f TTAB UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board P.O. Box 1451 Alexandria, VA 22313-1451 General Contact Number: 571-272-8500
Mailed: November 18, 2016
Cancellation No. 92059292 -1~53 <?II/
Frank J . Visconi
v.
Brothers of the Wheel M. C. Executive Council Inc.
Millicent Canady, Paralegal Specialist:
On October 5, 2016, the parties were allowed time to inform the Board of the status
of their civil action.
No response has been received.
Accordingly, proceedings herein are resumed. Trial dates are reset as indicated
below.
Deadline for Discovery Conference Discovery Opens Initial Disclosures Due Expert Disclosures Due Discovery Closes Plaintiffs Pretrial Disclosures Plaintiffs 30-day Trial Period Ends Defendant's Pretrial Disclosures Defendant's 30-day Trial Period Ends Plaintiffs Rebuttal Disclosures Plaintiffs 15-day Rebuttal Period Ends
llllllllllllllllll llll lllll llllllllll lllllllllllllllllllllll 12·19·2016
U S Patent & TMOfc/ TM Mail Rcpt Ot #.11
12/18/2016 12/18/2016
1117/2017 5/17/2017 6/16/2017 7/31/2017 9/14/2017 9/29/2017
11113/2017 11/28/2017 12/28/2017
f
Cancellation No. 92059292
In each instance, a copy of the transcript of testimony together with copies of
documentary exhibits, must be served on the adverse party within thirty days after
completion of the taking of testimony. Trademark Rule 2.125.
Briefs shall be filed in accordance with Trademark Rules 2.128(a) and (b). An
oral hearing will be set only upon request filed as provided by Trademark Rule
2.129.
2
•
IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
Frank J. Visconi and Gerald R. Mollohan and Brothers of the Wheel Motorcycle Club Nomads Petitioner,
Cancellation No.: 92059292
(Cancellation No.: 92056674)
v.
Brothers of the Wheel M.C. Executive Council Inc. Respondent/Registrant.
Mark: BROTHERS OF THE WHEEL M.C. AND DESIGN Registration No.: 2926222
Date Registered: February 15, 2005
MOTION FOR LEAVE TO FILE PETITIONER'S RESPONSE TO USPTO - TTAB
FRUDULENT AND GROUNDLESS PUTATIVE LETTER AUTHORED BY RICHARD J. LINDROTH DATED OCTOBER 26, 2016
AND PROVIDED TO MILLICENT CANADY, PARALEGAL SPECIALIST,
VIA KEITH L. MITCHELL AND
"FACTS" CONCERNING RESPONDENT/REGISTRANT CORPORATION DISSOLUTION REQUEST
AND MOTION TO COURT TO GRANT PETITIONER MOTION TO FIND
ATTORNEY'S LINDROTH AND MITCHELL IN VIOLATIONS OF FRAUD UPON THE COURT
INTRODUCTION
COMES NOW the Petitioners, Frank J. Visconi(Cancellation No. 92059292)
and Gerald R. Mollohan(Cancellation No. 9205674), prose et al to hereby notify
the Board (TTAB) of "FACTS" ON RESPONDENT/REGISTRANT
1
CORPORATON DISSOLUTION REQUEST" and Motion to grant petitioners
motion to find Attorney's Richard J. Lindroth and Keith L. Mitchell guilty of
"FRAUD UPON THE COURT" and Motion To Cancel Trademark Registration
Number 2926222. Petitioners have filed motions to find Respondent/Registrant's
Parent Corporation/RICO Persons and Quasi/Sub-Companies/Sub
Corporations/Branch Chapters/RICO Persons in Default in Civil Action Case 2: 13-
cv-32251 and immediately cancel fore mention trademark number. There was also
recently a "Notice of Motion and Motion to Vacate Judgment; Memorandum of
Points and Authorities; Declaration of Gerald R. Mollohan" filed in Civil Action
Case 2:11-cv-00104 filed in U.S. District Court For The Southern District of West
Virginia at Charleston(Document 202 Filed 04/25/16) currently under
consideration in both 2: ll-cv-00104 and 2: 13-cv-32251. Due to recent discovery
Petitioners to cancel trademark 2926222 feel that it is likely the Court will rule in
favor of Gerald R. Mollohan and Frank J. Visconi, awarding all property of Paul
D. Warner's Criminal RICO Enterprise to Gerald R. Mollohan and Frank J.
Visconi. Paul D. Warner has indicated to the Court that he indeed has worked in
association with numerous Convicted RICO Enterprises over the life of his Parent
Corporation beginning in 1998. That was admitted to by Warner's National Vice
President Ray Edwin Carey at a deposition held on October 28, 2016 held at the
Comfort Inn in Cross Lanes, West Virginia. Respondent/Registrant has no way
of controlling the quality or use of his mark in violations of the "Naked
Licensing Doctrine(Law.)
ARGUMENT
There are numerous Outstanding Motions yet to be ruled on in
U.S. District Court at Charleston, West Virginia regarding the Cancellation of
Trademark Registration No. 2926222. Civil Action No. 2:13-cv-32251.
2
Mr. Mollohan and Mr. Visconi expect Respondent/Registrant Trademark to be
canceled due to Respondent/Registrant/Defendant's/RICO Persons numerous
violations of the Naked Licensing Doctrine(Law.)
There is good cause for the U.S. District Court to order Respondent/Registrant
Parent Corporation/RICO Persons Enterprise and it's Quasi/Sub-Companies/Sub
Corporations/Branch Chapters/RICO Persons to dissolve their RICO CRIMINAL
ENTERPRISE and ASSOCIATION IN FACT ENTERPRISES, thus the present
registered owner of 2926222 will cease to exist.
CONCLUSION
Petitioners Frank J. Visconi and Gerald R. Mollohan, pro se et al hereby
notifies the Board of filing "DECLARATION - PLAINTIFF'S/DEFENDANT'S
COUNTERCLAIM DEFENDANT'S GERALD R. MOLLOHAN BROTHERS
OF THE WHEEL MOTORCYCLE CLUB NOMADS AND MOTION AND
BRIEF IN SUPPROT FOR A JUDGMENT UPON DEFAULT AGAINST PAUL
D. WARNER AND RAY EDWIN CAREY AND GEORGE KUHN AND JOHN
M. MULLINS III AND BROTHERS OF THE WHEEL M.C. EXECUTIVE
COUNSIL, INC. AND JOHN DOES 1-0 AND JANE DOES 1-50"
In The United States District Court For The Southern District of West Virginia
Charleston in the Civil Action No. 2: 13-cv-32251.
When the U.S . District Court affirms Petitioner's/Plaintiffs motion the
Trademark of Parent Corporation/RICO Persons and RICO Enterprises of the
Respondent/Registrant "Brothers of the Wheel M.C. Executive Council Inc." will
no longer exist and Trademark 2926222 will have be canceled by both U.S. District
Court and USPTO and TTAB. It is also likely that Named Defendants/RICO
Persons Paul D. Warner, Ray Edwin Carey, George Kuhn and John M. Mullins III
will be sentenced to Prison, fined and everything they own will be confiscated
according to law. Thus "Brothers of the Wheel M.C. Executive Council Inc." will
3
cease to exist, as should be and rendered incapable of conducting all further
illegal/criminal activities as ordered by the Court and to cease using or illegal
attempts at controlling trademark 2926222, through other Convicted Criminal
RICO Enterprises, as has been the actual facts of the defendants/registrants for
decades and since Defendant's/RICO Persons Paul D. Warner and Ray Edwin
Carey fraudulently made application for Trademark 2916222 and committed
numerous violations of the "Naked Licensing Doctrine(Law)." Registration no.
2926222 should be immediately canceled is what Frank J. Visconi and Gerald R.
Mollohan are proposing and requesting of the TTAB and United States District
Court as shown in numerous Court Records and Documents with much evidence
including evidence of fraud upon the USPTO, TTAB and United States District
Court committed by RICO Persons Paul D. Warner and Ray Edwin Carey.
Attorney Richard J. Lindroth is an Officer in RICO Persons Paul D. Warner and
Ray Edwin Carey's Sub-Corporation/Branch Chapter "Brothers of the Wheel
Mother Chapter, Inc." This Richard J. Lindroth has admitted to at a Court Hearing
in Charleston, West Virginia. Lindroth is currently facing an additional charge of
"Fraud on The Court in both related matters in United States District Court,
Charleston West Virginia(Civil Action: 2:11-cv-0104 and 2:13-cv-32251.
The U.S. District Court For The Southern District of West Virginia at
Charleston in Civil Action No. 2: 13-cv-3 2251 has stated in Court documents and
records that "technically" these same Respondent/Registrant's (Defendant's of
Parent Corporation)RICO Persons are in default in that matter which includes
cancellation of trademark no. 2926222.
In Civil Action No. 2: 13-cv-32251, Defendant's are in violation of Section 45
of 15 U.S.C. 1051 the Lanham Act-Abandonment of Trademark (NAKED
LICENSING LAW /DOCTRINE) and numerous other Counts including
Defamation, Fraud, Trademark Infringement, Copyright Infringement, Civil RICO,
4
Tortuous Interference with Existing and/or Prospective Business Relations, Abuse
of Process, Contempt of Court and Violation of Naked Licensing Doctrine.
