Res Judicata and Collateral Estoppel
February 21, 1997
Plaintiff's Motion for Partial Judgment on the Pleadings on Res Judicata and Collateral Estoppel Grounds and Plaintiff's Brief in Support of Plaintiff's Motion for Partial Judgment on the Pleadings on Res Judicata and Collateral Estoppel Grounds
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 96-D-2004
URANTIA FOUNDATION, a non-profit trust, Plaintiff,
v.
ERIC SCHAVELAND and KRISTEN MAAHERRA,
Defendants.
PLAINTIFF'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS ON RES JUDICATA AND COLLATERAL ESTOPPEL GROUNDS
COMES NOW Plaintiff URANTIA Foundation (the "Foundations) pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and files the following motion for partial judgment on the pleadings against defendants Eric Schaveland and Kristen Maaherra:
1. In this case, the defendants have raised numerous trademark issues, defenses and counterclaims which were the subject of previous litigation and a final judgment between the Foundation and defendant Maaherra.
2. The final judgment in the previous litigation between the Foundation and defendant Maaherra, and the reported opinions URANTIA Foundation v. Maaherra, 895 F. Supp. 1329 (D. Ariz. 1995) and URANTIA Foundation v. Maaherra, 895 F. Supp. 1338 (D. Ariz. 1995) bar defendant Maaherra from litigating the affirmative defenses 2, 8, 9, and 10 and her counterclaim in this case and bar defendant Schaveland from litigating the affirmative defenses 2, 3, and 4 and his counterclaim in this action.
3. Viewing the pleadings in the light most favorable to the defendants, and drawing all reasonable inferences therefrom in their favor, the defendants skill cannot prevail and the aforementioned affirmative and counterclaims as a matter of law. Therefore, the Foundation is entitled to partial judgment on the pleadings dismissing said affirmative defenses and counterclaims win prejudice.
4. In support of this motion, the Foundation relies on the pleadings, the affidavit of Steven G. Hill, filed herewith, and the brief in support, filed herewith.
WHEREFORE, the Foundation requests that the Court grant this motion and dismiss with prejudice defendant Maaherra's affirmative defenses 2, 8, 9, and 10 and her counterclaim, and also dismiss with prejudice Schaveland's affirmative defenses 2, 3, and 4 and his counterclaim in this action.
Dated this 21 day of February, 1997.
By Steven G. Hill
and Gordon Dean Booth, Jr.
BRIEF IN SUPPORT OF PLAINTIFF'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS ON RES JUDICATA AND COLLATERAL ESTOPPEL GROUNDS
I. INTRODUCTION
Plaintiff URANTIA Foundation (the "Foundation") hereby incorporates its introduction to its Brief in Support of Plaintiff's Motion against Defendant Schaveland for Partial Judgment on the Pleadings. In addition, the Foundation stresses that:
(1) it has previously successfully litigated many of the affirmative defenses and counterclaims that have been raised in this action against Defendant Kristen Maaherra
(Maaherra");
(2) that the previous litigation with Maaherra is the subject of a final judgment;
(3) that the pleadings in this case establish that Defendant Schaveland is Maaherra's husband, and seeks to benefit from the final judgment in the previous litigation himself by using it as the basis for a motion for partial summary judgment of his own and a project to put the text of The URANTIA Book on CD-ROM;
(4) that the interests (primarily, alleged religious interests) of Maaherra and Schaveland are so closely aligned, and their allegations, both in the previous litigation and in this case, are so similar that Schaveland was "virtually"represented by Maaherra (and her counsel) in the previous litigation; and
(5) under the circumstances, it would be a waste of the time, effort and resources of all parties and the Court to relitigate issues which were or could have been raised in the previous litigation between the Foundation and Maaherra. Accordingly, as explained in greater detail below, the Foundation requests that the Court grant this motion and dismiss with prejudice the affirmative defenses and counterclaims of the defendants which were or could have been raised in URANTIA Foundation v. Maaherra, in the United States District Court for the District of Arizona.
II. ARGUMENT
In the Foundation's Brief in Support of Plaintiff's Motion against Defendant Schaveland for Partial Judgment on the Pleadings (sec. A), filed herewith, the Foundation establishes the framework for evaluating a motion for judgment on the pleadings. In addition to the case law cited therein, it is well-established that on a motion for judgment on the pleadings, the court may take judicial notice of matters of public record, including court documents and opinions. United States v. Wood, 925 F.2d 1580, 1582 (7th Cir. 1991); Henson v. CSC Credit Serv., 29 F.3d 280, 284 (7th Cir. 1994). Thus, it is appropriate for the Court to take notice of the existence of the Foundation's previous litigation with Maaherra, including her affirmative defenses and counterclaims, the previous rulings reported as URANTIA Foundation v. Maaherra, 895 F. Supp. 1329 (D. Ariz. 1995) and URANTIA Foundation v. Maaherra, 895 F. Supp. 1338 (D.Ariz.1995), and the final judgment of the court in the prior case. An examination of the defendants' pleadings in this case against the backdrop of the previous litigation between the Foundation and Maaherra, Defendant Schaveland's wife, shows that judgment on the pleadings dismissing the defendants' trademark affirmative defenses and counterclaims is appropriate in this case.
A. Masherra's Affirmative Defenses and Counterclaim Are Barred by Res Judicata.
Res Judicata applies when there is a foal judgment of a court of competent jurisdiction conclusive as to all matters actually litigated, and it bars the introduction of any issue, claim or defense that might have been raised in the first action between the parties in a subsequent action between the same parties or their privies. Southern Pacific Railroad Company v. U.S., 168 U.S. 1, 48 (1897); Happy Elevator No. 2 v. Osage Construction Co., 209 F.2d 459, 461 (l0th Cir. 1954). "Under the doctrine of res Judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action." Parklane Hosierv Co. v. Shore, 429 U.S.322, 327 n.5, 99 S.Ct. 645 (1979). Under the doctrine of res iudicata, a judgment bars the relitigation of grounds for and defenses to recovery that were available to the parties before the particular court rendering the prior judgment, regardless of whether such grounds were actually judicially determined. See, em., Federated Department Stores. Inc. v. Motie, 452 U.S. 394, 398, 101 S.Ct. 2424 (1981).
All parties agree that the Foundation previously sued Maaherra for, inter alla, trademark infringement. Hill Aff., 1 1; Ex. A. In the previous case, Maaherra asserted affirmative defenses based on her first amendment rights to religious freedom, alleged fraudulent activity on the part of the Foundation in procuring its trademark registrations, the "religious" nature of the Foundation's marks, allegations that the Foundation's marks are "generic" and asserted a counterclaim for cancellation of the Foundation's b~demarks (on the basis of the First Amendment, the alleged fraudulent acts of the Foundation, and the alleged misuse of the Foundation's trademarks). Hill Aff., Ex.B. pp. 5-7, 16, 19, 20-21. All of the defenses and counterclaim allegations in the previous litigation with Maaherra are the subject of the court's final judgment in that case, which neither altered the validity of the Foundation's marks, nor gave any credence to the validity of any of Maaherra's affirmative defenses to the trademark infringement claim. See Declaration of Joseph D. Lewis, dated October 11, 1996, in Support of Maaherra's Motion for Partial Summary Judgment, 17, Ex. 2.
In this case, Maaherra has asserted affirmative defenses that the same marks that were at issue in the previous litigation are "generic" (Maaherra Answer and Counterclaim, filed October 14, 1996, Affirmative Defenses, 12), that the trademark claims are barred due to the Foundation's acquiescence (id., paragraph 8), that the trademark claims in this case are barred by the doctrines of res Judicata, collateral estoppel, and laches (id., paragraph 9), and that the Foundation's trademark rights are not enforceable due to the Foundation's misuse of trademarks and unclean hands (i5L, 1 10). In addition, Maaherra asserts a one sentence counterclaim which states that "on the basis of the pleadings and affirmative defenses herein, Defendant seeks a declaratory judgment that she has not infringed any valid rights of Plaintiff, and rights asserted by Plaintiff are invalid." Id., Counterclaim. [Footnote 1: This counterclaim fails to state a claim upon which relief can be granted regardless of issues of res Judicata and collateral estoppel because it is a merely conclusory statement of Maaherra's desired relief. Accordingly, it should also be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.] Each of the defenses and the counterclaim set forth above either were or could have been raised in the preceding litigation between the Foundation and Maaherra. [Footnote 2: The exception to this may be Maaherra's defense based on res Judicata and collateral estoppel. However, this motion and brief show that there is no dispute that these principles benefit the Foundation, not Maaherra. Accordingly, the Court should dismiss this defense with prejudice.] Accordingly, Maaherra is barred by well-established principals of res iudicata from asserting these defenses and the counterclaim in this case. As such, the court ought to dismiss with prejudice Maaherra's affirmative defenses 2, 8, 9, and 10, and the counterclaim insofar as those affirmative pertain to the Foundation's claims of trademark infringement (as opposed to copyright infringement).
B. Maaherra's Affirmative Defenses and Counters n Are Barred By Collateral Estoppel.
Whereas res Judicata bars the assertion of ground for or defenses to claims, collateral estoppel by judgment (so called tissue preclusion") exists to preclude the repeated controversy over issues once they are judicially determined. Lvtle v. Household Mfg. Co., 494 U.S. 545, 553, 110 S.Ct. 1331 (1990). The purpose of collateral estoppel is to prevent "the waste and burden of relitigating old issues." Tillman v. National Citv Bank, 118 F.2d 631, 634 (2d Cir. 1941).
