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Case: 09-2356 Document: 16 Filed: 07/31/2009 Pages: 65

No. 09-2356

United States Court of Appeals
for the Seventh Circuit
Papa John’s International, Inc., and
PJ Food Service, Inc.
Appellants,

v.

Antoin Rezko, et al,
Appellees.

Brief of Appellants.
Appeal as of Right from a Dismissal Order of
the U.S. District Court for the Northern District of Illinois at Chicago.
Hon. Samuel Der-Yeghiayan, U.S. District Judge.

Brief of Appellants by:

Lee Thomason
Corporate Counsel
Papa John’s International, Inc.
2002 Papa John’s Boulevard
Louisville, KY 40299
(502) 261-4773
Print Form
Case: 09-2356 Save16
Document: Form Filed:
Clear Form
07/31/2009 Pages: 65
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Appellate Court No: 09-2356

Short Caption: Papa John's Int'l, Inc. and PJ Food Service, Inc. v. Rezko, et al.

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Papa John's International, Inc.

PJ Food Service, Inc.

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Former counsel were: (1) Hunton & Williams, (2) Foley & Lardner, (3) Sonnenschien Nath & Rosenthal, LLP

(4) Katten Muchin Rosenman LLP, (5) Seyfarth Shaw LLP, (6) K&L Gates LLP

(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
Papa John's International, Inc., is a publicy-traded company, which wholly owns PJ Food Service, Inc.

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:
None

Attorney's Signature: ~s~ Charles L. Thomason Date: 06 AUG 2009
Attorney's Printed Name: Charles Lee Thomason

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No

Address: Legal Dept. Papa John's International, Inc.
2002 Papa John's Blvd. Louisville, KY 40299

(502) 261-4773 (502) 261-4324
Phone Number: Fax Number:

lee_thomason@papajohns.com
E-Mail Address:

rev. 01/08 AK
Print Form Save Form Clear Form
Case: 09-2356 Document: 16 Filed: 07/31/2009 Pages: 65

Table of Contents

Page

Corporate Disclosure Statement

Table of Contents ……………………………………….. i

Table of Authorities ……………………………………….. iv

A. Arranged Alphabetically …………………………………. iv
B. Arranged by Precedential Source ……………………….….. xiii

Jurisdictional Statement of Appellants …………………… 1

Statement of the Issues Presented for Review …………………… 2

Statement of the Case, Proceedings and Disposition Below ……… 5
1. The Action For Injunctive Relief
Against the LLC Franchisees …………………… 5
2. The Civil Suit Pleaded for Lanham Act
and Related Relief …………………………………. 6
3. The Indictment of the Individual Defendant ……… 7
4. The Stay of All Discovery as to All Defendants ……… 9
5. Continuing Status Conferences …………………… 10
6. The Sua Sponte Dismissal Order …………………… 11

Statement of Facts Relevant to Issues for Review .…………… 13
Summary of Arguments ……………………………………..… 17
ARGUMENT ……………………………………..… 18
I. Error to Stay Discovery as to the LLC Defendants ……………. 18
A. Standard of Review For a Stay
Based on the Fifth Amendment ………………..………... 18
1. Typical Stays are Reviewed for
Abuse of Discretion ………………..………... 18

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Page

2. Standards of Review Appropriate to Stays
of Civil Discovery Due to Criminal Charges
Against the Individual Co-Defendant
of Several Corporate Entity Defendants .…………… 20
3. The Standard of Review
Appropriate to the Stay Order …………………… 24

II. The Decision To Stay All Discovery, as to All
More Certain Standards to Guide Lower Courts in
Evaluating Whether to Stay,or to Limit Discovery .…………… 25

A. Varied Tests Across the Circuits,
and None in this Circuit …………………………………. 25
B. No 5th Amendment Privilege Protects
The LLC-Defendants …………………………………. 31
C. The Stay was Contrary to the
Collective Entity Doctrine …………………………………. 33

III. Dismissal, Sua Sponte and Without Notice,
Was Error ……………………………………………..… 38

CONCLUSION ……………………………………..… 41

Statement that Oral Argument Not Requested ………..….……… 42

CERTIFICATION REGARDING TYPE SIZE AND STYLE ………….……..… 43
CIRCUIT RULE 31(e) STATEMENT ………..….……… 44
CERTIFICATE OF SERVICE ……………………………………..… 45
CIRCUIT RULE 30(d) STATEMENT ………..….……… 46

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SHORT APPENDIX

The following relevant documents from the proceedings below are provided.

Record
Entry # Date Filed Description

217 03/02/2007 MINUTE entry: Defendant's motion to stay is granted,
but with a direction that all records of the corporate defendants and
all records in the possession of defendant Rezko that may reasonable
be deemed discoverable in this action be preserved.

218 03/02/2007 MEMORANDUM Opinion and Order on motion to stay
all discovery as to all defendants, and to preserve all records
that may reasonable be deemed discoverable.
246 04/29/2009 MINUTE entry: The instant action is hereby terminated without
prejudice to reinstate.

248 05/22/2009 NOTICE of appeal by Papa John’s International, Inc., and
PJ Food Service, Inc.

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TABLE OF AUTHORITIES

A. Alphabetically Arranged.

Page

9A Fletcher, Cyclopedia of the Law of Corporations, § 4671 ……. 18
15A Wright, Miller & Cooper,
FEDERAL PRACTICE AND PROCEDURE
§ 3914.6, at 145 n. 18 (2d ed. 2000) ………………….. 3
28 U.S.C. §1291 …………………………………….. 1 & 3
28 U.S.C. §1331 ……………………………………..… 1
28 U.S.C. §1338 ……………………………………..… 1
28 U.S.C. §1338(b) ……………..……………………………….. 1
28 U.S.C. §1367 ……………………………………..… 1
Albemarle Paper Co. v. Moody, 422 U.S. 405,
45 L.Ed.2d 280, 95 S. Ct. 2362 (1975) ………………….. 23
Bellis v. United States, 417 U.S. 85,
94 S. Ct. 2179, 40 L.Ed.2d 678 (1974) ………………….. 34
Barnes v. Briley, 420 F.3d 673, 676 (7th Cir. 2005) ………………….. 2
Bland v. Fiatallis North America, Inc.,
401 F.3d 779 (7th Cir. 2005) ……………………………….. 21
Braswell v. United States, 487 U.S. 99,
108 S. Ct. 2284, 101 L.Ed.2d 98 (1988) …………………. 35
Cargile v. Barrow, 2009 WL 222947
(Ohio App. 1st Dist. Jan. 30, 2009) ………………….. 21
CHB Uptown Properties, LLC v. Financial Place
Apartments, LLC, 378 Ill.App.3d 105,
881 N.E.2d 423 (Ill. App. 1st Dist. 2007) ………………….. 29
Clinton v. Jones, 520 U.S. 681,
117 S. Ct. 1636, 137 L.Ed.2d 945 (1997) ………………….. 18
Copyright Act, Title 17 U.S.C. ………………….…………….. 1