The groundless putative letter authored by Richard J. Lindroth of October 26,
2016(Copy attached) should be treated as Fraud Upon The Court as Lindroth
committed the same illegal act of "Fraud on the Court" many times in U.S. District
Court in Civil Action No. 2:11-cv-00104 and 2:13-cv-32251. Additionally
Attorney Keith L. Mitchell should be found as committing "fraud upon the court"
for filing Lindroth's groundless putative and fraudulent Letter dated October 26,
2016( enclosed) and lying to this honorable Court about it in excuses for it not
being filed. This is an obvious case of two unethical Attomey's(Mitchell and
Lindroth) of committing fraud on the court and lying to both the Trademark Trial
and Appeal Board(TTAB) and United States Patent and Trademark
Office(USPTO,) therefore Trademark no. 2926222 should be immediately
canceled.
What is "fraud on the court" ?
Whenever any officer of the court commits fraud during a proceeding in the
court, he/she is engaged in "fraud upon the court."
In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated
"Fraud upon the court is fraud which is directed to the judicial machinery itself and
is not fraud between the parties or fraudulent documents, false statements or
perjury .. .. It is where the court or a member is corrupted or influenced or influence
is attempted or where the judge has not performed his judicial function ---thus
where the impartial functions of the court have been directly corrupted."
"Fraud upon the court" has been defined by the 7th Circuit Court of
Appeals to "embrace that species of fraud which does, or attempts to,
defile the court itself, or is a fraud perpetrated by officers of the court so
that the judicial machinery can not perform in the usual manner its
5
impartial task of adjudging cases that are presented for adjudication."
Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d
ed., p. 512, ~ 60.23. The 7th Circuit further stated "a decision produced
by fraud upon the court is not in essence a decision at all, and never
becomes final."
What effect does an act of "fraud upon the court" have upon the court
proceeding?
"Fraud upon the court" makes void the orders and judgments of that
court.
It is also clear and well-settled Illinois law that any attempt to
commit "fraud upon the court" vitiates the entire proceeding. The People
of the State of Illinois v. Fred E. Sterling, 357 Ill. 354; 192 N.E. 229
(1934) ("The maxim that fraud vitiates every transaction into which it
enters applies to judgments as well as to contracts and other
transactions."); Allen F. Moore v. Stanley F. Sievers, 336 Ill. 316; 168
N.E. 259 (1929) ("The maxim that fraud vitiates every transaction into
which it enters ... "); In re Village of Willowbrook, 37 Ill.App.2d 393
(1962) ("It is axiomatic that fraud vitiates everything."); Dunham v.
Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil
Co. v. Universal Oil Products Co. , 338 Ill.App. 79, 86 N.E.2d 875, 883-4
(1949); Thomas Stasel v. The American Home Security Corporation, 362
Ill. 350; 199 N.E. 798 (1935).
Under Federal law, when any officer of the court has committed
"fraud upon the court", the orders and judgment of that court are void, of
no legal force or effect.
Richard J. Lindroth has been informed by TTAB that Richard J. Lindroth has
failed to show any fraud at all on Gerald R. Mollohan for his Registered Trademark
6
"BROTHERS OF THE WHEEL" See Cancellation No. 92059164 "Petitioner's
Insufficient Claims" On review of the pleadings in Cancellation No. 92059164, the
Board finds that Petitioner's (represented by Richard J. Lindroth) fraud claim is_
insufficient.
It simply would not be right to allow Attorney's Lindroth and Mitchell to get
away with a conspiracy and scheme the two came up together in order to commit
fraud on the court by filing a fraudulent letter containing untrue statements by the
U.S. District Court and decisions that did not occur.
Lindroth's and Mitchell have attempted to subvert the integrity of the courts. The
fraud was designed to deceive the courts into believing facts that are not true.
Enclosed is Petitioner's/Plaintiffs Gerald R. Mollohan "Notice of Motion and
Motion of Vacate Judgment; Memorandum of Points and Authorities; Declaration
of Gerald R. Mollohan (document 202 Filed 04/25/16) Civil Action Case 2: l l-cv-
00104 filed In The United States District Court For The Southern District Of West
Virginia At Charleston. Attorney Richard J. Lindroth committed Fraud upon that
Court in the foregoing matter and in that same Court in Civil Action Case 2: 13-cv-
32252, so say Gerald R. Mollohan and Frank J. Visconi, as detailed in records,
documents and things on file in the foregoing two matters. Richard J. Lindroth has
a history of committing "Fraud upon the Courts."
Respectfully submitted,
aid R. Mollohan, Pro Se et al Brothers of the Wheel Motorcycle Club Nomads Petitioner Cane lation No.: 92056674
~ Frank . Visconi Petitioner Cancellation No.: 92059292
7
CERTIFICATE OF SERVICE
I hereby certify that on December 19, 2016, a copy of the foregoing
MOTION FOR LEAVE TO FILE PETITIONER'S RESPONSE TO USPTO - TTAB
FRUDULENT AND GROUNDLESS PUTATIVE LETTER AUTHORED BY RICHARD J. LINDROTH DATED OCTOBER 26, 2016
AND PROVIDED TO MILLICENT CANADY, PARALEGAL SPECIALIST,
VIA KEITH L. MITCHELL AND
"FACTS" CONCERNING RESPONDENT/REGISTRANT CORPORATION DISSOLUTION REQUEST
AND MOTION TO COURT TO GRANT PETITIONER MOTION TO FIND
ATTORNEY'S LINDROTH AND MITCHELL IN VIOLATIONS OF FRAUD UPON THE COURT
was sent by U.S. Mail, postage prepaid to Kenneth L. Mitchell
at Woodling, Krost and Rust 9213 Chillicothe Road Kirtland, Ohio 44094
Petitioner Cancellation No.: 92056674 BROTHERS OF THE WHEEL MOTORCYCLE CLUB NOMADS
PO BOX 507 ST.ALBANS, WEST VIRIGINIA 25177
~l/'---Frank J. Visconi
Petitioner Cancellation No.: 92059292
CERTIFICATE OF SERVICE
8
We hereby certify that on December 19, 2016, a copy of the foregoing
MOTION FOR LEAVE TO FILE PETITIONER'S RESPONSE TO USPTO - TTAB
FRUDULENT AND GROUNDLESS PUTATIVE LETTER AUTHORED BY RICHARD J. LINDROTH DATED OCTOBER 26, 2016
AND PROVIDED TO MILLICENT CANADY, PARALEGAL SPECIALIST,
VIA KEITH L. MITCHELL AND
"FACTS" CONCERNING RESPONDENT/REGISTRANT CORPORATION DISSOLUTION REQUEST
AND MOTION TO COURT TO GRANT PETITIONER MOTION TO FIND
ATTORNEY'S LINDROTH AND MITCHELL IN VIOLATIONS OF FRAUD UPON THE COURT
was sent by U.S. Mail, postage prepaid to
Richard J. Lindroth POBox331
Eleanor, West Virginia 25070-0331 [email protected], [email protected], [email protected]
Petitioner Cancellation No.: 92056674 Brothers of the Wheel Motorcycle Club Nomads
PO Box 507 St.Albans, West Virginia 25177
g!V Frank J. Visconi
Petitioner Cancellation No.: 92059292
9
LA \IV OFFICE S RICHARD J. LIN1)ROTI-I
POS T OFF I CE BOX 331 E L EANOR WEST V IRGIN IA 25070
(304) 541 - 9949 FAX (30 4 ) 586-2853
October 26 , 2016 Ms . Millicent Canady Paralegal Specialist Trademark Trial and Appeal Board P . 0 . Box 1451 Alexandria , VA 22313 - 1451
RE : Cancellation No . 92059292 Visconi v. Brothers of the Wheel
Dear Ms . Canady :
Enclosed please find a dismissal Order for Civil Action No . 2 : 15 - cv- 12157 , an action by Mollohan and Visconi to cancel the Brothers of the Wheel trademark . The Court first told Visconi that he had no standing to challenge the protected mark of the Brothers of the Wheel . Then the Court informed Mollohan that his naked licensing 2 : 13- cv- 32251 ,
issue was contained in and therefore entered
another ongoing the enclosed
case , Order
dismissing the case.
The Brothers of the Wheel have always protected their mark and are not guilty of naked licensing , as evidenced in its judgment and injunction against Mollohan in case 11-cv- 104 . Despite the injunction, Mollohan continues to violate the Court ' s Order by using our protected mark to apply for trademarks . He does this by filing a false oath under perjury that he has the right to apply for our mark .
