julius caesar's playbook and try and split this into three parts try to split gaul into three parts first i'd like to reserve five minutes for a bottle of the second part of my argument today so i'd like to address to the extent necessary our request for injunction we asked for a nationwide injunction at the lower court i think the lower court got it wrong and i'd like to spend some time with that and then lastly the second appeal thirty seven sixty one which involves this indefinite stay and the challenge that we have is litigants when we raced off t federal court initially how to tackle that given the uncertainty that we're still dealing with even as we as we stand here today taking that last part first when you look at what what happened in context when we first raced off to the courtroom it was just before the last presidential election in two thousand and sixteen some twenty seven months ago and when we asked for that emergency relief we didn't get it we marshaled ourselves and regrouped thinking that we could solve the court lack of interest with with with demonstrations of my clients registered trademarks and things like that we went back to the court a second time on three very narrow issues the issue of phyllis schlafly brant even the driver on the way over this morning remembered who phyllis schlafly was in and her work that spanned more than six decades so we're trying to protect her brand in addition to that we're trying to protect the second time we went to court the eagle logo a logo that had been here not only did he not give us the relief we asked i don't want to cry like spilled milk but but he also effectively locked us out of court out of his court out of out of his court we have redress here thank you your hair and and by locking us out of court we asked for a response a plea in the very first thing right out of the game that that opposing counsel filed was a motion to dismiss or stay on colorado river abstention grounds he did that on election day two years ago two plus years ago and so from that point on unfortunately i think the district court's analysis was colored teeth off this could be someone else's problem and unfortunately it cannot this could the eastern district of missouri is the only place for phyllis schlafly trust as a party and see only place where we think we can court is not well equipped to give the uniformity in the conformant it's probably a division of the general jurisdiction circuit court county just so you know and but congress in passing the statute gave plaintiffs the ability to kind of choose their route and  what we did was we brought it to federal court because we thought we would get a fully informed law a fair shake on those issues and although i hesitate to call them defenses because they're not part of a any answer you know the trial court judge did not require the other side understand it typically you have to take that first the u s patent trademark office in the side and do that here they raised it as a footnote in a in a response brief it's all argumentation in india innuendo from counsel that's not something again although there was concurrent jurisdiction originally it's not something that the state courts frankly are equipped to contend with dealing with that level of sophistication of our of our intellectual property arguments that bundle of rights that we're trying to protect but not only were we effectively locked out of it when the court invited briefing on the subject we briefed on the colorado river the other side responded we did so we responded to those motions initially then the court issued as part of our denial of our injunction a very order that's on appeal here as part of that he said show c shouldn't kick the can down the road in and abstain and and you know using that exceptional circumstances test in the colorado river you know we've we fully briefed it and will rest on it that we don't believe that it comes close to meeting that standard but here the court did a little bit of a shift on us the trial court instead of then ruling on colorado river which we think we believe you know it was a misapprehension to just reframe it and re characterize it as docket control i mean the courts caution against that including the supreme court caution against that in colorado river let me ask you the as i understand it when you were in federal court in illinois you filed a connor kind that basically raised these issues so there is a form where they were raised in in illinois now that case eventually got remanded to state court so now you're back in the state court on those issues but at a minimum got going back to judgments question why shouldn't a federal court say we're down the road of all these other issues what's wrong with that analysis of two things your honor first of all the southern district of illinois did not address the intellectual property in this case the i know they did not in this case but they you raised that nobody noticed quite to the trust fund it to the extent it owns those two trademarks that's correct and that our adventure remained it so that's why it's and state court now write this back to madison county across the river now the reason why i can't contend with that there your honor is we filed that very first time in madison county that case have been pending for more than a year when they filed and asked to amend at that time that cases once was dismissed for failure to state a claim those claims now it's been amended a second time it was done so without prejudice here we are now thirty three months into that litigation no further ahead and so yes we