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Page
Corporate Assets, Inc. v. Paloian,
368 F.3d 761 (7th Cir. 2004) ……………………………….. 22
Corley v. Rosewood Care Center, Inc. of Peoria,
142 F.3d 1041 (7th Cir. 1998) ……………………………….. 19
Cruz v. County of DuPage, 1997 WL 370194
(N.D. Ill. 1997) ……………………………….. 27-31
Doe v. Oberweis Dairy,
456 F.3d 704 (7th Cir. 2006),
cert. den’d, 549 U.S. 1278 (2007) ………………..……….. 40
Donovan v. Robbins, 752 F.2d 1170 (7th Cir. 1984) ………………….. 21
Fernandez v. ATA Airlines, Inc., 2006 WL 211818
(N.D.Ill. 2006) ……………………………….. 11
In re 25 Grand Jury Subpoenas Dated Oct. 21, Oct. 22,
and Dec. 3, 1986, 654 F.Supp. 647 (N.D. Ind. 1987) …………… 36
Jutzi-Johnson v. U.S., 263 F.3d 753 (7th Cir. 2001) …………… 23
Kaba v. Stepp, 458 F.3d 678 (7th Cir. 2006) ………………….. 2
Keating v. Office of Thrift Supervision, 45 F.3d 322
(9th Cir. 1995), cert. denied, 516 U.S. 827 (1995) …………… 26
Koester v. American Republic Investments, Inc.,
11 F.3d 818 (8th Cir. 1993) ……………………………….. 26-30
Lambersky v. Petritis, 2002 WL 1285883 (N.D. Ill. 2002) ……. 11
Landis v. North American Co., 299 U.S. 248,
57 S. Ct. 163, 165-66, 81 L.Ed. 153 (1936) ………………….. 19
Lanham Act and 15 U.S.C. §1121 ………………….…………….. 1
Mars Steel Corp. v. Continental Bank N.A.,
880 F.2d 928 (7th Cir. 1989) (en banc) ………………….. 23
Martin Trigona v. Gouletas,
634 F.2d 354 (7th Cir. 1980),
cert. den’d, 449 U.S. 1025 (1980) ………………..……….. 36
Microfinancial, Inc. v. Premier Holidays Intern., Inc.,
385 F.3d 72 (1st Cir. 2004) ……………………………….. 30

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Page
Mostly Memories, Inc. v. For Your Ease Only, Inc.,
526 F.3d 1093 (7th Cir. 2008) ……………………………….. 2
Musser v. Gentiva Health Servs.,
356 F.3d 751 (7th Cir.2004) ……………………………….. 22
Olive Can Co., Inc. v. Martin,
906 F.2d 1147 (7th Cir. 1990) ……………………………….. 19
Pacific Mut. Life Ins. Co. v.
American Nat. Bank and Trust Co.
of Chicago, 649 F.Supp. 281 (N.D. Ill. 1986) ……. 36
Papa John’s Int’l v. Rezko, 2007 WL 1597944 (N.D. Ill. 2007) ……. 5
Riverboat Casino Cruises, Inc.
v. Triangle Insulation & Sheet Metal Co.,
302 F.3d 667 (7th Cir.2002) ………………..……….. 39
Ruski v. City of Bayonne,
811 A.2d 939 (N.J. Super. App. Div. 2002) ………………….. 38
Salgado by Salgado v. General Motors Corp.,
150 F.3d 735 (7th Cir. 1998) ……………………………….. 21
Securities and Exchange Commission
v. Canandaigua Enterprises Corp.,
339 F.2d 14 (2nd Cir. 1964) ……………………………….. 23
Standard Sanitary Manufacturing Co. v. United States,
226 U.S. 20, 52, 33 S. Ct. 9, 57 L.Ed. 107 (1912) …………… 22
Sverdrup Corp. v. Edwardsville Comm.
Unit School Dist. No. 7, 125 F.3d 546 (7th Cir. 1997) ….… 23
Tranzact Technologies, Ltd. v. Evergreen Partners, Ltd.,
366 F.3d 542 (7th Cir. 2004) ……………………………….. 39
United States v. Arizechi, 2006 WL 1722591 (D.N.J. 2006) ……. 35
United States v. Burr, 25 F. Cas. 30
(No. 14,692d) (C.C. Va. 1807) ………………..……….. 23
United States v. Certain Real Property
Commonly Known as 6250 Ledge Rd.,
943 F.2d 721(7th Cir. 1991) ……………………………….. 26

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Page

United States v. Feng Juan Lu, 248 Fed.Appx. 806,
2007 WL 2753030 (9th Cir. 2007) ………………….. 35
United States v. Kordel, 397 U.S. 1,
90 S. Ct. 763, 25 L.Ed.2d 1 (1970) ………………..……….. 22
United States v. Kuta,
518 F.2d 947 (7th Cir. 1975) ………………….. 36
United States v. Pate, 105 Fed. Appx. 597 (5th Cir. 2004) ……. 20
United States v. Matute-Santos,
168 Fed. Appx. 343 (11th Cir. 2006) ………………….. 20
United States v. Rezko, 2008 WL 4890232 (N.D.Ill. 2008) ……. 14
United States v. Wallace & Tiernan Co.,
336 U.S. 793, 69 S. Ct. 824, 93 L.Ed. 1042 (1949) …………… 2
United States v. White, 322 U.S. 694,
64 S. Ct. 1248, 88 L.Ed. 1542 (1944) ………………….. 33
Wilson v. United States, 221 U.S. 361,
31 S. Ct. 538, 55 L.Ed. 771 (1911) ………………..……….. 33
Wilton v. Seven Falls Co., 515 U.S. 277,
115 S. Ct. 2137, 132 L.Ed.2d 214 (1995) ………………….. 24
Winters v. Fru-Con Inc., 498 F.3d 734 (7th Cir. 2007) …………… 24