Sincerely ,
Richard J . Lindroth Counsel , Brothers of the Wheel
Enc . cc : BOTW
Case 2:11-cv-00104 Document 202 Filed 04/25/16 Page 1 ors PF1t:.E D
IN THE UNITED STATES DISTRICT CO RT FOR THE SOUTHERN DISTRICT OF WEST V R~I AL DEPPNER, CLERK 1
AT CHARLESTON . . u.s. District Court . , $outhem District of West Virginia
BROTHERS OF THE WHEEL M.C. EXECUTIVE COUNCIL, INC. ,
Plaintiff,
v . CIVIL ACTION NO. 2:1 l-cv-00104 The Honorable Judge Thomas E. Johnston United States District Judge
GERALD R. MOLLOHAN, Pro Se et al
Defendants
NOTICE OF MOTION AND MOTION TO VACA TE JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARA TON OF
GERALD R. MOLLOHAN
DEFENDANT ASKS THE COURT TO PLEASE TAKE NOTICE that on April 25,
2016 in the Court Clerk's Office of the above entitled Court located at Charleston, West
Virginia, Defendant Gerald R. Mollohan, et al will move this Court for an order vacating
the judgment entered against them on February 19, 2014 on the grounds that the
Defendant has suffered injury as a result of circumstances beyond their control and will
suffer manifest injustice if the judgment is not vacated as more fully set forth in the
declaration of Gerald R. Mollohan and Exhibits attached thereto.
This motion is made pursuant to Federal Rule of Civil Procedure 60(b)(6)("Rule 60")
and shall be based upon this notice, the attached Memorandum of Points and Authorities,
the declaration of Gerald R. Mollohan and Exhibits attached thereto, the complete files
and records of this action, and such other and further oral and documentary evidence as
may be presented at the hearing on this Motion.
Dated api!1.-~ W/& ~ 1
Case 2:11-cv-00104 Document 202 Filed 04/25/16 Page 2 of 8 PagelD #: 2108
MEMORANDUM OF AUTHORITIES
Case law( or common law), it is important to know something about the significance
of precedents or the doctrine of stare decisis, which refers to "adhering to or abiding by"
settled decisions. Simply put, lower courts are bound to follow decisions of higher courts
in the same jurisdiction. For example, a federal district court in West Virginia is required
to follow the decisions of the Fourth Circuit Court of Appeals and the U.S. Supreme
Court, but it is not bound by the decisions of other district courts or by the West Virginia
state courts;
Murray v. Dist. of Columbia, 52 F 3d 353 (D.C. Cir/950)
Pioneer Inv. Servs. Co. v. Brunwick Assocs. ltd. P'ship, 507 US. 380, 393 (1993)
Ackermann v. United States, 340 U.S. 193, 198, (1950)
Summers v. Howard Univ., 374 F. 3d 1188, 1193 (D.C. Cir. 2004)
Carter v. West Virginia Regional Jail and Correctional Facility Authority Civil
Action No. 2: l 3-cv-08900
Washington Alliance of Technology Workers, v. US Department Of Homeland
Security Civil Action No. 14-529 (ESH)
l STATEMENT OF FACTS
NOW COMES Defendant Pro Se Gerald R. Mollohan, pursuant to Federal Rules of
Civil Procedure (FRCP -"Rule 60") - Relief from a Judgment Order, § (b) (2) and (6) and
in accordance with Local Rules of Civil Procedure (LRCP) Rule 60.02. Section (b) (2) of
FRCP 60 also refers to FRCP Rule 59 - New Trial; Altering or Amending Judgment§ (a)
(1 ) - Grounds for New Triat and (2) Further Action after a Non Jury Trial.
In accordance with above rules and procedures, Defendant Mollohan asks this court to
VA CATE the JUDGMENT/ORDER in the original case (2: I 1-cv-00104) which was
dismissed with prejudice by Judge Johnston and later appealed by the Defendant to the
4th District Court of Appeals, Case Number 14-1813/ 14-1815 which affirmed the District
Court' s decision.
2
Case 2:11-cv-00104 Document 202 Filed 04/25/16 Page 3 ot 8 PagelD # : 2109
II LEGAL ARGUMENT
A. THE COURT HAS THE POWER TO VACA TE THE JUDGMENT THAT WAS
ENTERED AGAINST THE DEFENDANT ON THE GROUNDS THAT
EXTRAORDINARY CIRCUMSTANCES EXIST [(60(b)(6)] AND THAT
DEFENDANT WILL SUFFER MANIFEST INJUSTICE UNLESS THE
JUDGMENT IS VACA TED. The legal definition of Manifest Injustice is
"something which is 'obviously unfair or unjust or shocking" to the
conscience ". It refers to an unfairness that is direct. obvious. an
observable. Further. Manifest Intent means clearly evident intent
(Banclnsure. Inc. v BNC National Bank. NA .. 263 F.3d 766 (8'h Cir. ND.
2001 - Loss resulting directly from dishonest or fraudulent acts committed
by an employee acting alone or in collusion with others.
Rule 60 states in pertinent part that "(b) - Grounds for Relief from a Final Judgment,
Order, or Proceeding: On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following reasons: (6)
"any other reason that justifies relief."
Further, Fed. R. Civ. P. 60(b)(l) Relief where the district court made a "mistake."
Rule 60(b )( 1) allows a district court to undo or alter a final judgment based on, among
other things , a "mistake." Although there is a split in the types, a "mistakes: this
subsection covers, the weight of authority now suggests that counsel can seek fed . R.
Civ. P. 60(b)(l) relief to correct legal errors, an area traditionally reserved for an
appellate court.
According to Rule 26(a)(2)(B), only those experts who are "retained or specially
employed to provide expert testimony in the case or whose duties as an employee of the
party regularly involve giving expert testimony" must provide expert reports to the other
parties in the case, Fed. R. Civ. P. 26(a)(2)(B).
3
Case 2:11-cv-00104 Document 202 Filed 04/25/16 Page 4 of 8 PagelD #: 2110
As shown by the declaration of GERALD R. MOLLOHAN attached thereto this
motion should be granted as circumstances beyond the control of Defendant have
resulted in the judgment being entered and Defendant will suffer manifest injustice unless
the judgment is vacated.
SUPPORTING FACTS:
A) At a Motions hearing held on very short notice on February 14, 2014, Defendant
Gerald R. Mollohan was not given the time or the opportunity to review or respond to
Plaintiffs Expert Witnesses qualifications and backgrounds as required by Fed. R. Civ. P.
26(a)(2)(A) and (B). Nor was Mollohan given time and opportunity to present his own
expert witness.
B) Declaration regarding Plaintiffs Paul D. Warner's fraudulent Trademark Application
and violations of sections I 001 and 1037 of Code 47. (Exhibit "A" Affidavit of Frank J.
Visconi) .
C) Declaration regarding Plaintiffs Ray Edwin Carey's Fraudulent Affidavit and his
violations of sections 1001 and 103 7 of Code 47. Declaration of Gerald R. Mollohan.
D) Plaintiffs Paul D. Warner's and Ray Edwin Carey's Fraud, whether intrinsic or
extrinsic, misrepresentation, or other misconduct of an adverse party are express grounds
for relief by motion under amended subdivision (b).
E) Defendant Mollohan was not provided with expert reports of the other parties expert
witnesses in this case according to Fed. R. Civ. P. 26(a)(2)(B) - Circumstances beyond
the Defendant ' s control that occurred at the motions hearing of February 14, 2014.
F) Related Civil Action 2: I 3-cv-32251 details numerous violations of fraud and racketeering
laws violations committed by plaintiffs Paul D. Warner and Ray Edwin Carey when making
trademark applications.
* See the declaration of GERALD R. MOLLOHAN attached thereto filed and served
concurrently herewith and incorporated herein by reference.
4
Case 2:11-cv-00104 Document 202 Filed 04/25/16 Page 5 of 8 PagelD #: 2111
"Rule 60(b) allows a party to seek relief from a final judgment, and request reopening
of his case under a limited set of circumstances" (Gonzalez v. Crosby, 545 U.S. 524 U.S .
524, 528(2005).
To prevail , the moving party must show extraordinary circumstances justifying the
reopening of the order (Gonzalez v. Crosby, 545 U.S. at 536). Sub paragraph (6) is to be
used "sparingly as an equitable remedy to prevent manifest injustice" (Lai v. California,
610 F.3d 518, 24 (9th Cir. 20 I 0) (internal quotation marks and citation omitted).
Rule 60(b)(6) "is to be used sparingly as an equitable remedy to prevent manifest
injustice and is to be utilized only were extraordinary circumstances ... " exist (Harvest
v. Castro, 531 F. 3d 737, 749, (9th Cir. 2008) (internal quotations marks and citation
omitted). The moving party "must demonstrate both injury and circumstances beyond his
control . . .. "exist - (Harvest v. Castro, 531 F.3d 737, 749(9th Cir. 2008) (internal
quotations marks and citation omitted). The moving party "must demonstrate both injury
and circumstances beyond his control ... . " Id. - (internal quotation marks and citation
omitted).
Under Rule 60(b)(6), the particular provision under which Defendant filed his
motion, permits reopening when the movant shows "any .. . reason justifying relief from
the operation of judgment" other than the more specific circumstances set out in Rules
60(b)(1 )-(5)- (See Liljeberg v. Health Services Acquisition Corp., 486 US. 847, 863, n.
11 (1988) ; see also Klapprott v. United States, 335, U.S. 601 , 613 (1949) (opinion of
Black, J.).
