131 - Federal Resources Corp

Transcription

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David E. Leta (USB #1937)
Andrew V. Hardenbrook (USB #15371)
SNELL & WILMER L.L.P.
15 W South Temple, Suite 1200
Salt Lake City, Utah 84101
Telephone: 801.257.1900
Facsimile: 801.257.1800
Email: [email protected]
[email protected]
Attorneys for Federal Resources Corporation
and Camp Bird Colorado, Inc.
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF UTAH
In re:
Jointly Administered Under
Bankruptcy Case No. 14-33427
FEDERAL RESOURCES CORPORATION
and CAMP BIRD COLORADO, INC.,
Chapter 11
Honorable Joel T. Marker
Debtors.
THIS DOCUMENT RELATES TO:
□ In re Federal Resources Corporation
□ In re Camp Bird Colorado, Inc.
■ Both Debtors
DEBTORS’ RESPONSE TO “MOTION TO INTERVENE BY CREDITORS”
Debtors Federal Resources Corporation and Camp Bird Colorado, Inc. (collectively,
“Debtors”), through counsel, respond to the “Motion to Intervene as Creditors” filed by
individuals who purported to be “creditors” and identify themselves as Jimmy T. Fazen, Wade R.
Albright, Desa Hooter, Amber Lambert, Jamie Pauley, Frederick Banks, Kamal Karna Roy, and
Susan Mae Polk (collectively, “Intervenors”). Because Intervenors’ motion is procedurally
improper and there is no basis to permit the requested intervention by the Intervenors, all of
whom appear to be prisoners and/or known to be vexatious litigants, the motion should be
summarily denied.
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The motion to intervene is procedurally improper because there is no pending adversary
proceeding.
Rule 7024 of the Federal Rules of Bankruptcy Procedure, which permits
intervention and to which Intervenors appear to cite (Motion at 1, Dkt. 111), applies only in
adversary proceedings. See Fed. R. Bankr. P. 7024 (“Rule 24 F.R.Civ.P. applies in adversary
proceedings”); see also In re DJK Residential, LLC, No. 08-10375JMP, 2009 WL 2902569, at
*2 (Bankr. S.D.N.Y. May 12, 2009) (unpublished) (“By its terms, Rule 7024 does not apply in a
chapter 11 bankruptcy case, because under § 1109(b) of the United States Bankruptcy Code, a
party in interest may appear and be heard on any issue without the need to intervene. Therefore,
to the extent that the Motion to intervene is based on Rule 7024 of the Federal Rules of
Bankruptcy Procedure, the Motion is denied for being inapplicable to the DJK Residential LLC
bankruptcy case.”).
Even if this were not the case, Intervenors cannot satisfy the standards for intervention
under Federal Rule of Civil Procedure 24. Intervenors purport to seek intervention as a matter of
right. This type of intervention is limited to those who (1) have an “unconditional right to
intervene by a federal statute” or (2) “claim an interest relating to the property or transaction that
is the subject of the action, and is so situated that disposing of the action may as a practical
matter impair or impede the movant’s ability to protect its interest, unless existing parties
adequately represent that interest.” Fed. R. Civ. P. 24(a). Intervenors fail to make any effort to
satisfy this standard. Instead, Intervenors claim they are creditors of the Debtors because Mr.
Banks and Mr. Roy are allegedly the “CEOs” of “Jungle Democracy” of which the other
Intervenors are “financial supporters.”
Intervenors do not explain the nature of “Jungle
Democracy” or its connection to Debtors, let alone show a “legally protectable interest” that will
be impaired if permission to intervene is not granted. New Mexico Off-Highway Vehicle
Alliance v. U.S. Forest Serv., 540 F. App’x 877, 880 (10th Cir. 2013).
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Intervenors also do not satisfy the requirements for permissive intervention under Rule
24(b), which requires an applicant show that it “has a claim or defense that shares with the main
action a common question of law or fact.” Kane Cnty., Utah v. United States, 597 F.3d 1129,
1135 (10th Cir. 2010) (quotation omitted). Intervenors fail to specify any issues of law and fact
they share with Debtors and rely only on their conclusory statement that they “will provide
questions of laws and facts that are common in this action and will provide this honorable court
newly discovered withheld evidence” in the future. Not only have Intervenors failed to allege
how any potential claim or defense shares a common question of law or fact with Debtors,
Intervenors have failed, literally, to allege any claim. Thus, Intervenors have not met the
requirements for permissive intervention and their Motion should be denied under Rule 24(b) as
well.
Although Rule 2018 of the Federal Rules of Bankruptcy Procedure gives the court
discretion “for cause shown, [to] permit any interested entity to intervene generally or with
respect to any specified matter,” Fed. R. Bankr. P. 2018, “[p]ermissive intervention is not
warranted in light of [Intervenors’] ability to have filed a proof of claim1 or to commence an
adversary proceeding alleging a claim consistent with the pleading requirements for complaints
alleging fraud.” In re DJK Residential, LLC, 2009 WL 2902569, at *2 (citations omitted).
Finally, Intervenors should not be permitted to intervene or participate under any
circumstances pursuant to any rule because they cannot establish any connection – rational or
otherwise – to this case or to the Debtors. In fact, they have no such connection. Rather,
Intervenors are prisoners or known vexatious litigants.2 For example, Mr. Roy a/k/a “Jungle
The proof of claim filing deadline in these cases expired on May 6, 2015, and Intervenors did
not file any claims in this case prior to this deadline.
2
Counsel to Debtors believe that Wade [sic] Albright is a prisoner at Benner Township Prison,
located in Lancaster County, Pennsylvania; Amber Lambert is a prisoner at the Central
Mississippi Correctional Facility, serving a 10-years sentence for grand larceny; Jamie Pauley is
a prisoner in the Women’s Huron Valley Correctional Facility in Michigan, serving a sentence
for armed robbery; and Susan Mae Polk is a prisoner at the California Institution for Women.
The remaining Intervenors appear to be former prisoners.
1
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Democracy,” Jungle Democracy v. USA Gov’t at Washington, DC & at Denver, 206 F. App’x
756 (10th Cir. 2006) (“Jungle Democracy, a/k/a Kamal K.K. Roy, a/k/a Joseph Geronimo, Jr.”),
has an “extensive history of litigation” in courts around the country and has been sanctioned as a
result. See, e.g., Roy v. Supreme Court, Case No. 14-cv-1960, 2014 WL 1514627, at *2
(E.D.N.Y. Apr. 16, 2014) (unpublished, copy attached as Exhibit A) (“Kamal Karna Roy has an
extensive history of litigation in this and other courts, and has been barred from filing any new in
forma pauperis actions in this court without first obtaining leave of the court.”); Roy v. Doe, No.
Civil Action No. H-13-1757, 2013 WL 3246083, at *2 (S.D. Tex. June 26, 2013) (unpublished,
copy attached as Exhibit B) (“A national litigation index reveals that Roy has filed at least 191
civil actions in federal courts across the country. He has been sanctioned for his litigation
abuses.”); Roy v. United States, Civil Action No. 06-685-SLR, 2007 WL 1109296, at *1 (D. Del.
Apr. 11, 2007) (unpublished, copy attached as Exhibit C) (“Roy is no stranger to litigation and
has filed numerous lawsuits throughout the United States and its territories under the names of
Roy and Joseph Geronimo, Jr., as well as entities he is affiliated with (i.e., Jungle Democracy,
Handicap Interests International, Reforms International)”; collecting cases).
Mr. Banks, a former federal prisoner and pro se litigant, has a similar “history of filing
frivolous complaints in federal district courts throughout the United States.” Banks v. Unknown
Named Number of U.S. Postal Inspectors, Civil Action No. 2:13-cv-1198, 2013 WL 5945786, at
*4 (W.D. Pa. Nov. 6, 2013) (unpublished, copy attached as Exhibit D).
An electronic court records search in PACER of the name
“Frederick Banks” revealed that between November of 2004 and
July of 2013, Banks has filed approximately 304 civil actions
alleging a litany of constitutional violations and seeking a writ of
mandamus and/or monetary relief ranging from $100,000 to
hundreds of millions of dollars. Over the past nine years, Banks
filed approximately 108 civil actions in the district courts within
the Third Circuit, plus 79 appeals to the court of appeals. . . .
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A majority of Banks’ filings consist of a mixture of civil rights
complaints under 28 U.S.C. § 1983 and petitions for writs of
mandamus. Many of his filings combine both actions and name
anywhere from one to over 100 defendants in a single lawsuit.
While defendants typically include prison guard staff and/or
employees from the Bureau of Prisons, several of Banks’s lawsuits
name high-profile public figures, including Secretary of State
Hilary Clinton, Attorney General Eric Holder, and President
Barack Obama. Three recent examples of Banks’ vexatious filings
are complaints filed in the Middle and Western Districts which
allege that prison staff harassed him by using “ECM brain wave
technology” to monitor his thoughts. Additionally, many of his
complaints contain references to the Treaty of Fort Laramie and
allege violations of various constitutional rights, including
violations of the Establishment Clause, the Free Exercise Clause,
the Right to Privacy, Freedom of Religion, Freedom of Speech,
Equal Protection, and Due Process.
Id. at *4-5 (citations omitted). Indeed, in 2008, the Tenth Circuit Court of Appeals “caution[ed]
Mr. Banks that he is barred from bringing a civil action or an appeal from a judgment in a civil
action without prepayment of the applicable filing fee unless he establishes that he is ‘under
imminent danger of serious physical injury.’” Banks v. U.S. Marshal, 274 F. App’x 631, 635
(10th Cir. 2008).
