Chriswell v. Big Score Entertainment LLC

Filing 57

For the reasons state in the Order, Defendant's motion to dismiss complaint 44 is denied. Signed by the Honorable Edmond E. Chang on 1/28/2013:Mailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ERICA CHRISWELL,
Plaintiff,
v.
BIG SCORE ENTERTAINMENT, LLC,
Defendant.

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No. 11 C 00861
Judge Edmond E. Chang

ORDER
Plaintiff Erica Chriswell brought this pro se suit against Defendant Big Score
Entertainment, alleging that Big Score infringed upon her trademark “Eryka Kane”
by promoting the homophonously-named artist, Arika Kane.1 Big Score now moves to
dismiss Chriswell’s complaint on the theories that (1) the complaint fails to state a
claim under Federal Rule of Civil Procedure 12(b)(6); (2) Chriswell failed to disclose
certain assets in her in forma pauperis petition; and (3) dismissal is warranted based
on a prior pending action in the U.S. District Court for the District of Connecticut. As
the Court stated at the last status hearing on August 9, 2012, Chriswell’s pro se
complaint articulates a trademark infringement claim with sufficient detail to meet the
pleading requirements of Rule 8(a)(2). R. 48. Accordingly, Big Score’s motion to dismiss
is denied with respect to Rule 12(b)(6), and this opinion will only address the
Defendant’s second and third theories for dismissal. For the reasons explained in
further detail below, Big Score’s motion to dismiss [R. 44] is denied.

This Court has jurisdiction under 28 U.S.C. § 1331.

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I.
Plaintiff Erica Chriswell D.B.A. Eryka Kane is a performance artist who has
operated under the trademarks “Ms. Kane,” “Erika Kane,” “Eryka Kane,” “Ms. Eryka
Kane,” and “Twista” since 1999. R. 11, Compl. at 2; R. 49, Pl.’s Resp. Br. ¶ 6.
Chriswell’s work has appeared in several albums, the combined sales of which has
totaled (she alleges) over 1,750,000 singles. Pl.’s Resp. Br. ¶ 6. Moreover, she has
owned and controlled all rights to the name and goods associated with the “Eryka
Kane” trademark since at least January 1, 1999. Id. ¶ 7.
On April 26, 2010, Chriswell applied to register the mark “Eryka Kane” with the
U.S. Trademark and Patent Office (USPTO). Id. ¶ 8. Although her application was
approved on August 7, 2010 with “no conflicting marks,” she was notified one month
later that a prior pending application had been filed by the Defendant, seeking to
register the mark “Arika Kane.” Id. Upon learning of the other mark, Chriswell filed
a Motion of Opposition before the USPTO’s Trademark Trial and Appeal Board on
February 23, 2011. Id. In December 2010, Big Score commenced a trademark
infringement action against Chriswell in the U.S. District Court for the District of
Connecticut (“Connecticut Action”). R. 44-1, Def.’s Mot. Dismiss at 5. The initiation of
the Connecticut Action led to a suspension of the Opposition Proceeding in the USPTO.
Pl.’s Resp. Br. ¶ 8.
In February 2011, Chriswell filed a complaint with this Court, asserting a
mirror-image trademark claim against Big Score for allegedly infringing on the same
mark in question in the Connecticut Action. Def.’s Mot. Dismiss at 5. The Court
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granted Chriswell’s petition to proceed in forma pauperis in light of the sworn affidavit
she submitted explaining her financial status, but denied her request for appointment
of counsel. R. 10, Jan. 30, 2012 Minute Entry. Big Score now moves to dismiss
Chriswell’s complaint.
II.
Big Score advances two theories for dismissal that the Court must address here2:
first, that dismissal is required because Chriswell failed to disclose certain assets in
her in forma pauperis petition; and second, that dismissal is warranted based on the
prior pending Connecticut Action and the “first-to-file” rule.
A.
Big Score first argues that Chriswell’s complaint must be dismissed because she
omitted certain assets in her in forma pauperis petition. Specifically, Big Score asserts
that Chriswell failed to disclose the fact that she owns “an additional single family
home in Georgia,” and that she is represented by counsel in the pending USPTO
Opposition Proceeding. Def.’s Mot. Dismiss at 3. Big Score further suggests that
Chriswell must be hiding certain assets from the court in light of her allegations that
she has sold over 1.7 million records. Id. at 3-4.
Under 28 U.S.C. § 1915(a)(1), a court may allow an indigent plaintiff to file a
lawsuit without prepaying the required fees if the plaintiff submits an affidavit with