In addition to the Foundation's argument for the application of res judicata to Maaherra's affirmative defenses and counterclaim in this case, the prior reported opinions dismissing many of Maaherra's affirmative defenses and counterclaims in the previous litigation between the Foundation and Maaherra bars Maaherra from relitigating those issues in this case. Specifically, in the previous litigation between the Foundation and Maaherra, the United States District Court for the District of Arizona determined that:
- Maaherra's claims of "genericism" were dismissed with prejudice. URANTIA Foundation v. Maaherra, 895 F. Supp. at 1343;
- Maaherra's claim of fraudulent trademark registration, misuse, and unclean hands by the Foundation were dismissed with prejudice. Id. at 1342.
To the extent that these issues have already been decided between the Foundation and Maaherra, there is no reason for the parties and the Court to expend resources and effort relitigating the same questions. Accordingly, collateral estoppel warrants the dismissal of Maaherra's affirmative defenses 2, 9, and 10 with prejudice, and Maaherra's counterclaim should be dismissed with prejudice to the extent that it relies on the allegations set forth in those affirmative defenses.
C. Schaveland's Affirmative Defenses and Counterclaim Are Barred Because He is a "Privy" of Maaherra, and Was Virtually Represented in the Previous Case.
Under the doctrine of virtual representation, "a person may be bound by a judgment even though not a party if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative. " Kerr-McGee Chem. Corp. v. Hartigan, 816 F.2d 1177, 1180 (7th Cir. 1987). "A person with an interest in the outcome who controls or shares control of a suit by another is bound. So with a person who accepts the benefits of a judgment." 1B Moore's Federal Practice, paragraph 0.411[1] at III-210--III-211 (1996). Moreover, where a legal relationship exists between claims asserted in separate suits, a judgment against one spouse in the first suit is conclusive against the other spouse because under such circumstances, the first spouse the virtual representative of the other spouse in the initial lidgation. Terrell v. DeConna, 877 F.2d 1267, 1271 (5th Cir. 1989).
For example, in Rush v. Superintendent of Police, 1994 WL 114847 (N.D. Ill Apr. 4, 1994), a group of taxicab drivers challenged several municipal ordinances, which had already been litigated by another group of taxicab drivers in a prior action. Id. at * 4. The plaindff's claims were barred by res Judicata on the grounds that both sets of plaintiffs were in the same occupation, were challenging the same ordinances, and that the interests of the second were adequately represented by the first group. Id. Maguire v. Thompson, 1990 WL 70451 (N.D. Ill. May 7, 1990) (future graduates bound by prior case; same interests at stake); Jackson v. Hayakawa, 605 F.2d 1121 (5th Cir. 1979) (finding an identity of parties even without class certification).
The Court should declare that Schaveland is Maaherra's privy within the meanings of the res indicate and collateral estoppel doctrines for the following reasons:
(1) Schaveland and Maaherra are married and reside together;
(2) Schaveland seeks to benefit from the previous litigation between the Foundation and Maaherra. He has filed a partial summary judgment motion in this case attempting to use the ruling in that case as a basis to dismiss the Foundation's copyright infringement claim against him. In his motion and brief in support, he acknowledges that, among other things, he and Maaherra are preparing The URANTIA Book on CD-Rom due to the outcome in the previous case; [Footnote 3: Defendant Schaveland's Brief in Support of his Motion for Partial Summary Judgment as to Count V (Copyright Infringement), paragraphs 1-2, 6, dated October 20, 1996.]
(3) With respect to the trademark issues and factual allegations raised by Schaveland's affirmative defenses and counterclaim, they are identical to the issues and allegations raised by Maaherra in the previous case. Accordingly, the defendants have an identity of interest (principally, an alleged religious interest) with respect to the trademark claims;
(4) Maaherra was represented by counsel in the previous litigation who could adequately protect the interests that both defendants have, whereas Schaveland is appearing before the Court pro se;
(5) the Foundation should not have to perpetually relitigate trademark issues that it so recently won. See Bell v. Board of Ed., 683 F.2d 963, 965 (6th Cir. 1982) (where first group was adequately represented, and its interests were representative of second group, second group was precluded from relitigating issues decided which were adverse to first group; otherwise, rights and duties previously litigated were too susceptible to collateral attack).
On the basis that Schaveland was virtually represented by Maaherra (and her counsel) with respect to the trademark issues in the previous litigation between the Foundation and Maaherra, the Court should dismiss Schaveland's affirmative defenses pertaining to trademark issues and his counterclaim. Specifically, Schaveland is barred from litigating affirmative defenses 2 (concentric circles mark is the flag of a foreign nation), 3 (fraudulent trademark registration), and 4 (marks are generic due to their religious nature and import) and his counterclaim for "Fraudulent Trademarks" on the grounds that the defenses and counterclaim either were or could have been raised in the previous litigation.
III. CONCLUSION
For all of the foregoing reasons, the Court should grant the Foundation's motion and dismiss with prejudice Maaherra's affirmative defenses 2, 8, 9, and 10 and her counterclaim, and should also dismiss with prejudice Schaveland's affirmative defenses 2-4 and his counterclaim.
Dated this 21 day of February, 1997.
By Steven G. Hill
and Gordon Dean Booth, Jr.
Attorneys for Plaintiff,
Urantia Foundation
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March, 1997
Defendant Eric Schaveland's RESPONSE BRIEF TO PLAINTIFF'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS ON RES JUDICATA AND COLLATERAL ESTOPPEL GROUNDS
Defendant Eric Schaveland asks the Court to deny Plaintiff's Motion for Partial Judgment on the Pleadings on Res Judicata and Collateral Estoppel Grounds and submits the following brief as a response.
Introduction
The very concept or idea that a word can become generic in trademark law would seem to preclude Plaintiff's position that the generic issue has been settled permanently under res judicata.
Plaintiff Foundation wishes to rely on Urantia Foundation v. Maaherra. There are new facts that were not in existence at the time of that decision. Two years ago, Judge Urbom held that the Urantia Book is in the public domain. Plaintiff's monopoly on the text of the Urantia Papers ended, forever changing the facts of genericness: Many sources of both the text of the Urantia Book and the religion called Urantia have come into existence since 1995; and, therefore, this new situation demands to be seen as a new set of circumstances with new facts to be weighed by the court. I am not asking this court to decide issues already decided; rather am I asking this court to look at new facts that have arisen out of changed circumstances and a totally different marketplace wherein Plaintiff has lost the monopoly granted by copyright and must now deal with fair competition for the Urantia product for the first time in Plaintiff's history.
Legal Argument
(Similarly, while facts that were not in existence at the time of the earlier suit may give rise to a new cause of action, [emphasis added] the mere addition of new factual allegations will not create a new cause of action for the same injury.) (Moore's Federal Practice Vol. 1B 2nd Ed. Page III-187 Para.1)
"Where the applicable facts have been changed, a party can argue with conviction that an earlier judgment should not be preclusive. The earlier judgment decided a particular fact situation; that no longer exists. The second suit involves a different factual situation, and should be so treated." [Res Judicata / Preclusion page V-414 Para 2 by Allan D. Vestal, John F. Murray Professor of Law, University of Iowa (1969).]
In Page v. United States 729 F.2d 818 (1984) at 820 Para. 1 the Court ruled: (The doctrine of res judicata is that "the parties to a suit and their privies are bound by a final judgment and may not relitigate any ground for relief which they already have had an opportunity to litigate -- even if they chose not to exploit that opportunity -- whether the initial judgment was erroneous or not." [quoting Hardison v. Alexander, 211 U.S.App.D.C. 51, 58, 655 F.2d. 1281, 1288 (1981)]. The judgment bars any further claim based on the same "nucleus of facts," for "it is the facts surrounding the transaction or occurrence which operate to constitute the cause of action, not the legal theory upon which a litigant relies." [Quoting Expert Elec., Inc. v. Levine, supra note 9, 554 F.2d at 1234.]
My use of the Banner of Michael on my Internet Home Page at the domain name address "urantia.com" also constitutes a different cause of action and a different nucleus of facts fromUrantia Foundation v. Maaherra.
Genericness
Since Urantia Foundation v. Maaherra, a dictionary has been published with a generic definition under the listing "Urantia Book." This listing alone creates a factual situation that did not exist when Judge Urbom was deciding the generic issue on the word "Urantia." Arguably, it would appear that this new fact by itself would have satisfied Judge Urbom's doubts about the generic nature of the word "Urantia," since Urbom based his conclusion on the fact that the word was not found by the parties in any known dictionary.
Although some of the entries in reference books that my research has disclosed could have been found by the parties in the previous case -- and therefore by themselves would not create a new factual situation -- works published since Judge Urbom's ruling on this generic issue certainly qualify as creating a new factual situation requiring a new ruling on these facts.