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TABLE OF AUTHORITIES
B. Arranged by Precedential Source.
Page

U.S. Supreme Court decisions:
Albemarle Paper Co. v. Moody, 422 U.S. 405,
45 L.Ed.2d 280, 95 S. Ct. 2362 (1975) ………………….. 24
Bellis v. United States, 417 U.S. 85,
94 S. Ct. 2179, 40 L.Ed.2d 678 (1974) ………………….. 34
Braswell v. United States, 487 U.S. 99,
108 S. Ct. 2284, 101 L.Ed.2d 98 (1988) ………………….. 35
Clinton v. Jones, 520 U.S. 681,
117 S. Ct. 1636, 137 L.Ed.2d 945 (1997) ………………….. 18
Landis v. North American Co., 299 U.S. 248,
57 S. Ct. 163, 165-66, 81 L.Ed. 153 (1936) ………………….. 19
Standard Sanitary Manufacturing Co. v. United States,
226 U.S. 20, 52, 33 S. Ct. 9, 57 L.Ed. 107 (1912) …………… 22
United States v. Burr, 25 F. Cas. 30
(No. 14,692d) (C.C. Va. 1807) ………………..……….. 23
United States v. Kordel, 397 U.S. 1,
90 S. Ct. 763, 25 L.Ed.2d 1 (1970) ………………..……….. 22
United States v. Wallace & Tiernan Co.,
336 U.S. 793, 69 S. Ct. 824, 93 L.Ed. 1042 (1949) …………… 2
United States v. White, 322 U.S. 694,
64 S. Ct. 1248, 88 L.Ed. 1542 (1944) ………………….. 33
Wilson v. United States, 221 U.S. 361,
31 S. Ct. 538, 55 L.Ed. 771 (1911) ………………..……….. 33
Wilton v. Seven Falls Co., 515 U.S. 277,
115 S. Ct. 2137, 132 L.Ed.2d 214 (1995) ………………….. 24

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Page
Seventh Circuit decisions:

Barnes v. Briley, 420 F.3d 673, 676 (7th Cir. 2005) ………………….. 2
Bland v. Fiatallis North America, Inc.,
401 F.3d 779 (7th Cir. 2005) ……………………………….. 21
Corporate Assets, Inc. v. Paloian,
368 F.3d 761 (7th Cir. 2004) ……………………………….. 22
Corley v. Rosewood Care Center, Inc. of Peoria,
142 F.3d 1041 (7th Cir. 1998) ……………………………….. 19
Doe v. Oberweis Dairy,
456 F.3d 704 (7th Cir. 2006),
cert. den’d, 549 U.S. 1278 (2007) ………………..……….. 40
Donovan v. Robbins, 752 F.2d 1170 (7th Cir. 1984) ………………….. 21
Jutzi-Johnson v. U.S., 263 F.3d 753 (7th Cir. 2001) …………… 23
Mars Steel Corp. v. Continental Bank N.A.,
880 F.2d 928 (7th Cir. 1989) (en banc) ………………….. 23
Kaba v. Stepp, 458 F.3d 678 (7th Cir. 2006) ………………….. 2
Martin Trigona v. Gouletas,
634 F.2d 354 (7th Cir. 1980),
cert. den’d, 449 U.S. 1025 (1980) ………………..……….. 36
Mostly Memories, Inc. v. For Your Ease Only, Inc.,
526 F.3d 1093 (7th Cir. 2008) ……………………………….. 2
Musser v. Gentiva Health Servs.,
356 F.3d 751 (7th Cir.2004) ……………………………….. 22
Olive Can Co., Inc. v. Martin,
906 F.2d 1147 (7th Cir. 1990) ……………………………….. 19
Riverboat Casino Cruises, Inc.
v. Triangle Insulation & Sheet Metal Co.,
302 F.3d 667 (7th Cir.2002) ………………..……….. 39
Salgado by Salgado v. General Motors Corp.,
150 F.3d 735 (7th Cir. 1998) ……………………………….. 21

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Page

Sverdrup Corp. v. Edwardsville Comm.
Unit School Dist. No. 7, 125 F.3d 546 (7th Cir. 1997) ….… 23
Tranzact Technologies, Ltd. v. Evergreen Partners, Ltd.,
366 F.3d 542 (7th Cir. 2004) ……………………………….. 39
United States v. Certain Real Property
Commonly Known as 6250 Ledge Rd.,
943 F.2d 721(7th Cir. 1991) ……………………………….. 26
U.S. v. Kuta, 518 F.2d 947 (7th Cir. 1975) ………………….. 36
Winters v. Fru-Con Inc., 498 F.3d 734 (7th Cir. 2007) …………… 24

Page
Other Circuit Courts decisions:

Keating v. Office of Thrift Supervision, 45 F.3d 322
(9th Cir. 1995), cert. denied, 516 U.S. 827 (1995) …………… 27
Koester v. American Republic Investments, Inc.,
11 F.3d 818 (8th Cir. 1993) ……………………………….. 26
Microfinancial, Inc. v. Premier Holidays Intern., Inc.,
385 F.3d 72 (1st Cir. 2004) ……………………………….. 30
Securities and Exchange Commission
v. Canandaigua Enterprises Corp.,
339 F.2d 14 (2nd Cir. 1964) ……………………………….. 23
United States v. Feng Juan Lu, 248 Fed. Appx. 806,
2007 WL 2753030 (9th Cir. 2007) 34
United States v. Pate, 105 Fed. Appx. 597 (5th Cir. 2004) ……. 20
United States v. Matute-Santos,
168 Fed. Appx. 343 (11th Cir. 2006) ………………….. 20

Decisions in the case below:

Papa John’s Int’l v. Rezko, 2007 WL 1597944 (N.D. Ill. 2007) ……. 5

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Page

District Court decisions:

Cruz v. County of DuPage, 1997 WL 370194
(N.D. Ill. 1997) ……………………………….. 28
Fernandez v. ATA Airlines, Inc., 2006 WL 211818
(N.D.Ill. 2006) ……………………………….. 11
In re 25 Grand Jury Subpoenas Dated Oct. 21, Oct. 22,
and Dec. 3, 1986, 654 F.Supp. 647 (N.D. Ind. 1987) …………… 36
Lambersky v. Petritis, 2002 WL 1285883 (N.D. Ill. 2002) ……. 11
Pacific Mut. Life Ins. Co. v. American Nat. Bank
and Trust Co. of Chicago, 649 F.Supp. 281 (N.D. Ill. 1986) ……. 36
United States v. Arizechi, 2006 WL 1722591 (D.N.J. 2006) ……. 35
United States v. Rezko, 2008 WL 4890232 (N.D.Ill. 2008) ……. 13