Defendant has shown both injury and circumstances beyond their control in that
Defendant Mollohan was not given an opportunity to respond to plaintiffs expert
witnesses according to Rule 26(a)(2)(B), which states only those experts who are
"retained or specially employed to provide expert testimony in the case or whose duties
as an employee of the party regularly involve giving expert testimony" must provide
expert reports to the other parties in the case. Fed. R. Civ. P. 26(a)(2)(B) -
5
Case 2:11-cv-00104 Document 202 Filed 04/25/16 Page 6 of 8 PagelD #: 2112
Circumstances beyond the control of defendant Mollohan at the motions hearing of
February 14, 2014.
The Ninth Circuit has held that the one-year limitation in Rule 60(b )(I) does not
present an absolute bar when a party does not receive notice of the order such that the
court has "discretion to treat the motion to vacate as arising under clause (6) or Rule
60(b ), notwithstanding that the underlying basis for vacating the judgment does not
strictly constitute 'any other reason as that phrase is used in the rule" (Molloy v. Wilson,
878 F.2d 313, 3 l 6(9th Cir. 1989). Thus, the district court may exercise its discretion to
vacate a judgment for mistake, inadvertence, surprise, or excusable neglect that would
otherwise be procedurally barred if the "good cause" factors are satisfied. Id.
B. THE MOVTNG PARTY HAS MET THEIR BURDEN OF SHOWING
BOTH INJURY AND CIRCUMSTANCES BEYOND THEIR CONTROL
AND THAT EXTRAORDINARY CIRCUMSTANCES EXIST IN THIS CASE
THAT WILL RESULT IN DEFENDANT SUFFERING A MANIFEST
INJUSTICE IF THE JUDGMENT IS NOT VACATED. Extraordinary is defined as
above average. amazing. beyond the ordinary. curious. different. especial.
exceeding the usual. out of the ordinary. out of the regular order ... .... worthy of
regard and worthy of attention".
Because Defendant has met their burden for relief under Rule 60(b)(6) as required and
as described above, this Court should exercise its discretion and prevent a manifest
injustice by vacating the judgment as the Ninth Circuit Court of Appeals has ruled that
the Federal Rules of Civil Procedure have a strong, underlying policy that favors a
decision on the merits (Eitel v. McCool, 82 F. 2d 1470, 147 l-72(9th Cir. 1986).
C. IT IS WELL SETTLED THAT RULE 60 IS TO BE LIBERALLY
CONSTRUED SO THAT CASES ARE TRIED ON THEIR MERITS.
6
Case 2 :11-cv-00104 Document 202 Filed 04/25/16 Page 7 of 8 PagelD #: 2113
In discussing Rule 60, the Ninth Circuit Court of Appeals has stated that this rule, like
all the Federal Rules of Civil Procedure, "is to be liberally construed to effectuate the
general purpose of seeing that cases are tried on the merits" (Rodgers v. Watt, 722 F. 2d
456, 459 (9th Cir. l 983)(intemal citations omitted). See also Fed. R. Civ. P. 1- "The
Federal Rules should be construed and administered to secure the just, speedy, and
inexpensive determination of every action and proceeding".
Rule 60(b) is "remedial in nature and . .. must be liberally applied" (TC/ Group L ffe
Inc. v. Knoebber, 244 F. 3d 691 , 696(9th Cir. 2001) (internal citations and quotations
omitted). Thus this Court should exercise its discretion so that this case can be decided
on its merits as the law favors.
III
CONCLUSION
Based on the above, Defendant Gerald R. Mollohan, Pro Se et al respectfully requests
that the Court set aside the Judgment that was entered against him so that this case can be
heard on its merits, as the law favors.
Respectfully submitted,
Defendant, Pro Se et al Civil Action No.: 2: l l-cv-00104 E-Mail: [email protected] Phone : 304.982.1309
7
Case 2:11-cv-00104 Document 202 Fi led 04/25/16 Page 8 of 8 PagelD #: 2114
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
"NOTICE OF MOTION AND MOTION TO VACA TE JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARA TON OF
GERALD R. MOLLOHAN"
in Civil Action No. 2: 1 l-cv-00104 was sent on April 26, 2016 via First Class U.S . Mail, Postage prepaid to,
Richard J. Lindroth, PO Box 33 1, Eleanor, West Virginia 25070,
Attorney for the Plaintiffs - Counsel of Record Civil Action No. 2: l l-CV-00104
I declare under penalty of perjury under the laws of the United States of America and the State of West Virginia that the foregoing is true and correct.
Pro Se et al Defendant, Civil Action No. 2: I l -CV-00104
Plainti ff Related Civil Action No. 2: I 3-CV-3225 I
E-Mial: Mollohan@ mail.com Phone: 304.982.1309
8
Case 2:11-cv-00104 Document 202-1 Filed 04/25116 Page 1 at 4 PagelD #: 2115
IN THE UNITED ST A TES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
BROTHERS OF THE WHEEL M.C. EXECUTIVE COUNCIL, INC. ,
Plaintiff,
v. CIVIL ACTION NO. 2:11-cv-00104 The Honorable Judge Thomas E. Johnston United States District Judge
GERALD R. MOLLOHAN, Pro Se et al
Defendants
DECLARATION OF GERALD R. MOLLOHAN
I, Gerald R. Mollohan, declare as follows:
1. I am over the age of 21 years and am a party to this action. I have knowledge of
the facts stated in this declaration, and if called as a witness, could and would
testify competently to the truth of the facts as stated herein.
2. I make this declaration in support of my Motion to Vacate the Judgment entered
against me in Case Number 2:1 l-cv-00104 on February 19, 2014 on the grounds
"extraordinary circumstances" exist in this case and I will suffer manifest injustice
if the judgment is not vacated.
3. The circumstances that were beyond my control are that:
a. New evidence was not available to me at the time or the original complaint
2: l l -cv-00 I 04.
1
case 2:11-cv-00104 Document :wL'.-1 Hied U4/L'.!::>/lb 1-'age "Lor 4 1-1age1u n: "Lllb
b. I have noted a number of misrepresentations made by defendants' in his
"Atlidavit of Ray E. Carey" and "Summary of Invoices Professional Services
Mollohan Trademark Infringement" filed December 13, 2012.
c. Other reasons that justify relief include Fraud committed upon the Court by the
Plaintiffs Warner and Carey (Count Two of Case No. 2:13-cv-32251
Document 76), Civil RICO violations committed by the Plaintiffs Warner and
Carey (Count Three of Case No. 2: 13-cv-32251 Document 76), Violations of
Naked Licensing Doctrine (Count Eleven of Case No. 2: l 3-cv-32251 ).
This declaration is submitted on the grounds that extraordinary circumstances exist in
this case which will cause me to suffer a manifest injustice if the judgment is not vacated.
DECLARATION
Per 28 USC§ 1746 - Unsworn declarations under penalty of perjury, I Gerald R.
Mollohan, the undersigned, do confirm that the statements above are true and accurate to
the best of my knowledge and made by me under possible penalty of perjury on this date,
the 18th day of April 2016.
Respectfully submitted,
~ Defendant, Pro Se et al Civil Action 2: l l-cv-00104 e-mail: [email protected] Phone: 304.982.1309
2
case L:l1-cv-uu104 LJocument LUL-1 Hied U4/L!)flb Page~ ot 4 PagelLJ #: Lll r
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
"DECLARA TON OF GERALD R. MOLLOHAN"
in Civil Action No. 2: l l-cv-00104 was sent on April 26, 2016 via
First Class U.S. Mail , Postage prepaid to,
Richard J. Lindroth,
PO Box 331 , Eleanor, West Virginia 25070,
Attorney for the Plaintiffs - Counsel of Record Civil Action No. 2: l l-CV-00104
I declare under penalty of perjury under the laws of the United States of America and the
State of West Virginia that the foregoing is true and correct.
Gerald R. Mollohan Pro Se et al
Defendant Civil Action No. 2: 1!-CV-00104 Plaintiff Related Civil Action No. 2: 13-CV-32251
3
• . • Case 2:11-cv-00104 Document 202-1 Filed 04/25/16 Page 4 ot 4 PagelD #: Lll~
Teresa L. Deppner, Clerk United States District Court
Southern District of West Virginia Robert C. Byrd United States Courthouse
300 Virginia Street, East, Suite 2400 Charleston, West Virginia 25301
CIVIL ACTION NO.: 2:11-CV-00104
From:
GERALD R. MOLLOHAN
NOTICE OF MOTION AND MOTION TO VACATE JUDGMENT; MEMORANDUM
OF POINTS AND AUTHORITIES; DECLARATION OF
GERALD R. MOLLOHAN
case 2:11-cv-00104 Document 202-2 Filed 04/25116 Page 1 ot 8 PagelD #: 2119
EXHIBIT ''A''
Case 2: 11-cv-00104 Document 202-2 _Filed 04/25/16 Paae 2ff 8 PaoelD #:22120
Case 2:13-cv-32251 Document 159 Filed 04/21/16 Page 1. of PagelD # : 17 '4
INTHEUNITEDSTATESDISTRJCTCO RT ~1LED ~-FOR THE SOUTHERN DISTRICT OF WEST V RGI~ .