Remarkably, several of the Intervenors, including Amber Lambert and Frederick Banks,
recently attempted a similar procedural move – inexplicably moving to intervene in a case
pending in the United States District Court for the Eastern District of Michigan, which motion
was promptly and summarily rejected by the court. See Everlight Electronics Co. v. Nichia
Corp., Case No. 12-CV-11758, 2015 WL 1808457, at *1 (E.D. Mich. Apr. 21, 2015)
(unpublished, copy attached as Exhibit E) (“the movants present a myriad of reasons for
intervention that have no rational connection “relating to the property or transaction that is the
subject of this action . . .”).3
3
An electronic search of PACER reveals a number of similar motions filed recently in federal
courts around the country. See, e.g., Motions to Intervene “as Plaintiffs with Newly Discovered
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For the reasons set forth herein, this Court should promptly and summarily deny
Intervenors’ request to intervene in this chapter 11 bankruptcy case.
DATED this 13th day of May, 2015.
SNELL & WILMER L.L.P.
/s/ David E. Leta
David E. Leta
Andrew V. Hardenbrook
Attorneys for Federal Resources
Corporation and Camp Bird Colorado, Inc.
Evidence Under Fed. R. Civ. P. Rule 24(a), 24(b)” filed in Lindh v. Director, Federal Bureau of
Prisons, Civil No. 2:14-cv-00151-JMS, pending in the United States District Court for the
Southern District of Indiana, in In re Galena Biopharma, Inc., Civil No. 3:14-cv-00516-SI,
pending in the United States District Court for the District of Oregon, in Gulf Coast Shippers
Ltd. P’ship v. DHL Express USA, Civil No. 2:098-cv-00221-RJS, pending in the United States
District Court for the District of Utah, Reyes v. Graber, Civil No. 2:14-cv-01866, pending in the
United States District Court for the District of Arizona, and In re Online Travel Company Hotel
Booking Antitrust Litigation, Civil No. 3:12-cv-03515-B, United States District Court for the
District of Texas, copies of which are attached hereto as Exhibit F,
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CERTIFICATE OF SERVICE
Electronic Service (CM/ECF) – I hereby certify that on the 13th day of May, 2015, I
electronically filed the foregoing document with the United States Bankruptcy Court for the
District of Utah by using the Court’s CM/ECF system. I further certify that the parties of record
in this case, as identified below, are listed as registered CM/ECF users and will be served
through the CM/ECF system:











Christopher D. Bryan [email protected], [email protected]
James Vincent Cameron tr [email protected],
[email protected];[email protected];[email protected]
David Dain [email protected], [email protected]
Andrew V. Hardenbrook [email protected],
[email protected];[email protected]
Kristopher C. Kleiner
[email protected]
Peter J. Kuhn tr [email protected],
[email protected];[email protected];[email protected]
John B. Lyman [email protected], [email protected]
John M Macfarlane [email protected], [email protected]
Douglas J. Payne [email protected],
[email protected];[email protected]
Daniel D. Price [email protected], [email protected]
United States Trustee [email protected]
Mail Service – I further certify that on the 13th day of May, 2015, I caused the foregoing
document to be sent by first class United States mail, postage fully prepaid, to the following at
the addresses set for the below:
Louis R. Strubeck
2200 Ross Avenue, Suite 3600
Dallas, TX 75201-7932
Robert D. Comer
Tabor Center
1200 17th Street, Suite 1000
Denver, CO 80202-5835
Greg Wilkes
2200 Ross Avenue, Suite 3600
Dallas, TX 75201-7932
James P. Murphy
Murphy, Armstrong & Felton
701 Millennium Tower
719 2nd Avenue
Seattle, WA 98104
Jimmy T. Fazen
518 George Road
Toms River, NJ 08753
Timothy S. Springer
2200 Ross Avenue, Suit 3600
Dallas, TX 75201-7932
Frederick Banks
3550 Hwy 468 W
Whitfield, MS 39193
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Wade R. Albright
#LD2583
301 Institution Dr.
Bellefonte, PA 16823
Desa Hooter
990 Cypress Station Dr.
Apt. 1501
Houston, TX 77090
Amber Lambert
#181498
P.O. Box 88550
Pearl, MS 39288
Susan Mae Polk
#23159
16756 Chino Corona Road
Corona, CA 92880
Jamie Pauley
#940082
3201 Bemis Road
Ypsilanti, MI 48197
Kamal Karna Roy
7950 Jones Branch Dr.
McLean, VA 22108
/s/
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EXHIBIT A Desc Main
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Only the Westlaw citation is currently available.
NOT FOR PUBLICATION
United States District Court,
E.D. New York.
Rev. Ms. Lisa Nirban ROY, a/
k/a Nirban Roy, Plaintiff,
v.
SUPREME COURT OF U.S., Hon. J. Rbert,
Usa Govt, Mr Bill Obama, All States of USA,
U.S. Congress, Associated Press, Republican
Party, and Democratic Party, Defendants.
No. 14–CV–1960 (NGG)(LB). | Signed
April 10, 2014. | Filed April 16, 2014.
Attorneys and Law Firms
Lisa Nirban Roy, Staten Island, NY, pro se.
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, District Judge.
I. BACKGROUND
*1 On March 21, 2014, the court received a large packet
of documents, with a return address for “Rev. Ms. Lisa N.
Roy, aka Nirban Roy,” with an address in Staten Island. The
first page consists of a generic complaint form for the United
States District Court for the Southern District of Florida. The
caption identifies “The Rev. Dr. Kamal K. Roy” as Plaintiff
and “Supreme Court of US, Hon. J. Rbert, USA Govt, Mr Bill
Obama, All States of USA, U.S. Congress, Associated Press,
Republican Party, Democratic Party” and other illegible
entities as Defendants. The form is scrawled with various
handwritten notations, mostly illegible. Subsequent pages
include correspondence from the Internal Revenue Service
addressed to “Nirban Roy” (2 nd unnumbered page) and
“Handicap Interests International World Religions Group”
and “Joseph Geronimo Jr.” (5 th and 6 th unnumbered pages);
medical records for Lisa Roy (10 th unnumbered page), and
canceled checks from “Lisa Nirban Roy” (16 th unnumbered
page). Each page contains incomprehensible handwritten
notations, with references to the above-named entities and
prior court cases. A form request to proceed in forma pauperis
captioned for the United States District Court for the Central
District of California is enclosed, listing “Rev. Ms. Lisa N.
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Roy, aka Nirban Roy” as Plaintiff. The request to proceed
in forma pauperis is GRANTED for the limited purpose of
this Order. For the reasons set forth below, the action is
DISMISSED.
II. DISCUSSION
Rule 8 of the Federal Rules of Civil Procedure requires
a plaintiff to provide “(1) a short and plain statement of
the grounds for the court's jurisdiction ..., (2) a short and
plain statement of the claim showing that the pleader is
entitled to relief, and (3) a demand for the relief sought.”
Fed.R.Civ.P. 8(a). Rule 8 “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009). A complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’ “ Id. (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The
purpose of Rule 8 is to give a defendant fair notice of the
claim or claims asserted so as to enable him or her to answer
and prepare for trial. See Simmons v. Abruzzo, 49 F.3d 83, 86
(2d Cir.1995). “When a complaint fails to comply with these
requirements, the district court has the power, on motion or
sua sponte, to dismiss the complaint.” Id (citing Salahuddin v.
Cuomo, 861 F.2d 40, 42 (2d Cir.1988)). Plaintiff's submission
fails to conform to the dictates of Rule 8.
Moreover, 28 U.S.C. § 1915(e)(2)(B) requires a district court
to dismiss a case filed by a plaintiff proceeding in forma
pauperis where it “(i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief.” An action is frivolous when “the factual contentions
are clearly baseless, such as when allegations are the product
of delusion or fantasy.” Livingston v. Adirondack Beverage
Co., 141 F.3d 434, 437 (2d Cir.1998) (internal quotations
and citations omitted). “[A] finding of factual frivolousness
is appropriate when the facts alleged rise to the level of
the irrational or the wholly incredible, whether or not there
are judicially noticeable facts available to contradict them.”
Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118
L.Ed.2d 340 (1992). As should be readily apparent from a
casual reading of the Complaint, the claims in this case “rise
to the level of the irrational or the wholly incredible.” Id.
Accordingly, the case merits dismissal pursuant to Rule 8 and
28 U.S.C. § 1915(e)(2)(B) (i) and (ii).
*2 The court has considered affording Plaintiff an
opportunity to amend the complaint, cognizant that pro
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
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se complaints must be read liberally, see McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir.2004), and that leave to
amend such complaints must be granted if “a liberal reading
of the complaint gives any indication that a valid claim
might be stated,” Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir.2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 795 (2d Cir.1999)). However, because the serious
deficiencies in the Complaint are not such that could be cured
by amendment, the court concludes that it would be futile to
grant leave to amend the Complaint. See O'Hara v. Weeks
Marine, Inc., 294 F.3d 55, 69 (2d Cir.2002).
III. FREQUENT FRIVOLOUS LITIGATION
Although this appears to be Plaintiff Lisa N. Roy's first
complaint filed in this District, the court takes notice of the
reference to “The Rev. Dr. Kamal K. Roy” in the Complaint,
as well as overwhelming similarities between the instant
filing and the multiple filings previously submitted by Kamal
Karna Roy.
