Colida v. Panasonic Corp. of North America ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-1582
TONY COLIDA,
Plaintiff-Appellant,
v.
PANASONIC CORPORATION OF NORTH AMERICA
and PANASONIC CORPORATION,
Defendants-Appellees.
Tony Colida, of St. Laurent, Quebec, Canada, pro se.
Tadashi Horie, Brinks Hofer Gilson & Lione, of Chicago, Illinois, for defendants-
appellees.
Appealed from: United States District Court for the Northern District of Illinois
Judge Matthew F. Kennelly
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-1582
TONY COLIDA,
Plaintiff-Appellant,
v.
PANASONIC CORPORATION OF NORTH AMERICA
and PANASONIC CORPORATION,
Defendants-Appellees.
Appeal from the United States District Court for the Northern District of Illinois in case
no. 09-CV-1786, Judge Matthew F. Kennelly.
___________________________
DECIDED: May 4, 2010
___________________________
Before RADER, DYK, and PROST, Circuit Judges.
PER CURIAM.
Tony Colida (“Colida”) appeals a denial by the United States District Court for the
Northern District of Illinois of his application to proceed in forma pauperis. The court
required Colida to pay the filing fee, and when he did not do so, the court dismissed his
complaint without prejudice. We affirm.
BACKGROUND
On March 23, 2009, Colida filed a complaint against Panasonic Corporation of
North America, a wholly-owned subsidiary of Panasonic Corporation (collectively,
“Panasonic”), in the United States District Court for the Northern District of Illinois
alleging infringement of U.S. Design Patent No. 321,184, which disclosed a design for a
portable cellular telephone. Complaint at 1–2, Colida v. Panasonic Corp. of N. Am., No.
09-CV-1786 (N.D. Ill. Mar. 23, 2009). He sought damages of $1 billion. Id. at 3. He
applied to the court for leave to proceed in forma pauperis, which the court granted on
June 5, 2009. Panasonic then moved the district court to dismiss the complaint as
frivolous or, in the alternative, to transfer the case to the District of New Jersey, where
Colida had previously pursued identical claims against the company.
On September 8, 2009, the district court vacated its June 5 order granting Colida
leave to proceed in forma pauperis. Colida v. Panasonic Corp. of N. Am., No. 09-CV-
1786 (N.D. Ill. Sept. 8, 2009) (minute order vacating order of June 5, 2009). The court
noted that the District of New Jersey had already twice denied Colida leave to proceed
in forma pauperis in identical actions against Panasonic. Id. at 2. The district court in
the present action also noted that “Colida is expressly asking for a new opportunity to
do what the District of New Jersey ruled he cannot do, that is, proceed with the case in
forma pauperis.” Id. Colida asserted that it was necessary for him to refile in another
venue because there “is a conspiracy going on with the District Court of New Jersey”
and that the court there “acted in prejudice against myself.” Id. However, the court
concluded that “an appeal was the remedy for any error that the District of New Jersey
may have committed, not a new application to proceed in forma pauperis filed in a
different court with the hope of a different outcome.” Id. The court vacated its earlier
order granting Colida leave to proceed in forma pauperis and required him to pay the
filing fee. Colida did not do so, and the court dismissed the complaint without prejudice.
Colida timely appealed, and we granted him leave to proceed in forma pauperis
on this appeal. The denial of an in forma pauperis application is an appealable order.
2009-1582 2
Roberts v. U.S. Dist. Ct. for the N. Dist. of Cal., 339 U.S. 844, 845 (1950) (per curiam).
Thus, we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).
DISCUSSION
Courts have discretion under 28 U.S.C. § 1915 to grant in forma pauperis status
to litigants. See Denton v. Hernandez, 504 U.S. 25, 33–34 (1992). As such, we review
a denial of an in forma pauperis application for an abuse of that discretion. See id.;
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 337 (1948). “An abuse of
discretion may be established under Federal Circuit law by showing that the court made
a clear error of judgment in weighing the relevant factors or exercised its discretion
based on an error of law or clearly erroneous fact finding.” Qingdao Taifa Group Co. v.
United States, 581 F.3d 1375, 1379 (Fed. Cir. 2009) (quoting Lab. Corp. of Am.
Holdings v. Chiron Corp., 384 F.3d 1326, 1331 (Fed. Cir. 2004)) (quotation marks
omitted). We conclude that the district court did not abuse its discretion in denying
Colida in forma pauperis status.
As the district court noted, Colida had already been denied in forma pauperis
status in two actions against Panasonic in the District of New Jersey alleging the same
claim of infringement. 1 In the first action, the New Jersey district court denied Colida’s
application for in forma pauperis status because Colida had collected $152,000 in
licensing fees as settlements in various lawsuits over the previous four years, and the
court concluded that Colida’s design patent therefore also had significant value. Colida
1
Colida had also in fact filed a third action in the Southern District of New
York seeking the same relief. In the same order, that court granted in forma pauperis
status and dismissed the action as “duplicative” in light of the still-pending first action in
the District of New Jersey. See Colida v. Panasonic Corp. of N. Am., No. 07-CV-4553
(S.D.N.Y. May 30, 2007) (order of dismissal).