Federal Statutes

Lanham Act and 15 U.S.C. §1121 ………………….…………….. 1
Copyright Act, Title 17 U.S.C. ………………….…………….. 1
28 U.S.C. §1291 ……………………………………..… 1
28 U.S.C. §1331 ……………………………………..… 1
28 U.S.C. §1338 ……………………………………..… 1
28 U.S.C. §1338(b) ……………..……………………………….. 1
28 U.S.C. §1367 ……………………………………..… 1

State Cases and Other Authorities:

Cargile v. Barrow, 2009 WL 222947
(Ohio App. 1st Dist. Jan. 30, 2009) ………………….. 21
CHB Uptown Properties, LLC v. Financial Place
Apartments, LLC, 378 Ill.App.3d 105,
881 N.E.2d 423 (Ill. App. 1st Dist. 2007) ………………….. 29

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Page

Ruski v. City of Bayonne,
811 A.2d 939 (N.J. Super. App. Div. 2002) ………………….. 39
15A Wright, Miller & Cooper,
FEDERAL PRACTICE AND PROCEDURE
§ 3914.6, at 145 n. 18 (2d ed. 2000) ………………….. 3
9A Fletcher, Cyclopedia of the Law of Corporations, § 4671 ……. 18

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Jurisdictional Statement

Jurisdiction over this matter in the district court was founded upon

federal statutes, per 28 U.S.C. §1331, and based primarily on the Lanham

Act claims cognizable under 28 U.S.C. §1338 and 15 U.S.C. §1121, as well

as claims under the Copyright Act, Title 17 U.S.C. There too was

supplemental jurisdiction over the trade secrets, contract breach, tortious

interference and conversion claims under 28 U.S.C. §1338(b), as well as 28

U.S.C. §1367.

On April 29, 2009, the lower court, sua sponte, ordered this “Civil

case terminated,” which constituted an order that was final as to all issues

and to all parties. On that basis, 28 U.S.C. §1291 provides jurisdiction for

this appeal.

The notice of appeal is filed herewith on May 22, 2009, which is

timely under Rule 4(a), FED. R. APP. PROC. No cross-appeal was filed,

which terminated all counterclaims.

A possible question of appellate jurisdiction does deserve to be

addressed. The sua sponte order dismissed “without prejudice.” Panel

decisions of this Circuit Court have held that an order dismissing a case

without prejudice is non-final for purposes of appellate jurisdiction.

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The typical setting for this aspect of the §1291 “final order” issue is

when the dismissal without prejudice contemplates or denies a possible

amendment to cure a deficient pleading. Barnes v. Briley, 420 F.3d 673,

676 (7th Cir. 2005) ("if the plaintiff ‘cannot cure the defects’ in his

complaint, the dismissal in effect was with prejudice and is final for

purposes of appellate review")." Here, a curative amendment is not an

issue. The order that terminated plaintiffs’ case was "effectively a final

order because no amendment could resolve the problem.” See Kaba v.

Stepp, 458 F.3d 678, 680 (7th Cir. 2006), quoted in, Mostly Memories, Inc. v.

For Your Ease Only, Inc., 526 F.3d 1093, 1097 (7th Cir. 2008).

The issue, presented by the foregoing cases from this Circuit on

finality, follows from footnote 1 in the Supreme Court’s ruling in U.S. v.

Wallace & Tiernan Co., 336 U.S. 793, 69 S. Ct. 824, 93 L.Ed. 1042 (1949).

In Tiernan, the district court dismissed “the action without prejudice” after

“denying the Government's motions for production of documents essential

to prove the Government's case.” That arguably corresponds to the order

below that had stayed all discovery as to all defendants, which foreclosed

discovery essential to prove the plaintiffs’ case.

The Court in Tiernan determined that appellate jurisdiction was

present, stating that entry of a dismissal “without prejudice to filing

2
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another suit does not make the cause unappealable, for denial of relief and

dismissal of the case ended this suit so far as the District Court was

concerned.” Caselaw, which follows and distinguishes the Tiernan

decision is collected at 15A Wright, Miller & Cooper, FEDERAL PRACTICE

AND PROCEDURE § 3914.6, at 145 n. 18 (2d ed. 2000).

The appellants respectfully submit that the order terminating the

case below “without prejudice,” is final in accord with the Tiernan ruling.

Terminating this case without prejudice “does not make the cause

unappealable.” Id. The lower court was done with the case, and when

that court, sua sponte, ordered this “Civil case terminated,” its order was

final within the meaning of 28 U.S.C. §1291.

3
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Statement of the Issues Presented For Review.

While the lower court assessed whether a stay of all discovery might

burden the individual defendant’s privilege against self-incrimination, no

separate assessment was made as to his “corporate” co-defendants, which

have no such privilege or right to avoid discovery.

Whether, in exercising its discretion to stay all discovery as to all of

the “corporate” defendants, the lower court made errors of law regarding

the 5th Amendment, or erroneous factual determinations about the balance

between the certain prejudice to the plaintiffs and any burden to the

“corporate” defendants if all discovery was stayed.

Whether the lower court erred by enabling unindicted, “corporate”

defendants to bootstrap onto protections against civil discovery, which

only could protect the indicted, individual defendant.

What factors should govern decisions by courts in this Circuit to

stay, or limit, discovery in civil cases where one defendant was indicted.

To grant an unbounded stay of all discovery shielding all the

“corporate” defendants, instead of a tailored protective order permitting

some appropriate discovery, was error and an abuse of discretion.

It was error to dismiss the plaintiff’s case against all defendants, sua

sponte and without notice.

4
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Statement of the Case and Proceeding Below.

The appellants seek review of two orders by the lower court – the

stay of all discovery against all defendants1 {Dkt. #217}2, and the final

order that sua sponte “terminated” plaintiff’s entire civil case as to all

defendants {Dkt. #246}. Review of those orders, in the context of some

related rulings, is requested as to the defendants-appellees, which are

“collective entities,” specifically, LLCs organized under Delaware law.3

The LLC-defendants-appellees formerly were franchisees of the

Plaintiff-Appellant Papa John’s International, Inc. (PJI). As franchisees,

those LLCs were customers of the Plaintiff-Appellant PJ Food Service.