filed defensively because of the risk of preclusion we we thought there was a real threat whether the state court or the federal court said so or not under colorado river colorado river we feel that there's a risk that there could be some precludes of effect but why the probate court can't solve the problem your honor and why we shouldn't have to wait for the probate court is what we presented in our very first injunction we presented those estate planning documents and show to the court that these rights belong to schlafly personally the brand i'm talking about now because that's what's at issue in the in the probate court not the federal trade marks those belong to the eagle trust fund but the brand and the reason why the probate courts not well equipped to do that or why we should have to wait is one there's irreparable harm when someone's mimicking an copying and infringing on your stuff you shouldn't have to wait for what can be a lengthy probate proceeding to resolve the issue but the other reason is it's belts and suspenders your honor everything in her will pours over into this revocable trust that was  planning lawyers affidavit to support that but whether they're valid or not is still inevitably pours over into her into her state and into her into a trust which is the plaintiff in this case the only case where it is a plaintiff and so that's why we shouldn't have to wait but it's also an inevitability you know the other side that point doesn't doesn't go so far to claim ownership what they do is they say well you haven't proven ownership wait a second we're entitled to supreme presumptions under the law and that's the biggest challenge i've got is the district court analysis when it conflated in it's in his order said counts one through five there's not a likelihood of success on ownership away counts one through five are each different they're different pieces of property we're talking about a federal trademark for an eagle logo that's used on publication we're talking about an eagle pin another federal trademark also incontestable you know as we were talking about the separate pieces he just room in one picks to pot and said well i i'm not convinced and he did so regrettably i think he missed  that's true your honor and i and it and it can't be i i it can't be true because otherwise all you would have to do to defeat any injunction would be to simply say well we dispute that and that that goes too far and that's not within the zone of discretion that this court should give to a district court and a trier of fact there were no evidentiary hearings and we asked for them repeatedly there was no rule sixteen conference we asked for that repeatedly there was no status conference on a rule twenty six the normal types of things you would see because the remedy your honor when coupled with the stay which took almost a year to rule on but our case has been pending for twenty seven months the state has been pending for over a year that unfortunately leaves us with no access to the court i was able to get through security quickly this morning but but my clients cannot get in the door of the district court for for the better part of two years on these narrow federal trademark claims they  appellate i'm struck by his last comment where he says he's had no access to the cord because when judge ross and her is temporary stay he directed the parties he ordered the parties to file reports every six months your honor appellants have filed reports appellants have never filed a report they've never exercised their rights or even complied with the judge's order to file reports so when he says that he's has no access to the court he's wrong he's been directed to do something he's chosen not to do mr northam started by talking about contacts and i'd like to provide a little context myself i take exception to the characterization of this the underlying lawsuit as a genuine effort to safeguard intellectual property this lawsuit is and has always been a desperate attempt by john schlafly and others to avoid the negative to be removed there was a motion pending before the court and they ran and as he says to rush for he'd to file this lawsuit they were removed right they were removed and they could  intervened in that lawsuit they could have intervened to assert rights in madison county they chose not to they chose to come here and your honor i submit the reason they chose or coming come here is because they were shopping for a new venue they were shopping for a new judge judge ross software through the charade he denied properly the first year oh there was no appeal of that they turned around and filed the second motion he properly deny the second motion and when they tried to unilaterally start discovery without a real sixteen conference he ordered the parties to brief the study he gave the appellant every opportunity the stay was briefed in judge judge ross and a temporary stay he directed the parties to submit a report advise in the court of the status of the related cases every six months or within ten days of any final judgment or a ruling on dispositive motions of the in the underlying or related cases one of the issues in determining whether an order is a stay truly a stay on whether it's a colorado river abstention is that if it's a stay there's anticipation that you'll end up back in federal court and some issue or issues unlike a colorado reversed abstentions issue we don't have just a state and a federal we have multiple federal litigations we have multiple state litigations i think it's to me i don't see any set of facts where there is going to be