Kamal Karna Roy has an extensive history of litigation in
this and other courts, and has been barred from filing any new
in forma pauperis actions in this court without first obtaining
leave of the court. See Roy v. Democratic Republic of USA,
No. 08–CV–1257 (DLI), 2008 WL
3413898 (E.D.N.Y. Aug. 8, 2008) (enjoining Mr. Roy from
filing any new in forma pauperis action and directing the
Clerk of Court to return to Mr. Roy, without filing, any
action that is received without an application seeking leave
to file); see also Roy v. United States, No. 06–CV–685(SLR),
2007 WL 1109296, *1 (D. Del. Apr. 11, 2007, as amended
Apr. 24, 2007) (collecting cases and summarizing Mr. Roy's
nationwide history of litigation); Roy v. Doe, 13–CV–1757,
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2013 WL 3246083 (S.D.Tex.2013) (describing papers filed
by Kamal K. Roy that included correspondence in the name
of Lisa Roy).
Plaintiff Lisa N. Roy is hereby warned that the frequent
filing of duplicative and frivolous litigation will result
in the imposition of an injunction prohibiting her from
filing an in forma pauperis complaint without the court's
prior authorization. See Lau v. Meddaugh, 229 F.3d 121,
123 (2d Cir.2000) ( “The district courts have the power
and the obligation to protect the public and the efficient
administration of justice from individuals who have a history
of litigation entailing vexation, harassment and needless
expense to other parties and an unnecessary burden on the
courts and their supporting personnel.”); In re Sassower, 20
F.3d 42, 44 (2d Cir.1994) (“With respect to civil litigation,
courts have recognized that the normal opportunity to initiate
lawsuits may be limited once a litigant has demonstrated
a clear pattern of abusing the litigation process by filing
vexatious and frivolous complaints.”).
IV. CONCLUSION
For the reasons set forth above, the complaint is DISMISSED
as frivolous and for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B) and for failure to conform to Rule 8(a)
of the Federal Rules of Civil Procedure. The court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not
be taken in good faith and therefore in forma pauperis status
is denied for purpose of an appeal. Coppedge v. United States,
369 U.S. 438, 444–45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). The
Clerk of Court is respectfully directed to close the case.
*3 SO ORDERED.
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EXHIBIT B Desc Main
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S.D. Texas,
Houston Division.
Kamal K. ROY, (a/k/a Joseph
Geronimo Jr.), Plaintiff,
v.
Johne DOE, et al., Defendants.
Civil Action No. H–13–1757.
|
June 26, 2013.
Kamal K. Roy, Saranac Lake, NY, pro se.
MEMORANDUM AND ORDER
LEE H. ROSENTHAL, District Judge.
*1 Kamal K. Roy, a citizen of New York, proceeding
pro se and in forma pauperis, submitted handwritten
correspondence that was filed as a civil rights lawsuit under
42 U.S.C. § 1983. Because the claims lack merit as a matter
of law, the complaint is dismissed.
Roy's 68–page submission consists of illegible notes
handwritten across seemingly unrelated documents,
including court orders, receipts, letters, affidavits, medical
records of Lisa Roy, a bill from Time Warner Cable, a
Notice of Decision by the Worker's Compensation Board in
New York relating to Lisa Roy, part of a Wage and Tax
Statement from 2005, an earnings statement for Lisa Roy,
a bill from Verizon Wireless, voided prescriptions, a copy
of a newspaper article, and a letter from the Department of
the Treasury, Internal Revenue Service to Handicap Interest
International and World Religions Group. Roy's legible
allegations include:
K K Roy a/k/a I was born as Joseph
Geronimo Jr. In Guam, (U.S.A) was
born of two U.S. citizen parents, was
orphan at early age ... and living in
New York state ... since 1968 now a
clergy with vow of poverty (IRS) and
he is a senior citizen of USA ... U.S.
presidential candidate due election in
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Nov 2016 as a ... GOP candidate Dr. K.
Roy as Republican in Franklin County,
New York.
(Docket Entry No. 1, Complaint, p. 1).“Lisa N. Roy, RN, a
victim of unlawful termination onjob at Macy's, Watertown,
New York. Lisa N. Roy as victim of motor vehicle accident
in New York.”(Docket Entry No. 1, Complaint, p. 6).
Roy's complaint fails to meet basic pleading requirements.
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires
“a short and plain statement of the claim showing that the
pleader is entitled to relief,” and Rule 8(d)(1) requires that
each allegation be “simple, concise, and direct.” Rule 10
requires that:
(a) Caption; Names of Parties. Every pleading must have a
caption with the court's name, a title, a file number, and a
Rule 7(a) designation. The title of the complaint must name
all the parties; the title of other pleadings, after naming the
first party on each side, may refer generally to other parties.
(b) Paragraphs; Separate Statements. A party must state its
claims or defenses in numbered paragraphs, each limited
as far as practicable to a single set of circumstances. A
later pleading may refer by number to a paragraph in an
earlier pleading. If doing so would promote clarity, each
claim founded on a separate transaction or occurrence-and
each defense other than a denial-must be stated in a separate
count or defense.
FED. R. CIV. P. 10(a), (b).
A district court may dismiss a complaint filed in forma
pauperis if the action “is frivolous or malicious.” 28 U.S.C. §
1915(e)(2)(B)(i). An action is frivolous if it lacks an arguable
basis in either law or fact. Neitzke v. Williams, 490 U.S.
319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Hens onEl v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied,501
U.S. 1235, 111 S.Ct. 2863, 115 L.Ed.2d 1030 (1991). A
complaint is without an arguable basis in law if it is based on
an untenable or discredited legal theory.Neitzke, 109 S.Ct. at
1831. A claim is factually frivolous when “the facts alleged
are ‘fantastic or delusional scenarios' or the legal theory upon
which a complaint relies is ‘indisputably meritless.’ ”Harris
v. Hegmann, 198 F.3d 153, 156 (5th Cir.1999); see also
Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 118
L.Ed.2d 340 (1992).
1
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Doe, Slip
Copy (2013)Doc
2013 WL 3246083
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*2 Roy does not present a logical set of facts to support
any claim for relief. Instead, his complaint presents fantastic
allegations that are fanciful or delusional. Construing Roy's
allegations liberally, the court finds that there is no theory on
which he may proceed. Roy's claims are incoherent and do not
identify a legal injury or claim. The complaint is dismissed as
frivolous and for failure to state a claim. 28 U.S.C. § 1915(e)
(2)(B)(i), (ii).
Roy has an extensive litigation history. It is summarized
in Civil Action Number 1:12–8500, filed in United States
District Court for the Southern District of New York:
Plaintiff has filed similarly unintelligible complaints in
other federal district courts that have been dismissed
as frivolous and for failure to state a claim. See Roy
v. United States, No. 09 Civ 241, 2009 WL 4064578,
at *1–2 (D.Vt. Nov.20, 2009) (dismissing 60–page,
“largely unintelligible” complaint); Roy v. United States
Government, No. 09 Civ. 11905, 2009 WL 1449090, at
*1 (E.D.Mich. May 21, 2009) (dismissing submission
“comprised of multiple pages containing illegible handwritten notations scrawled across them” as frivolous and
malicious); Roy v. 2 Democratic Senators of NYS, No.
09 Civ. 0688(GTS)(DRH), 2009 WL 2905486, at *3–4
(N.D.N.Y. Sep. 9, 2009) (noting that at time of dismissal
order, the vast majority of Plaintiff's 161 pro se civil
rights cases filed in federal courts across the country were
dismissed sua sponte under Rules 8, 10 and/or 12). In light
of Plaintiff's litigation history, a number of courts have
barred him from filing further IFP actions unless he first
obtains permission from the court. See e.g., Roy v. United
States Government, 2009 WL 1449090, at *1 (E.D.Mich.);
Roy v. 2 Democratic Senators of NYS, 2009 WL 2905486,
at *4 (N.D.N.Y.); In re Roy, No. 08 Civ. 1257(DLI)(LB),
2008 WL 2065702, at *1 (E.D.N.Y. May 13, 2008).
A national litigation index reveals that Roy has filed at least
191 civil actions in federal courts across the country. He has
been sanctioned for his litigation abuses.
End of Document
Desc Main
In Roy v. People's Ass'n, the court stated:
Because Roy's complaint fails to state any cognizable
claim for relief against any defendant, the Court ACCEPTS
the Magistrate's Recommendation and DISMISSES the
Complaint WITH PREJUDICE as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B). The Court further notes that, while
the instant complaint was pending, the Court entered the
following order in another suit filed by Roy:
IT IS FURTHER ORDERED that the Plaintiff, in
his individual capacity or as a representative of any
organization, is hereby barred from filing any future
actions in the Western District of Texas without first
obtaining leave of court. Leave may be obtained from any
district judge in the Western District of Texas or any judge
on the Fifth Circuit Court of Appeals. Order of January 31,
2008, Roy v. Assoc. to Demand Equitable Justice, 1:07–cv–
957–SS (W.D.Tex.2007). This Order remains in full force
and effect; Roy shall file no further actions in the Western
District of Texas without leave of court.