1.
The Action For Injunctive Relief Against the LLC Franchisees.

In May 2004, PJI terminated the franchises granted to the LLCs,

which triggered obligations for the LLCs to de-identify the franchised

restaurant locations, to remove the trademarks and all brand names of

plaintiff, to return certain proprietary information and manuals, to

discontinue operating as Papa John’s franchisees, and to have no direct or

indirect association with any competing restaurant businesses.

1
The Memorandum Opinion is at 2007 WL 1597944 (N.D. Ill. 2007).
2
The Minute Order is dkt. # 217, and the memorandum opinion is dkt. #218. Both
are included in the short appendix, bound herewith.
3
The appellees referred to as “LLC-defendants” are PJ Chicago LLC, Chicago P.J.,
LLC, and East Coast PJ, LLC, as identified in the First Amended Complaint {Dkt. #3}.

5
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The LLCs-franchisees of Papa John’s did not honor these post-

termination contractual obligations, which provoked this civil suit seeking

inter alia injunctive relief and damages. At the eleventh hour, the LLC

defendants agreed to comply, and consented to an agreed order, at a

hearing in open court. {Dkt. #14}. Then, the LLCs failed to honor that

agreement and injunction, as was detailed in a later-needed Emergency

Motion for an Order to Show Cause {Dkt. #25}.

Plaintiffs next amended the complaint to add as a defendant the

individual Antoin Rezko {Dkt. #29}, because he had signed guaranties for

the obligations of the LLC franchisees, Also, defendant Rezko was bound

individually by the LLC-franchisees’ non-compete agreements.

2.
The Civil Suit Pleaded for Lanham Act and Related Relief.

Before the franchise agreements terminated, the LLC defendants-

franchisees were licensees of the Papa John’s trademarks and proprietary

information. That license ended on May 3, 2004 when the LLC-

franchisees were terminated, see, e.g., ¶50 in plaintiffs’ 3rd Amended

Complaint. {Dkt. #169}. The termination date essentially is the starting

date for the alleged civil wrongs. That May 2004 termination date is

significant to the discovery stay order, for which review here is sought.

6
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The former franchisees covenanted in the franchise agreements, that

upon termination, that those LLCs would return to plaintiff all of its

proprietary information, and that the LLCs would ‘de-identify’ each

branded restaurants. Then, in a later-breached agreed order {Dkt. #14},

the LLC defendants promised to fulfill all of those requirements not later

than June 8, 2004, see, e.g., ¶55 & 56 in the 3rd Amended Complaint.

“After termination” the LLC defendants “continued to use” the

trademarks and proprietary data of plaintiff, without any authorization of

the franchisor. See, e.g., ¶4 & 52 of the 3rd Amended Complaint.4 The

post-termination, viz. post May 3, 2004, actions of the defendants-LLCs

were alleged as infringements of the plaintiff’s registered trademarks, the

misappropriation as well as the conversion of the plaintiff’s trade secrets

and proprietary information, and as violations of the post-termination

covenants of the LLC-defendants not to compete with plaintiff’s brand.

See, e.g., ¶8 of the 3rd Amended Complaint. {Dkt. #169}.

3.
The Indictment of the Individual Defendant.

The well-pleaded allegations of the plaintiffs’ civil suit demand

injunctive relief related to events after the May 3, 2004 termination of the

4
Also claimed were unpaid royalties and for open invoices for food and supplies.

7
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LLCs as franchisees. The plaintiff sought to discovery about the post-

termination activities of the LLC defendants, as well as their affirmative

defenses. The LLC defendants never provided the requested discovery.

In 2006, the individual defendant was indicted on federal charges.

All the defendants moved to have all discovery in the civil case stayed.

{Dkt. #173}. The motion was granted, as to all defendants and as to all

discovery. {Dkt. #217 & #218}.5

The indictment, which accompanied the motion to stay discovery,

pleads crimes that the individual defendant allegedly perpetrated long

before the civil wrongs of the LLC franchisees alleged in the plaintiff’s suit.

{Dkt. #173-2}. The indictment regards events prior to 2003.

For example, ¶2 of Count One in the indictment alleges from 2001

and "continuing to at least on or about August 14, 2003," that the

individual defendant participated in a scheme to defraud. Also, it was

alleged in ¶16 of Count One, and ¶2 of Count Two, that the mails or wire

were used "on or about October 16, 2001," nearly three years prior to the

post-termination events in civil complaint. {Dkt. # 173-2}.6

5
The Minute Order and Memorandum opinion are in the short appendix, bound
hereto, as well as in the Appendix filed separately herewith.
6
The two-count Indictment, which accompanied defendants’ motion for a stay of
discovery, is included with the Appendix filed separately herewith.

8
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4.
The Stay of All Discovery as to All Defendants.

In granting the stay of all discovery, as to the individual and all

“corporate” defendants, the lower court acknowledged that the LLC-

defendants had “not been indicted and, in any event, have no privilege”

against self-incrimination. {Dkt. #218}. It noted too that by staying

discovery, there “is prejudice to plaintiff – if they are entitled to recover,

that recovery will be delayed and may be reduced because the assets of

defendants may have gone elsewhere.” To hamper that, the lower court

“grant[ed] the stay, but we do so with a direction that all records of the

corporate defendant and all records in the possession of defendant Rezko

that may reasonably deemed discoverable in this action be preserved.”

The bottom line is that no discovery, or any log, ever were provided.7

The defendants Dec. 2006 motion for a stay of all civil discovery

{Dkt. # 173} omitted the arguably material fact that “On November 7,

2006, shortly after Rezko's indictment, the parties [in the criminal case] met

and conferred in accordance with Local Criminal Rule 16.1 [and the]

government indicated at that time that it had ‘hundreds of thousands’ of

7
No discovery scheduling order ever was entered, even though plaintiffs moved for a
conference and entry of scheduling order {Dkt. #56}.

9
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documents scanned into a database, which it would share with the

defense, and that its production would continue on a rolling basis.” See,

2007 WL 4856175 (May 31, 2007), Defendant Antoin Rezko's Motion to

Compel Complete Production, in U.S. v. Rezko, 05 CR 691 (N.D. Ill.).

Documents that the U.S. Attorney produced to the indicted individual,

which were responsive to the civil discovery in this case, could have been

produced without impacting the privilege.

