good morning ladies and gentlemen is the way over the last time i said it was a couple weeks ago go cubbies hall of the world series chicago zero series champion so all right we'll proceed with the first case which is why i canceled development versus white mr davis on appeal but collectively we believe bring about an unfair trial on behalf of the appellant's in this case the the background is that when a canvas host painting events they have customers to come in they sanctions from yesterday i understand that there were sort of two different mourners and could see it would be seen as inconsistent but wasn't there reconsideration decision that was made after later not exactly there was a order that was issued originally w we can't determine what our damages are because they're based on your gross sales it's a percentage of the gross sells and those haven't been produced yet when we responded to the motion to compel we stated that we can't produce what we don't have  and the judge issued senate sanctions however about four months later after we were still trying to get the flight financial documents in order to do the itemization of damages opposing counsel again father's second motion to compel on the exact same grounds in that second motion to compel we responded the exact same way we can't produce what we don't have one of the arguments by the way is that mr mueller at that time was represented by mr white to  right and mr wiser had no counsel in the argument was that mr wiser was the one that had all the financial documents so he couldn't get them from mr mueller it was a back and forth in any event the judge came down on that decision and said that they must agree with the plaintiffs they can't produce what they don't have and after that ruling we asked the court to reconsider the first itemization order because it seemed to be on par opposing count so argues that that first itemization order was issued for something beyond a failure to produce an itemization of damages but that first order specifically states that people only example that was provided by opposing counsel in their motion to compel was the itemization of damages issue now process that was later filings not very long and late i don't we're not appealing any of those any of the same sions the only other sanctions that were issued in this case were issued by agreement of the parties for example there was an issue with regard to some privacy concerns we asked the judge to not allow those to be done and in deposition the judge agreed so long as we agreed that in the event the judge were to make a decision that those were going to be allowed in a later deposition that we would pay those fees we agreed and early on in the beginning in case there was we did have some late discovery and i voluntarily agreed to pay those but but these sanctions this sa itself is relevant because it is a series of dominoes that eventually lead to a jury to believe that we file nothing but maryla smokin we clog the docket and that none of our claims had merit and that none of our claims have merit that has roots in the summary judgment motion in the summary judgment motion i refer to it as a negative motion you know you can move for a motion for summary judgment and if you do that you either designate evidence or if you're not the boss if you're not the party that bears the burden at trial you can say that they lack evidence it's a lack of it's a lack of evidence approach and on summary judgment that's what they did for many of the cla so for example they would say our trademark infringement claim fails because we lack evidence of a likelihood of confusion so in our response brief we would brief that we do have evidence of a likelihood of confusion but all of a sudden when  comes out issues are raised by the judge that sue a sponsor that were never raised in in the briefing that were never carried that the plaintiff never carry the burden on it and you cannot in the rule  is that while a judge is allowed to race issue sue a spontaneous they can't raise them if the other side is not on notice that those issues were to be argued in the case so for example the conversion is for example and this is just one of the themes but this thing permeates much of the summary judgment order another example would be the claim for unfair competition now there's two issues with that the related issue is the only issue raised by opposing counsel was likelihood of confusion we brief the issue of likelihood of confusion with the trademark infringement which we overcame summary judgment however in the court found that there was evidence of a likelihood of confusion instead of so so we brief that and then the court comes back and says that we never responded to  the unfair competition claim now the only issue again raised by opposing counsel was the was the likelihood of confusion we brief that and the court said we failed to address all the other elements that fell for two reasons first we're not required to address all the other elements and second of all the court seems to just simply be mistaken here they may believe that we never addressed unfair competition but it is clearly in the brief that we address that we dressed in the brief we dressed in the brief another another major issue in the summary judgment process for example is the abuse of process claim itself abuse of process and this is this is really the crux of the entire case abus process a lot of people will often say this a process means that you filed america's case well that's not what means you can have the most you can have the most merit of any case ever but if you abuse the process along the way you use it for a purpose other than achieving it a judgment you commit an abuse a process it doesn't matter if you enjoy suing the other person it doesn't matter if you want to see them suffer that of course that's not what we did that's the argument that opposing counsel made all that matters is did you use legal process properly and if you did then the motive is secondary if it's not even analyzed the