*3 Civil Action Number 1:08–0038 (W.D. Tex. June 18,
2008). This court may enforce sanction orders imposed by
other federal district courts in Texas. See Balawajder v. Scott,
160 F.3d 1066, 1067 (5th Cir.), cert. denied,526 U.S. 1157,
119 S.Ct. 2044, 144 L.Ed.2d 212 (1999).
Roy's motion to proceed as a pauper, (Docket Entry No. 1), is
granted. Roy's complaint lacks an arguable basis in law and
his claims are dismissed with prejudice under 28 U.S.C. §
1915(e)(2) (B)(i). Alternatively, Roy's claims are barred by
outstanding sanctions imposed by the United States District
Court for the Western District of Texas. Any remaining
pending motions are denied as moot.
The Clerk will provide a copy of this order by regular mail,
facsimile transmission, or e-mail to the District Clerk for the
Eastern District of Texas, 211 West Ferguson, Tyler, Texas
75702, Attention: Manager of the Three–Strikes List.
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EXHIBIT C Desc Main
14-33427
131 (2007)
Filed
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U.S., Not
Reported in Doc
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2007 WL 1109296
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Page 16 of 43
2007 WL 1109296
D. Delaware.
Kamal Karna ROY a/k/
a Jungle Democracy, Plaintiff,
v.
UNITED STATES of America, et al., Defendants.
Civ. Action No. 06–685–SLR. | April
11, 2007. | As Amended April 24, 2007.
Kamal Karna Roy, Saranac Lake, NY, pro se.
MEMORANDUM ORDER
SUE L. ROBINSON, United States District Judge.
*1 At Wilmington this 11th day of April, 2007, having
screened the case pursuant to 28 U.S.C. § 1915;
IT IS ORDERED that the complaint is dismissed with
prejudice as malicious and frivolous pursuant to 28 U.S.C. §
1915, for the reasons that follow:
1. Background.Plaintiff Kamal Karna Roy (“Roy”) a/k/a
Jungle Democracy filed this civil rights action on November
7, 2006. (D.I.1) He appears pro se and was given leave
to proceed in forma pauperis status pursuant to 28 U.S.C.
§ 1915. (D.I.11) Plaintiff filed this lawsuit against more
than thirty defendants, including God, Chief Justice of the
U.S. Supreme Court John G. Roberts, Jr., U.S. President
George Bush, the prime minister of India, the United States,
various United States agencies, federal officials and judges,
numerous agencies and officials for the State of New York,
insurance companies and financial institutions, Kentucky
Fried Chicken, the New York Times, and private individuals.
The complaint appears to be a “cut and paste” of other
lawsuits filed by Roy and it contains numerous handwritten,
scribbled notes in its margins.
2. Roy is no stranger to litigation and has filed numerous
lawsuits throughout the United States and its territories under
the names of Roy and Joseph Geronimo, Jr., as well as entities
he is affiliated with (i.e., Jungle Democracy, Handicap
Desc Main
Interests International, Reforms International), to-wit: Jungle
Democracy v. United States of America, Civ. Action No.
06–503–SLR (D. Del. closed Sept. 13, 2006); Geronimo
v, State of New York, 1:06–cv–07–JLR (D. Guam closed
Mar. 16, 2006); Jungle Democracy v. No Named Defendants,
1:06–cv–676–ZLW (D. Colo. closed June 13, 2006); Jungle
Democracy v. Bush, 2:06–cv–505–RBS (E.D. Pa. closed
Feb. 14, 2006); Roy v. State of New York, 1:06–cv–08–SS
(W.D. Tx. closed Jan. 20, 2006); Roy v. United States, 1:03–
cv–8354–MBM (S.D.N.Y. closed Feb. 23, 2005); Handicap
Interests Int'l v. United States Gov't, 1:99–cv–3121–TPG
(S.D.N.Y. closed Apr. 30, 1999); Reforms Int'l v. City
of New York, 1:95–cv–7248–RWS (S.D.N.Y. closed Oct.
7, 1995); Handicap Interests Int'l v. United States, 1:95–
cv–2152–SAS (S.D.N.Y. closed May 24, 1995); Handicap
Interests Int'l v. United States Dep't of the Army, 1:95–
cv–1642–SAS (S.D.N.Y. closed Mar. 23, 1995); Reforms
Int'l v. City of Los Angeles, 1:94–cv–5204–DLC (S.D.N.Y.
closed Nov. 30, 1994); Reforms Int'l v. Renquist, 1:94–cv–
7198–HB (S.D.N.Y. closed Oct. 20, 1994); Reforms Int'l v.
Bush, 1:94–cv–5964–PKL–BAL (S.D.N.Y. closed Aug. 26,
1994); International Siva Consciousness & World Religions
v. United States, 1:92–cv–8188–JFK (S.D.N.Y. closed Aug.
20, 1993): Geronimo v. City of New York, 1:91–cv–1703–
LBS (S.D.N.Y. closed July 10, 1991); Roy v. State of New
York, 1:06–cv–00734–RWS (N.D. Ga. filed Mar. 13, 2006);
Jungle Democracy v. State of New York, 7:06–cv–31–NAM–
GJD (N.D.N.Y. filed Jan. 10, 2006); Jungle Democracy v.
State of New York, 1:06–cv–207–WS–B (S.D. Ala. filed Apr.
5, 2006).
*2 3. Standard of Review.When a litigant proceeds in
forma pauperis, 28 U.S.C. § 1915 provides for dismissal
under certain circumstances. Section 1915(e)(2)(B) provides
that the court may dismiss a complaint, at any time, if the
action is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant immune from such relief.
4. An action is frivolous if it “lacks an arguable basis either
in law or in fact,”Neitzke v. Williams, 490 U.S. 319, 325, 109
S.Ct. 1827, 104 L.Ed.2d 338 (1989), and the claims “are of
little or no weight, value, or importance, not worthy of serious
consideration, or trivial.”Deutsch v. United States, 67 F.3d
1080, 1083 (3d Cir.1995). A complaint is malicious when
it “duplicates allegations of another pending federal lawsuit
by the same plaintiff.”Pittman v. Moore, 980 F.2d 994, 995
(5th Cir.1993); see also Banks v. Gillie, Civ. Act. No. 03–
3098, 2004 U.S. Dist. LEXIS 5413, at *9 (E.D.La. Feb. 25,
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2004) (duplicative and repetitive complaints are considered
malicious for purposes of § 1915); McGill v. Juanita Kraft
Postal Serv., No. 3:03–CV–1113–K, 2003 WL 21355439, at
*2 (N.D.Tx. June 6, 2003) (complaint is malicious when it
“ ‘duplicates allegations of another pending federal lawsuit
by the same plaintiff’ or when it raises claims arising out of
a common nucleus of operative facts that could have been
brought in the prior litigation”) (quoting Pittman v. Moore,
980 F.2d at 994–95).
5. Pro se complaints are liberally construed in favor of the
plaintiff.Haines v. Kerner, 404 U.S. 519, 520–521, 92 S.Ct.
594, 30 L.Ed.2d 652 (1972). The court must “accept as
true factual allegations in the complaint and all reasonable
inferences that can be drawn therefrom.”Nami v. Fauver, 82
F.3d 63, 65 (3d Cir.1996)(citing Holder v. City of Allentown,
987 F.2d 188, 194 (3d Cir.1993)). Additionally, a pro se
complaint can only be dismissed for failure to state a claim
when “it appears ‘beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him
to relief.’”Haines v. Kerner, 404 U.S. 519, 520–521, 92 S.Ct.
594, 30 L.Ed.2d 652 (1972)(quotinq Conley v. Gibson, 355
U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80(1957).
6. Discussion.The complaint is a rambling discourse
and is virtually unintelligible. It makes vague references
to discrimination, deprivation of unemployment benefits,
corruption, the failure of democratic societies and God's role
therein, actions taken by President George Bush during his
presidency, irregularities in the New York judicial system
and the workers' compensation industry, and civil rights
violations for failure to provide an attorney in a civil case. The
complaint also takes exception to Chief Justice Roberts being
named to the U.S. Supreme Court. Finally, the complaint
contains a plea for assistance to victims of hurricane Katrina.
Desc Main
of § 1915. With regard to maliciousness, plaintiff has filed
civil complaints in various jurisdiction. The court reviewed
the complaints filed in Jungle Democracy v. United States of
America, Civ. Action No. 06–503–SLR (D. Del. filed Aug.
14, 2006), Roy v. State of New York, 1:06–cv00008–SS (W.D.
Tx. closed Jan. 20, 2006), Roy v. State of New York, 7:06–
cv–31–GJD (N.D.N.Y. filed Jan. 10, 2006), and Roy v. State
of New York, 1:06–cv–00734–RWS (N.D. Ga. filed Mar. 13,
2006), and notes that the complaints contain many of the same
allegations as in the present complaint, as well as many of the
same defendants.
*3 8. Additionally, the complaint in the current case is
clearly frivolous. Even construing the complaint liberally,
the court is unable to discern under what theories plaintiff
attempts to proceed. He refers to religion, politics, “jungle
democracy”, and workers' compensation. The complaint
does not adequately apprise the defendants of their alleged
wrongdoing. Moreover, in the rare case when a sentence is
intelligible, the allegations fail to state a cause of action. For
example, plaintiff complains of actions taken by George Bush
during his presidency, but those complaints do not rise to the
level of a viable claim. Having said that, for the most part, the
complaint is unintelligible. There are handwritten notations
throughout the complaint and seemingly unrelated phrases are
interspersed throughout the document. Indeed, the court is
unable to recognize any cognizable claim.