I was not a party to the previous lawsuit
Plaintiff is wrong when it makes the claim that I was a privy in Urantia Foundation v. Maaherra. To this day, I have still not seen the Discovery in that case (it was placed under Protective Order) -- even though Plaintiff attorney Scott Wharton told me last December he would make this material available to me. I had no control over either Maaherra or her attorney, and I am certainly not a party to any settlement agreement she signed with Plaintiff. In September, 1992, I informed Plaintiff that I was distributing the text of the Urantia Papers in electronic form. This was over two years before Judge Urbom's ruling on copyright. My distribution of this religious revelation has never been contingent on Plaintiff's litigation against Kristen Maaherra. Maaherra was under an injunction for 4 1/2 years which prevented her from distributing the text of the Urantia Papers. Plaintiff never claimed that this injunction applied to me even though I had informed Plaintiff of my activities (my personal distribution of the text of the Urantia Papers). Plaintiff Foundation could have tried to join me to the Maaherra lawsuit at any time but chose not to.
The fact is that Defendant Maaherra did not have the financial resources to go to trial and, therefore, did not have adequate legal representation in that case. Maaherra signed a settlement agreement with Plaintiff due to lack of funds to continue the trademark issue. Plaintiff has appealed the copyright decision in Urantia Foundation v. Maaherra saying that Judge Urbom made a mistake. The Banner of Michael
To believers in the Urantia Papers, the Banner of Michael is an ancient religious symbol that represents: the Trinity of God as Father, Son and Spirit; the actual flag of Michael (Jesus) used by the loyal children of Michael in the Lucifer Rebellion; the infinity, eternity and universality of God; the mission of Melchizedek to this world on behalf of Michael; and whatever personal religious beliefs Urantians associate with this sacred symbol. (For example, I associate the courage and loyalty of a certain angel named Manotia who stood up for Michael after the default of her superiors in the Lucifer Rebellion with the Banner of Michael.)
Plaintiff is wrong when it claims the trademark issue is identical in Urantia Foundation v. Maaherra and the current litigation. My use of the "Banner of Michael" is unique to this case. Kristen Maaherra scanned in and placed an exact replica of Plaintiff's three concentric circles mark and stylized run-together "UR" on computer disks which she gave away. I created my own interpretation of the "Banner of Michael" and placed it on my Home Page clearly labeled as the "Banner of Michael -- Emblem of the Paradise Trinity." When Plaintiff Trustee Phil Rolnick telephoned me last June to inform me that Plaintiff is the owner of the "Banner of Michael" and is holding Michael's Banner "in trust" for Him -- presumably until He returns to claim it from Plaintiff -- frankly, I was shocked. I had never heard of such a position on this issue by Plaintiff.
Plaintiff's claim of ownership of the Banner of Michael is unique to this case. To my knowledge, Plaintiff has claimed ownership of a trademark on three concentric circles in other cases, but has never before had the callous perfidy to claim ownership of the Banner of Michael, Emblem of the Trinity government of all creation. This lawsuit against me here in Colorado for using the Banner of Michael on the Internet is definitely a fresh and unprecedented venture in trademark abuse for Plaintiff.
Plaintiff's claim of ownership of the "Banner of Michael" is also certainly a new fact to be considered with respect to fraud on the Patent and Trademark Office. Since Plaintiff has admitted that it believes its Trademark registrations are on what Plaintiff believes is the Flag of the "Kingdom of Heaven," Plaintiff has knowingly registered a trademark on the Flag of a foreign government. This isn't something that I dreamed up just to "fit" trademark law; this is what Plaintiff Foundation is now actually claiming to Urantians. Plaintiff doesn't solely claim trademark registrations on the three concentric circles symbol used in commerce (as was their claim in the Arizona case); they claim to own Jesus' Banner!
The Issue of Religion
Plaintiff states on page 8 para.4 of its Brief in Support of Plaintiff's Motion for Partial Judgment on the Pleadings on Res Judicata and Collateral Estoppel Grounds that Defendant "is barred from litigating affirmative defense(s)...4 (marks are generic due to their religious nature and import).
Urantia Foundation v. Maaherra effectively placed this religious revelation in public domain, and generic religious use of both the "Banner of Michael" and the word "Urantia" as the name of a religion has since that time greatly increased. Defendant believes the Court will now, upon looking at a new factual situation, rule that Plaintiff's marks are not "fanciful" or "arbitrary," but are clearly generic under secular Trademark Law.
Under Trademark Law, this court can look at a religion the same as any other product to determine genericness and ask the question: "Does the Urantia religion refer to a single source of the product -- Urantia Foundation -- or is the Urantia religion a generic designation for a product -- the religion -- available from many sources?" Plaintiff seems to think that I am hiding behind the First Amendment in an attempt to avoid just property laws. This is not the case.
Under trademark law, there are two generic products being discussed: One product is the word "Urantia" used as the generic name of a literary product -- Urantia Book, Urantia Papers and Urantia revelation. The other product is the word "Urantia" used as the generic name of a religious product -- the Urantia religion, the Urantia cult, and the Urantia movement.
Since Urantia Foundation denies being the source of any religion, the only logical conclusion is that the Urantia religion as practiced by Urantians is generic under Trademark Law. The spread of the Urantia religion just since 1995 creates a new factual situation for this court to rule upon.
Urantia as a generic published product
Plaintiff has "Urantia" trademark registrations on "Books and Printed publications." However, the word "Urantia" is of necessity on the cover of all publications of the Urantia Book and the Urantia Papers that have been published by other sources of these products since Urantia Foundation v. Maaherra held the Urantia Papers to be in public domain. In order to market different versions of the Urantia Book, publishers must use the generic title of the product. No other word describes our religious revelation. Whether the title is Urantia Book, Urantia Papers, or Urantia Revelation, the common generic word is "Urantia." These new publications create a new factual situation for this Court to rule upon.
Conclusion
(On motion for judgment on the pleadings, viewing all facts in light most favorable to nonmoving party, [emphasis added], district court may only grant motion if it is beyond doubt that nonmovant can plead no facts that would support his claim for relief.) (US v. Wood 925 F.2d 1580).
Since the time Judge Urbom held that the Urantia Papers are in the public domain, the factual situation with respect to generic trademark issues has changed.
Since Plaintiff now claims ownership of the "Banner of Michael," the factual situation with respect to fraud upon the Patent Trademark Office has changed.
Since Plaintiff has claimed for the first time that it owns the flag of a foreign government, this issue is also new and has never been litigated before.
Therefore, res judicata and collateral estoppel do not apply to these new factual situations and Plaintiff's Motion should be denied.
RESPECTFULLY SUBMITTED this __th day of March, 1997.
Eric Schaveland
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March 11, 1997
Defendant Maaherra's OPPOSITION TO PLAINTIFF'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS ON RES JUDICATA AND COLLATERAL ESTOPPEL
I. INTRODUCTION
Defendant Kristen Maaherra ("Maaherra"), through her undersigned counsel, opposes the Urantia Foundation's ("the Foundation") motion for partial judgment on the pleadings on res judicata and collateral estoppel grounds. The Foundation's motion is based on a prior case between the parties in federal district court in Arizona which was settled two years ago ("Arizona case"). The motion must be denied on all grounds for the following reasons:
The doctrine of res judicata does not bar the defenses to the trademark claims or the counterclaim in this case because:
1. the present case asserts a different cause of action than did the Arizona case;
2. the Arizona case was settled and dismissed by agreement of the parties and neither party was awarded a judgment in its favor on the trademark issues; and
3. if the doctrine of res judicata were applicable to this case, it would constitute a legal bar to the Foundation's trademark claims, not merely Maaherra's defenses and counterclaims.
The doctrine of collateral estoppel does not bar Maaherra's counterclaim or any of her affirmative defenses to the Foundation's trademark claims for the following reasons:
1. the issues of acquiescence, laches, trademark misuse, unclean hands, collateral estoppel or res judicata were never decided in the Arizona case;
2. the affirmative defense based on genericness (affirmative defense no. 2) is not barred because the Arizona court's interlocutory order discussing the issue did not "actually decide" it in the manner necessary for applying the doctrine of collateral estoppel; and
3. in addition, collateral estoppel does not bar the genericness defense because: (a) the interlocutory order issued by the Arizona court was not necessary to the ultimate disposition of that case; (b) Maaherra asserts that the nature of the Foundation's trademark has changed in the more than two years since the ruling in the Arizona case; (c) recent case law applies a standard for determining whether a religious mark is generic that is materially different from the erroneous test employed in the Arizona case; and (d) it was not foreseeable to Maaherra that, subsequent to settling the Arizona case, she would be unable to assert the defense against the Foundation's claims in another case.
Neither res judicata nor collateral estoppel can be applied to the defenses raised by Defendant Eric Schaveland ("Schaveland") because:
1. he was not a party to the Arizona case;
2. he had no control over the course of litigation in that case; and
3. his individual interest was not represented by Maaherra in the Arizona case.
II. STATEMENT OF FACTS
On February 27, 1991, the Foundation filed an action against Maaherra in United States District Court for the District of Arizona (Civ. 91-0325-PHX-WKU). The Arizona case arose from a volunteer religious service effort of Maaherra in which she created a computerized study aid for The Urantia Book and distributed it on computer diskettes to other Urantians without charge.
The Foundation's complaint in the Arizona case asserted claims against Maaherra for copyright infringement, trademark infringement and related claims of deceptive practices and unfair competition. Maaherra's answer in that case denied that there had been any trademark infringement and set forth various defenses and counterclaims, including unclean hands, trademark misuse, and that the Foundation's purported trademarks were
generic symbols and words used by a large body of religious believers to denote their religious activities and associations and allegiance to God and therefore are not subject to exclusive appropriation.
