Iviewit Files Motion to Reopen Patentgate Federal Action

Click Here to See the Filed Iviewit Motion to Reopen, with Exhibits

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

DOCKET NO: 07Civ11196 (SAS)

ELIOT I. BERNSTEIN, INDIVIDUALLY and P. STEPHEN LAMONT

ON BEHALF OF SHAREHOLDERS OF IVIEWIT HOLDINGS, INC., Plaintiffs,

-against-

MOTION

APPELLATE DIVISION FIRST DEPARTMENT
DEPARTMENTAL DISCIPLINARY COMMITTEE,
THOMAS J. CAHILL, in his official and individual
capacity, JOSEPH WIGLEY in his official and individual
capacity, CATHERINE O’HAGEN WOLFE in her
official and individual capacity, PAUL CURRAN in his
official and individual capacity, MARTIN R. GOLD in his
official and individual capacity , HON. ANGELA M.
MAZZARELLI in her official and individual capacity,
HON. RICHARD T. ANDRIAS in his official and
individual capacity, HON. DAVID B. SAXE in his official
and individual capacity, HON. DAVID FRIEDMAN in his
official and individual capacity, HON. LUIZ A.
GONZALES in his official and individual capacity,
APPELLATE DIVISION SECOND DEPARTMENT
DEPARTMENTAL DISCIPLINARY COMMITTEE,
LAWRENCE DIGIOVANNA in his official and
individual capacity, DIANA MAXFIELD KEARSE in
her official and individual capacity, JAMES E.
PELTZER in his official and individual capacity, HON.
A. GAIL PRUDENTI in her official and individual
capacity, STEVEN C. KRANE in his official and
individual capacity, HON. JUDITH S. KAYE in her
official and individual capacity, KENNETH
RUBENSTEIN, ESTATE OF STEPHEN KAYE,
PROSKAUER ROSE LLP, MELTZER LIPPE
GOLDSTEIN & BREISTONE LLP, LEWIS S.
MELTZER, RAYMOND A. JOAO, FOLEY LARDNER
LLP, MICHAEL C. GREBE, WILLIAM J. DICK,
DOUGLAS A. BOEHM, STEVEN C. BECKER,
STATE OF NEW YORK COMMISSION OF
INVESTIGATION, LAWYERS FUND FOR CLIENT
PROTECTION OF THE STATE OF NEW YORK,
THE FLORIDA BAR, LORRAINE CHRISTINE
HOFFMAN in her official and individual capacity,
ERIC TURNER in his official and individual capacity,
JOHN ANTHONY BOGGS in his official and individual
capacity, KENNETH MARVIN in his official and
individual capacity, THOMAS HALL in his official and
individual capacity, DEBORAH YARBOROUGH in her
official and individual capacity, VIRGINIA STATE BAR,
ANDREW H. GOODMAN in his official and individual
capacity, NOEL SENGEL in her official and individual
capacity, MARY W. MARTELINO in her official and
individual capacity, and John Does., Defendants

ORAL ARGUMENT REQUESTED

PLAINTIFFS’ MOTION TO REOPEN DOCKET NO. 07-CIV-11196

BASED ON EXCEPTIONAL CIRCUMSTANCES

Plaintiff, P. Stephen Lamont, individually, and on behalf of shareholders of Iviewit Holdings, Inc. moves this Court for an order reopening the above captioned case, Docket No. 07-Civ-11196 (SAS), based upon exceptional circumstances that ensued after the Court’s granting of Defendants’ Motion to Dismiss and its Opinion and Order of August 8, 2008 (“Order”). Respectfully, the Court should take notice that not all Defendants are parties to this Motion (see CAUSES OF ACTION AND DEFENDANTS).

BACKGROUND

Beginning in 1997, Inventors of Iviewit Holdings, Inc. (“Iviewit”) developed video and imaging technologies (the "Inventions") that use significantly less bandwidth than other technologies, provide a way to "zoom almost infinitely on a low resolution file with clarity," and were quickly incorporated into almost every digital camera, DVDs, televisions, cable and satellite and terrestrial television broadcasting, certain websites, and application specific integrated circuits (“chips”); factually, Plaintiffs stake the claim as inventors of “digital zoom,” a feature present on most if not all video capture devices. Defendant Proskauer Rose LLP, a New York law firm, was recipients of disclosures regarding the Inventions through Proskauer partner, Christopher C. Wheeler. Several weeks later, Proskauer represented that purported partners, Defendants Kenneth Rubenstein and Raymond A. Joao, would secure patents for the Inventions. Simultaneously, Rubenstein was also counsel to MPEG LA LLC, one of the largest competitors and benefactors of the Inventions. In fact, Petitioners allege that Rubenstein was part of a scheme to sabotage the Inventions so as to preserve and benefit MPEG LA LLC.