this can grew into finding in multiple jurisdictions where there's nothing left for judge ross to do i think what one of them is as is the court noted in the earlier argument one of the things judge ross is going to have to do is after the probate court makes a decision or a determination as to the amendment and the validity of the amendment the assignment that's going to come back to judge ross to then determine whether there has been a whether there are forceful right after they started ignoring their obligations to provide records then all sorts of different claims were being filed in all sorts of different venues we now have litigation in p s a in the phyllis schlafly american eagles case in the southern dis claims by eagle trust fund and eagle form education legal defense fund a counter claims of madison county there have been amended counter claims of madison county as thirty expanded claims related to certain of those intellectual property rights the actually even then claims asserted in the district of new jersey in connection with litigation over insurance proceeds where the estate of phyllis schlafly eagle trust fund and judge laughingly of the specific lea incorporated the intellectual property claims counsel i believe afghans will that have attended and participated in depositions in the program i think your honor mr north and would like to talk about the the injunction we don't get to the injunction your honor the same dean xmen ship that started with the filing of this lawsuit in the first instance is clearly evident with the filing of the appeal as to the the the april seventeenth order this court has consistently rejected of opposing counsel is that there just isn't enough analysis on the likelihood of success on the merits can you speak to that i think judge ross got it absolutely right and certainly i think he did it within the bounds of his that is it enough to say well you just i just don't know is that enough to say well then you have been shown the likelihood to just sort of say there's still so much factual dispute here issues that i just can't resolve i think it was enough for judge ross i think judge ross looked at the it looked at the facts look at the arguments looked at the record that was presented to a limited terminations that there were significant factual disputes that over the ownership of the intellectual property at issue i thought he  had presented numerous arguments on both sides of the issue and i think his determination was i can't make a determination that there is a likelihood of success by the appellants in order to satisfy that first factor of data  attempted to curtail the revised their first t r o motion with by by by restricting what they were seeking access to and what they really did is is they jettison their arguments presented as a as an item of property for which they were seeking injunctive relief or a temporary restraining order it was actually used as an example of the use of the logo or the name image and likeness under the state of gross case there is a presumption against the assignment and the amendment because john schlafly was in a position of trust and received a benefit so there was a crime of faith under missouri law that creates a crime t for a jury to decide i think what the hell is what you want the court to do the district court to do is to have a mini trial in the context of every motion for a temporary shrine in order that is not what data face speaks that you don't have to make it known voltage terminations especially in the lack of any evidence or testimony in a in a in a fuller evidentiary record by virtue of depositions and discovery which did not exist at the time  you know what's also noteworthy and not addressed is the fact that missouri does not represent does not does not recognize a post mortem right to publish city in the absence of a post mortem right to publicity under missouri law i'm not sure what would be poring over but i would also point the court's attention that the poor will is not in the record there is no reference to any any any any poor over will it's not attached to any of the pleadings it's an argument that i think it's a public document to whether you trust fund even properly exists anymore and that those documents were in the record the there's all sorts of shenanigans that were presented with respect to a amendment of eagle trust fund in some instances they refer to it as a trust in other instances they refer to it as an association of members in either case the the amendment there's nothing in the trust document that provides for an amendment there's nothing in the trust documents rides for the power to hold right yes yes i think yes or even if you get past the likelihood of success on the merits which we don't believe you can especially under the standard the abuse of discretion standard  there's another issue that has not been addressed which is the failure to prove existence of immediate in the reparable harm the two instances that they are that they address in their in their papers in their arguments or a luncheon that had taken place prior to filing the motion for temporary restraining order and also a file of the report which had been published in january this is the months prior to so and in the next in dollars check that was submitted to participate in that luncheon as judge ross pointed out that that check was reimbursed and there was no irreparable harm it was clearly capable of being paid back and it's money damages there's there's just nothing else was in the record regarding the possibility of harm for the ongoing use of the name