Maaherra's Answer in Arizona at 5-6, submitted as Hill Affidavit, Ex. A. The relevant counterclaims asserted by Maaherra were for a declaratory judgment on the same grounds.
The Arizona district court (Urbom, J.) granted judgment in favor of Maaherra on the Foundation's copyright claim and issued several interlocutory rulings relating to the trademark claims. Urantia Foundation v. Maaherra, 895 F. Supp. 1347 (D.Ariz. 1995). In a Memorandum and Order issued February 27, 1995, the court denied the Foundation's motion for partial summary judgment for trademark infringement, but ruled that Maaherra had not shown that the Foundation's marks were then generic or that the Foundation committed fraud in prosecuting its trademark applications. Urantia Foundation v. Maaherra, 895 F. Supp. 1338 (D.Ariz. 1995).
After deciding these motions, the Arizona court set March 27, 1995 as the date for trial of the remaining trademark claims and defenses. Shortly before the trial date, on March 24, 1995, the parties entered into a settlement agreement resolving the trademark issues and related unfair competition and deceptive trade practices issues. Complaint at p. 9 (Paragraph 30). Maaherra entered into the agreement strictly for personal and financial reasons -- that is, she did not have the funds to pay the costs and attorneys' fees that would have been incurred if the case had gone to trial, and she believed that her time and effort could best be spent on future service projects which could then go forward because The Urantia Book had been declared to be in the public domain. Declaration of Defendant Kristen Maaherra at 1 (attached as Exhibit 1).
On October 25, 1995, the Arizona court entered the final Amended Judgment which granted judgment in favor of Maaherra on the copyright infringement claim and dismissed with prejudice the claims and counterclaims of both parties relating to trademark issues. (See Amended Judgment, Exhibit 2.)
On August 27, 1996, the Foundation commenced this action alleging trademark and service mark infringement, federal unfair competition, federal trademark dilution, breach of contract and copyright infringement. Complaint at pp. 10-13 (Paragraphs 32-50). This action arises from Schaveland's activities in making the text of The Urantia Book freely available to others and for using the word Urantia as part of his "address" on the global computer network commonly referred to as the Internet. The Foundation asserts that the activities which gave rise to the trademark claims in this action commenced after the entry of final judgment in the Arizona case. [Footnote 1: In another brief filed in this case, the Foundation contends that its infringement claim does not present the same cause of action or claims described in the Arizona case because this suit arises out of activities by Defendants which occurred after the entry of judgment in the prior action. Plaintiff's Brief in Opposition to Defendants' Motions for Partial Summary Judgment as to Count V (Copyright Infringement) at 6.] Complaint at 6 (paragraph 18).
Maaherra filed her Answer and Counterclaim on October 15, 1996. Maaherra asserts ten separate affirmative defenses to the Foundation's trademark and copyright claims. The Foundation's motion relates only to Maaherra's second, eighth, ninth and tenth affirmative defenses and her counterclaim, and only to the extent that they apply to the trademark claims. [Footnote 2: Pending before the court are separate motions relating to the copyright claims.] The relevant affirmative defenses are that the alleged trademarks are invalid because they are generic designations (Maaherra's second affirmative defense); that the Foundation's claims are barred due to its acquiescence (the eighth affirmative defense); that the Foundation's claims are barred under the doctrine of laches (the ninth affirmative defense); [Footnote 3: Maaherra also asserts in her ninth affirmative defense the doctrines of res judicata and collateral estoppel. However, these defenses apply solely to the copyright claims on which she obtained a final judgment in her favor in the Arizona case.] and that the Foundation's alleged rights are unenforceable because it has engaged in misuse of its trademarks and copyright and because it has unclean hands (the tenth affirmative defense). Answer and Counterclaim at 5-6. Maaherra's counterclaim is for a declaratory judgment that she has not infringed any valid rights of the Foundation and that the Foundation's purported copyright and trademark rights are invalid. Id. at 6.
III. ARGUMENT
The Foundation has failed to meet its substantial burden of demonstrating that it is entitled to judgment in its favor on these issues as a matter of law. Accordingly, neither Maaherra's nor Schaveland's affirmative defenses to the Foundation's trademark claims should be barred under the doctrines of res judicata or collateral estoppel.
A. Applicable Legal Standards: Motion for Summary Judgment and Motions
for Judgment on the Pleadings
For reasons set forth at Section III(E), infra, the Foundation's motion under Rule 12(c) for judgment on the pleadings should be treated as a motion for summary judgment under Rule 56(c). Nonetheless, Maaherra sets forth below the standards for considering motions under both rules.
1. Standard for Motion for a Judgment on the Pleadings
A motion for a judgment on the pleadings is subject to "a fairly restrictive standard" in ruling thereon because of the potential for the harsh result of denying a litigant its day in court. 5A Wright & Miller, Section 1367 at 509-510 (1990).
Judgment on the pleadings is appropriate only where the material facts are not in dispute and judgment on the merits can be rendered based on the content of the pleadings and any facts of which the court will take notice. Hamilton v. Cunningham, 880 F. Supp. 1407, 1410 (D.Colo. 1995), citing 5A Wright & Miller, Section 1367 at 509-510 (1990). In reviewing the motion,
all well-pleaded material allegations of the opposing party's pleading[s] are to be taken as true, and all allegations of the moving party [that] are denied are taken as false. Judgment on the pleadings may be granted only if, on the facts so admitted, the moving party is clearly entitled to judgment.
Hamilton, 880 F. Supp. at 1410, quoting Geltman v. Verity, 716 F. Supp. 491, 491 (D.Colo. 1989).
2. Summary Judgment Standard
If the Court elects to treat the Foundation's motion as for summary judgment, it still must be denied. A motion for summary judgment must be denied unless, when viewing the facts and reasonable inferences in the light most favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Clough v. Rush, 959 F.2d 182, 186 (10th Cir. 1992). A material fact is one that may affect the decision; a genuine dispute exists where sufficient evidence is presented such that a reasonable finder of fact could decide the question in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. Res Judicata is not Applicable to Maaherra's Affirmative Defenses
and Counterclaim
The doctrine of res judicata (often referred to as "claim preclusion") does not operate to bar the affirmative defenses and counterclaim alleged by Maaherra in this case.
The doctrine of res judicata prohibits a party from relitigating the same claim by asserting in a second lawsuit any matter that was asserted or might have been asserted by that party in the first lawsuit. Prospero Associates v. Burroughs Corp., 714 F.2d 1022, 1025 (10th Cir. 1983). The doctrine is applied to bar a claim or defense only if the party asserting it can establish all of the following elements:
(1) the first suit proceeded to a final judgment on the merits;
(2) the parties are identical or in privity; and
(3) the suits are based on the same cause of action.
May v. Parker-Abbot Transfer and Storage, Inc., 899 F.2d 1007, 1009 (10th Cir. 1990).
Maaherra acknowledges that the second element of the res judicata test is readily satisfied -- that is, she and the Foundation were parties to the Arizona case. However, the doctrine of res judicata is not applicable in the case at bar because the facts, when viewed in the light most favorable to Maaherra, do not support the other two elements of the test.
1. The Doctrine Cannot be Applied Unilaterally
The Foundation argues that the doctrine of res judicata should be applied only to dismiss Maaherra's defenses and counterclaim. In effect, the Foundation is asking this court to apply res judicata unilaterally against Maaherra, and to ignore the impact that the doctrine would have on its own trademark claim. There is neither support nor precedent for such a one-sided application of the doctrine. If a claim has been finally disposed of, neither party may relitigate the claim.
In the Arizona case, the court's judgment was neutral as to the trademark issues; it dismissed the trademark claims and counterclaims of both parties. See Exhibit 2. Thus, if the doctrine were applicable, it would operate to bar (and require dismissal of) the Foundation's trademark claim. However, for the reasons set forth below, the doctrine of res judicata is not applicable to the trademark issues in this case.
2. The First Suit did not Proceed to a Final Judgment on the
Merits on Trademark Issues [Footnote 4: Defendant notes that the Foundation is seeking application of the doctrine of res judicata only as to certain of the Defendant's defenses or her counterclaim as they pertain to the Foundation's claims of trademark infringement. Plaintiff's Brief at 5. The copyright claim, unlike any of the other claims in the Arizona case, did proceed to judgment, but such judgment was granted by the Arizona court in favor of Maaherra. See Exhibit 2.]
The resolution of the trademark issues reached in the Arizona case, did not constitute a final judgment on the merits. For res judicata purposes, a judgment is "final" if it "finally dispose[s] of some matter which under the substantive law to be applied and the procedural law of the forum can be, and has been, disposed of." 1B J. Moore, Federal Practice Paragraph 0.409[1][1.-1] (1996).
The Arizona district court entered a judgment in favor of Maaherra on the copyright infringement claim, but dismissed the claims and counterclaims of both parties relating to trademark issues. Thus, only the copyright infringement claim was "finally disposed of" in the Arizona case for the purpose of applying res judicata. Indeed, the Foundation has argued that res judicata should not even apply to the copyright claim because the summary judgment was granted "without a hearing or trial on the merits." Plaintiff's Brief in Support of its Motion for Partial Stay as to Count V (Copyright Infringement) at 3.
The Arizona district court did not make a final judgment on the merits of the trademark claim as is required for application of the doctrine of res judicata. Accordingly, the Foundation's motion must be denied.