9. Conclusion.The complaint is dismissed with prejudice
as frivolous and malicious pursuant to 28 U.S.C. § 1915(e)
(2)(B) and § 1915A(b)(1).See Jungle Democracy v. Bush,
No. 06–cv–505 (E.D.Pa. Feb. 14, 2006), aff'd,No. 06–1911
(3d. Cir. June 2, 2006)(complaint that is irrational and
incomprehensible with no cognizable claim or intelligible
sentence is dismissed with prejudice)
7. After reviewing the complaint, the court finds that it is both
frivolous and malicious, as that term is defined in the context
End of Document
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EXHIBIT D Desc Main
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v. Unknown
Named Number
of U.S.Filed
Postal05/13/15
Inspectors, Slip
Copy (2013)
Document
2013 WL 5945786
2013 WL 5945786
W.D. Pennsylvania.
Frederick BANKS, Plaintiff,
v.
UNKNOWN NAMED NUMBER OF U.S.
POSTAL INSPECTORS, et al., Defendants.
Civil Action No. 2:13–cv–1198.
|
Nov. 6, 2013.
11:01:22
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Page 19 of 43
Recommendation and objections thereto, the following Order
is entered:
AND NOW, this 6th day of November, 2013,
IT IS HEREBY ORDERED that the Plaintiff's Motion
for Leave to Proceed In Forma Pauperis (ECF No. 2) is
DENIED and the Clerk of Court is directed to mark this case
CLOSED.
IT IS FURTHER ORDERED that if Plaintiff wishes to
continue to pursue this civil action, he must submit the full
filing fee along with a motion to reopen the case.
Frederick Banks, Pittsburgh, PA, pro se.
MEMORANDUM ORDER
NORA BARRY FISCHER, District Judge.
*1 Plaintiff commenced this civil action on August 7, 2013
in the United States District Court for the Middle District
of Pennsylvania at Case No. 1:13–cv–02105–CCC–EC. The
Middle District transferred the case to this District without
ruling on Plaintiff's Motion for Leave to Proceed In Forma
Pauperis (ECF No. 2), leaving the disposition of that motion
to the discretion of the transferee court. The case was referred
to Chief United States Magistrate Judge Lisa Pupo Lenihan
for pretrial proceedings in accordance with the Magistrate
Judges Act, 28 U.S.C. § 636(b)(1), and Local Rules of Court
72.C and 72.D.
The Magistrate Judge's Report and Recommendation (ECF
No. 7), filed on October 1, 2013, recommended that Plaintiff's
Motion for Leave to Proceed In Forma Pauperis (ECF No.
2) be denied. Service of the Report and Recommendation
was made on Plaintiff at his address of record, P.O. Box
42303, Pittsburgh, PA 15203. Plaintiff was informed that
in accordance with the Magistrate Judges Act, 28 U.S.C.
§ 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local
Rules of Court, that he had fourteen (14) days to file any
objections. Plaintiff filed timely Objections to the Report and
Recommendation (ECF No. 8) on October 7, 2013 and then
filed a “Supplemental Plaintiff's Objections to Report and
Recommendation” (ECF No. 9) on October 10, 2013.
Therefore, after a de novo review of the pleadings and
documents in the case, together with the Report and
IT IS FURTHER ORDERED that as to all future civil
actions filed by Mr. Banks in which he requests leave to
proceed IFP (except petitions for writ of habeas corpus), in
addition to the other requirements for requesting in forma
pauperis status, Plaintiff is required to attach to his motion
for leave to proceed in forma pauperis a statement certifying:
(1) that the claims he wishes to present are new claims never
before raised and disposed of on the merits by any federal
court, (2) that he believes the facts alleged in his complaint
to be true, and (3) that he knows of no reason to believe his
claims are foreclosed by controlling law. If Plaintiff fails to
attach this certification, such failure will result in denial of the
motion for leave to proceed in forma pauperis.If it should be
determined that a false certification has been made, Plaintiff
may be held in contempt of court and the Court may impose
appropriate sanctions and/or punishment, after notice and an
opportunity to be heard on the matter.
*2 IT IS FURTHER ORDERED that the Report and
Recommendation (ECF No. 7) of Chief Magistrate Judge
Lenihan, dated October 1, 2013, is adopted as the opinion of
the Court.
REPORT AND RECOMMENDATION
LISA PUPO LENIHAN, United States Chief Magistrate
Judge.
I. RECOMMENDATION
It is respectfully recommended that Plaintiff's Motion for
Leave to Proceed In Forma Pauperis (ECF No. 2) be denied.
II. REPORT
1
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Copy (2013)
2013 WL 5945786
Document
Plaintiff commenced this civil action on August 7, 2013
in the United States District Court for the Middle District
of Pennsylvania at Case No. 1:13–cv–02105–CCC–EC. The
Middle District transferred the case to this District without
ruling on Plaintiff's Motion for Leave to Proceed In Forma
Pauperis (ECF No. 2), leaving the disposition of that motion
to the discretion of the transferee court. See Order dated
8/20/13 at ECF No. 5. Thus, the Court now addresses that
Motion.
A. Factual Background
Plaintiff Frederick Banks, who identifies himself as an
American Indian, instituted this civil rights action alleging
violations of various constitutional rights against 37
defendants for their alleged use of “voice to skull” (“V2S”)
and “Remote Neural Monitoring” (“RNM”) technology
to harass him and prevent him from reporting that the
“Defendants” stole his Ferrari 355 while he was incarcerated.
In addition to suing “Unknown Named Number of U.S.
Postal Inspectors,” Banks has also named as Defendants
in this action: The United States Postal Inspection Service,
David Anderchak, Timothy Pivnichny, Unknown Named
Number of FBI Agents, the Federal Bureau of Investigation,
Unknown Named Number of BOP Agents operating from
FCC Forrect City and other locations, the Federal Bureau
of Prisons, the United States of America, Charles Samuels,
Eric Holder, Barack Obama, Ken Salizar, the Department of
the Interior, the Bureau of Indian Affairs, Unknown Named
Number of NSA Agents, the National Security Agency,
the Obama Administration, SIS Davenport, Tracie Fenner,
Ricky foreman, Malissa Jackson, Paula Husky, Michelle
Wingo, Anthony Haynes, Captain Wise, Dr. Phylis Lynn
Boules, Dr. Cuccio, Dr. Daniel T. Nellor, Johns, Roberts,
Hoberman, Haskin, Terry Norvel, John Jones, Thomas (a
BOP agent assigned to the FCC Forrest City low Shu), and
U.S. Congressman Mike Doyle.
For relief, Banks seeks a writ of mandamus ordering
Congressman Mike Doyle to further investigate the other
defendants' use of V2S and RNM technology to harass him, as
well as an order enjoining Defendants from employing V2S
technology, harassing electronic communications and nonlethal weapons against him. (Compl.¶ 17.) In addition, Banks
seeks monetary relief in the amount of $100,000,000.00, plus
$27,000.00 in actual damages, and replacement of the stolen
vehicle. (Id.)
11:01:22
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Page 20 of 43
Plaintiff is proceeding pro se and as such, he is entitled
to liberal construction of his submissions in federal court.
This means that the Court must liberally construe the
factual allegations of the complaint because pro se pleadings,
“however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.”Erikson
v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d
1081 (2007) (internal quotation omitted); Haines v. Kerner,
404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
In addition, the court should “ ‘apply the applicable law,
irrespective of whether a pro se litigant has mentioned it by
name.’”Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir.2002)
(quoting Holley v. Dep't ‘of Veterans Affairs, 165 F.3d 244,
247–48 (3d Cir.1999)). See also Nami v. Fauver, 82 F.3d
63, 65 (3d Cir.1996) (“Since this is a § 1983 action, the
[pro se] plaintiffs are entitled to relief if their complaint
sufficiently alleges deprivation of any right secured by the
Constitution.”) (quoting Higgins, 293 F.3d at 688). However,
pro se litigants are not free to ignore the Federal Rules of Civil
Procedure. Pruden v. Long, Civ. A. No. 3:CV–06–2007, 2006
WL 3325439, *1 (M.D.Pa. Oct.24, 2006).
*3 Pursuant to 28 U.S.C. § 1915(a), Plaintiff has requested
leave to proceed in forma pauperis.Thus, his allegations must
be reviewed in accordance with the directives provided in 28
U.S.C. § 1915(e).Section 1915(e)(2), as amended, requires
the federal courts to review complaints filed by persons who
are proceeding in forma pauperis and to dismiss, at any
time, any action that is frivolous or malicious, fails to state
a claim on which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B).“[A] complaint ... is frivolous where
it lacks an arguable basis either in law or in fact.”Neitzke v.
Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d
338 (1989); Hawkins v. Coleman Hall, C.C.F., No. 11–3467,
2011 WL 5970977, at *2 (3d Cir. Nov.30, 2011) (“An appeal
is frivolous when it lacks an arguable basis either in law or
fact.”(citing Neitzke, supra ). Thus, under § 1915(e)(2)(B),
courts are “authorized to dismiss a claim as frivolous where ‘it
is based on an indisputable meritless legal theory or where the
factual contentions are clearly baseless.’”O'Neal v. Y Remus,
No. 09–14661, 2010 WL 1463011, at *1 (E.D.Mich. Mar.17,
2010) (quoting Price v. Heyrman, No. 06–C–632, 2007 WL
188971, at *1 (E.D.Wis. Jan.22, 2007) (citing Neitzke, 490
U.S. at 327)).