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As mentioned above, Big Score also moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6), but that portion of the Defendant’s motion is denied for the reasons stated
in open court on August 9, 2012.

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a statement of her assets and attests that she is too poor to pay. 28 U.S.C. §
1915(a)(1)). Big Score is correct that the Court would be required to dismiss Chriswell’s
case under 28 U.S.C. § 1915(e)(2)(A), if her allegations of poverty are untrue, but as
explained below, that has not been proven here.
Big Score contends that Chriswell omitted the fact that, although she resides in
a home in Burbank, Illinois, she owns “an additional single family home in Georgia.”
Def.’s Mot. Dismiss at 3 (emphasis added). This suggests that Chriswell’s ownership
of the Georgia home is in addition to her current place of residence. But Chriswell has
never claimed to own her current residence in Burbank, Illinois. Nor has she attempted
to conceal her ownership of the Georgia home located at 3834 Walnut Path in Lithonia,
Georgia. Indeed, Chriswell’s supplemental affidavit in support of her in forma pauperis
application plainly discloses that she recently purchased a home in Georgia valued at
approximately $85,000, but that she has no equity in it. See R. 9, Pl.’s Aff. at 2. Big
Score’s independent investigation by Jennifer Clark and attached exhibits do not
controvert these facts. For instance, the real estate assessment of Chriswell’s current
home at 8046 Narragansett Avenue in Burbank, Illinois does not reveal that Chriswell
owns the property in question. See R. 44-2, Def.’s Exh. C. Rather, the document only
reveals that the house was last sold in December 2005 for $189,000, and is currently
valued at $298,444. Big Score’s numerous exhibits describing Chriswell’s home in
Georgia is similarly unavailing, since they merely corroborate Chriswell’s statements
that she recently bought the home, and that it is valued at about $85,000. See R. 44-2,
Def.’s Exhs. D-F.
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Big Score also argues that Chriswell misrepresented her financial status
because she is being represented by counsel in the pending USPTO proceeding. That
Chriswell has retained counsel for her USPTO proceeding may be loosely probative of
her ability to pay, but does not prove that she made false allegations of indigence.
There are a number of ways in which an attorney can be retained without the client
paying up front for legal services. Thus, dismissal is not warranted on these grounds
alone, but the Court orders Chriswell to file a sworn affidavit explaining whether and
how she is compensating her attorney in the pending USPTO proceeding, and if so,
how much has been paid by fees.
Finally, Big Score suggests that Chriswell must be concealing assets given that
she has sold over 1.7 million records. Chriswell’s alleged record sales do not controvert
any of the statements made in her affidavit. Indeed, the Court initially questioned
whether Chriswell could really be indigent in light of her record sales, and requested
that Chriswell supplement her in forma pauperis petition with a sworn affidavit
explaining her financial status. R. 8, Apr. 13, 2011 Minute Entry. Chriswell explained
in her affidavit that she “has made no money from record sales.” Pl.’s Aff. at 1. There
is nothing about Chriswell’s record sales that contradicts her affidavit. Accordingly, the
Court finds that dismissal is not warranted because Big Score has not demonstrated
that Chriswell actually lied about her financial status in her in forma pauperis
petition. This finding, of course, is based on the current state of the record. Big Score
is authorized to take discovery on this issue as the case moves forward, and perhaps