3. The Arizona Case and This Case are not Based on the
Same Cause of Action
Res judicata is not applicable to the affirmative defenses and counterclaim raised by Maaherra because this case is not based on the same cause of action.
In determining what constitutes a single cause of action, the Tenth Circuit looks to "all or any part of the transaction, or series of connected transactions, out of which the action arose." May v. Parker-Abbot, 899 F.2d at 1007, citing Restatement (Second) of Judgments Section 24 (1982). The factual groupings that constitute a "transaction," as well as the groupings comprising a "series,"
are to be determined pragmatically, giving weight to such considerations as to whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.
Id. An obvious example of a separate transaction precluding application of res judicata is where the second action "draws on facts or seeks remedies that simply could not have been asserted in the first case." 18 Wright, Miller & Cooper Section 4409 at 80.
The Foundation asserts that its complaint arises out of activities by the Defendants which occurred after the Arizona case had been settled. Thus, the complaint draws on facts that could not have been asserted in the first suit. The alleged trademark infringement is substantially different than the alleged infringement in the Arizona case, which dealt with the labeling of diskettes with different forms of trademarks than are alleged here. Moreover, the Foundation asserts a claim under the federal dilution law -- a statute that was not even in effect until after the Arizona case had been settled. Federal Trademark Dilution Act of 1995, Pub. L. 104-98, 109 Stat. 985 (effective January 16, 1996).
The Foundation itself has argued in a prior brief submitted to this Court that its infringement claim "does not present the same cause of action or claims decided by the Arizona District Court." Plaintiff's Brief in Opposition to Defendants' Motions for Partial Summary Judgment as to Count V (Copyright Infringement) at 6. This admission alone is sufficient for the Court to find that res judicata does not bar Maaherra's affirmative defenses and counterclaim.
C. Collateral Estoppel does not Bar Maaherra's Defenses
and Counterclaim
The Foundation also argues that the doctrine of collateral estoppel (often referred to as "issue preclusion") bars certain of Maaherra's affirmative defenses and her counterclaim. Other than citing cases discussing general principles, the Foundation provides no support for applying collateral estoppel in the case at bar. It neither sets forth the requirements of the doctrine, nor does it identify a set of undisputed facts that satisfy such requirements. Absent such a showing, the Court cannot apply the doctrine.
Collateral estoppel is appropriate only when each of the following factors is present:
(1) an issue raised in a prior decision is the same as an issue involved in a subsequent case;
(2) the issue is actually decided in the first action after a full and fair opportunity for litigation;
(3) it was necessary to decide the issue in disposing of the first action;
(4) the later litigation is between the same parties; and
(5) the role of the issue in the second action was foreseeable in the first action.
Butler v. Pollard, 800 F.2d 223, 224-225 (10th Cir. 1986), citing 18 Wright, Miller & Cooper Section 4416 at 137-38.
As between the Foundation and Maaherra, there is identicality of parties. However, none of the other factors which are a prerequisite to the application of collateral estoppel have been established. Thus, the Court must deny summary judgment or judgment on the pleadings for the Foundation on this issue.
1. The Issues Raised in the Prior Decision and This Case
are not the Same
The issues of collateral estoppel and res judicata were not issues in the Arizona case. The Foundation concedes this fact in its brief. Plaintiff's Brief at 5, fn. 2. Nor were the issues of acquiescence or laches. The trademark defenses of misuse of marks and unclean hands were pleaded in the Arizona case, but were never raised in a decision by the court. These defenses cannot be precluded under the doctrine of collateral estoppel because there is no identicality of issues.
Maaherra acknowledges that genericness was addressed in an interlocutory order issued in the Arizona case and that the identicality of issues element has been met as to this one issue. However, the Foundation's failure to prove the other required elements precludes the application of collateral estoppel on this issue.
2. The Issues were not Actually Decided in the First Action After a
Full and Fair Opportunity for Litigation
The doctrine of collateral estoppel does not apply to bar Maaherra's affirmative trademark defenses or counterclaim because none of these issues was "actually decided" in the Arizona case after a full and fair opportunity for litigation.
a. res judicata, collateral estoppel, laches, acquiescence,
unclean hands, and misuse were not raised
As noted above, Maaherra's affirmative defenses of res judicata, collateral estoppel, laches, acquiescence, unclean hands and misuse were never the subject of a decision in the Arizona case. Some were never even pleaded; the others remained to be tried when the case was settled. Accordingly, these issues were not "actually decided" for the purpose of analysis under the doctrine of collateral estoppel, and should not be precluded.
b. the genericness issue was not actually decided
The only affirmative defense asserted by Maaherra in this case which was addressed in a decision in the Arizona case is the issue of genericness of the trademarks. The issue was the subject of a partial summary judgment opinion. This is not sufficient to determine that the defense was "actually decided." Moreover, there have been material changes in facts and relevant law since the Arizona court addressed the issue. Accordingly, the doctrine of collateral estoppel should not operate to bar Maaherra from asserting this defense.
i. the partial summary judgment opinion
is insufficient to determine that the genericness
issue was actually litigated
The Arizona case was resolved by settlement agreement. Such an agreement does not give rise to collateral estoppel unless the parties clearly intended otherwise. 1B Moore's Paragraph 0.444[3] at 613-14. The intent of the parties is determined by resort to the principles of contract interpretation. Keith v. Aldridge, 900 F.2d 736, 740-41 (4th Cir. 1990), cert. denied, 498 U.S. 900 (1990).
Prior to the settlement of the case, the Arizona court issued an opinion denying the Foundation's motion for partial summary judgment on trademark infringement but granting partial summary judgment for the Foundation on the issue of genericness. Such an order is interlocutory in character. See 6 (Pt. 2) Moore Paragraph 56.20 [3.-4] at 704. It lacks the degree of finality required for application of collateral estoppel. Avondale Shipyards, Inc. v. Insured Lloyd's, 786 F.2d 1265, 1269, 1272 (5th Cir. 1986).
Ultimately, the Arizona court entered final judgment in favor of neither party on the trademark issues and dismissed with prejudice all trademark claims and counterclaims. (The only portion of the judgment that was expressly in favor of either party was a judgment in favor of Maaherra on the copyright claim.) Consistent with the holding in Avondale, this Court should decline to give preclusive effect to the interlocutory summary judgment opinion on the genericness defense.
In Avondale, a party attempted to assert collateral estoppel on the basis of a partial summary judgment order issued in a prior case that subsequently was resolved by the entry of a final judgment by consent. The final judgment by consent approved the settlement and dismissed the suit with prejudice; it made no reference to the to the partial summary judgment order or to the issues addressed therein. The court rejected the application of collateral estoppel. Id. at 1272.
A similar holding is required as to Maaherra's genericness defenses. In the Arizona case, an interlocutory order granted partial summary judgment on the issue of genericness. The Arizona case was then resolved by settlement agreement, which Maaherra entered into reluctantly due to her financial situation. This agreement disposed of claims "based on anything occurring prior to the date of this Agreement," but does not state that the parties intended for it to have collateral estoppel effect for all future claims.
ii. changes in facts and law require a
determination that the issue of whether the marks
are presently generic was not actually decided
Even assuming, arguendo, that the Court determines that the genericness issue was sufficiently litigated, it must consider whether there have been changes in controlling facts or legal principles which preclude application of collateral estoppel. Montana v. United States, 440 U.S. 147, 155 (1979). See also 1B Moore Paragraph 0.448 at 837 ("an intervening factual change can displace a factual issue on which the initial judgment depended.").
A leading intellectual property judge has observed that trademark rights ". . . do not stay put. They are like ocean beaches; they shift around. Public behavior may affect them." G. Rich, Trademark Problems As I See Them Judiciary, 52 Trademark Rep. 1183, 1185 (1962), quoted in 4 J. McCarthy, McCarthy on Trademarks and Unfair Competition Section 32:88 (3d ed. 1996). In this connection, the determination as to whether a mark is generic depends upon public perception, which likely has changed in the two years since The Urantia Book went into the public domain. [Footnote 5: It is well established that when a book falls into the public domain, the book's name also becomes public property. G. & C. Merriam Co. v. Syndicate Publishing Co., 237 U.S. 618 (1915) ("further use of the name by which the publication was known and sold under the copyright cannot be acquired by registration as a trademark; for the name has become public property, and is not subject to such appropriation.") In this instance, the term "Urantia" is the significant component of the title of The Urantia Book. Since the work is in the public domain, this term also is public property.] Maaherra's assertion in her affirmative defense is that these changes in perception render the mark generic today. Since the court must accept this allegation by Maaherra as true at this juncture, it must be found that there has been a change in controlling facts which precludes application of the prior ruling. See Opryland USA Inc. v. The Great American Music Show Inc., 970 F.2d 847, 853 (Fed. Cir. 1992) (despite prior holding that the term "opry" was generic for country music shows, party was not estopped from presenting evidence of change in public perception); Plus Products v. Natural Organics, Inc., 223 USPQ 27, 28-29 (S.D.N.Y. 1983) (motion for summary judgment on collateral estoppel, based on a determination of likelihood of confusion in a prior case, denied because such decision may be "totally irrelevant" with respect to new market conditions).