moat the motive is your is irrelevant if you use proper process so in this case they fail to identify a single  improper it will the best example i can give is that if you were to request that the other side produce a needle and they were to produce it in a haystack that would be an abuse of process that would be an act using the legal process for no other reason than to cause injury or or damage to the other side there was no evidence in this case presented to the jury whatsoever that the plaintiffs in this case committed any abuse of process with the exception of two items number one of a kind of jumping forward but the first item as because of the judge's summary judgment ruling which we believe was an error which required us to do three things by the way we filed a motion to reconsider it was a month before the trial so we asked of the trial the state so that we could appeal this issue rather than go to trial appeal and have to have a new trial so we tried everything in our arsenal to avoid the pains of what we would have to deal with if the trial were to go forward without these cla that ruling over of stringent objection however on the third to last day of the trial day three of four the judge finally read our motion for reconsideration and based on the exact same arguments that are the basis of every error identified in the summary judgment motion she struck that he she struck the judicial finding however by then it was too late now opposing counsel w well we'll say to you that the digital finding was done in opening arguments and your mouth gets really dry appear on this the arguments were that those statements were made in  opening our arguments and that there's an instruction that says that opening arguments are not evidence in the end that that's in the end that that instruction is supposed to secure for any prejudice to the jury however that is usually the case except for when the judge specifically tells the jury that it is evidence they don't need any more evidence on it and that's what happened in this case the judge instructed the jury as did mr wood and mr watcha koski reminded them that this judicial finding that our claims are meritless that we clog the docket with merits motions that that was evidence in the case and that severely prejudiced us at the end of the day this case to the jury was about credibility who you his cancellation claim was beat finally about a month before trial and the jury have their side who do they believe more do they believe mr mile or do they believe when it came was who the court just said that  all their motions were meritless that they clog the court then to to make matters worse opposing counsel in open all opening arguments disclosed private settlement negotiations we objected we went up to the judge the judge asked if they were private settlement negotiations both sides admitted that they were and the judge actually sustained our objection koski said that it's critical to their abuse of process claim that that evidence get in the judge sustain our of our objection again however immediately somehow at the ready mr koski had he printed a case from a district court in the sixth circuit that was issued about ten months before the trial began and in that case a six circuit court judge said that you can use settlement negotiations to prove liability of an ulterior motive under an abuse of process claim we pleaded with the court that in this case it never has appealed that every other circuit found the southern district of pennsylvania that's directly on point and it states that i ponder as it states that conference in which they participate resulting in either less effective or even nonexistent negotiations this is precisely the situation the federal four zero eight is designed to avoid in federal for a weight that this is this is a concept that it's that of issues and let me start with the one your honor judge caning raised about sanctions because when you asked the question what essentially went what's the story behind these sanctions his response was to say well we neglected to say what the circumstances were in accordance with that response when by the way when mr davis wrote his initial brief it wasn't clear what sanctions he was talking about and the sanctions we're talking about are two thousand one hundred fifty six dollars for legal fees incurred in filing a motion to compel the circumstances that led to that notion to compel are set forth at page at the entry that begins of page twenty two of the short pinned and then that entry where the court explains why sanctions are awarded the court notes that is on page two after multiple imp he promises to respond by mr davis the court held a telephonic status conference on april twenty ninth two thousand and thirteen responses to iraq a tourism request for reduction were jew on march twenty multiple empty empty promises the pleading share eight different times he promised to deliver that discovery and he didn't we got the magistrate on the phone with mr davis and he agreed to serve them by may one but as the court notes mr davis failed to fill those problems then we needed to file a motion to compel which we did then there was another conference with the court and you will see in docket ninety two where the court says during this conference mr davis acknowledged that he was in violation of the court's order acknowledged that sanctions were in order and and now he cites a manufactured after the fact excuse for not producing discovery and not for this court to set aside a sanction in by the way even after the motion to compel in another order to produce it wasn't produced timely it wasn't produced it was initially ordered them again on june fourth it wasn't produce then a one day extension which actually was for the weekend was for june seventeenth it wasn't produced then what was produced at eleven fifty and now he's asking this court to reverse when you examine it carefully each of the fourteen or so issues that he has raised on appeal none of them withstand scrutiny any more than