5.
Continuing Status Conferences.

After all discovery was stayed, including discovery from the LLC-

defendants, those LLCs answered the plaintiffs’ complaint. Taking the

stay order as a ‘green light’ to disregard that LLC-defendants have no right

against self-incrimination, those “corporate” defendants made full use of

the Fifth Amendment as a shield. Here is one example:

17. Defendant PJ Chicago is incorporated under the
laws of the State of Delaware and has its principal place of
business in Chicago, Illinois. PJ Chicago is a former Papa
John’s franchisee and operator of five (5) Papa John’s
Franchised Restaurants in Illinois.
ANSWER: The Answering Defendants are without
knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations in Paragraph 17
without input from Rezko, who has asserted his Fifth
Amendment right in response to the allegations in this
paragraph, and accordingly, they deny the same.

10
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However, the LLC-defendants did dart from behind the shield to

plead an affirmative defense, in the nature of accord and satisfaction,

based on a “settlement agreement.” {Dkt. # 224, pg. 35}.8 The LLC-

defendants affirmatively pled these assertions, knowing that the stay would

shield discovery about this affirmative defense.9 After the stay of all

discovery, and with all defendants asserting the Fifth Amendment

privilege as to all matters, the civil case stalled. The docket reflects status

conferences in 2007 and 2008, but meaningful actions could not occur.

6.
The Sua Sponte Dismissal Order.

The final ruling below, dismissed the case sua sponte and without

notice or opportunity to be heard. {Dkt. # 246}. No party requested a

dismissal, and no motions were pending. No procedural basis for the sua

sponte dismissal was stated – “this case is five years old.” Review of a sua

sponte order, entered without notice, almost necessitates consideration of

arguments that there was no opportunity to raise below.

8
To prove an accord and satisfaction, under Illinois law, the LLC defendants would
need to evidence proving “(1) an honest dispute between the parties, (2) a tender with the
explicit understanding of both parties that it was in full payment of all demands, and (3) an
acceptance by the creditor with the understanding that the tender is accepted in full
payment.” Lambersky v. Petritis, 2002 WL 1285883 (N.D. Ill. 2002) (cit. om.).
9
See, e.g., "ATA filed its motion …on its affirmative defenses of accord and
satisfaction ...[and], the Court granted ...leave to conduct discovery before responding to
the motion." Fernandez v. ATA Airlines, Inc., 2006 WL 211818 (N.D.Ill. 2006).

11
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Plaintiffs-appellants timely filed a notice of appeal. No cross-appeal

was filed, which finally terminated any counterclaims.

12
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Statement of the Facts Relevant to the Issues for Review.

In granting a stay all discovery as to all defendants, the lower court

concluded that the civil suit and the criminal indictment, “in substantial

respects, involve the same subject matter.” {Dkt. #218}10 When the

separate pleadings in “the two actions” are compared, similarities are

found, but the torts and the crimes differ substantially in time and place.

The criminal indictment regards schemes to defraud the Illinois

citizenry of their right to fair governance by public officials. A post-verdict

ruling summarized the essence of the criminal case.

The thrust of the conviction was Defendant's scheme to
defraud the people of the State of Illinois that he carried out with
Stuart Levine and others. Specifically, Defendant Rezko was
convicted of using his influence with Governor Blagojevich's
administration and Stuart Levine's membership on two State of
Illinois boards to influence the actions of these boards for private
gain. Co-schemer Levine was a member of 1) the Board of
Trustees of the Teacher's Retirement System of the State of Illinois
(“TRS”), a public pension plan that provided benefits for teachers
employed by the Illinois public schools, and 2) the Illinois Health
Facilities Planning Board (“Planning Board”), an Illinois Sate
board that reviewed applications submitted by hospitals that
wanted to build new facilities in Illinois. The jury convicted Rezko
of defrauding the beneficiaries of TRS and the people of the State
of Illinois of the honest services of Stuart Levine as a board
member of TRS and the Planning Board. Rezko and Levine further
used Rezko's influence with the Blagojevich administration and
Levine's roles on the boards to influence the actions of TRS and the

10
The Minute Order is dkt. # 217, and the memorandum opinion is dkt. #218. Both
are included in the short appendix, bound herewith.

13
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Planning Board for the benefit of themselves and others, and to
carry out the scheme.
U.S. v. Rezko, 2008 WL 4890232 (N.D.Ill. 2008).

The civil action does not deal with any “actions of these boards for

private gain,” or “hospitals,” etc. The plaintiffs-appellants commenced this

civil suit against the LLC-defendants, PJ Chicago LLC, Chicago P.J.,

LLC, and East Coast PJ, LLC, after those former franchisees were

terminated in May, 2004. The criminal indictment charges that the

individual Rezko used the mails or wires “on or about October 16, 2001.”

The operative events in the indictment were years before the post-

termination events at the heart of the civil complaint. {Dkt. # 173-2}.11

The civil suit alleged that, despite being terminated as franchisees,

the LLC-defendants were continuing to operate their restaurants using the

plaintiff’s trademarks, brands, and proprietary information, and that the

LLCs were breaching covenants not to compete. An earlier ruling {Dkt.

#141} in this case summarized the civil claims, as follows:

Plaintiffs allege that defendants, former franchisees
operating Papa John’s restaurants in Illinois and Michigan,
continued to use the Papa John’s trademarks, trade secrets, and
copyrighted or otherwise proprietary materials, in the wake of
termination of the franchises. Additionally, defendants allegedly
continued to operate pizza restaurants, renamed ‘Papa Tony’s,’ in
the same locations as the formerly franchised restaurants.
11
The two-count Indictment, which accompanied defendants’ motion for a stay of
discovery, is included with the Appendix filed separately herewith.

14
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Plaintiffs contend that such actions constitute counterfeiting,
infringement, unfair competition and trademark dilution in
violation of the Lanham Act; copyright infringement …;
misappropriation of trade secrets in violation of the Kentucky
Uniform Trade Secrets Act; breach of contract, including breach
of the post-term covenants not-to-compete.
Memorandum Opinion,{Dkt. #141, page 2 of 15}.

From the outset, the plaintiff sought injunctive relief to require the

former franchisees to de-identify the restaurants, to remove all brands and

trademarks of the plaintiff, to discontinue use and to return all of the

plaintiff’s proprietary information, and for the LLC-defendants to cease all

restaurant operations that competed directly or indirectly with the

plaintiff’s. In fact, the defendants agreed to an injunction {Dkt. #14},

which then was violated. {Dkt. #25}. Thereafter, the defendants signed a

settlement agreement, but again, that was breached. {Dkt. #31}.

