ttabttabvue.uspto.gov/ttabvue/ttabvue-92059292-can-20.pdf · provided to millicent canady,...

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








was sent by U.S. Mail, postage prepaid to Kenneth L. Mitchell

at Woodling, Krost and Rust 9213 Chillicothe Road Kirtland, Ohio 44094

[email protected]

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


8

We hereby certify that on December 19, 2016, a copy of the foregoing








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


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


"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


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.


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


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.


~ 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


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

case 2:11-cv-00104 Document 202-2 . Filed 04/25/16 Paae 4ff 8 PaaelD #:2122 Case 2:13-cv-32251 Document 159 Filed 04/21116 Page '3 of PagelrJ #: 17Zo

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

Case 2·11-cv-00104 Document 202-2 Fi led 04/25/16 PaQe 6 of 8 PagelD #: 2124 case 2:13-cv-32251 Document 159 Filed 04/21/16 Page '5 of 7 Page ID #: 1728

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

Case 2:11-cv-00104 Document 202-2 Filed 04/25/16 Page 7 of 8 PaBelD #: 2125 Case 2:13-cv-32251 Document 159 Filed 04/21/16 Page 5 o 7 Pagel #: 1729

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


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


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.


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


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


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


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


< [ rs•• 2ms J TERESA L. Df PPNER, CLERK

U.S. District Court

l__ So~1'.~e~~- ?._i ~'.~_:!__C?~_·,.~~~ -Vi r!J.~'-i-~ -----


MOTION TO STRIKE "DEFENDANTS' OPPOSITION TO PLAINTIFFS' AND COUNTERCLAIM DEFENDANT'S MOTION TO REOPEN

DISCOVERY" (DOCUMENT NUMBER 334)" AND


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


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


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


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.


Gerald R. Mollohan Plaintiffs, Pro Se et al

Frank J. Visconi Counterclaim Defendant Pro Se

---

6



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


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


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


.,, 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


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


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



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



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


5

• ' l Case 2:13-cv-32251 Document 338-1 Filed 12/14116 Page 6 of 6 PagelD # : 4118



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