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discovery will shed further light on the truthfulness of the in forma pauperis
application.
B.
Big Score next contends that Chriswell’s complaint must be dismissed based on
the prior pending lawsuit in Connecticut federal court and the “first-to-file” rule. A
federal court has a great deal of latitude and discretion to dismiss a suit for reasons of
wise judicial administration. Trippe Mfg. Co. v. Am. Power Conversion Corp., 46 F.3d
624, 629 (7th Cir. 1995). Generally, when mirror-image lawsuits are filed in two federal
district courts, the first case takes priority. See Natural Gas Pipeline Co. of Am. v.
Union Pac. Res. Co., 750 F. Supp. 311, 313 (N.D. Ill. 1990). However, the Seventh
Circuit has never adhered to a rigid “first-to-file” rule. Tempco Elec. Heater Corp. v.
Omega Eng’g, Inc., 819 F.2d 746, 750 (7th Cir. 1987). Instead, there is a rebuttable
presumption that the first case that establishes jurisdiction should be allowed to
proceed, and the second case be dismissed. Asset Allocation & Mgmt. Co. v. Western
Emp’rs Ins. Co., 892 F.2d 566, 573 (7th Cir. 1989). “The plaintiff bears the burden of
showing a compelling circumstance or imbalance of convenience to overcome the
presumption that the second-filed case should be dismissed in favor of the first-filed
case.” Inforizons, Inc. v. Ved Software Servs., Inc., 204 F.R.D. 116, 120 (N.D. Ill. 2001).
Such circumstances can be shown if it can be demonstrated that jurisdiction is not
obtainable. See Asset Allocation, 892 F.2d at 573; Colborne Corp. v. MC Retail Foods,
1995 WL 470226, at *1 (N.D. Ill. Aug. 7, 1995). Thus, where there is a pending motion
to dismiss or transfer for lack of jurisdiction in the first-filed forum, dismissal of the
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second case should be denied as premature. See, e.g., Caccamo v. Greenmarine
Holdings LLC, 2001 WL 668929, at *2 (N.D. Ill. June 14, 2001). In Schnadig Corp v.
Collezione Europa USA, 2001 WL 766898 (N.D. Ill. July 5, 2001), the court denied
defendant’s motion to dismiss as premature because the jurisdiction of the court in the
first-filed suit was in question on a pending motion to dismiss. Id. at *1. Without the
other court’s ruling on the jurisdictional issue, the court reasoned, it would be unable
to determine if the “first-to-file” rule should be followed. Id.
Here, the Connecticut Action is the first-filed suit and, absent a showing of
compelling circumstances or an imbalance of convenience by Chriswell, it should
proceed under the “first-to-file” rule. Inforizons, 204 F.R.D. at 120. However, Chriswell,
the defendant in the Connecticut Action, filed a motion to quash in the Connecticut
Action in May 2012, in which she challenged the Connecticut court’s jurisdiction over
her. Def.’s Mot. Quash, Big Score Entm’t, LLC v. Chriswell, 10-CV-01993-CSH (D.
Conn. May 11, 2012), R. 32. Because the motion raised an issue of personal
jurisdiction, the Connecticut court construed it as a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(2). See id. at R. 40, Order June 20, 2012. As it turns out,
however, the Connecticut court decided to transfer the action to this District under 28
U.S.C. § 1404(a). See Big Score Entm’t, LLC v. Chriswell, 13 C 00211 (N.D. Ill.), R. 49
at 6-7. So really the question now is whether the cases should be reassigned to the
same Northern District of Illinois judge, not whether to dismiss this case (it may be
proper, if and when the cases are reassigned, to terminate one or the other case so that
only one case receives all the filings). Thus, dismissal under the “first-to-file” rule is
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premature. This conclusion is further supported by the fact that Chriswell has not filed
a counterclaim for trademark infringement against Big Score in the other action, which
leaves that action ill-positioned to adjudicate fully both parties’ trademark rights.
Accordingly, Defendant’s motion to dismiss based on the “first-to-file” rule is denied as
premature.
III.
Lastly, Big Score argues in its reply brief that Chriswell received legal
assistance in drafting her opposition to the motion to dismiss, and urges the Court not