Plaintiffs alleged the LLC-defendants were liable for damages for the

post-termination infringements, etc., and for non-payment for the food

deliveries and for royalties due prior to termination of the franchise

agreements. An amended complaint added the individual Rezko as a

defendant {Dkt. #29}, because he was bound individually by the

covenants not to compete, and he had signed personal guaranties for the

obligations of the LLC-defendants, as well as promissory notes.

15
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Plaintiffs timely served discovery on the LLC-defendants, but no

records of these companies ever were produced. After the individual

defendant was indicted, all of the defendants began asserting the privilege

against self-incrimination. That culminated in the order that stayed all

discovery, as to all defendants, including the LLC-defendants. In the stay

order {Dkt. #218}, the lower court acknowledged that the “records of the

corporate defendants …that may reasonably be deemed discoverable in

this action,” was a body of documents separate from the “records in the

possession of [the individual] defendant Rezko.” Still, the stay was as to

all defendants, all records, and all discovery.

In 2009, the civil case was reassigned to the Hon. Samuel Der-

Yeghiyian. Shortly after that, and without notice, a minute order

“terminated” Plaintiffs’ case sua sponte with only this brief explanation.

In view of the fact that this case is five years old and the
record is unclear as to which Defendants are in or affected
by the Bankruptcy, the instant action is hereby terminated
without prejudice to reinstate once Plaintiffs decide that the
Bankruptcy is no longer an impediment for the case to
proceed against one or more of the Defendants. All pending
dates and motions are hereby stricken as moot. Civil case
terminated.

The age and pace of the case was due to the earlier order that had

stayed all discovery by plaintiffs from all defendants. {Dkt. #218}.

16
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Summary of Arguments.

This appeal only regards issues as to the “corporate” defendants.

Granting an unbounded stay of all discovery as to all defendants,

and providing a discovery shield to all the “corporate” defendants, which

were not indicted and which have no privilege against self-incrimination,

was based on errors of law regarding the 5th Amendment, as well as

erroneous factual determinations about the balance between the certain

prejudice to the plaintiffs and any plausible burden to the “corporate”

defendants if all discovery was stayed.

In the absence of guidance from the Seventh Circuit, the lower court

stayed all discovery as to all defendants by following guidelines that differ

from and are not consonant with the mandatory and permissive guidelines

that other Circuit courts have established.

The lower court erred by enabling unindicted, “corporate”

defendants to bootstrap onto protections against civil discovery that only

the individual co-defendant can assert, instead of a tailored protective

order permitting some appropriate discovery,

Dismissal of plaintiffs’ case, sua sponte and without notice, was error.

17
Case: 09-2356 Document: 16 Filed: 07/31/2009 Pages: 65

ARGUMENT

I.

Error to Stay Discovery as to the LLC Defendants.

Staying civil discovery as to corporate entities, which had not been

indicted, was error. Aside from making no determination specifically as to

the “corporate” defendants, the order to stay all discovery from those

defendants was error under the decisional law that follows the line of

rulings of our Supreme Court in Bellis, Wilson, White and Braswell.12

A. Standard of Review For a Stay Based on the Fifth Amendment.

1. Typical Stays are Reviewed for Abuse of Discretion.

The lower court had "broad discretion to stay proceedings as an

incident to its power to control its own docket," Clinton v. Jones, 520 U.S.

681, 706, 117 S. Ct. 1636, 137 L.Ed.2d 945 (1997), particularly, in cases

12
This line of authority, later cited herein, was summed up in 9A Fletcher, Cyclopedia
of the Law of Corporations, § 4671, [citations om.], as follows:
An officer of a corporation cannot refuse to testify or produce corporate
documents on the ground that he or she may thereby incriminate the corporation.
Neither a collective entity nor its representatives may refuse to comply with an
order to produce on the ground that the contents of any documents produced in a
response to the order might tend to incriminate them. Without regard to the size of
the corporation, and without regard to whether the subpoena was addressed to the
corporation or to a custodian, a corporate custodian may not resist a subpoena for
corporation records on Fifth Amendment grounds. A “custodian” encompasses any
agent of the corporation who under ordinary principles of corporate law has custody
or control over corporate documents. The custodian of the corporate or entity
records holds those documents in a representative rather than personal capacity,
and the custodian's act of production is deemed an act of the corporation rather
than the act of the individual.

18
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where the "proponent of a stay bears [its] burden of establishing its need."

Id., at 708. See also, Landis v. North American Co., 299 U.S. 248, 254-55, 57

S. Ct. 163, 165-66, 81 L.Ed. 153 (1936) (staying a parallel proceeding

“calls for the exercise of judgment, which must weigh competing interests

and maintain an even balance”).

No Seventh Circuit case was found specifying a standard of review

for a stay of all civil discovery against non-indicted companies, based upon

the interests of an indicted co-defendant. Also, no decision by this Circuit

court was found that sets forth what factors control decisions to stay civil

discovery when one of the defendants has been indicted.

Three embedded issues: stays, limits on discovery, and individual’s

privilege against self-incrimination, bear upon what standard of review

appropriately should apply to a discovery stay against LLC-defendants.

Typical stays and general discovery limitations are reviewed for an

abuse of discretion in this Circuit. “Our standard of review for the district

court's decision not to allow additional pre-trial discovery is abuse of

discretion." Olive Can Co., Inc. v. Martin, 906 F.2d 1147, 1152 (7th Cir.

1990) (civil RICO case). "District judges enjoy broad discretion in settling

discovery disputes and in delimiting the scope of discovery in a given

case." Corley v. Rosewood Care Center, Inc. of Peoria, 142 F.3d 1041, 1052 (7th

19
Case: 09-2356 Document: 16 Filed: 07/31/2009 Pages: 65

Cir. 1998) (subs. hist. om.)(civil RICO case). A stay of all discovery from

corporate parties, which are not targeted by any criminal charges, should

not get the review typical to docket or discovery control.

2. Standards of Review Appropriate to Stays of Civil Discovery
Due to Criminal Charges Against the Individual
Co-Defendant of Several Corporate Entity Defendants.

Where the decision to stay proceedings involves issues other than

docket control, a more probing standard of review should apply.

Matters raised under the Fifth Amendment, if it is implicated and

how it might be preserved, either are not reviewed deferentially, or those

are reviewed as mixed questions of law and fact. See, generally, "We

review a district court's denial of a claim of Fifth Amendment privilege de

novo." U.S. v. Pate, 105 Fed. Appx. 597, 599 (5th Cir. 2004), and U.S. v.

