND LEAVE FOR NEW COUNSEL TO APPEAR AND PRESENT DEFENDANTS' CASE ON THE MERITS 5. Defendants were previously represented by attorney Kenneth Ditkowsky before this

Court. Defendants have now retained the law firm of Cotsirilos, Tighe & Streicker to represent them -2-

in this case, and Mr. Ditkowsky no longer represents the Defendants. 6. Defendants' new counsel believes that there are several issues of material fact that

were not explored by prior counsel and/or not properly presented to the Court, and further that Defendants have a meritorious defense to raise as to the claims here. Very little discovery was conducted; indeed, only a single deposition was taken. Compounding the situation, the Court found that Defendants' counsel had not timely filed his response to the government's Rule 56.1 Statement of Facts during the summary judgment process, and that he had failed to submit a proper Rule 56.1 Statement of Facts in support of Defendants' motion for summary judgment. Thus, the Court held that the government's averments of fact were deemed admitted. [See Order dated August 18, 2005, Docket No. 48] ("In this case, the court has no choice but to find that the defendants have failed to comply with Rule 56.1 across the board. The defendants did not file a response to the government's statement of facts, and Asoofi's statement of facts is not supported by specific citations to the record or attached evidence (other than [the agent's] deposition). The government's facts are thus deemed admitted and Asoofi's facts are immaterial for the purposes of the present summary judgment motions, to the extent that they are not supported by [the agent's] deposition.") (emphasis added). Under the circumstances (i.e. the Court finding defense counsel made no valid Rule 56.1 summary judgment filings), this was akin to a default judgment being entered against Defendants. 7.
Defendants' prior counsel adamantly claimed that he had filed a response to the

governm ent's Rule 56.1 Statement [see Docket No. 51 and Exhibit 1 attached thereto], but it does not indepen dently appear in the docket sheet at the time the summary judgment papers were filed. While this might appear odd at first blush, notably, it appears that the governm e n t ' s summary judgment filings, likewise, never were entered on the District Court's docket sheet, and thus the government

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just recently filed those documents, on March 24, 2006. [See Docket Entries 82-87].1 To the extent there was a mistake with respect to the filing or docketing of Defendants' Response to the government's Rule 56.1 Statement of Facts, Federal Rule of Civil Procedure 60 (discussed below) suggests that relief from the judgment is properly available.

8.

The Court has great discretion to take into account all relevant circumstances in

relieving a party from a judgment "upon such terms as are just," and for reasons including "mistake, inadvertence, surprise or excusable neglect," and "any other reason justifying relief from the operation of the judgment." Fed.R.Civ.Pr. 60(b). A motion under Rule 60(b) is timely if filed within "a reasonable time." Id. Here, Defendants seek relief from a judgment that was entered quite recent ly, in December 2005 and which is now before the Court prior to the entry of a final judgment in the case. Under all of the circumstances recited herein, Defendants' new counsel submits that equity counsels strongly in favor of allowing the Defendants to present their case and have it decided on the full merits, after adequate discovery and an adversarial process.2 9. Moreover, the damages imposed by the Court are the maximum amount of civil

monetary penalties available under the statute ­ $200,000.00 ­ despite the fact that "Global received [o nl y] $11,000 for its eight sales of pseudoephedrine products" [Docket No. 63] and that there was no history of any similar conduct by Defendants. Undersigned counsel is further informed and believes that certain information about Defendant Asoofi which was presented to the Court at the

These recent filings by the government include the government's Rule 56.1 Statement of Facts, and the government's responses to Defendants' Rule 56.1 Statements of Facts.

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Defendants have requested that the Court set a status hearing so that they may have time to present to the Court their position as to the legal and factual issues in this case, including with respect to the third-party defendants. -4-

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damages stage (e.g., purported multiple Social Security numbers) was not properly investigated, explained, or defended.3 Likewise, information in mitigation was not presented which may have impacted the Court's determination of the amount of civil penalty to impose. Defendants, through their new counsel, respectfully beseech the Court to allow them to present their defenses, both to the merits of the allegations and/or in mitigation as to the claim for a penalty in the maximum amount allowed by the statute. WHEREFORE, for all the reasons discussed above, we respectfully request that the Court vacate the current judgment, grant undersigned counsel leave to file their appearance on behalf of Defendants, and set a status date for this case.

Respectfully submitted,

/s/ Terence H. Campbell An Attorney for Defendants John Asoofi and Global Distributors, Inc.

Theodore T. Poulos Terence H. Campbell COTSIRILOS, TIGHE & STREICKER, LTD. 33 North Dearborn Street, Suite 600 Chicago, IL 60602 312-263-0345

A copy of the damages memorandum filed by Defendants' prior counsel is attached as E x h i bi t A.

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CERTIFICATE OF SERVICE Terence H. Campbell, an attorney, hereby certifies that in accordance with Fed.R.Civ. P. 5, LR 5.5, and the General Order on Electronic Case Filing (ECF), the following documents: 1. Notice of Motion 2. Defendants John Asoofi and Global Distributors, Inc.'s Motion For Status Hearing, For Leave to Substitute Counsel, and For Relief From Judgment were served pursuant to the District Court's ECF system as to ECF filers, including the United States Attorney's Office. Terence H. Campbell further certifies that a hard copy was also served by U.S. mail to attorney Robert Aronson, who represents third-party defendant Naser Ali, first-class postage prepaid, by depositing it into a mailbox at 33 N. Dearborn, Chicago, Illinois, on this 28th day of March, 2006.

/s/ Terence H. Campbell Terence H. Campbell

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