"Pursuant to Federal Rule of Appellate Procedure 26.1, defendant Foley & Lardner LLP states that it has no parent corporation and that no publicly held corporation owns 10% or more of its stock.
... ... Eliot I. Bernstein’s (together “Plaintiffs”)1 claims against numerous defendants, including the Foley appellees – Foley & Lardner LLP (“Foley”), Steven C. Becker, Douglas A. Boehm, William J. Dick and Michael W. Grebe (together, the “Foley Defendants”).2 See Bernstein v. State of New York, et al., 591 F. Supp. 2d 448 (S.D.N.Y. 2008) (Appendix at SA-415-463); Bernstein v. State of New York, et al., No. 07 CIV 11196 (S.D.N.Y. Aug.
19, 2008) (SA-464-469.) As the District Court noted, Plaintiffs’ Amended Complaint told a “dramatic story” of a wide-ranging conspiracy, including accusations of stolen technology, attempted murder and corruption in the attorney disciplinary process in three states. Bernstein, 591 F. Supp. 2d at 452 (Appendix at SA-415.) Plaintiffs swept the Foley Defendants into this alleged conspiracy because they served as patent counsel to Iviewit (a corporate entity affiliated with Plaintiffs) for a short period ending in 2001.
The District Court dismissed all of Plaintiffs’ federal claims against all defendants – asserted under the Fifth and Fourteenth Amendments to the United States Constitution (and 42 U.S.C. § 1983), Civil RICO, the Sherman Act, the Patent Clause and Title VII of the Civil Rights Act – as untimely or for failure to state a claim. Bernstein, 591 F. Supp. 2d at 466-68, 469 (Appendix at SA-451-56.) The District Court, having dismissed all of Plaintiffs’ federal claims, declined to exercise supplemental jurisdiction over their remaining state claims and dismissed those claims as well. Id. at 469-70 (Appendix at SA-458-59.)
Plaintiffs have conceded that their claims are untimely.
Nevertheless, on appeal, they argue (as they did unsuccessfully below) that
the District Court should not have dismissed their claims under various
equitable and continuing violation tolling theories:
(a) that dismissal is “premature” and the limitations period should be equitably tolled because of
alleged “new evidence” that may be revealed in other pending actions and investigations; and, (b) a continuing “cover-up” conspiracy and the harm to Plaintiffs warrant tolling of the limitations period under the “continuing violations” doctrine. Furthermore, Plaintiffs argue that they have a valid claim arising under the Patent Clause of the United States Constitution (Art.
1, Sec. 8). (Bernstein’s Brf. at 21, 26-33, 38-39; Lamont’s Brf. at 14-17; 21-24.)
As neither Plaintiff has asserted a valid basis for tolling the statute of limitations nor provided any support for their Patent Clause claim, this Court should affirm the District Court’s dismissal. Alternatively, this Court should uphold the dismissal of Plaintiffs’ claims for the additional and
independent reason that the allegations in support of their claims are conclusory, lack the necessary plausibility, and fail to state any of the asserted claims. In addition, Lamont’s claims should be dismissed because he lacks standing to pursue a pro se action on behalf of Iviewit shareholders.
COUNTER STATEMENT OF ISSUES PRESENTED
1. Whether the District Court correctly held that Plaintiffs’
federal claims were untimely.
2. Whether the District Court correctly held that there is no
private right of action under the Patent Clause.
3. Whether the Amended Complaint fails to state a claim under
civil RICO, 42 U.S.C. § 1983, and the Sherman Act.
4. Whether Lamont has standing to pursue this action.
724294.1
4
STATEMENT OF THE CASE
Pro se Plaintiffs, Bernstein, individually3, and Lamont, on behalf of certain Iviewit shareholders and patent holders, commenced this action on December 12, 2007 against more than thirty-five defendants, including the Foley Defendants. On May 12, 2008, Plaintiffs filed an Amended Complaint which named approximately one hundred and fifty additional defendants and spanned hundreds of pages and over one thousand paragraphs.
They asserted claims under the U.S. Constitution’s Patent Clause, the Fifth and Fourteenth Amendments, Title VII of the Civil Rights Act of 1964, the Sherman Act, the federal civil RICO statute and several state common law claims, and included a laundry list of additional federal and state statutory claims (taking up one hundred pages of the Amended Complaint) with no allegations in support of those claims.
4 The essence of Plaintiffs’ lengthy but conclusory allegations is that multiple law firms, major corporations, the attorney disciplinary bodies of three states, two New York appellate courts, and numerous others engaged in a massive conspiracy to steal certain video technology inventions and then conspired to mask this theft by violating Plaintiffs’ civil rights and preventing them from obtaining recourse in the courts.
The Foley Defendants moved to dismiss all of Plaintiffs’ federal and state claims because they were time-barred and failed to state a claim. The District Court, in a 45-page Opinion and Order, dated August 8, 2008, dismissed all of Plaintiffs’ claims against all defendants, finding that
the federal claims were all time-barred and that certain of their claims patently failed to state a claim.
Specifically, the District Court, finding that Plaintiffs had “not raised a valid ground for the tolling of any statute of limitations or the application of equitable estoppel,” dismissed all claims
arising under civil RICO, Section 1983 and the Sherman Act as untimely.
Bernstein, 591 F. Supp. 2d at 466-68 (Appendix at SA-452-54.) In addition, the District Court dismissed Plaintiffs’ Title VII and Patent Clause claims for failure to state a claim. Id. at 468 (Appendix at SA-454.) ...""
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