BASES FOR REOPENING

Standard of Review

Fed. R. Civ. P. Rule 60(b)(6) allows a party to seek relief from a final judgment for any other reason justifying relief from the operation of the judgment. The Third Circuit “has consistently held that the Rule 60(b) ground for relief from judgment provides for extraordinary relief and may only be invoked upon a showing of exceptional circumstances” Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 273 (3d Cir. 2002) (see also, e.g., Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) where the court stated “[O]ur cases have required a movant seeking relief under Rule 60(b)(6) to show ‘extraordinary circumstances’ justifying the reopening of a final judgment.”); Ackermann v. United States, 340 U.S. 193 (1950), Stradley v. Cortez, 518 F.2d 488, 493 (3d Cir.1975). Notwithstanding that, in some instances, Plaintiffs original pleadings may be facially defective under FRCP Rule 8(a) and Rule 12(b), Plaintiffs argue that enough facts are plainly and simply pled to identify the who, what, where, when, and how of the allegations that sufficiently state claims that will become more fully evident through discovery; this Court, simply, must allow discovery to take place.

Exceptional Circumstances

On October 3, 2008, Plaintiffs filed a Notice of Appeal of the District Court’s Order with the United States Court of Appeals for the Second Circuit, Bernstein, et al v. Appellate Division First Department Disciplinary Committee, et al. (08-cv-4873, CA2 NY, filed October 3, 2008). That just after filing such appeal, Plaintiffs, and on January 14, 2009, as movants, filed a motion with the New York State Supreme Court Appellate Division First Department (“First Department Court”) requesting an order requiring the immediate investigation of Thomas J. Cahill (“Cahill”), attached herein as Exhibit A; Cahill was a Respondent in the Second Circuit appeal and a Defendant in the District Court case. Whereby, on January 27, 2009, the Cahill complaint was immediately dismissed by Special Counsel Martin R. Gold (“Gold”), also a Respondent in the Second Circuit appeal and a Defendant herein, attached as Exhibit B. On May 13, 2009, the First Department Court denied movants motion in a decision rendered by, among others, Hon. Richard T. Andrias and Hon. David B. Saxe, attached herein as Exhibit C; Hon. Andrias and Hon. Saxe were both Respondents in the Second Circuit appeal and Defendants herein. Praying for relief of conflicts of interest and appearances of impropriety, on May 22, 2009, Plaintiffs moved the First Department Court for an order vacating the Cahill disposition by Respondent Gold and the denied motion rendered by Respondents Hon. Andrias and Hon. Saxe, attached herein as Exhibit D. The First Department Court summarily denied such motion on October 28, 2009, attached herein as Exhibit E.

Similar Pattern of Racketeering

If it were not for the actions of the above Respondents (Defendants in this Court’s 07-cv-11196), Plaintiffs would not be availing the Court for a Motion to Reopen, but since their incomprehensible actions gives the situation exceptional substance to support Plaintiffs’ original cause of action in 07-cv-11196, civil racketeering as evidenced by Exhibit B and Exhibit C, Plaintiffs must respectfully ask this Court to grant this prayer for relief.

CAUSES OF ACTION AND DEFENDANTS

Causes of Action

Should this Court grant this prayer for relief, Plaintiffs move to re-open the case based solely on two federal causes of action in the original complaint: violation of 42 U.S.C. 1983 (which this Court likened to our direct constitutional claims in its Order and Opinion) and violation of 18 U.S.C. § 1961-1968, the Racketeer Influenced and Corrupt Organizations Act; various supplemental claims and new defendants may also be included in any Amended Complaint.

Defendants

Plaintiffs move to reopen the case as to only the following defendants in the original complaint:
Appellate Division First Department Departmental Disciplinary Committee, Thomas J. Cahill, in his official and individual capacity, Paul Curran in his official and individual capacity, Martin R. Gold in his official and individual capacity , Hon. Richard T. Andrias in his official and individual capacity, Hon. David B. Saxe in his official and individual capacity, Appellate Division Second Department Departmental Disciplinary Committee, Lawrence DiGiovanna in his official and individual capacity, Diana Maxfield Kearse in her official and individual capacity, James E. Peltzer in his official and individual capacity, Steven C. Krane in his official and individual capacity, Kenneth Rubenstein, Proskauer Rose LLP, Meltzer Lippe Goldstein & Breistone LLP, Lewis S. Meltzer, Raymond A. Joao, Foley Lardner LLP, William J. Dick, Douglas A. Boehm, Steven C. Becker, The Florida Bar, Lorraine Christine Hoffman in her official and individual capacity, Eric Turner in his official and individual capacity, John Anthony Boggs in his official and individual capacity, Kenneth Marvin in his official and individual capacity, Virginia State Bar, Andrew H. Goodman in his official and individual capacity, Noel Sengel in her official and individual capacity, Mary W. Martelino in her official and individual capacity, and John Does.