Moreover, there has been a change in relevant law. In a decision released in March 1996, the Trademark Trial and Appeal Board ("TTAB"), an administrative court expert in trademark matters, issued a detailed opinion which addressed the appropriate standard for determining the genericness of a religious mark. See Stocker v. General Conference Corp. of Seventh-day Adventists, 39 USPQ2d 1385 (TTAB 1996). In what the TTAB noted as its "case of first impression . . . regarding the genericness of church/religion names," the Board examined whether the term "Seventh-day Adventists" was generic, and determined that the "relevant public" for this inquiry was not the general public, but only Adventist Christians. Id. at 1391, 1394.
The TTAB's test standard is contrary to that applied by the Arizona court in deciding the Foundation's partial summary judgment motion. In the Arizona case, the court defined the relevant public to include the general public, including persons who had never heard of the Urantia movement. This definition of the relevant public was overly broad; the proper test was whether the mark was perceived as generic by persons who might be familiar with the movement. This erroneous standard proved to be determinative of the outcome. Indeed, the Arizona court noted that the Foundation's marks "may be considered generic by a segment of the public that previously purchased The Urantia Book . . ." 895 F. Supp. at 1343.
At this stage of the case, Maaherra has shown sufficient changes in the controlling facts and the applicable law on the identical subject to require denial of the Foundation's motion.
3. It was not Necessary to Decide the Issues in Disposing of the
First Action
The issue of genericness was not sufficiently decided for the purpose of applying collateral estoppel. However, even assuming, arguendo, that it was decided, that determination was not necessary to the judgment ultimately rendered in the Arizona case.
Where an issue is determined but the judgment is not dependent on the determination, collateral estoppel does not bar relitigation of the issue. Restatement (Second) of Judgments Section 27, comment h. Such a determination has "the characteristics of dicta. . . ." Id. The Restatement offers the following example:
A, as owner of a trademark, brings an action against B for infringement. B denies the validity of the trademark and denies infringement. The court finds that the trademark is valid, but that B had not infringed it, and gives judgment for B. Thereafter A brings an action against B alleging that since the rendition of the judgment B infringed the trademark. B is not precluded from defending this action on the ground that the trademark is invalid.
Id. (illus. 14).
The issue of genericness goes to the validity of the Foundation's alleged trademarks. Thus, under the Restatement, even if the Arizona case had gone to trial, the validity opinion might not necessarily be entitled to be given preclusive effect. Since the Arizona court's judgment dismissed the trademark claims of both parties without any determination of the infringement issue, there is even less reason to accord preclusive effect to that interlocutory decision. Clearly, the dismissal of the trademark claims was not dependent upon the prior interlocutory ruling. Therefore, that ruling should be treated as dicta and should not be given preclusive effect.
4. Foreseeability
The concept of "foreseeability" is an additional limitation on application of collateral estoppel. 18 Wright, Miller & Cooper Section 4424 at 226. It was not foreseeable to Maaherra that the interlocutory order issued in the Arizona case and the subsequent final judgment dismissing the trademark claims of the parties would be asserted as a bar to a genericness defense in subsequent litigation involving a different activity.
Maaherra entered into the settlement primarily because she lacked the funds needed to proceed. Maaherra Decl. at 1 (Exhibit 1). Had she recognized at that point that the interlocutory order on the genericness issue would be asserted to preclude that defense in a subsequent action, she would not have forfeited her right to appeal in negotiating the settlement agreement. Id. at 1-2. In view of this fact, the court should not apply collateral estoppel to bar Maaherra's genericness defense to the Foundation's trademark claims.
D. Schaveland's Defenses and Counterclaims are not Barred under "Virtual Representation" Doctrine
Schaveland was not a party to the Arizona case. Even assuming, arguendo, that either doctrine applies to bar any of Maaherra's claims or defenses, the preclusive effect cannot be extended to encompass the claims and defenses of Schaveland.
The Foundation contends that Schaveland's affirmative defenses and counterclaim are barred under res judicata and collateral estoppel because he is the privy of co-defendant Kristen Maaherra. This claim is without merit.
The circumstances in which issue preclusion may operate against a non-party to the prior action are very limited. See, e.g., Parklane Hosiery v. Shore, 439 U.S. 322 (1979). In a case cited with favor by the Foundation, the court states the "prevailing federal rule" regarding use of issue or claim preclusion against a non-party:
First, a non-party who has succeeded to a party's interest in property is bound by any prior judgments against that party . . . Second, a nonparty who controls the original suit will be bound by the resulting judgment . . . Third, federal courts will bind a nonparty whose interests were represented adequately by a party in the original suit.
Terell v. DeConna, 877 F.2d 1267, 1271 (5th Cir. 1989), citing Freeman v. Lester Coggins Trucking Co., 771 F.2d 860, 864 (5th Cir. 1977). Although it is not clear from its brief, the Foundation appears to be arguing that Schaveland either "controlled" the Arizona case or was "virtually represented" therein by Maaherra.
1. Schaveland did not Control the Prior Litigation
The Foundation alleges no facts in its complaint or elsewhere from which this Court can conclude that Schaveland controlled the prior litigation. The Foundation has not met its burden. In fact, the only evidence is to the contrary. See Declaration of Kristen Maaherra at Paragraph 3. At minimum, Maaherra's declaration raises a material disputed issue which precludes judgment on the pleadings or summary judgment for the Foundation on the question of whether Schaveland controlled the Arizona case.
2. Schaveland was not "Virtually Represented" in the First Suit
The Foundation alleges that Schaveland was "virtually represented" by Maaherra in the prior case. This argument is without merit. There is no support for the proposition that Maaherra was acting on behalf of Schaveland for the purpose of the issues raised in the current litigation. Courts consistently have held that in order to establish "virtual representation," a party must establish the existence of an express or implied legal relationship in which parties to the first suit are accountable to nonparties who file a subsequent suit raising identical issues." Freeman, 771 F.2d at 865.
As a case cited with favor by the Foundation states, virtual representation does not exist between parties merely because they have a familial relationship and raise similar claims. Terrell v. DeConna, supra, 877 F.2d at 1271. Something more is required; the claims of the parties must be legally related, not merely share common facts. Id. at 1271-2. In Terrell, the second spouse's claim of loss of consortium legally derived from the husband's prior personal injury claim. The court determined that these facts permitted application of issue preclusion against the spouse in the second suit.
In contrast, the court in Freeman rejected a claim of "virtual representation," despite the existence of a familial relationship and a factual relationship between the claims of the relevant persons. 771 F.2d at 865-66. In that case, a father who had lost a personal injury claim relating to an accident filed a second case alleging the wrongful death of his daughter in the same accident. The father filed the second suit on behalf of himself and the other surviving members of his family. The court ruled that the prior judgment barred only the father's claim in the second suit; not the claim, as it applied to the father as the representative of the remaining family members. The court reasoned that the other family members were not so "closely aligned in legal interest" with the father so as to justify barring their claims. Id.
This case is similar to Freeman. Although there is a familial relationship between Maaherra and Schaveland, and the claims against them share some common facts, the Foundation has not established that Schaveland's trademark defenses and counterclaim legally derive from the trademark defenses and counterclaim asserted by Maaherra in the Arizona case.
The focus of the present case is Schaveland's activities on his Internet home page, which displays the Urantian circles and makes The Urantia Book available to other Urantians. This activity was not the subject of the first suit. Had the Foundation desired to make Schaveland bound by the Arizona decision, it could have and should have made him a party, especially since the Foundation knew during the pendency of that case that Schaveland was then distributing in printed and magnetic form the text of The Urantia Book.
The Foundation also argues that Schaveland was "virtually represented" in the Arizona case because he is attempting to benefit from the final judgment in that case holding the Foundation's copyright invalid. This argument is also without merit. The judgment of the Arizona court held that The Urantia Book was in the public domain. Thus, the defense of invalidity is available to the public, i.e. any party against whom the Foundation files a suit for infringement of its copyright in The Urantia Book. Schaveland's reliance on the copyright decision places him in no special class.
The reported cases cited by the Foundation are easily distinguishable. Bell v. Board of Education, 683 F.2d 963 (6th Cir. 1982), involved a prior court decision which was deemed to be a class action. Similarly, in Jackson v. Hayakawa, 604 F.2d 1121 (9th Cir. 1979) the court found that the initial decision "was brought as a class action and treated by court as a class action." Id. at 1126. The Arizona case was a typical trademark and copyright case which dealt with the specific allegedly infringing activities of Maaherra and not the potential liability of any class.
In addition, Schaveland's interests were not adequately represented in the Arizona case. Ms. Maaherra chose not to pursue this case through conclusion. Had she done so, she might have ultimately prevailed on the merits, and/or successfully appealed the interlocutory opinion discussing the issue of genericness.
E. The Foundation's Motion for Judgment on the Pleadings Should be
Treated as a Motion for Summary Judgment
Consistent with the Foundation's styling, Maaherra has responded to a motion for judgment on the pleadings. However, this is an incorrect characterization of the nature of the motion; the Foundation is actually moving for summary judgment. [Footnote 6: The Foundation's res judicata and collateral estoppel claims encompass additional matters outside the scope of the pleadings. See 5A Wright & Miller, Section 1368 at 530. Moreover, the Foundation has attached an affidavit of its counsel to the motion at bar, which constitutes material outside the scope of the pleadings. Thus, this motion is not a proper motion for judgment on the pleadings. See Ketchum v. Cruz, 961 F.2d 916, 919 (10th Cir. 1992).] As such, the motion should be rejected because it is not in accordance with this Court's procedural order governing summary judgment motions. While a motion for judgment on the pleadings may be treated as a motion for summary judgment where the movant pleads matters outside the pleadings, Fed. R. Civ. P. 12(c), a party should not skirt this Court's requirements by merely using an inaccurate characterization of its motion.