that one he speaks generally he speaks raising all sorts of different issues but when you look at what actually happened what actually happened if you have a plate of win who files a complaint in nine counts but asserts approximately fourteen different claims none of which have the slightest bit now and then as the court noted he flo cure with motions and litigation for the next three years and then he brings to this court approximately fourteen issues on appeal none of them have merit and i want to address kind of bring them back to the sanctions for a moment or two the magistrate judge recommend sanctions because the discovery responses were substantive insufficient in that they didn't itemize the damages or because they were one day late now it was because the motion to they were nationally do on march twenty twent mr davis agreed to produce them after several in the promises of may one he failed to fulfill that promise that's when the magistrate had the conference where there was an agreement that sanctions were in order i'm looking at and i'm looking at page twenty five of the short appendix at the end of the first paragraph in the first paragraph of the magistrate judge notes that the majority of the conduct that the defendant complained of has already been sanctioned that's when the magistrate judge says in fact the only new allegations concerning plaintiff's one day delinquency in complying with that order and so this is an independent sanctions order the sanction of the two thousand one hundred fifty six dollars which is what arose out of this and which is what they were appealing as i understand the reply brief is not because of that it's not because of any failure to itemize damages it's because of that course of conduct that to live not delivering on they won and that was what was subsequently sent so the plaintiff is appealing the sanctions in the june seventh two thousand and thirteen order and not the september twenty third twenty thirteen order that there are in fact no sanctions awarded in this order what we were requesting these are the motion to compel you know which what's the date of the order there are many orders here and it's it's probably not your fault that it's confusing what's being appealed but let me ask you what do you think what sanctions or do you think is here is that back in ninety two where the court says i'm ordering sanctions on the motion to compel and mr davis agrees to it and that's two thousand one hundred fifty six dollars that is ultimately awa understand where the office of what what i'd like to go to are the other issues which he discussed in court permits because he says that the big issue here is the summit judgment issues and let me just try to get sanctions on what basis should we firms range of the two thousand one hundred fifty six dollars an after the fact wrestles action because itemization is itemizing some of the expenses here required some to so that it goes back to my question what basis where if you were writing an opinion that affirming that mr davis primary argument and summary judgment is the burden never shifted with respect to the elements of the the numerous claims that he has asserted what the supreme court said in teletext in silence actually has the movements an initial burden may be discharged by showing that is point out to the district court that there is an absence of evidence to support the nonmoving part you will see and document to sixty five with his hour of grief in up in support of the motion for summary judgment that's exactly what we did in our table of contents every issue there is no evidence to support the claim all of them and each of them individually in arguing him we talked about specific elements but all of them assert no evidence to support the claim at large and this court in the case of the drought ski vs the god i'd knowledge that the burden shifting that's required by sell a tax is a low bar it was circular when you're saying you've got no evidence to support your claims it's time for the plaintiff to put up or shut up and when the district court looked at the response and found there really wasn't in the evidence and found it not only in dealing with mr myles motion but also subsequently on mr wiser's default he was not able to afford counsel and he was subsequently defaulted and liability was found as a result of the default but the court look to see whether there was any in fact sufficient statement of a claim or evidence to support the claim either in what was presented at trial or anywhere else in the record the court pointed to specifically the issue as to some of the claims that there was no proof of culinary loss which is one of the requirements for a claim under the indiana crime victims rel there is no evidence a record of any of any peculiar loss in this case  and i think the court will find that there are multiple other bases supported by the record including the ones that was specifically argued in our motion for summary judgment i think it was i think relevant to know that we had a forty jury trial here process and i want to talk a little bit more about use process claim in a minute but the fundamental basis of the abuse of process here is that there was no genuine basis or a legitimate basis for any of these claims if there had been such evidence it could have and should have been presented to the trial and considered by the jury but there wasn't and is what there is with respect to abuse of process is compelling and mr davis makes what is essentially a legal argument saying in his appeal that doesn't meet the legal requirements what he fails to say is that there was any error in the judge's jury instructions an abuse of what the judge gave is it precisely the instruction that he wanted instruction and instruction that is one hundred percent consistent with the case law identified in the above referenced objections and equally consistent with w n c's position throughout this litigation my question was is it his instruction or  law for abuse of process i know my time is limited