to give Chriswell the deference that is otherwise afforded to pro se litigants. R. 50,
Def.’s Repl. Br. at 5. The Court has its own suspicions that Chriswell enlisted the help
of a lawyer or someone with legal knowledge to draft her response. Chriswell’s brief
contains robust legal analysis and argument that is indicative of a licensed attorney’s
work. This Court cautions the parties that the practice of attorneys “ghost-writing”
briefs on behalf of pro se litigants raises serious issues of professional misconduct, and
has been condemned by several other courts. See, e.g., Ricotta v. California, 4 F. Supp.
2d 961, 987 (S.D. Cal. 1998) (“Attorneys cross the line . . . when they gather and
anonymously present legal arguments, with the actual or constructive knowledge that
the work will be presented in some similar form in a motion before the Court. With
such participation the attorney guides the course of litigation while standing in the
shadows of the Courthouse door.”). This is because such conduct circumvents the
requirements of Federal Rule of Civil Procedure 11, which obligates members of the
bar to sign all documents submitted to the court, and to personally represent that there
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are grounds to support the assertions made in each filing. Johnson v. Bd. of County
Comm’rs for Cnty. of Fremont, 868 F. Supp. 1226, 1231-32 (D. Colo. 1994). Ghostwritten briefs also raise issues of fundamental fairness. Federal courts are generally
required to give pro se litigants greater latitude than litigants who are represented by
counsel. Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, it would be patently unfair
for a pro se litigant to benefit from the less stringent standard applied to pro
se litigants if, in fact, she is receiving substantial behind-the-scenes assistance from
counsel. Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F. Supp.
1075, 1078 (E.D. Va. 1997).
The Court agrees with its sister courts that the practice of “ghost-writing” briefs
for pro se litigants is unethical and will not be permitted. Even assuming, however,
that Chriswell did receive legal assistance in drafting her response, that is not
sufficient basis for denying her deference with respect to her pleadings. Indeed, there
is no question (and Defendant does not dispute) that Chriswell’s complaint was drafted
by the Plaintiff herself. Accordingly, for purposes of considering a motion to dismiss,
Chriswell’s complaint should still be construed with the latitude afforded to all pro se
litigants.
In conducting its own independent research into the issue, the Court found no
cases in which a court, on the basis of finding that a pro se litigant’s briefs had been
ghost-written by an attorney, granted a motion to dismiss. At most, courts have
considered disciplinary proceedings and sanctions, Laremont-Lopez, 968 F. Supp. at
1079-80, refused to accept the plaintiff’s complaint, Thigpen v. Banas, 2010 WL
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520189, at *2 (N.D. Ill. Feb. 11, 2010), or ordered the pro se plaintiff to disclose the
identity of the person who had been assisting her in drafting her pleadings. Johnson
v. City of Joliet, 2007 WL 495258, at *3 (N.D. Ill. Feb. 13, 2007). Accordingly, dismissal
of Chriswell’s complaint on the basis of alleged “ghost-writing” is not warranted here.
The Court does order Chriswill, however, to file a sworn affidavit (1) disclosing whether
she has received legal assistance from an attorney or someone with legal knowledge;
and if so, (2) revealing the identity of the person who has been assisting her with her
briefs.
IV.
For the reasons stated above, the Big Score’s motion to dismiss [R. 44] is denied.
As discussed in Sections II(A) and III, Plaintiff is ordered to file a sworn affidavit on
or before February 8, 2013, explaining (1) how she is compensating her attorney in the
pending USPTO proceeding; and (2) disclosing who, if anyone, has been assisting her
in drafting her briefs.
ENTERED:
___________________________
Honorable Edmond E. Chang
United States District Judge
DATE: January 28, 2013

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