This Court's Order of October 22, 1996, establishes the procedures for this case, and sets forth specific requirements which must be followed by a party seeking summary judgment. These requirements include, inter alia, a "Statement of Undisputed Material Facts" with separately numbered paragraphs containing simple declarative statements accompanied by a specific reference to supporting material in the record. The Foundation's motion does not include such paragraphs. Therefore, the motion should be stricken as provided for in the Order, because it deprives Defendants of the clearest way to demonstrate the existence of disputed issues of material facts and makes more difficult the consideration of this issue by the Court.
IV. CONCLUSION
Regardless of whether the Court construes the Foundation's motion as one for judgment on the pleadings or one for summary judgment, the Foundation has not demonstrated that it is entitled to a judgment as a matter of law on any issue. Accordingly, the Foundation's motion should be denied.
Respectfully submitted,
Joseph D. Lewis
Dated: March 11, 1997
Peter A. Jaffe
Jaffe and Asher
2624 Catamount Creek Road
McCoy, CO 80463
Ph: 970/653-4361
Joseph D. Lewis
Scott J. Major
Cleary, Komen & Lewis, LLP
600 Pennsylvania Avenue, SE
Suite 200
Washington, DC 20003
Ph: 202/675-4700
Attorneys for Defendant Kristen Maaherra
**************************************************************
Affidavit of Kristen Maaherra in Opposition to Plaintiff's Motion for Judgment on the Pleadings
I, Kristen Maaherra, am over 21 years of age and am competent to give testimony in this matter. The statements I make in this Affidavit are based on my personal knowledge.
1. The lawsuit Plaintiff Foundation initiated against me in Arizona was settled because I didn't have the money at that time to sustain the costs and expenses involved in a week long trial away from home. Fellow believers were contributing to defray the expense of the lawsuit, and everyone -- myself included -- was sick and tired of the litigious Foundation. When I settled the case, my ability to raise funds at that time appeared to be exhausted. I turned my attention and resources to other service projects.
2. In settling the Arizona case, I thought I was dealing with that case only -- not with other matters that might come along in the future. Had I thought that I would be forever barred from raising these defenses, I would have sought a resolution which would have allowed me to pursue an Appeal.
3. I was solely responsible for directing my attorney and the conduct of the litigation in the Arizona case. Eric Schaveland did not control in any way the Arizona litigation.
4. Since Judge Urbom found the Urantia Papers to be in the public domain two years ago, much new activity -- which, in this new lawsuit, would be analogous to new evidence -- has appeared. Just one example is, The HarperCollins Dictionary of Religion, published in November of 1995, where Urantia is listed as a "new religion in North America."
Under penalty of perjury, I declare that the forgoing is true and correct.
RESPECTFULLY SUBMITTED this __th day of March, 1997.
Kristen Maaherra
**************************************************************
March 24, 1997
CONSOLIDATED REPLY TO BRIEFS IN OPPOSITION TO
PLAINTIFF'S NOTION FOR JUDGMENT ON THE PLEADINGS ON
RES JUDICATA AND COLLATERAL ESTOPPEL GROUNDS
Plaintiff URANTIA Foundation (the "Foundation"), through undersigned counsel, hereby reply to (1) Defendant Eric Schaveland's Response Brief to Plaintiff's Motion for Partial Judgment on the Pleadings on Res Judicata and Collateral Estoppel Grounds and (2) Defendant Maaherra's Brief in Opposition to Plaintiff's Motion Against Defendant Schaveland for Partial Judgment on the Pleadings.
What the Defendants attempt in their respective briefs on this matter is to deflect attention away from the claims they make against the Foundation's registered marks by emphasizing that the Foundation's claims in this case are new causes of action. However, the fact that the Foundation's claims of trademark infringement and related unfair competition and dilution claims are based on new facts does not change the fact that Maaherra has previously attacked the validity of the Foundation's registered marks and lost. Res Judicata and collateral estoppel serve a valuable purpose by putting an end to Maaherra's attacks against the viability of the marks. For these reasons, which are explained in greater detail below, the Court should grant the Foundation's motion and dismiss with prejudice Maaherra's affirmative defenses 2, 8, 9 and 10, Schaveland's affirmative defenses 2, 3 and 4 and both Defendants' counterclaims.
A. Maaherra's Counterclaim and Defenses Attacking the Validity of the Foundation's Registered Trademarks Are Subject to Dismissal on Res Judicata Grounds.
The Defendants concede that this action involves the same parties as the previous litigation between the Foundation and Maaherra. However, Defendants question whether res judicata can be applied "unilaterally. n This argument is a "red herring" because res judicata does not apply unilaterally in this case, it bars the Foundation from asserting that Maaherra's distribution of computer diskettes bearing the Foundation's URANTIA and concentric circles marks is unlawful, and it also bars Maaherra and her privies from asserting that the Foundation's "URANTIA" and concentric circles marks are not valid. [Footnote 1: What the Defendants appear to be saying is that it is unfair for the Foundation to sue them for Defendants' unauthorized use of the Foundation's marks on the Internet after Maaherra lost her affirmative defenses and counterclaim challenging the validity of the Foundation's marks in final judgment in the previous litigation. This is very different from asserting that res judicata is being applied "unilaterally."]
Despite the Defendants' unsupported allegation to the contrary, the previous litigation proceeded to a final judgment, of which the Court should take judicial notice. The fact that the final judgment dismissed with prejudice Maaherra's challenges to the validity of the Foundation's marks (consistent with its published opinions granting partial summary judgment for the Foundation on Maaherra's defenses and counterclaims of fraud, genericism and religious freedom) means that the Foundation is entitled to the preclusive effect of res judicata and collateral estoppel. May v. Parker-Abbot Transfer & Storage, Inc., 899 F.2d 1007, 1009-1011 (l0th Cir. 1990) (res judicata applies when a suit is dismissed with prejudice pursuant to a consent decree; a consent decree may alter the otherwise preclusive effect of the final judgment, but it must specifically say so). [Footnote 2: Maaherra does not contend that either the Settlement Agreement or stipulated mutual dismissal with prejudice specifically excluded any of her challenges to the Foundation's marks from the bar of claim and issue preclusion.] Like the parties in May, the Foundation and Maaherra mutually agreed to a settlement with a stipulated dismissal of all claims with prejudice.
May involved multiple claims regarding a contract, some of which were rained after the consent decree dismissing all claims with prejudice. Analyzing whether the later-asserted claims were subject to the bar of res judicata, the Court inquired whether those claims were a part of the "same cause of action," or a series of related transactions, at issue in the first case. In deciding that they were, the Court incorporated the analysis of the RESTATEMENT (SECOND) OF JUDGMENTS sec. 24 (1982), which states in part that whether a nucleus of facts is a single "transaction," or a series of related transactions should be "determined pragmatically, giving weight to such considerations as to whether the facts are related in time, space, origin, motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations. n 899 F.2d at 1009-1010.
In this case, Maaherra's counterclaim in the previous litigation, as well as her affirmative defenses, challenged the validity of the Foundation's registered marks on the basis of such things as fraud and unclean hands, misuse, genericism and the religious nature of the marks. In return for the Foundation accepting a final judgment that her distribution of diskettes bearing the Foundation's marks did not infringe the marks, Maaherra accepted a final judgment that her challenges to the marks are not meritorious. Under the test for the same or related cause of action expressed above, surely her challenges to the Foundation's marks in this case are the same as, or related to the same or similar challenger to the same marks in this case. [Footnote 3: Had Maaherra first sued the Foundation seeking cancellation of its marks and a declaration of their validity, and the Foundation counterclaims for, inter alia, trademark infringement based on the distribution of the diskettes, resulting in a final judgment dismissing with prejudice Maaherra's claims in full, there would be no doubt that res judicata would bar her from asserting that the Foundation's marks are invalid two years later, even if her motivation for doing so had changed (i.e., now she seeks to protect her activities on the Internet). What Maaherra falsely assumes is that the procedural posture in which she has made and now makes her claims (counterclaim and defense versus complaint) makes a difference for purposes of this motion. However, there is no support in the case law for recognizing such a distinction.] Accordingly, in this case, Maaherra's defenses to the validity of the Foundation's trademarks and her counterclaim incorporating those defenses are barred by the final judgment in the previous litigation wherein she made the same claims.
The Court should reject the Defendants' argument that res judicata should not bar Maaherra from repeatedly challenging the validity of the Foundation's marks. The purpose of res judicata is to put an end to a litigation. May, 899 F.2d at 1009. It protects the courts and the litigants from a waste of time and resources. Id. The affirmative claims raised by Maaherra in this case that are barred because they were or could have been raised in the previous course of challenging the Foundation's marks are: her "genericism. defense, her "acquiescence. defense, her Unclean hands and ~misuse. defenses, and her counterclaim which incorporated her defenses as the grounds for a declaration that the Foundation's marks are not valid.