your honor brand not not enough to warrant the  temper training order that they were seeking and now i think i think judge russia weighed all of the evidence that was presented to him weigh the record and made the determination properly under is discretion that that the appellant's had failed to prove a colorado river stay knowledge that yes judge ross asked for a briefing as to colorado river state and then he made the determination that it didn't qualify as a to colorado or reverse day he properly used  discretion to use his in the car to grant a discretionary discretionary temporary stay to control his docket conserve judicial resources and provide for a just to terminations of cases before he plot applied the proper test under the he properly applied each one of the factors and made a determination correctly that this case should be stay and it's a temporary stay and if they want to present their response to the court's order and present updates i think the updates will we've been providing to the court will show that judge ross was right he should stay the case and the let these other cases players play themselves out you can ask one question looking at your interim report as i understand it the dismissal do not pay any more attorney's fees out of the trust or she could say i think it's a great case but i should be substitute is plaintiff is that we're absolutely within the range of possibilities judge what it is no longer the judge and the probate court but yes that's it that's exactly right  just briefly to your your question judge kelly i think you know if the court doesn't know if the district court doesn't know or doesn't have enough to rule on that then i think it's going to i think it's obligated to move forward with the case i think it's obligated to move forward with this idea that you have to conduct evidentiary hearing but that's not what judge ross said judge ross said because of the database because of controversies over the database and the list the very things that we jettisoned when we went back to court the second time to focus on just the things we thought were a slam dunk just the trademarks just her brain he threw those in the same boat he continued to analyze conflicts over the database when we asked for second appeal when we didn't ask for anything about i mean i agree that of eventually the database has to get sorted out but that's not what we asked judge  conflate that that's the definition of an abuse discretion when you consider things that are impertinent or relevant or consider things that you shouldn't be doing and that's exactly what he did he was still trying to analyze the dispute we had you know the month earlier about the database as we related to just that trademark so i think that was improper another thing i'd like to say is when you know why ask us to come back and give us a report or give the court a report on dispositive motions i mean to me that the race is the very question we are here you know why have the district court clerk closed the case we were that the case was it mistreated lee closed if it's doesn't have the effect of being in this indefinite stead best case is to say that doesn't matter you may now go it but but but if you look at those cases it's talking about the courts virtually unflagging obligation to resolve these cases you know you also have to look at that context to it's not a situation that moses moses cone you know i don't while distinguish where they say you know the trust could have or chose to proceed elsewhere and didn't that's not the case we're talking about here we're talking about the district court refuses to allow us to move forward we asked for all of the things you would expect to see when you're going to proceed on the merits but the risk here fiduciary i'll just point out quickly she's been doing an accounting because the primary issue in the probate matter not the will itself but the one in which miss corey who's a defendant in my case she sued the trust to try and set aside these these these provisions but what she's trying to do is one of the provisions she's trying to set aside includes an offset for all that a geisha costs you know it and so what is the special fiduciary is doing an accounting of those litigation costs she has not called me and said put the brakes on she's not said withdraw your appeal immediately quite the contrary she says she's adding up the numbers to see how big the offsets going to be that's not a problem the probate call court can solve for the district court the district court's the one who has to roll up its sleeves unfortunately and get after these intellectual trip property issues there that they're the ones that are equipped to do it and frankly they're the only ones that can do it and we've been locked out from trying to advance that and move it forward i'd also say if i could as relates to that just ownership when you look at ownership for the purposes of data facial data face cited corinthians to talk about clarity and bring clarity to to the to the factors but when you do that in the context of a trademark you have to say do you own the trademark or we have a presumption of ownership you know under the statu the statute says if you register any any registered trademark since the lady hundreds is given a presumption of ownership the court did not analyze that factor and that to me is where were i see that i'm out of time but i you know that to me is where we're left amiss because  counsel for your argument cases seventeen to twenty one fifteen in cases seventeen dash thirty seven sixty one are submitted for decision by the court