C. Discussion
B. Legal Standard
1. Seizure of the Ferrari
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In paragraphs 3 through 6 of the Complaint, Banks sets
forth allegations in support of his claim that the U.S. Postal
Inspectors, FBI and Postal Inspector David Anderchak took
possession of his Ferrari and failed to return it to him. This
claim was previously addressed, however, by Judge Conti in
his criminal case at Docket No. 2:04–cr–00176. In particular,
Banks filed a Motion for Return of Property (ECF No. 552)
on May 2, 2008, which identified the Ferrari 1 as one of the
items of property to be returned. The United States filed a
response (ECF No. 555) in which it stated that it never took
possession of the Ferrari, and Banks filed a reply (ECF No.
556) but failed to address the government's argument. On
July 28, 2008, Judge Conti entered an Order (ECF No. 559)
denying Banks' Motion for Return of Property, finding that
Banks' reply was non-responsive as it did not address the
forfeiture of the kit-car or the art collection which were the
subject of his motion for return of property. Order at 2–3.
In that Order, Judge Conti noted that the government stated
that “while the FBI had considered seizing the kit-car and
had opened a file associated with that process, the FBI had
never taken it into possession. Consequently, there is nothing
to return to defendant nor to credit against his forfeiture
obligations.”Order at 1–2, ECF No. 559.
As the forfeiture of his Ferrari has already been adjudicated
by Judge Conti, Banks cannot re-litigate that issue here.
Accordingly, the Court finds this claim is frivolous.
2. Defendants' Alleged Use of V2S and RNM Technology
*4 As to his claims that the Defendants are harassing him
through the use of V2S and RNM technology, Banks raised
almost identical claims against some of the same defendants
in another case filed in this District docketed at No. 2:13–
cv–1025, which Judge Fischer found to be frivolous and
dismissed the complaint pursuant to 28 U.S .C. § 1915(e)(2)
(B)(i) and (ii).See ECF No. 10 in Case No. 2:13–cv–1025.
In fact, many of the paragraphs contained in the Complaint
in the present civil action are identical to those presented by
Banks in his Objections to the Report and Recommendation
in Case No. 2:13–cv–1025. Compare ECF No. 9 in Case No.
2:13–cv–1025, with the Complaint ¶¶ 12–15, ECF No. 1 at
6–13 in the instant matter (No. 2:13–cv–1198). Moreover, as
in Case No. 2–13–cv–1025, here Banks has failed, for the
most part, to identify the 37 named Defendants, and states,
in conclusory fashion, only that certain Defendants either
personally authorized the V2S harassment (Barack Obama
and Eric Holder, Compl. ¶ 6) or were well aware that the V2S
technology was being operated against him but did nothing
11:01:22
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Page 21 of 43
to intervene or stop it (SIS Davenport, Tracie Fenner, Ricky
Foreman, Malissa Jackson, Paula Husky, Michelle Wingo,
Anthony Haynes, Captain Wise, Dr. Phylis Lynn Boules,
Dr. Cuccio, Dr. Daniel T. Nellor, Johns, Roberts, Hoberman,
Haskin, Terry Norvel, Mike Doyle, John Jones, Thomas (a
BOP agent assigned to FCC Forrest City low Shu), and
“VLAD,” “BAT,” “CHEEKS,” and “TRUCK” four unknown
named agents that operated from FCC Special Housing Unit's
control room, Compl. ¶ 8).
In the Magistrate Judge's Report and Recommendation (ECF
No. 8) in Case No. 2:13–cv–1025, which was adopted by
Judge Fischer (see ECF No. 10), this Court recommended
that Banks' claims that defendants used mind control in order
to harass and steal from him be dismissed with prejudice
as frivolous pursuant to Section 1915(e) (2)(B)(i), citing
numerous case law authority in support. 2 In the instant
matter, Banks is asserting almost identical claims as those
asserted in Case No. 2:13–cv–1025 against some of the same
defendants, as well as against newly named defendants, which
this Court finds to be frivolous for the same reasons as those
stated in the Report and Recommendation (ECF No. 8) in
Case No. 2:13–cv–1025.
In light of the fact that Banks is seeking IFP status to file
redundant, frivolous claims in the instant matter, the Court
recommends that his motion for leave to proceed IFP be
denied.
3. Restriction of IFP Status in Future Civil Actions
Precedent exists for denying IFP status to pro se litigants who
have abused this privilege by continuously filing frivolous
lawsuits. As explained below, given Mr. Banks' history of
frivolous filings, he is clearly a candidate for denying IFP
status in this case, as well as in future cases, where he attempts
to file redundant and/or frivolous lawsuits.
Banks is a former federal prisoner and pro se litigant with a
history of filing frivolous complaints in federal district courts
throughout the United States. An electronic court records
search in PACER of the name “Frederick Banks” revealed
that between November of 2004 and July of 2013, Banks
has filed approximately 304 civil actions alleging a litany
of constitutional violations and seeking a writ of mandamus
and/or monetary relief ranging from $100,000 to hundreds
of millions of dollars. Over the past nine years, Banks filed
approximately 108 civil actions in the district courts within
the Third Circuit, plus 79 appeals to the court of appeals. Of
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the 108 cases filed by Banks in the district courts within the
Third Circuit, 62 involved complaints for alleged violations
of various civil and/or constitutional rights, petitions for a
writ of mandamus, and Qui Tam/False Claims Act claims.
Of these 62 cases, more than half were dismissed or closed
prior to service of the complaint: Fourteen (14) of Plaintiff's
complaints were dismissed under 28 U.S.C. § 1915(e)(2)
(B) as frivolous, malicious, or for failing to state a claim;
in fifteen (15) cases, Banks' attempts to proceed in forma
pauperis were barred by the “three strike” provision of 28
U.S.C.1915(g), because Banks filed three or more of lawsuits
while he was incarcerated which were dismissed as frivolous,
3
malicious, or for failure to state a claim; five (5) cases were
administratively closed for failing to file the required IFP
documents; and two (2) cases were dismissed under 28 U.S.C.
§ 1915A(b)(1). Another seventeen (17) cases were transferred
to other district courts outside the Third Circuit. 4
*5 A majority of Banks' filings consist of a mixture of
civil rights complaints under 28 U.S.C. § 1983 and petitions
for writs of mandamus. Many of his filings combine both
actions and name anywhere from one to over 100 defendants
in a single lawsuit. While defendants typically include prison
guard staff and/or employees from the Bureau of Prisons,
several of Banks's lawsuits name high-profile public figures,
including Secretary of State Hilary Clinton, Attorney General
Eric Holder, and President Barack Obama. Three recent
examples of Banks' vexatious filings are complaints filed in
the Middle and Western Districts which allege that prison
staff harassed him by using “ECM brain wave technology”
to monitor his thoughts. See Banks v. Anesburg et al., 1:13–
cv–01621–CCC–EC (M.D. Pa. June 17, 2013) (ECF No.
1); Banks v. Realty Counseling Co. et al., 2:13–cv–01025
(W.D.Pa. July 17, 2013) (ECF No. 1); Banks v. United Safety
Service et al., 2:13–cv–01198 (W.D. Pa. June 17, 2013)
(ECF No. 1). Additionally, many of his complaints contain
references to the Treaty of Fort Laramie and allege violations
of various constitutional rights, including violations of the
Establishment Clause, the Free Exercise Clause, the Right
to Privacy, Freedom of Religion, Freedom of Speech, Equal
Protection, and Due Process.
Banks' abuse of the IFP privilege is not limited to the district
courts in this Circuit. As Chief Judge Conti noted in Banks
v. Buchanan, Civil Action No. 08–1209 (W.D.Pa. Nov. 21,
2008), “[o]ther federal courts have repeatedly noted that
Banks has filed far more than three civil lawsuits which
have been dismissed as frivolous, malicious, or without legal
foundation” pursuant to 28 U .S.C. § 1915(g).See Order
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dated 11/21/08 at 2 in Banks v. Buchanan, Civil Action
No. 08–1209 (W.D.Pa. Nov. 21, 2008) (ECF No. 6) (citing
Banks v. United States Marshal, Nos. 07–6191 and 07–6230,
2008 U.S.App. LEXIS 8144, at *7, 2008 WL 1751700 (10th
Cir. Apr. 16, 2008) (assigning four strikes for filing two
companion frivolous suits and taking two frivolous appeals);
Banks v. United States Att'y, CA No. 08–58, 2008 U.S. Dist.
LEXIS 38444, at *1 n. 1 (E.D.Mo. May 12, 2008) (citing
decisions); Banks v. Lawson, No. 08–277, 2008 U.S. Dist.
LEXIS 40928, at ––––1–2 (D.D.C. Apr. 30, 2008)).
Since his release from prison in May of 2013, Banks has
filed ten (10) new civil actions in which he has requested
leave to proceed IFP, all of which ended up in the Western
District—four (Civ. A. Nos. 13–781, 13–829, 13–939, and
13–1025) were filed in this district originally, and six (Civ.
A. Nos. 13–922, 13–1151, 13–1152, 13–1198, 13–1199, and
13–1350) were filed originally in the Middle District and
were transferred to this District. Two of these cases have
been dismissed with prejudice under 28 U.S.C. § 1915(e)(2)
(B) (i) & (ii) (Civ. A. Nos. 13–939 & 13–1025); in another
case, several defendants were dismissed with prejudice under
28 U.S.C. § 1915(e) (2)(B)(ii) (Civ. A. No. 13–781; another
case has been dismissed sua sponte for lack of subject matter
jurisdiction (Civ.A. No. 13–1199); one case was transferred
to the Eastern District of Arkansas (Civ.A. No. 13–829); and
one was closed for failure to pay the filing fee or to attach
a motion for leave to proceed in forma pauperis (Civ.A.
