Information Management v. Gemini

• Court: District Court, D. New Hampshire
• Decided: December 11, 1996
• Docket: CV-95-318-M
• Status: Published

Opinion

Information Management v. Gemini CV-95-318-M 12/11/96

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Information Management Technologies Corp., Plaintiff,

v. Civil No. 95-318-M

Gemini Microsystems International, Inc.; William H. Peters, V; Shawn E. Harris; and Janice M. Hudson, Defendants.

O R D E R

A hearing was held on pro se plaintiff's Motion for Contempt

of Court (document no. 27) on December 11, 1996. Pro se

plaintiff did not appear at the scheduled hearing; Attorney

Jeffrey N. Danis appeared on behalf of the respondent. Although

pro se plaintiff has not communicated with the court in

connection with this case, the deputy clerk brought to the

court's attention that plaintiff wrote a letter in connection

with several other cases he has pending (received December 10,

1996) advising the court that he is currently incarcerated in

Rockingham County House of Correction relative to a state matter,

which probably explains his absence.

Attorney Danis filed an affidavit of William H. Peters which

tends to establish that the settlement agreement and stipulated

injunction previously entered to resolve the underlying civil

case have both been strictly complied with by the defendants,

that the defendant corporation is no longer competing in the same industry as the putative plaintiff corporation, and that there is

no basis for any contempt proceeding under the injunction

previously entered.

In addition. Attorney Danis points out that while the

defendant corporation still possesses allegedly infringing

technology and other goods belonging to the putative plaintiff

corporation, that is so only because pro se plaintiff Rogers has

failed to make any effort to pick up or arrange for the delivery

of said goods and materials. Mr. Danis advises that the

defendant will happily deliver those materials to Mr. Rogers

whenever Mr. Rogers arranges to pick them up, or gives reasonable

directions as to where those materials should be delivered.

Finally, it appears that as a result of the underlying

settlement pro se plaintiff Rogers is the sole shareholder of

Information Management Technologies Corp., and so effectively

controls the company. Accordingly, it would appear inappropriate

for him to bring this action on behalf of Information Management

Technologies Corp. as a derivative shareholder action, when it

could be brought directly by the corporation as controlled by Mr.

Rogers (i.e. the corporation is not in a position to refuse to

bring any claim Rogers wants it to bring). It is also not clear

that Mr. Rogers may bring an action on behalf of a corporation in

a derivative shareholder capacity, without first obtaining

counsel. See Local Rule 83.6(c). It is certainly clear that the

corporation cannot appear in this court, except through counsel.

Id.

2 Accordingly, neither pro se plaintiff's conclusory motion

nor the record establishes any basis for holding the defendants

in contempt based upon any demonstrated violation of the

injunction previously entered. Moreover, Local Rule 83.6(c)

would seem to preclude plaintiff from bringing an action in this

court on behalf of the corporation except through counsel.

Finally, it would appear from the record that any failure to

strictly comply with the settlement agreement or injunction

previously entered relative to the delivery of so-called

"infringing" products is entirely due to the pro se plaintiff's

own failure to make arrangements to pick up or have said

materials delivered.

Therefore, pro se plaintiff's Motion for Contempt of Court

(document no. 27) is denied, and this matter is closed. Pro se

plaintiff, before filing any similar pleadings, is directed to

consult with Attorney Danis with regard to any claimed breaches

of the underlying settlement agreement and/or injunction, and

with respect to delivery of whatever goods or materials

Information Management Technologies Corp. is entitled to obtain

from the defendants. Failure to do so will likely result in the

court's considering any future pleadings in this matter filed by

the pro se plaintiff to be without a reasonable basis, and filed

without adeguate inguiry into or effort to learn about facts

relevant to the claim advanced.

3 SO ORDERED.

Steven J. McAuliffe United States District Judge

December 11, 1996

cc: Charles Rogers, pro se Jeffrey N. Danis, Esg.