and i don't and i'm happy to address any issue that the court is concerned but i'd like to just started because as mr the president of my then canvas said because he wanted to close mr miles business down not because he expected to win because he wanted to close it down he was going to do it not only by forcing him to incur more costs than he could afford but also by having and these are his words they confirmed at trial in the deposition by having his asshole lawyer do it for if they didn't do it voluntarily when i say implied consent mr davis's clients came out and personally participate in the opening of business they put the business on the website including  in that were being l can i ask you a question about the unfair competition claim should so the district judge granted summary judgment on the unfair competition claim on the ground that the plaintiff did not respond to the defendant's argument regarding likelihood of confusion assume for the sake of argument that that rationale was incorrect but i also know that you received a jury verdict on the trademark infringement claim does the jury verdict in the finding of no liability on the plaintiff's trademark infringement claim necessarily extinguish the unfair competition claim on the merits in other words is it conceivable that a jury a reasonable jury could have found for the defendant trademark infringement claim and for the plaintiff on the unfair competition claim or would one necessarily have to file the other honor is that it does extinguish because unfair competition in this context where he he's relating it to the false designation of origin which is what the the other claim in whether it's unfair competition players under state law or federal law he never talks about the evidence that supports it he never it is simply another throw in claim like the thirteen or fourteen  time on appeal after we the only place they can point to in the docket where they say that they challenge all the elements as to each claim is the heading they lack evidence to prove a claim however if there is no likelihood of confusion then you technically lack evidence to prove a trademark infringement claim you don't need to lack evidence on every element to have no evidence to prove the claim you can also lacking evidence as to want to limit what happens is that every time the heading happens when you go into the tax they explain what they mean you lack evidence due to because you lack evidence of a likelihood of confusion they don't talk about any other elements state directed us to what we were supposed to respond to so those headings usually don't even control their just guy posts as to what issues we're going to be getting dealing with when we get into the meat the actual the actual substance of their argument did not focus on all of the elements the other the name that he called me wasn't i don't believe was referring to me just so the court knows and then you get the they argue that there have been cases in the past that a found that when you lack probable cause you might have to be some processing claim that is true when you bring a claim that you know you cannot win on that you know lacks merit then you are abusing the process because you are not using the process for the legitimate purpose of attaining a judgement however there's two points on that number one there is no evidence in this case that we lack merit with our claims the judge struck the judicial notice so that can't be for the jury furthermore the settlement negotiations are not properly in front of a jury and the full disclosure was i don't care if you win or lose i want you guys close now that might sound shocking to everybody but these these people were given a business model that they were supposed to own in joint partnership with my client they were the first ones in california and then two weeks after and one day after the launch they cut my clients out of every part of the as every part of the business they refused to sign documents that they needed to operate my client's business my clients didn't want to close them down that's what we asked the court to do we asked the court to grant us equitable relief according to the terms of the planned arrangement we want of the court to close them down they make it sound like that is a bad thing but that is one of the that is the relief that we requested from the court the trade he did bring up by the way the  sanctions order is not a really a major part it was just the first thing in this case a couple years after the cases started that snowballed the sentient order opposing counsel filed the motion to compel for the purpose of  one fifty five imposes sanctions but it doesn't it doesn't identify the amount of sanctions until a later time and i believe that in our in our short appendix we identify that as a group  of orders because we consider that to be the order that granted the sanctions but not the order that calculate them another issue is this implied consent this is a really crucial issue so we're  way it can't be said that our claims don't have merit our claims must have merit for trademark infringement never would have gone to the jury it went to the jury over a request for a directed verdict by opposing counsel we were successful in beating the franchise fraud claims two of them we were successful on  defeating the cancellation of our trademark claim which lasted three years several motions to dismiss in a motion for summary judgment later those kind of claims of abuse of process claim and a cancellation claim a claim to keep people in litigation if we would have lost that claim every single one of the fifty licensees operate a wind chemistry of the five hundred families across the country would be severely damaged because we would no longer have a projectile trademark so we were very successful in the litigation except with regard to the abuse of process claim but another point is the instruction was not to enter by us or opposing counsel it was a model rule instruction throughout the entire litigation we have argued