No. 13–922). The remaining four cases (Civ. A. Nos. 13–
1151, 13–1152 5 , 13–1350, 6 and the instant matter) were just
recently filed and have motions for leave to proceed in forma
pauperis pending.
*6 The All Writs Act (“Act”) states that “[t]he Supreme
Court ... may issue all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the
usages and principles of law.”28 U.S.C. 1651(a). It is well
established that the Act “authorizes district courts to, among
other things, restrict the access to federal courts of parties
who repeatedly file frivolous litigation.”Mallon v. Padova,
806 F.Supp. 1189, 1192–93 (E.D.Pa.1992) (citing Abdul–
Akbar v. Watson, 901 F.2d 329, 332 (3d Cir.1990)). In
particular, “[t]he Third Circuit has approved the issuance
of ‘an injunction to require litigants to obtain the approval
of the court before filing further complaints.’”Id. at 1193
(citing Abdul–Akbar, 901 F.2d at 332). However, because
such an injunction limits a party's access to the courts, it “is
an extreme remedy which must ‘be narrowly tailored and
sparingly used.’”Abdul–Akbar, 901 F.2d at 332.
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Under the Act, district courts may issue injunctions restricting
the filing of meritless pleadings by litigants where the
pleadings raise issues identical or similar to those that have
already been adjudicated. In re Packer Ave. Assocs., 884
F.2d 745, 747 (3d. Cir.1989); In re Oliver, 682 F.2d 443,
445 (3d. Cir.1982). Injunctions restricting the ability of
individuals proceeding in forma pauperis to file civil actions
with the court are usually issued “only to preclude relitigation
of claims relating to issues that had previously been
decided.”Mallon, 806 F.Supp. at 1193;see also Harrelson v.
United States, 613 F.2d 114, 116 (5th Cir.1980). However, the
court of appeals “has not required that injunctions designed
to restrict court access be limited in such a fashion[, but] has
stated that a broader injunction may be issued in appropriate
circumstances.”Mallon, 806 F.Supp. at 1193 (citing Chipps v.
U.S. Dist. Ct. for the Middle Dist. of Pa., 882 F.2d 72, 73 (3d
Cir.1989)) (emphasis in original).See also Oliver, 682 F.2d at
445 (“In appropriate circumstances, courts have gone beyond
prohibitions against relitigation and enjoined persons from
filing any further claims of any sort without the permission
of the court.”) On several occasions, the Supreme Court has
likewise enjoined a petitioner with a history of filing frivolous
and repetitive petitions for writs of certiorari from filing
future petitions in forma pauperis and directed the clerk of
court not to accept any future petitions unless accompanied
by payment of the docketing fee. See, e.g., In re Gaydos, 519
U.S. 59, 60, 117 S.Ct. 466, 136 L.Ed.2d 369 (1996); Martin v.
District of Columbia Ct. of Appeals, 506 U.S. 1, 3, 113 S.Ct.
397, 121 L.Ed.2d 305 (1992).See also In re Sindram, 498 U.S.
177, 179–80, 111 S.Ct. 596, 112 L.Ed.2d 599 (1991) (denying
motion for IFP status to pro se petitioner who filed repetitious
and frivolous petitions for extraordinary relief and denying
IFP status in all future petitions for extraordinary relief); In
re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 103 L.Ed.2d
158 (1989) (same).
*7 In Mallon, the district court enjoined a pro se litigant from
filing additional lawsuits without prior court approval after he
had filed eleven frivolous lawsuits in forma pauperis over a
span of eight days. Id. at 1190.In issuing its order, the district
court opined:
Mr. Mallon's complaints clearly
“transcend a particular dispute” in
that their factual allegations bear no
apparent relationship to each other.
An injunction that was limited to
precluding Mr. Mallon from filing
future complaints that have some
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relation to the actions now pending
would have no practical preclusive
effect, since Mr. Mallon has already
demonstrated his penchant for filing
complaints stemming from a multitude
of unrelated matters. Accordingly, in
light of the foregoing authorities, the
Court concludes that there is no per
se prohibition in this Circuit against
enjoining all further filings without
court approval.
Id. at 1193.Additionally, the court of appeals in Abdul–Akbar
noted the important distinction between a single, frivolous
lawsuit and a continuing abuse of process in determining
whether a court-ordered injunction is appropriate:
[A] frivolous complaint is one thing;
a continuing abuse of process is
another.... When a district court is
confronted with a pattern of conduct
from which it can only conclude that
a litigant is intentionally abusing the
judicial process and will continue to
do so unless restrained, we believe it
is entitled to resort to its power of
injunction and contempt to protect its
process.
901 F.2d at 333.
In fashioning an injunction which restricts abusive litigants
from filing future lawsuits, the court of appeals has noted the
importance of striking a proper balance “between the right
of the litigant to access to the courts, the right of the parties
to previous litigation to enjoy the repose of res judicata, and
the right of taxpayers not to have a frivolous litigant become
an unwanted drain on their resources.”Packer, 884 F.2d at
748. Thus, the court of appeals has suggested that the district
courts include language in the injunction order (1) requiring
the litigant to certify that the claims he wishes to present are
new claims and were never raised previously and disposed
of on the merits by any federal court, and (2) informing the
litigant that if he or she fails to provide the above certification
or the certification is determined to be false, he or she may be
found in contempt of court and sanctioned and/or punished
appropriately. Id. at 748–49.In Mallon, the district court also
required the litigant to certify that: (1) “[he] believes the facts
alleged in the complaint to be true, and [ (2) he] knows of
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no reason to believe his claims are foreclosed by controlling
law.” 806 F.Supp. at 1196.
There is no doubt that Banks' habitual practices fall within
the parameters of abuse discussed in both Mallon and Abdul–
Akbar, and therefore, merit some restriction on his ability to
proceed in forma pauperis in this and in future civil actions
(other than habeas cases). In the ten lawsuits filed since
May of 2013, Banks has alleged claims for violations of
his constitutional rights based on defendants' use of RNM
and/or V2S technology in five of these cases—Civ. A. Nos.
13–829, 13–1025, 13–1151, 13–1152, and 13–1198.In four
of the ten lawsuits, Banks seeks a writ of mandamus and
damages under the Sioux Treaty of Fort Laramie, 15 Stat.
635 (1868), the Northwest Ordinance of 1787, and 8 U.S.C. §
1401(b) against various defendants—public utilities and their
employees (Civ.A. No. 13–1350), an insurance company and
federal correctional officers (Civ. A. Nos. 13–1151 & 13–
1152), and the U.S. Probation Department and Department
of Justice (Civ.A. No. 13–1199). In two of the ten lawsuits,
Banks has sued various defendants for conspiring to steal and
confiscate his Ferrari kit car while he was incarcerated (Civ.
A. Nos. 13–922 & 13–1198). In almost every lawsuit filed
since he was released from prison in May, Banks names U.S.
Congressman Mike Doyle as a defendant and seeks a writ
of mandamus to compel him to conduct an investigation into
the alleged misconduct of the other defendants. In addition,
some of the abuse has involved filing claims in districts where
venue does not lie in an attempt to relitigate claims brought
in other districts that were dismissed, and/or labeling a cause
of action as a “habeas” case when he clearly is not seeking
such relief to avoid paying the filing fee. Banks' history and
continued filing of complaints that are repetitive, frivolous,
malicious, and/or fail to state a claim upon which relief
may be granted, thus warrant some restraint on his ability to
proceed IFP in this District.
*8 Accordingly, the Court recommends that in all future
civil actions in which Plaintiff seeks leave to proceed in forma
pauperis, in addition to the other requirements for requesting
In forma pauperis status, Plaintiff be required to attach to his
motion for leave to proceed in forma pauperis a statement
certifying: (1) that the claims he wishes to present are new
claims never before raised and disposed of on the merits by
any federal court, (2) that he believes the facts alleged in
his complaint to be true, and (3) that he knows of no reason
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to believe his claims are foreclosed by controlling law. The
Court further recommends that Plaintiff be instructed that
failure to attach this certification will result in denial of the
motion for leave to proceed in forma pauperis, and if it should
be determined that a false certification has been made, the
Court may hold Plaintiff in contempt of court and may impose
appropriate sanctions and/or punishment, after notice and an
opportunity to be heard on the matter.
D. Conclusion
For the reasons set forth above, the Court recommends that
Plaintiff's Motion for Leave to Proceed In Forma Pauperis
(ECF No. 2) be denied and the Clerk of Court directed to
mark this case closed, and that Plaintiff be instructed that if he
wishes to continue to pursue this civil action, he must submit
the full filing fee along with a motion to reopen the case.
As to all future civil actions filed by Mr. Banks in which
he requests leave to proceed IFP (except petitions for writ
of habeas corpus), the Court recommends that in addition
to the other requirements for requesting in forma pauperis
status, Plaintiff be required to attach to his motion for leave
to proceed in forma pauperis a statement certifying: (1) that
the claims he wishes to present are new claims never before
raised and disposed of on the merits by any federal court,
(2) that he believes the facts alleged in his complaint to
be true, and (3) that he knows of no reason to believe his
claims are foreclosed by controlling law. The Court further
recommends that Plaintiff be instructed that failure to attach
this certification will result in denial of the motion for leave
to proceed in forma pauperis, and if it should be determined
that a false certification has been made, the Court may hold
Plaintiff in contempt of court and may impose appropriate
sanctions and/or punishment, after notice and an opportunity
to be heard on the matter.