1 CHARLESTON f\PR 2$281
GERALD R. MOLLOHAN and BROTHERS OF THE WHEEL MOTORCYCLE CLUB NOMADS
1Ellt'SA L. DEPPNER, CLERK r 1 s. Qdrict Court
E>·_, !".. >Pt'-. ;_:;tstdct o f \fi/est Virg inia I L,._ , _ _
.. -· ··-•" ________________ ___,
Plaintiffs, Case No. 2:13-cv-32251
v.
PAUL D. WARNER and RAY EDWIN CAREY and GEORGE KUHN and JOHN M. MULLINS III and BROTHERS OF THE WHEEL M.C. EXECUTIVE COUNCIL, INC. and JOHN DOES 1-50 AND JANE DOES 1-50
Defendants.
AFFIDAVIT OF FRANK J. VISCO NI EXPERT WITNESS FOR PLAINTIFFS
NOW COMES the Affiant, Frank J. Visconi a citizen of the United States and the
State of Tennessee over the age of 21 years, and declares as follows, under penalty of
perjury.
1. That I am familiar with the application for trademark made by Paul D. Warner
to United States Patent and Trademark Office. 1 would testify as stated
herein. I make this Affidavit based on my own personal knowledge of the
legal, economic, and historical principals stated herein except that I have
relied entirely on documents provided to me, including the application,
regarding certain facts at issue in this case of which I previously had no direct
and personal knowledge. I am also making this affidavit based on my
experience and expertise as a Fraud Investigator, Research Writer and Law
1
Enforcement Official (retired). I declare that I am competent to make the
following statements:
2. PROFESSINAL BACKGROUND QUALIFICATIONS
a. I am a retired Law Enforcement officer and investigator with fourteen years on the Westland, Michigan Police Department, one year with the Broward
County Florida Sheriffs Office, and twenty-two years working experience with the National Automobile Theft Bureau (NA TB) and the National Insurance Crime Bureau (NICB) for a total of thirty-seven years of investigative experience. The NICB is the currently existing Theft and
Fraud Investigation Organization which came into existence after the merger of the National Automobile Theft Bureau and the Insurance Crime
Prevention Institute (ICPI) in 1992, merging into one single insurance supported organization (NTCB) for the purpose of investigating, preventing, and prosecuting vehicle theft and fraud and property and casualty insurance fraud . The NICB consists of nine investigative regional offices located
throughout the entire United States of America. The NICB employs approximately 150 Special Agents, all of whom are former local , state, and federal law enforcement personnel
b. At the time of my retirement in 2006 after twenty-two years with the
National Insurance Crime Bureau, vehicle theft activities cost American citizens in excess of eight BILLION dollars, and Fraudulent vehicle theft schemes cost American citizens somewhere in the area of another twelve BILLION dollars.
c. With regard to Insurance Fraud (strictly Property and Casualty Fraud and not including Medicare and other types of medical FRAUD), the cost to the Insurance lndustry (ultimately passed on to the insurance consumer) was a staggering multi-BILLION dollar infraction. These crimes of theft and fraud cost figures were at that height TEN years ago at the time of my
retirement and they have continued to rise since then. It is difficult for me to imagine what those costs are today.
d. Vehicle Fraud is committed in various ways. One example is when a thief changes out the public vehicle identification number to disguise the true
identity of a stolen vehicle and selJs a stolen vehicle to an unsuspecting
buyer. The thief/fraudster can also report the vehicle as stolen and collect
insurance proceeds. Oftentimes, thieves will purchase salvage from a
2
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salvage yard and use the salvage vehicle identification to disguise a stolen
vehicle and sell it. The thief can also use the salvage title to obtain insurance and then claim the vehicle stolen and collect insurance proceeds.
These are just two simple examples of many ways vehicle fraud is committed.
e. Property and Casualty Fraud is committed by people who are your friendly next door neighbor up to foreign groups who travel throughout the United
States to perpetrate this difficult to detect crime. The most commonly recognized and simple insurance fraud scheme is the "soft tissue" injury where several perpetrators are involved in a "staged vehicle accident" and
all occupants of the fraud ring claim soft tissue injuries. Doctors and Lawyers are part of these schemes. The supposedly injured party goes to a doctor that is part of the scheme and the doctor will construct a false injury
report. The fraudulently injured parties then go to a lawyer who is part of the scheme and the lawyer sues the insurance company on behalf of the supposedly injured parties. In another scheme involving Chiropractors, the
office manager is usually involved. The Chiropractor may not even be
licensed and there may also be an unlicensed Physical Therapist. The supposedly injured party only makes a couple visits to the office but signs
his name on a sign-in sheet twenty or more times and the Chiropractor office bills the insurance company for all the office visits and treatment that is not even administered. In these instances, the lawyer is the big money maker.
The corroborating Chiropractor is the second highest paid and then the office manager. The fake injury parties are usually recruited off the street and are paid a small amount for cooperating (usually around $500.00). Again, these are just simple examples of FRAUD but when committed by
thousands of perpetrators on a daily basis, the cost to the insurance industry and American public in higher insurance premiums is too difficult to even estimate.
f. Health care fraud include such schemes as billing for services not rendered. billing for a non-covered service as a covered service, misrepresenting dates of service. misrepresenting locations of service misrepresenting provider of service waiving of deductibles and/or co-payments, incorrect reporting of diagnoses or procedures (includes unbundling) overutilization of services, corruption (kickbacks and bribery) and false or unnecessary issuance of prescription drugs just to name a few.
THESE ARE JUST SOME EXAMPLES OF THE MANY TYPES OF
3
FRAUD PERPETRATED UPON THE PUBLIC AND INSURANCE INDUSTRY.
3. EXPERIENCE
g. l have investigated hundreds of the above named types of crimes and schemes during my thirty-six years of law enforcement experience.
h. Throughout my law enforcement investigative career, I have testified in local and state courts countless times at one time or another in all of the above schemes. My testimony in Federal Courts is very limited. It is practically impossible to estimate the NUMBER of times that I have testi tied in court.
1. I have been sworn in court as an EXPERT WITNESS in the above types of schemes and crimes on several occasions (at least ten) .
4. EDUCAT ION AND TRAINING
J. l have a Bachelors Degree in Politica l Science from the Uni versity of Michigan: a Masters Degree in Public Adm inistration from the Uni versity of Michigan. and a Juris Doctor Degree from the Mid-Atlantic School of Law (1 am not a member of the BAR ).
k. I have attended numerous seminars and tra ining programs related to my working experience .
!. r have been .. assisting the Plaintiff in this case since it began and I am pri vy to practically all of the infonnation and facts surrounding thi s complaint.
5. COMMENT ARY AND SUMMARY OF ARGUMENT
FRAUD is a false representation of a matter of fact- whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed- that deceives and is intended to deceive another so that the individual will act upon it to her or his legal injury. Fraud is commonly understood as dishonesty calculated for advantage. A person who is dishonest may be called a fraud. In the U.S. legal system, fraud is a specific offense with certain features.
Fraud is most common in the buying or selling of property, including real estate. . . ·::.. . . 1, -~- , and intangible property, such as stocks, bonds, and copyrights . State and federal statutes criminalize fraud, but not all cases rise to the level of criminality. Prosecutors have discretion in determinin g which cases to pursue. Victims may also seek redress in civil court. Fraud must be proved by showing that the defendant's actions involved five separate
4
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elements: ( I) a false statement of a material fact, (2) knowledge on the part of the defendant that the statement is untrue. (3) intent on the part of the defendant to decei ve the alleged victim, ( 4) justifiable reliance by the alleged victim on the statement, and (5) inj ury to the alleged victim as a resu lt.
"The Federal Circuit found that this " knew or should have known" standard had "erroneously lowered the fraud standard to a simple negligence standard" Id. at *8-9), which was inappropriate for "an indispensable element in the [fraud) analysis" Id. at*lO. In its place, the Federal Circuit held that fraud requires that an "applicant or registrant knowingly [make) a false, material representation with the intent to deceive the PTO" (In re Bose Corp., 2009 U.S., App. LEXIS 19658 (Fed. Cir. Aug. 31, 2009).
6. CONCLUSION
Affiant submits this document in support of his qual ifications to be sworn as
an Expert Witness in this matter before the court and requests that the court
consider affiants request.
7. AFFlRMATlON
I hereby affirm that I prepared and have read this Affidavit and that I believe
the foregoing statements in this Affidavit to be true. I hereby further affirm
that the basis of these beliefs is either my own direct knowledge of the legal
principles and historical facts involved and with respect to which I hold myself
out as an expert or statements made or documents provided to me by third
parties who veracity I reasonably assumed.