B. Maaherra's Claims of Fraud, Unclean Bands and Genericism are Barred by Collateral Estoppel.
In United States v. Moser, 266 U.S. 236, 241, 45 S.Ct. 66, 67 (1924), the Supreme Court stated that once a right, question or fact in put in issue. and directly determined by a court of competent jurisdiction, the decision so made Cannot be disputed in a subsequent suit between the same parties.. Moser stated that seven if the second suit is for a different cause of action the right, question or fact once so determined must . . . be taken as conclusively established, so long as the judgment in the first suit remains unmodified." Id. The United States District Court for the District of Arizona previously granted the Foundation's motions for partial summary judgment that its trademarks are not generic and were not fraudulently registered. [Footnote 4: A review of Maaherra's counterclaims in the previous litigation shows that her claim of unclean hands was based on her claim of fraudulent registration. Thus, summary judgment in the prior action which dismissed her fraud claim defeats her unclean hands defense as well.] Therefore, Maaherra is collaterally estopped from raising these issues in this case.
Maaherra's primary objection to the application of collateral estoppel is that the granting of partial summary judgment is not a "final judgment. a While it is true that for purposes of appeal and review, partial summary judgment is not a final judgment, the majority of courts have held that partial summary judgment is final for purposes of res judicata and collateral estoppel. Sun Chem. Corn. v. United States, 698 F.2d 1203, 1209 (Fed. Cir. 1983), cert. denied, 464 U.S. 819 (1983); Springer v. Seaman, 658 F. Supp. 1502, 1507-1510 (D. Me. 1987) (determination on motion for partial summary judgment given collateral estoppel effect in subsequent action between same parties); Sherman v. Jacobsen, 247 F. Supp. 261, 268 (S.D.N.Y. 1965) (partial summary judgment is final judgment barring relitigation of claims ruled upon); In re Moon, 116 B.R. 75, 77 and in. 4 (Bankr. E.D. Mich. 1990) (partial summary judgment results in both issue and claim preclusion - collecting cases). [Footnote 5: Maaherra brings this Court's attention to Avondale Shipyards. Inc. v. Insured Lloyd's, 786 F.2d 1265 (5th Cir. 1986), in which the court refused to afford partial summary judgment as a "final judgment" for res judicata and collateral estoppel purposes. However, the rationale of Avondale is flawed because the Court in that action applied the final judgment rule, i.e., whether a decision is sufficiently final to be appealable as a matter of right. The final Judgment rule, however, serves purposes far different from res judicata and collateral estoppel, and these purposes should be taken into account. "[Finality may mean little more than that the litigation has reached such a stage that a court sees no really good reason for permitting it to be litigated again.. Lummus Co. v. Commonwealth Oil Refining Co., 29,7 F.2d 80, 89 (2d Cir.), cert. denied, Dawson v. Lummus Co., 368 U.S. 986 (1962). End of Footnote 5.] Furthermore, Maaherra cannot show that the final judgment in the previous litigation changed or contradicted the granting of partial summary judgment; to the contrary, it reinforced its earlier judgment by dismissing all of Maaherra's trademark claims with prejudice. Given the partial summary judgment and the final judgment in the previous litigation, collateral estoppel bars Maaherra from relitigating her genericness and fraud claims in this case.
Maaherra also argues that there has been a change in both the controlling law and the controlling facts of the previous litigation. [Footnote 6: These "changes," even if accepted, do not alter the fact that Maaherra is barred from relitigating her fraud/unclean hands claims.] These assertions are overstated, and do not change the applicability of collateral estoppel. The alleged change in controlling law is the language in Stocker v. General Conf. Corp. Of Seventh-Day Adventists, 39 U.S.P.Q.2d 1385 (TTAB 1996), wherein the Trademark Trial and Appeal Board stated that the Relevant public. was limited to Adventist Christians. [Footnote 7: A careful reading of Stocker shows that the opinion was based on accepted expert testimony as to why the "relevant public" should be narrowly construed. If Maaherra had such testimony in the previous litigation, she never brought it to the Court's attention.] Maaherra is incorrect in characterizing Stocker as controlling law. It is no more than Judge Urbom's opinion or the authorities he relied on in making it. [Footnote 8: Maaherra shows no change in the law of either the Ninth or Tenth Circuits in support of her claim that a change in any controlling law has occurred.]
Likewise, there has been no change in the controlling facts of the previous case. Maaherra's claim is that the judgment invalidating the Foundation's copyright renewal in the URANTIA Book somehow makes the Foundation's "URANTIA. marks generic. In the first place, the copyright portion of the judgment is on appeal to the Ninth Circuit, where it is subject to reversal. Moreover, the Foundation possesses four registered "URANTIA" marks. Even if Maaherra's argument is accepted, it only provides a defense against the registered "URANTIA" mark that applies to books, and not to the other three. Furthermore, the Foundation's argument in its reply in support of judgment on the pleadings against Schaveland shows that this argument is really "descriptiveness" with a "genericism" label. [Footnote 9: Maaherra has no basis upon which to assert that URANTIA now means book in the same manner that KLEENEX means facial tissue. All she can hope to show is that, after the decision on the copyright, "URANTIA" describes the book.] As discussed in that brief, the Foundation's registered marks defeat a claim of descriptiveness. In summary, the Court should bar Maaherra from raising the genericism and fraud/unclean hands claims on collateral estoppel grounds to preserve consistent results and conserve judicial resources. [Footnote 10: Maaherra also asserts that the Court should not permit this motion for judgment on the pleadings because of the affidavit which places before the Court the complaint, answer and counterclaims, and the reported decisions in the previous action. These are all matters of public record, of which the Court may take judicial notice in a motion for judgment on the pleadings.]
C. Schaveland was Virtually Represented in the Previous Litigation.
What the various cases involving "virtual representation" show is that there is no "bright line test" for assessing whether a person was virtually a party to a previous litigation. What should underscore the determination of "virtual representation" in each case is the underlying purpose of res judicata and collateral estoppel: to put an end to a litigation, and preserve consistency in judicial results. In this case, the Foundation shows, and Schaveland admits to, several key factors that should lead the Court to hold that he is also subject to the res judicata and collateral estoppel effects of the previous litigation between the Foundation and his wife, Maaherra.
Schaveland admits that he is married to Maaherra and that they live and have lived together for some time. They obviously share an identity of religious interests in using "URANTIA" and the concentric circles symbol. Schaveland has even pointed out to the Court that he was engaging in what he thought were infringing actions during the pendency of the preceding case. With respect to Maaherra's claims in the first case that were geared to cancel the Foundation's marks, such as fraud and genericism, Schaveland obviously had an invested interest in the success or failure of those claims, regardless of the fact that the Foundation's claims were technically against Maaherra. "[A] person may be bound by a judgment even though not a party of one of the parties to the suit if so closely aligned with his interests as to be his virtual representative." Kerr-McGee Chem. Corp. v. Hartiqan, 816 F.2d ,177, 1180 (7th Cir. 1987), quoting Aeroset-General Corn. v. Askew, 511 F.2d 710, 714 (5th Cir.), cert. denied, 423 U.S. 908, 96 S. Ct. 210 (1975).
In addition, to their identity of interests, the Foundation has shown that Schaveland has willingly accepted the benefits of the previous judgment, which he does not deny. This is another factor for the Court to consider.
The Court should also take into consideration the fact that Maaherra was adequately represented by counsel in the prior case, and capably represented Schaveland's interests with respect to such claims as fraud and genericism, while Schaveland is proceeding pro se in the instant action. [Footnote 11: It is also noteworthy that Maaherra chose to file a brief in opposition to the Foundation's motion against Schaveland. Thus, she and her counsel virtually represent Schaveland in this case as well.]
While Maaherra attempts to distinguish a few of the Foundation's cases on this point, neither Defendant denies the applicability of decisions such as Rush v. Superintendent of Police, 1994 WL 114847 (N.D. Ill. Apr. 4, 1994) and Maquire v. Thompson, 1990 WE 70451 (N.D. Ill. May 7, 1990) cited on page 7 of the Foundation' Brief in Support of Plaintiff's Motion for Partial Judgment on the Pleadings on Res Judicata and Collateral Estoppel Grounds (the "Foundation's Opening Brief"), which recognized the doctrine "virtual representation." In so doing, these courts placed heavy emphasis on the similarity of claims in the first and second suit, the similarity of interests between the first and second plaintiff, and whether the first plaintiff adequately represented the interests of the second group. The Foundation submits that these factors counsel in favor of holding that Schaveland was virtually represented by Maaherra in the previous case with respect to Maaherra's claims that the Foundation's marks are invalid. [Footnote 12: Although there is case law that states that a epousal relationship by itself will not support a claim that one spouse is in privily with the other, when the existence of such a relationship is coupled with the other factors that the Foundation has pointed out, the husband and wife should be held representatives of each other to protect third parties from the near-endless litigation that results when, as in this case, the spouse who was not a formal part to the prior action attempts to relitigate the very same issues that were already decided against his or her spouse.] In conclusion, if either res judicata or collateral estoppel, or both, bar Maaherra from asserting some or all of her defenses and counterclaim in this case, Schaveland should be similarly barred from asserting those claims.
CONCLUSION
For all of the foregoing reasons, as well as those set out in the Foundation's Opening Brief, the Foundation respectfully requests that its motion be granted.
Dated this 24th day of March 1997.
Respectfully submitted,
Ballard Spahr Andrews & Ingersoll
By William T. Slamkowski
and
Gordon Dean Booth, Jr.
Steven G. Hill
ATTORNEYS FOR PLAINTIFF,
URANTIA FOUNDATION
Last Updated April 9, 1997 by Kristen Maaherra