In accordance with the Magistrate Judges Act, 28 U.S.C. §
636(b) (1)(B) and (C), and rule 72.D.2 of the Local Rules
of Court, the parties are allowed fourteen (14) days from the
date of service of a copy of this Report and Recommendation
to file objections. Any party opposing the objections shall
have fourteen (14) days from the date of service of objections
to respond thereto. Failure to file timely objections will
constitute a waiver of any appellate rights.
Footnotes
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The Ferrari referred to by Banks was actually identified by the government as a “1998 Pontiac Fiero–Ferrari Kit Car.”
The Court cited the following authority in Case No. 2:13–cv–1025: Pavalone v. Bush, No. 3:11–1620, 2012 U.S. Dist.
LEXIS 61974, 2012 WL 1569614 (M.D.Pa. March 27, 2012) (“Within the Third Circuit, courts have found that allegations
which are considered fanciful, fantastic, and delusional are to be dismissed as frivolous.”) (numerous citations omitted);
Frazier v. Southwoods State Prison, No. 06–0096, 2006 U.S. Dist. LEXIS 20832, 2006 WL 1044451 (D. N.J. April 17,
2006) (“In accordance with the Supreme Court's guidance articulated in Neitzke and Denton, courts across the nation
dismissed claims based on sets of facts that were qualified as ‘fanciful, fantastic and delusional.’ ”) (numerous citations
omitted); Simmons v. Beard, No. 3:13–0254, 2013 U.S. Dist. LEXIS 69814, 2013 WL 2147811 (M.D.Pa. May 16, 2013)
(allegations that microchips and microchip batteries have been implanted into plaintiff for purposes of mind control and
torture were subject to dismissal as frivolous); Noble v. Becker, No. 03–906–KAJ, 2004 U.S. Dist. LEXIS 480, 2004 WL
96744 (D.Del. Jan.15, 2004) (claims that government officials and others had engaged in a vast conspiracy to violate his
constitutional rights were delusional); Williams v. Werseter, No. 94–3839, 1994 U.S. Dist. LEXIS 8901, 1994 WL 313111
(E.D. Pa. June 30, 1994) (plaintiff's claim that he had uncovered evidence of a conspiracy by the former mayor to commit
sabotage and espionage in order to establish ecclesiastical law and in some way interfere with U.S. commerce were
fanciful, fantastic, or delusional); Robinson v. Love, 155 F.R.D. 535 (E.D.Pa.1994) (where plaintiff alleged that he was
subjected to witchcraft and attempts to poison him with cyanide, the allegations were fanciful, fantastic or delusional).
See also Banks v. Pennsylvania, Civ. A. No. 09–1437, 2010 WL 569545, at *1 n. 1 (W.D.Pa. Jan.4, 2010) (noting Banks'
pastime of filing lawsuits many of which were barred by the 3–strike rule).
All but one of the seventeen cases were transferred to the Eastern District of Arkansas.
It appears that some of the claims raised and defendants named in Civil Action No. 13–1152 are duplicative of those
asserted in Civil Action No. 13–1151; the remaining defendants in Civil Action No. 1152 are all located in the Eastern
District of Arkansas, which is also where the alleged misconduct occurred.
In Civil Action No. 13–1350, Plaintiff alleges claims similar to those raised in Civil Action 13–1199 which was dismissed
sua sponte for lack of subject matter jurisdiction. In addition, it appears that Plaintiff brought a similar lawsuit, labeled
as a petition for mandamus, against one of the defendants, Equitable Gas Co., in a case filed in the Middle District of
Pennsylvania at docket no. 1:11–cv–00511, which the district court dismissed with prejudice under Rule 12(b)(6) prior to
service of the complaint. See Banks v. Equitable Gas Co., et al., Docket No. 1:11–cv–00511 (M.D.Pa.), ECF Nos. 5 & 7.
End of Document
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EXHIBIT E Desc Main
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Electronics
Co., Ltd.
v. Nichia
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2015 WL 1808457
Document
2015 WL 1808457
E.D. Michigan,
Southern Division.
EVERLIGHT ELECTRONICS CO.,
LTD., and Emcore Corporation,
Plaintiffs/Counter–Defendants,
v.
NICHIA CORPORATION, and Nichia America
Corporation, Defendants/Counter–Plaintiffs,
v.
Everlight Americas, Inc., Defendant.
Civil Action No. 12–cv–
11758. | Signed April 21, 2015.
Anastasia M. Fernands, Matthew A. Traupman, Raymond
N. Nimrod, Quinn, Emanuel, Urquhart & Sullivan, L.L.P.,
New York, NY, Michael C. Simoni, A. Michael Palizzi,
Miller, Canfield, Detroit, MI, Michael A. Tomasulo, Winston
& Strawn, LLP, Los Angeles, CA, for Plaintiffs/Counter–
Defendants.
Irina Kashcheyeva, John R. Trentacosta, Foley and Lardner,
Detroit, MI, Lisa S. Mankofsky, Michael D. Kaminski, Foley
& Lardner LLP, Washington, DC, Ramy E. Hanna, Steven J.
Rizzi Foley & Lardner LLP, New York, NY, for Defendants/
Counter–Plaintiffs.
ORDER DENYING TIMMY K. POLLOCK'S, AMBER
LAMBERT'S, FREDERICK BANKS'S, KEITH
RUSSELL JUDD'S, TONI O'DELL'S, CHELSEY
PENIX'S, LISA M. TULLIS'S AND JOHN ROBERT
DEMOS'S MOTION TO INTERVENE [# 497]
GERSHWIN A. DRAIN, District Judge.
I. Introduction
*1 The jury trial in this matter is nearly ripe for the
commencement of jury deliberations. Presently before the
Court are various individuals' Motion to Intervene, filed on
April 20, 2015. For the reasons that follow, the Court denies
the present motion.
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II. Law & Analysis
The movants argue they have a right to intervene under Rule
24(a) (2). Rule 24(a)(2) states:
On timely motion, the court must
permit anyone to intervene who ...
claims an interest relating to the
property or transaction that is the
subject of the action, and is so
situated that disposing of the action
may as a practical matter impair or
impede the movant's ability to protect
its interest, unless existing parties
adequately represent that interest.
Fed.R.Civ.P. 24(a)(2). The movants must satisfy the
following four elements “before intervention as of right will
be granted: (1) timeliness of the application to intervene, (2)
the applicant's substantial legal interest in the case, (3) the
impairment of the applicant's ability to protect that interest in
the absence of intervention, and (4) inadequate representation
of that interest by parties already before the court.”Michigan
State v. Miller, 103 F.3d 1240, 1245 (6th Cir.1997).
Timeliness is a threshold issue for both intervention as of
right and permissive intervention. See Blount–Hill v. Zelman,
636 F.3d 278, 279 (6th Cir.2011); see also, United States
v. Ritchie Special Credit Invs., Ltd., 620 F.3d 824, 832
(8th Cir.2010). This circuit considers five factors when
determining the timeliness of an application for intervention
of right: (1) the point to which the suit has progressed; (2)
the purpose for which intervention is sought; (3) the length
of time preceding the application during which the proposed
intervenor knew or should have known of their interest in
the case; (4) the prejudice to the original parties due to the
proposed intervenor's failure to promptly intervene after they
knew or reasonably should have know of their interest in
the case; and (5) the existence of unusual circumstances
militating against or in favor of intervention. Blount–Hill, 636
F.3d at 284.
The present motion to intervene is untimely. The more
than two-week jury trial in this matter is nearly ready for
submission to the jury. Intervention at this time is woefully
late. However, and more importantly, even if the court were
to conclude that the instant motion to intervene is timely,
the court would not permit intervention as of right because
the movants fail to demonstrate any arguable legal interest
in this case. Rather, the movants present a myriad of reasons
1
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v. Nichia
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for intervention that have no rational connection “relating
to the property or transaction that is the subject of this
action....”Fed.R.Civ.P. 24(a)(2).
This court's conclusion that the instant motion to intervene
is untimely precludes intervention under Rule 24(b), which
allows the court to permit a party to intervene, on timely
motion, “who [ ] is given a conditional right to intervene by a
federal statute; or has a claim or defense that shares with the
main action a common question of law or fact.”Fed.R.Civ.P.
24(b)(1)(A)-(B) (emphasis added). Likewise, the movants fail
to demonstrate they are entitled to permissive intervention.
They do not identify any federal statute that would allow
intervention, nor do they have any claims or defenses that
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share with the main action a common question of law or fact.
Fed.R.Civ.P. 24(b)(1)(A)-(B). Therefore, the court denies the
instant motion to intervene as of right under Rule 24(a)(2) or
by permission under Rule 24(b)(1)(A)-(B).
III. Conclusion
*2 Accordingly, Timmy Pollock's, Amber Lambert's
Frederick Banks's, Keith Russell Judd's, Toni O'Dell's,
Chelsey Penix's, Lisa M. Tullis's and John Robert Demos's
Motion to Intervene [# 497] is DENIED.
SO ORDERED.
2
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EXHIBIT F Desc Main
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131 - Federal Resources Corp

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