Causative Relationships of the Above Defendants

That the exceptional circumstances inherent in filing this Motion to Reopen are limited strictly to Defendants Cahill, Gold, Hon. Andrias, and Hon. Saxe, may it please the Court, their actions are the expressions of these Defendants as agents that cause incomprehensible actions, to wit, the protection of Defendants Proskauer Rose LLP, Kenneth Rubenstein, Meltzer Lippe Golstein & Breitsone LLP, Raymond A. Joao, Foley Lardner LLP, William J. Dick, Douglas A. Boehm, Steven C. Becker, and their respective respondeats superior who neglected to supervise their actions, in the sabotage of Plaintiffs backbone, enabling video and imaging technologies for the benefit of MPEG LA LLC. That in their collusion to protect the above named Defendants and continue to block Plaintiffs’ Inventions for the benefit of MPEG LA LLC, Defendants New York State Actors, Florida Bar Defendants, and the Virginia Bar Defendants similarly undertook such actions as agents of the aforementioned Defendants that cause incomprehensible actions, to wit, the protection of Defendants Proskauer Rose LLP, Kenneth Rubenstein, Meltzer Lippe Golstein & Breitsone LLP, Raymond A. Joao, Foley Lardner LLP, William J. Dick, Douglas A. Boehm, Steven C. Becker, and their respective respondeats superior who neglected to supervise their actions, in the sabotage of Plaintiffs backbone, enabling video and imaging technologies for the benefit of MPEG LA LLC.

CONFLICT OF INTEREST AND APPEARANCE OF IMPROPRIETY IN THE REPRESENTATION OF THE STATE ACTORS BY

THE OFFICE OF ATTORNEY GENERAL

As the “People's Lawyer,” the Office of the Attorney General (“AG”) serves as the guardian of the legal rights of the citizens of New York, its organizations and its natural resources. In its role as the State's chief legal counsel, the AG not only advises the Executive branch of State government, but also defends actions and proceedings on behalf of the State1. As it relates to the instant Motion to Reopen, this Court cannot allow the AG to act on behalf of the State Defendants in neither their official capacity nor individual capacity as by its self proclaimed mandate above, “People’s Lawyer” vis`-a-vis State’s Chief Legal counsel, strongly suggests a incomprehensible conflict of interest and appearance of impropriety when no mention is made of an ethical barrier between different departments of the AG’s office to avoid conflicts of interest and appearances of impropriety, in complete separation of such bilateral functions. Where even in their reply papers, should the AG plead the existence of such a separation of interests (“People’s Lawyer vis`-a-vis State’s Chief Legal counsel) their still exists such a conflict and impropriety. After a multiplicity of complaints filed with the AG, and through several administrations, requesting that the AG should criminally prosecute such lawyers, law firms, and public officers, for harming the “People” (in this case Plaintiffs who seek the fruits of their labor to create the Inventions), instead the AG turns around and represents these same individuals complained of. Accordingly, this Court, however, must now disqualify the AG from any representation of the State Defendants in their official and individual capacities as a result of these conflicts of interests and appearances of impropriety.

CONCLUSION

For all the foregoing reasons, Plaintiffs move for a reopening of the action and relief from the Court's August 8, 2008 Opinion and Order whereby the Court granted Defendants’ Motion to Dismiss and a disqualification of the AG’s office in representing the New York State Actors, else Plaintiffs are deprived of rights, powers, or privileges in this action..
Attorney for Plaintiffs
P. Stephen Lamont, Pro Se
35 Locust Avenue, Rye, N.Y. 10580 - Tel.: (914) 217-0038
By: P. Stephen Lamont

AFFIDAVIT OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been furnished to all defendants by facsimile this 11th day of October 2010. Defendants are served by facsimile as opposed to hand delivery to the Court for the sake of Pro se expediency.

P. Stephen Lamont, Pro Se

Joanna Smith/Gregg M. Mashberg Proskauer Rose LLP
Counsel for the Proskauer Defendants - Facsimile: (212) 969-2900

Monica Connell, Esq. - Office of the New York State Attorney General
Counsel for the New York State Defendants Facsimile: (212) 416-6075

Kent K. Anker, Esq. - Friedman Kaplan Seiler & Adelman LLP
Counsel for the Foley Larder LLP Defendants - Facsimile: (212) 373-7944

John W. Fried, Esq. - Fried & Epstein LLP
Counsel for Defendant Joao - Facsimile: (212) 268-3110

Stephen H. Hall - Office of the Virginia State Attorney General
Counsel for the Virginia Defendants - Facsimile: (804) 786-1991

Richard Howard - Meltzer, Lippe, Goldstein & Breitstone
Counsel for Meltzer Defendants - Facsimile: (516) 747-0653

Glenn T. Burhans/Bridget Smitha
Greenberg Traurig LLP

Counsel for Florida Bar Defendants - Facsimile: (850) 681-0207

CLICK BELOW TO SEE EXHIBITS

Click Here to See the Filed Iviewit Motion to Reopen, with Exhibits