Further the Affiant sayeth naught. '\
April 18, 2016 ~~ At Dover, Tennessee ~~
J.viSCOi Expert witness for the Plaintiff's 434 Hickman Shores Road Dover, Tennessee 37058 Phone: 93 1.232.2287 e-mail : fj [email protected]
5
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NOTARY'S VERIFICATION
Signature of Affiant: ~ Sworn to and signed bv::ano:YPUblic, this /g~y of April in the year of 2016. \
6
. . . Case 2:11-cv-00104 gocument 202-2 .1File
0d 04/25/16 Paae Bff 8 Paaelp
1#:
32126
Case 2:13-cv-32251 ocument 159 "F1 ed 4/21!16 Page '1 of PagelCJ "#. 7 0
Teresa L. Deppner, Clerk United States District Court
Southern District of West Virginia Robert C. Byrd United States Courthouse
300 Virginia Street, East, Suite 2400 Charleston, West Virginia 25301
CIVIL ACTION NO.: 2:13-CV-32251
From:
FRANK J. VISOCONI EXPERT WITNESS FOR THE
PLAINTIFF
Case 2:13-cv-32251 Document 337 Filed 12/14/16 Page 1of7 PagelD # : 4099
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WfST vFfl.: E".:~
0,.-.
AT CHARLESTON , . .. ~
I !!'i 1 "' ,
i I !EC !~~-;_ -1 GERALD R. MOLLOHAN and BROTHERS OF THE WHEEL MOTORCYCLE CLUB NOMADS
Plaintiffs/Counterclaim Defendants,
v.
PAUL D. WARNER and RAY EDWIN CAREY and GEORGE KUHN and JOHN M. MULLINS III and BROTHERS OF THE WHEEL M.C. EXECUTIVE COUNCIL, INC. and JOHN DOES 1-50/JANE DOES 1-50
Defendants,
v.
FRANK J. VISCONI
Defendant's Counterclaim Defendant.
I L ____________ J . , ·· . l ERES/1 L. C<i.:PPNER, CLERK ·, ·.
! U.S. District Court ·-.~~fhern District of West Virginia
CIVIL ACTION No. 2:13-cv-32251
MOTION TO STRIKE DEFENDANTS "RESPONSE TO PLAINTIFFS' AND COUNTERCLAIM DEFENDANT'S MOTION FOR RULE 37 (B) (1)
(2) (a) MOTION" (DOCUMENT NUMBER 333)" AND
MOTION TO HOLD ATTORNEY RICHARD J. LINDROTH IN CONTEMPT
1
Case 2:13-cv-32251 Document 337 Filed 12/14/16 Page 2 of 7 PagelD #: 4100
INTRODUCTION
Pursuant to Federal Rules of Civil Procedure (FRCP) Rule 12(f) and U.S.
District Court for the Southern District of West Virginia Local Rule LR Civ P
7.b(l), Plaintiff's respectfully file's his MOTION TO STRIKE Defendants'
Response To Plaintiffs' and Counterclaim Defendant's Motion For Rule 37 (B) (1)
(2) (a) Motion" (Document 333 , Filed 12/09/16) The following facts are set forth
in support of Plaintiff's motion:
FACTS
1. In his response motion (Document #333), Attorney of Record Richard J.
Lindroth once again submits to this Honorable Court "This Motion is
frivolous ," a more or less common practice for the defendant's as they have
no defense, have been totally uncooperative in discovery and are in violation
of all Counts.
2. Attorney Lindroth goes on to state "there are no parent and subsidiary
companies in Brothers of the Wheel. No one has "cooked the books."
Defendant's have tried every trick in the book to hide the facts.
It's common knowledge within West Virginia, Ohio and Kentucky that
Defendant's National President Paul D. Warner and National Vice-President
Ray Edwin Carey have always had a practice of "Money Laundering" and
"Cooking The Books" in their Parent Corporation and Quasi/Sub
Companies/Sub-Corporation/Branch Chapters and Association In Fact
Enterprise known as West Virginia Confederation of Clubs which
Defendant's National Vice-President Ray Edwin Carey was President of for
many years and defendant's working and supporting Outlaw/I% Territorial
2
Case 2:13-cv-32251 Document 337 Filed 12/14/16 Page 3 of 7 PagelD # : 4101
Convicted Criminal RICO Enterprises in order for Defendant's to receive
permission to display and use trademark 2926222 in West Virginia, Ohio,
Kentucky and Tennessee. All act's by defendant's in violation of the Naked
Licensing Doctrine(Law.) Plaintiff Gerald R. Mollohan has witnessed them
defendant's working with Convicted RICO Enterprises on numerous
occasions over the past thirty years in order that defendant's could receive
permission to display trademark 2926222. Plaintiffs own Attorney of
Record has been involved with Convicted RICO Enterprises in this Court
and is well aware of "how it works" in order for defendant's to display
trademark 2926222 in Pagans MC and Outlaw/I% MC Claimed Territory.
Defendant's cannot control any "MC" Trademark and that was defendant's
decision when deciding to become a "AMA" Chartered Club. All
Defendant's Enterprise members who purchase a embroidered patch from
defendant's Parent Corporation are required to become associated with and
work in cooperation with Convicted Criminal RICO Enterprises, ordered to
display a "AMA" Patch along with a "COC" Patch. For defendant's to claim
otherwise is a big lie and defendant's attorney of record is well aware of that
fact.
3. Spoliation of the evidence has taken place and committed by defendant's
numerous times and the Plaintiff's have and will continue to file additional
evidence. For defendant's to claim otherwise would be another big lie and
they know it.
4. "During deposition of Ray Carey, Mollohan as much as admitted fraud when
he stated in essence he had no non-profit company as it was not required to
keep any records" is a defendant's twist of the true statements Plaintiff
Gerald R. Mollohan made and as his documentation on the subject of his
3
Case 2:13-cv-32251 Document 337 Filed 12/14/16 Page 4 of 7 PagelD #: 4102
Motorcycle Club - Plaintiffs "Brothers of the Wheel Motorcycle Club
Nomads" being a registered Charity in the State of Washington and they
require as far as record keeping is concerned, is documented in Court
Records and on file at the Washington Secretary of State Office in Olympia,
Washington. Once again defendants have been caught in another big lie.
Defendant's have no credibility at all and have perjured themselves as they
have done many times over, both in this matter and related matters before
this court and other courts.
5. Defendant's are guilty of improper conduct and have perpetuated an ongoing
fraudulent scheme upon this most honorable Court as Plaintiffs have shown
and detailed in Court Documents and Records.
6. A "recent presidential campaign" story by defendant's has nothing to with
anything presently before this Court. How defendant's came up with that
comparison, makes one wonder about the stability of defendant"s mental
state.
7. This is not a "frivolous" lawsuit. Only the defendant's have been known to
file "frivolous" lawsuits.
8. Plaintiffs own the Registered Trademark for "BROTHERS OF THE
WHEEL" and Four(4) Copyrights to "BROTHERS OF THE WHEEL."
Defendant's have proofed nothing and again all defendant's statements
saying Plaintiff does not, are again a case of defendant's out and out lies.
Defendant's were informed by the U.S. Patent and Trademark
Office(USPTO) and Trademark Trial and Appeal Board(TTAB) that
defendant's failed to show any fraud at all by Plaintiff Mollohan.
Defendant's keep bringing up the subject and again they fail.
4
Case 2:13-cv-32251 Document 337 Filed 12/14/16 Page 5 ot 7 PagelD # : 4103
9. Plaintiff Mollohan does not "comb" the internet. Defendant's Attorney,
supposedly an experienced attorney fails to understand there are such things
as "Law Books" available to any citizen and at anytime. There are
additional resources. The internet is just another "Tool." Consultation with
other Attorney's, Law Libraries are other resources. Plaintiffs suggest
Defendant's Attorney give more thought to statements included in his filings
and refrain from wasting the Court's resources.
10. Plaintiffs believe a move for sanctions is out of line, and should be
dismissed.
CONCLUSION
WHEREFOR it should be apparent to the Court by the facts shown above that
Plaintiff Gerald R. Mollohan did properly adhere to the rules and orders in this
matter as always. MOTION TO STRIKE DEFENDANTS "RESPONSE TO
PLAINTIFFS' AND COUNTERCLAIM DEFENDANT'S MOTION FOR RULE
37 (B) (1) (2) (a) MOTION" (DOCUMENT NUMBER 333)" should granted.
Document Number 333 by Attorney Richard J. Lindroth on behalf of the
Defendants is another feeble attempt by the Defendants to cover up their mistakes
and guilt by attempting to delay a proper default judgment. Therefore defendant's
document number 333 should not be give any consideration.
Plaintiffs and Counterclaim Defendant therefore request this Honorable Court
Hold Attorney Richard J. Lindroth in Contempt.