2009-1582 3
v. Panasonic Corp. of N. Am., No. 05-CV-5527 (D.N.J. Apr. 11, 2006) (letter order).
Colida appealed to this court. We dismissed his appeal as untimely. Colida v.
Panasonic Corp. of N. Am., 188 F. App’x 978 (Fed. Cir. 2006). Colida then filed a
“Motion to Reinstate the Action and Grant In Forma Pauperis Status” with the district
court. The court construed the motion as seeking reconsideration of its previous orders
on Colida’s application for in forma pauperis status. The court denied the motion as
untimely and for failing to meet the necessary standard for reconsideration. Colida v.
Panasonic Corp. of N. Am., No. 05-CV-5527 (D.N.J. Dec. 22, 2008) (order denying
reconsideration). Colida then filed another motion with the district court seeking to
reopen the case and seeking recusal of the district court judge, which was also denied.
Colida v. Panasonic Corp. of N. Am., No. 05-CV-5527 (D.N.J. May 27, 2009) (order
denying motion to reopen and for recusal). Colida again appealed to this court,
challenging the district court’s December 2008 denial of reconsideration, but we
dismissed after Colida failed to comply with an order requiring payment of the docketing
fee or notification that he had moved in the district court for leave to proceed in forma
pauperis on appeal. Colida v. Panasonic Corp. of N. Am., No. 2009-1255, 2009 WL
5609557 (Fed. Cir. Aug. 17, 2009).
Even while these events with respect to the first action were ongoing, Colida filed
a second identical action in the District of New Jersey. The court dismissed the action
as frivolous. Colida v. Panasonic Corp. of N. Am., No. 09-CV-1316 (D.N.J. Mar. 31,
2009) (order dismissing complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B) in light
of previous action, which was still on appeal). Colida did not appeal.
2009-1582 4
The District of New Jersey in Colida’s first action against Panasonic concluded
that Colida did not qualify for in forma pauperis status because of the value of his patent
and approximately $152,000 in settlements he had received from other lawsuits. Once
the court denied reconsideration and Colida failed to timely appeal that decision, the
issue was resolved. Unless Colida alleged and presented new facts to the district court
to demonstrate that his financial situation had deteriorated, the district court’s denial of
in forma pauperis status in the present case was not an abuse of discretion. While
Colida alleges that he is “on welfare [and] not working due to depression of infringement
of [his] U.S. design patent,” Appellant’s Informal Br. 1, he did not establish before the
district court that there had been a change in his financial situation since the dismissal
by the New Jersey court.
The Supreme Court has cautioned that “a litigant whose filing fees and court
costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to
refrain from filing frivolous, malicious, or repetitive lawsuits.” Neitzke v. Williams, 490
U.S. 319, 324 (1989). Thus, “[i]t is vital that the right to file in forma pauperis not be
incumbered by those who would abuse the integrity of our process by frivolous filings.”
Zatko v. California, 502 U.S. 16, 18 (1991) (per curiam) (quoting In re Amendment to
Rule 39, 500 U.S. 13, 13 (1991)) (quotation marks omitted). Colida seems to be the
type of litigant the Supreme Court had in mind. He has filed dozens of lawsuits against
at least fourteen large corporate defendants, seeking up to $1 billion in damages. See
Colida v. Nokia, Inc., 347 F. App’x 568, 569 (Fed. Cir. 2009). We have previously
admonished Colida for his “pattern of repeatedly filing meritless infringement complaints
and pursuing appeals when the accused designs bear no realistic similarity to his design
2009-1582 5
patents,” Colida v. Sharp Elecs. Corp., 125 F. App’x 993, 996 (Fed. Cir. 2005); see also
Nokia, 347 F. App’x at 571, and imposed sanctions against him, see Colida v. Sanyo N.
Am. Corp., No. 2004-1287, 2004 WL 2853034 (Fed. Cir. Dec. 2, 2004). The Southern
District of New York has even issued an injunction, which we affirmed, preventing
Colida from filing any new infringement suits in that district relating to his four design
patents without first obtaining permission from the district court. See Nokia, 347 F.
App’x at 571.
Once the District of New Jersey denied Colida’s in forma pauperis application, he
was not free to take a second, third, or fourth bite at the apple in other courts. Under
the circumstances of this case, we could, and perhaps should, vacate our earlier order
granting leave to proceed in forma pauperis. However, in the interest of expedition, we
simply affirm the district court’s denial of leave to proceed in forma pauperis.
2009-1582 6