Respectfully submitted,
5
Case 2:13-cv-32251 Document 337 Filed 12/14/16 Page 6 ot 7 PagelD #: 4104
Plaintiffs, Pro Se et al
Frank J. Visconi Counterclaim Defendant, Pro Se
6
· · Case 2:13-cv-32251 Document 337 Filed 12/14116 Page 7 of 7 PagelD #: 4105
CERTIFICATE OF SERVICE
I, Gerald R. Mollohan, hereby certify that on December 13, 2016, A copy of the foregoing
MOTION TO STRIKE DEFENDANTS "RESPONSE TO PLAINTIFFS' AND COUNTERCLAIM DEFENDANT'S MOTION FOR RULE 37 (B) (1)
(2) (a) MOTION" (DOCUMENT NUMBER 333)" AND
MOTION TO HOLD ATTORNEY RICHARD J. LINDROTH IN CONTEMPT
In Civil Action No. 2:13-cv-32251 was sent on December 13, 2016 by First Class U.S. Mail, Postage prepaid to,
Richard J. Lindroth, PO Box 331 , Eleanor, West Virginia 25070-0331
Attorney for the Defendants and Counsel of record
Gera d R. Mollohan BROTHERS OF THE WHEEL MOTORCYCLE CLUB NOMADS
Plaintiffs Pro Se, et al Civil Action No. 2:13-cv-32251
Frank J. Visconi Counterclaim Defendant
Pro Se
Case 2:13-cv-32251 Document 338 Filed 12114/16 Page 1of7 Pagel D #: 4106
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WESr-T~V=IR:..:..G.::..:IN=-.:.::IA:..::.._ ____ .....,
ATCHARLESTON ' _;, Fl LED ·,,:: GERALD R. MOLLOHAN and BROTHERS OF THE WHEEL MOTORCYCLE CLUB NOMADS
Plaintiffs/Counterclaim Defendants,
v.
PAUL D. WARNER and RAY EDWIN CAREY and GEORGE KUHN and JOHN M. MULLINS III and BROTHERS OF THE WHEEL M.C. EXECUTIVE COUNCIL, INC. and JOHN DOES 1-50/JANE DOES 1-50
Defendants,
v.
FRANK J. VISCONI
Defendant's Counterclaim Defendant.
< [ rs•• 2ms J TERESA L. Df PPNER, CLERK
U.S. District Court
l__ So~1'.~e~~- ?._i ~'.~_:!__C?~_·,.~~~ -Vi r!J.~'-i-~ -----
CIVIL ACTION No. 2:13-cv-32251
MOTION TO STRIKE "DEFENDANTS' OPPOSITION TO PLAINTIFFS' AND COUNTERCLAIM DEFENDANT'S MOTION TO REOPEN
DISCOVERY" (DOCUMENT NUMBER 334)" AND
MOTION TO HOLD ATTORNEY RICHARD J. LINDROTH IN CONTEMPT
1
Case 2:13-cv-32251 Document 338 Filed 12/14116 Page 2 of 7 PagelD #: 4107
INTRODUCTION
Pursuant to Federal Rules of Civil Procedure (FRCP) Rule 12(f) and U.S.
District Court for the Southern District of West Virginia Local Rule LR Civ P
7.b(l), Plaintiff's respectfully file's his MOTION TO STRIKE "Defendants'
Opposition to Plaintiffs' and Counterclaim Defendant's Motion to Reopen
Discovery" (Document 334, Filed 12/09/16) The following facts are set forth in
support of Plaintiff's motion:
FACTS
1. In his response motion (Document #334), Attorney of Record Richard J.
Lindroth once again submits to this Honorable Court a big falsehood "As
has already been established, Brothers of the Wheel M.C. Executive
Council, Inc. has no subsidiary corporations." This latest falsehood is
a more or less common practice of the defendant's as they have no defense,
have been totally uncooperative in discovery and are in violation of all
Counts.
2. Defendant's are in violation of the Naked Licensing Doctrine(Law) and not
entitled to any protection at all. Defendant's are a RICO Enterprise as shown
in numerous records and documents filed in this matter. Defendant's have
tried every trick in the book to hide the facts that's common knowledge
within West Virginia, Ohio and Kentucky that Defendant's National
President Paul D. Warner and National Vice-President Ray Edwin Carey
have always had a practice of working in cooperation with convicted
Criminal RICO Enterprises. According to recent Defendant Tax
Returns(Document 323-2 Filed l 1/16/16)on file in this Court there is "Stock
Ownership"(Verified by Certified Public Accountant and retained for
2
Case 2:13-cv-32251 Document 338 Filed 12/14/16 Page 3 of 7 PagelD #: 4108
Plaintiffs to examine Defendant's Financial and Tax Records) and each
Quasi/Sub-Company/Sub-Corporation/Branch Chapter of the defendant's
President is also a member of the defendant's PARENT CORPORATION
and a willing participate and member of the Association In Fact Enterprise
known as West Virginia Confederation of Clubs which Defendant's National
Vice-President was President for many years working with Outlaw/I%
Territorial Convicted Criminal RICO Enterprises in order for Defendant's
use trademark 2926222 in West Virginia, Ohio, Kentucky and Tennessee and
in violation of the Naked Licensing Doctrine(Law.) Plaintiff Gerald R.
Mollohan has witnessed them doing it on numerous occasions over the past
thirty years. Defendant's know Attorney of Record has had a problem
paying West Virginia State Taxes and details of his personal problems have
been well documented and published by Charleston, West Virginia News
Media along with other stories of his outlandish conduct. All Defendant's
Enterprises are associated and work in cooperation with other Convicted
Criminal RICO Enterprises practicing the same criminal violations. For
defendant's to claim otherwise would be a big lie and they know it.
3. Defendant's so call "test" for subsidiary and sub-corporations is WRONG.
Defendant's are a RICO Enterprise, work and cooperate with Convicted
Criminal RICO Enterprises. Defendant's are not a membership club.
Defendant's in this action share "books and records" of the individual
chapters, which are not "individual chapters" but a part of the "Enterprise."
4. Defendant's have not fully cooperated. For defendant's to claim otherwise
would be another big lie and they know it. This is no "fishing expedition."
5. Defendant's in document number 334 has stated numerous untruths.
3
Case 2:13-cv-32251 Document 338 Filed 12/14116 Page 4 .of 7 Page ID #: 4109
6. "During deposition of Ray Carey, Mollohan as much as admitted fraud when
he stated in essence he had no non-profit company as it was not required to
keep any records" is a twist of the true statements Plaintiff Gerald R.
Mollohan has claimed, as his documentation on the subject of Plaintiff's
"Brothers of the Wheel Motorcycle Club Nomads" being a registered
Charity in the State of Washington and all that is required as far as record
keeping is concerned is well documented in Court Records and at the
Washington Secretary of State Office in Olympia, Washington. Once again
defendants are caught in another big lie. Defendant's have no credibility at
all and have perjured themselves as they have done in the past both in this
matter and related matters before this court and other courts.
7. Defendant's are guilty of improper conduct and have perpetuated an ongoing
fraud upon this most honorable Court as Plaintiff's detailed in Court
Documents and Records.
8. A "recent presidential campaign" story by defendant's has nothing to with
anything presently before this Court. How defendant's came up with that
comparison, makes one wonder about the stability of defendant"s mental
state.
9. Civil Action No. 2: 13-cv-32251 is not a "frivolous" lawsuit. Defendant's
were found to "technically be in default" because of act's of avoiding being
served in this matter.
IO.Plaintiffs own the Trademark for "BROTHERS OF THE WHEEL" and
Four(4) Copyrights(EXHIBIT "A".) Defendant's have proofed nothing(no
evidence) and again any defendant's statements saying "Plaintiff does not,"
4
Case 2:13-cv-32251 Document 338 Filed 12/14/16 Page 5 of 7 PagelD #: 4110
are again a case of defendant's out and out lies. Defendant's were informed
by the U.S. Patent and Trademark Office(USPTO) and Trademark Trial and
Appeal Board(TTAB) that defendant's failed to show any fraud at all by
Plaintiff Mollohan. Defendant's keep bringing the subject forward and again
they failed. Nothing at all presented in this matter and other matters before
this court by Defendant's has shown to be credible.
11.PlaintiffMollohan does not "comb" the internet. Defendant's Attorney fails
to understand there are such things as "Law Books" available to any citizen
at anytime. The internet is another "Tool" available to all involved in
litigation, consultation with other Pro Se litigates, Law Libraries are other
resources. This charge by defendant's is most unprofessional by Richard J.
Lindoth. Plaintiff would suggest Defendant's Attorney give more thought to
statements he make's prior to filing and refrain from wasting the Court
resources.
12. Plaintiffs believe defendant's move for sanctions is out of line, and
sanction motion made by defendant's should dismissed and Defendant's
should be sanctioned.
CONCLUSION
WHEREFOR it should be apparent to the Court by the facts shown above that
Plaintiff Gerald R. Mollohan and Counterclaim Defendant's Frank J. Visconi did
properly adhere to the rules and orders in this matter as they have in past matters.
MOTION TO STRIKE DEFENDANTS "RESPONSE TO PLAINTIFFS' AND
COUNTERCLAIM DEFENDANT'S MOTION FOR RULE 37 (B) (1) (2) (a)
MOTION" (DOCUMENT NUMBER 333)" should granted. Document Number
334 by Attorney Richard J. Lindroth on behalf of the Defendants is another feeble
5
Case 2:13-cv-32251 Document 338 Filed 12/14/16 Page 6 of 7 PagelD # : 4111
attempt by the Defendants to cover up their mistakes and guilt by attempting to
delay a proper default judgment for failing to produce branch chapters
representation for deposition and records, documents and things. Therefore
defendant's document number 334 should not be give any consideration.
Plaintiffs and Counterclaim Defendant therefore request this Honorable Court
Hold Attorney Richard J. Lindroth in Contempt and sanctioned.
Respectfully submitted,
Gerald R. Mollohan Plaintiffs, Pro Se et al
Frank J. Visconi Counterclaim Defendant Pro Se
---
6
Case 2:13-cv-32251 Document 338 Filed 12/14/16 Page 7 of 7 PagelD # : 4112
CERTIFICATE OF SERVICE
I, Gerald R. Mollohan, hereby certify that on December 13, 2016, A copy of the foregoing
MOTION TO STRIKE "DEFENDANTS' OPPOSITION TO PLAINTIFFS' AND COUNTERCLAIM DEFENDANT'S MOTION TO REOPEN
DISCOVERY" (DOCUMENT NUMBER 334)" AND
MOTION TO HOLD ATTORNEY RICHARD J. LINDROTH IN CONTEMPT
In Civil Action No. 2:13-cv-32251 was sent on December 13 , 2016 by First Class U.S. Mail, Postage prepaid to,
Richard J. Lindroth, PO Box 3 31 , Eleanor, West Virginia 25070-0331
Attorney for the Defendants and Counsel of record
era d R. Mollohan BROTHERS OF THE WHEEL MOTORCYCLE CLUB NOMADS
Plaintiffs Pro Se, et al Civil Action No. 2: 13-cv-3225 1
~~ Frank J. Visconi
Counterclaim Defendant Pro Se
7
Case 2: 13-cv-32251 Document 338-1 Filed 12/14/16 Page 1 of 6 PagelD # : 4113
Case 2:13-cv-32251 Document 110 Filed 08/06/15 Page 1 of 6 PagelD # : 1333 ()
~>'µtfblT "A IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VJRGINIA AT CHARLESTON
GERALD R. MOLLOHAN and BROTIIBRS OF THE WHEEL MOTORCYCLE CLUB NOMADS
Plaintiffs/Counterclaim Defendants,
v.
PAUL D. WARNER and RAY EDWIN CAREY and GEORGE KUHN and SAMUEL SCOTT ROMBO and DONALD PRICE (DECEASED) and BROTIIBRS OF THE WHEEL M.C. EXECUTIVE COUNCIL, INC. and JOHN DOES 1-50 and JANE DOES 1-50
Defendants/Counterclaim Plaintiffs,
V.
Frank J. Visconi
CIVIL ACTION No. 2:13-cv-32251
.,, FILED AUG - 6 2015
TERESAL.DEPPNER, CLERK U.S. Distr'.ct Court
Southern Oistr!s! of Wes'. Virginia
Defendant' s Counterclaim Defendant,
PLAINTIFFS/COUNTERCLAIM DEFENDANTS AND DEFENDANT'S COUNTERCLAIM DEFENDANT
MOTION FOR INJUNCTION AGAINST DEFENDANTS/CONTERCLAIM PLAINTIFFS FOR TRADEMARK AND COPYRIGHT INFRINGEMENT
1
Case 2:13-cv-32251 Document 338-1 Filed 12/14/16 Page 2 of 6 PagelD #: 4114
Case 2:13-cv-32251 Document 110 Filed 08/06/15 Page 2 of 6 PagelD #: 1334
Pursuant to United States Code (U.S.C.) Title 15, Chapter 1120, Civil Liability
for False or Fraudulent Registration, Plaintiffs and Counterclaim Defendants
hereby files this motion charging the Defendants with violation of said U.S. Code.
Further, Plaintiffs and Counterclaim Defendants say that all the Defendants are in
violation of Copyright Law of the United States and Related Laws Contained in
Title 17 of the United States Code.
Sub-Section (a) of U.S.C. , Title 15 § 1120 states that "any person who shall
procure registration in the Patent and Trademark Office of a mark by a false or
fraudulent declaration or representation, oral or in writing, or by any false means,
shall be liable in a civil action by any person injured thereby for any damages
sustained in consequence thereof."
Sub-Section (b) states that "any such injunction may be served anywhere in the
United States on the person enjoined, it shall be operative throughout the United
States and shall be enforceable, by proceedings in contempt or otherwise, by any
United States Court having jurisdiction of that person. The clerk of the court
granting the injunction shall, when requested by any other court in which
enforcement of the injunction is sought, transmit promptly to the other court a
certified copy of all the papers in the case of in such clerk's office."
2
Case 2:13-cv-32251 Document 338-1 Filed 12/14/16 Page 3 of 6 PagelD # : 4115
Case 2:13-cv-32251 Document 110 Filed 08/06/15 Page 3 of 6 PagelD #: 1335
Plaintiff and Counterclaim Defendant Gerald R. Mollohan is the sole owner of
the Trademark of "BROTHERS OF THE WHEEL" Registration Number
4,299,480 Int. Cl.; 26 for Embroidered Patches for Clothing, in Class 26 (U.S. CLS
37, 39, 40, 42 and 50).
Plaintiff and Counterclaim Defendant Gerald R. Mollohan is the sole owner of
the Copyright "BROTHERS OF THE WHEEL" Registration Number TXu 1-857-
219 - Author created text. Plaintiff and Counterclaim Defendant Gerald R.
Mollohan owns total Four (4) "BROTHERS OF THE WHEEL" Registered
Copyrights as shown in numerous Court Documents. U.S.C. Title 17 § 502 -
Remedies for infringement: injunctions (a) Any court having jurisdiction of a civil
action arising under this title may, subject to the provisions of section 1498 of title
28, grant temporary and final injunction on such terms as it may deem reasonable
to prevent or restrain infringement of a copyright.
CONCLUSION
After the Plaintiffs/Counterclaim Defendant Gerald R. Mollohan, and
Defendant's Counterclaim Defendant Frank J. Visconi, provided the Defendants
President Paul Warner and numerous additional defendants membership officers a
cease and desist letter, it is now the Plaintiffs/Counterclaim Defendants' and
3
Case 2:13-cv-32251 Document 338-1 Filed 12/14/16 Page 4 of 6 PagelD #: 4116
Case 2:13-cv-32251 Document 110 Filed 08/06/15 Page 4 of 6 PagelD #: 1336
Defendants' Counterclaim Defendants' belief and understanding that the
Defendants have reproduced, republished and redistributed items owned by the
Plaintiffs' without the Trademark and Copyright holders (Plaintiffs' and
Counterclaim Defendant Gerald R. Mollohan) permission, and are guilty of
violating Trademark and Copyright Law. Plaintiffs/Counterclaim Defendants
further understand through research that copyright infringement can result in court-
ordered damages ranging from $250.00 to $150,000.00 plus attorney's fees for
each act of infringement and further, if the infringement is considered "criminal
copyright," it can result in fines and jail time. The Plaintiffs' /Counterclaim
Defendants' can produce proof of more than one hundred acts of infringement by
the Defendants. Numerous infringements are displayed on Defendant's Internet
web site (botwmc.com) and various Facebook pages belonging to defendants.
Plaintiffs/Counterclaim Defendants and Defendant's Counterclaim Defendant
have included EXHIBIT "A" copy of fraudulently applied for application number
76538199 belonging to the defendants and EXHIBIT "B" copy of fraudulently
obtained trademark registration number 2,926)222. EXHIBIT "C" is copy of
"Copyright Infringement and Remedies."
WHEREFORE, Plaintiffs/Counterclaim Defendants and Defendant's
Counterclaim Defendant 'asks that the Court declare the Defendants by-laws, as
"null and void" and further to ORDER the defendants to shut down their web site
4
Case 2:13-cv-32251 Document 338-1 Filed 12/14/16 Page 5 of 6 PagelD #: 4117
Case 2:13-cv-32251 Document 110 Filed 08/06/15 Page 5 of 6 PagelD #: 1337
and any other defendant web sites, such as those on "Facebook", and any links to
defendant's web sites anywhere on the Internet.
Respectfully,
Gerald R. Mollohan - Plai ffs/Counterclaim Defendants, Pro Se et al
/ Frank J. Visconi, Pro Se
Defendant's Counterclaim Defendant.
5
• ' l Case 2:13-cv-32251 Document 338-1 Filed 12/14116 Page 6 of 6 PagelD # : 4118
Case 2:13-cv-32251 Document 110 Filed 08/06/15 Page 6 of 6 PagelD #: 1338
CERTIFICATE OF SERVICE
Plaintiffs/Counterclaim Defendants Gerald R. Mollohan,
BROTHERS OF THE WHEEL MOTORCYCLE CLUB NOMADS
And Defendant's Counterclaim Defendant Frank J. Visconi, hereby certify that on
August 5, 2015,
A copy of the foregoing
"PLAINTIFFS/COUNTERCLAIM DEFENDANTS AND DEFENDANT'S COUNTERCLAIM DEFENDANT
MOTION FOR INJUNCTION AGAINST DEFENDANTS/CONTERCLAIM PLAINTIFFS FOR TRADEMARK AND COPYRIGHT INFRINGEMENT"
Civil Action Number 2:13-cv-32251,
Sent Postage prepaid First Class Mail to:
Gerald R. Mollohan, Pro Se, et al
Plzyrz~
Frank J. Visconi, Pro Se
Defendant's Counterclaim Defendant
Civil Action - 2:13-cv-32251
6