Matute-Santos, 168 Fed. Appx. 343, 346 (11th Cir. 2006) ("We review

Santos' Fifth Amendment claim de novo."). However, "a stay of ...

discovery might be justified by considerations that do not require the

recognition of any constitutional immunity." Clinton, id., at 706. Here, an

individual defendant’s right not to incriminate himself may not justify

shielding unindicted, corporate co-defendants from all civil discovery.

20
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Also, deferential review is not the standard for decisions about a

civil litigant’s privilege to refuse to answer. “The appropriate standard of

review of a district court's findings of fact regarding claims of attorney-

client privilege is the clearly erroneous standard.” Bland v. Fiatallis North

America, Inc., 401 F.3d 779, 787 (7th Cir. 2005). “While we generally apply

an abuse-of-discretion standard of review for discovery orders, when

discovery involves questions of privilege, we review the order de novo.”

Cargile v. Barrow, 2009 WL 222947 (Ohio App. 1st Dist. Jan. 30, 2009). An

individual’s privilege against self- incrimination involves issues of law, and

a ruling that extending the privilege to unindicted, corporate entities

should not be reviewed deferentially.

Even the abuse of discretion standard contemplates review for legal

errors. “Even when the standard is abuse of discretion, review for errors

of law is plenary.” Donovan v. Robbins, 752 F.2d 1170, 1178 (7th Cir. 1984).

Also, any factual determinations are reviewed. “In applying [the abuse of

discretion] standard, we scrutinize the district court's determination to

ensure that it invoked the correct legal standards and that its findings of

fact are not clearly erroneous.” Salgado by Salgado v. General Motors Corp.,

150 F.3d 735, 739 at fn. 4 (7th Cir. 1998). In general, “a court abuses its

discretion when its decision is premised on an incorrect legal principle or a

21
Case: 09-2356 Document: 16 Filed: 07/31/2009 Pages: 65

clearly erroneous factual finding, or when the record contains no evidence

on which the court rationally could have relied.” Corporate Assets, Inc. v.

Paloian, 368 F.3d 761, 767 (7th Cir. 2004).13 Here, appellants request that

the stay below of all discovery as to all corporate defendants, based on

criminal charges only against a non-corporate, individual co-defendant,

not be reviewed deferentially.

Review of a stay of discovery as to the indicted individual would be

for an abuse of discretion, but this appeal only regards the LLC-

defendants. Here, the panel is asked to apply a standard of review

appropriate to a stay of all discovery as to unindicted, corporate litigants

that have no rights against self-incrimination.

Older cases, and the leading cases on stays due to indictment of one

defendant, recognize that a district court may stay civil cases, defer civil

discovery, or impose protective orders and conditions “when the interests

of justice seem[ ] to require such action.” U. S. v. Kordel, 397 U.S. 1, 12 n.

27, 90 S. Ct. 763, 25 L.Ed.2d 1 (1970); Standard Sanitary Manufacturing Co.

v. U. S., 226 U.S. 20, 52, 33 S. Ct. 9, 57 L.Ed. 107 (1912) ("the most

13
“A court does not abuse its discretion unless ... (1) the record contains no evidence
upon which the court could have rationally based its decision; (2) the decision is based on
an erroneous conclusion of law; (3) the decision is based on clearly erroneous factual
findings; or (4) the decision clearly appears arbitrary.” Musser v. Gentiva Health Servs.,
356 F.3d 751, 755 (7th Cir.2004).

22
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favorable view which can be taken of the rights of defendants in such

situation is that they depend upon the discretion of the court in the

particular case").

Should review for an abuse of discretion be appropriate for the stay

granted below as to the corporate defendants, then certain and pertinent

standards should inform that review. For “without meaningful standards

for decision, appellate courts can do little more than sustain the district

judge, save in a most flagrant case." SEC v. Canandaigua Enterprises Corp.,

339 F.2d 14, 19 (2nd Cir. 1964), C.J. Friendly. “Deferential review is not

the equivalent of no review at all." Sverdrup Corp. v. Edwardsville Comm.

Unit School Dist. No. 7, 125 F.3d 546, 550 (7th Cir. 1997). Such

"discretionary choices are not left to a court's ‘inclination, …and its

judgment is to be guided by sound legal principles.’" United States v. Burr,

25 F. Cas. 30, 35 (No. 14,692d) (C.C. Va. 1807), Marshall, C. J., quoted in,

Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 45 L.Ed.2d 280, 95 S. Ct.

2362 (1975). See too, Jutzi-Johnson v. U.S., 263 F.3d 753, 759 (7th Cir. 2001)

(questioning "standardless, unguided exercise of discretion … reviewable

for abuse of discretion pursuant to no standard to guide the reviewing

court either"), and Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928,

23
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936 (7th Cir. 1989) (en banc), (“District courts must make findings and

exercise discretion against a background of legal rules.”)14

This Circuit panel’s decision in Winters v. Fru-Con Inc., 498 F.3d 734,

742 (7th Cir. 2007) “review[ed] for abuse of discretion the district court's

choice of factors to include within th[e] framework" for its decision to bar

experts, and it reviewed de novo whether the lower court “identified and

applied the appropriate legal standards.” That approach could be proper

to review the “choice of factors” and “legal standards” for a lower court to

stay all civil discovery from unindicted, corporate defendants that were the

co-defendants of an indicted individual.

3. The Standard of Review Appropriate to the Stay Order.

Based on the foregoing, the appellants urge the Court, in reviewing

the stay of all discovery as to the unindicted corporate defendants to

engage in a de novo review of the appropriate legal standards and how

those were applied; to review factual determinations for clear error; and, to

review for an abuse of discretion the factors chosen by the lower court in

making its decision to stay discovery as to the defendants-appellees PJ

Chicago LLC, Chicago P.J., LLC, and East Coast PJ, LLC, which were

14
See also, Wilton v. Seven Falls Co., 515 U.S. 277, 281, 115 S. Ct. 2137,
132 L.Ed.2d 214 (1995) (certiorari granted to resolve standards "govern[ing] a district
court's decision to stay a declaratory judgment action in favor of parallel state litigation").

24
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former Papa John’s franchisees, and as to defendants-appellees AR Pizza

LLC, Chaib Investments, LLC and Newco Pizza LLC, which continued

the former franchisees’ businesses in competition with, and without

authorization from, plaintiff Papa John’s International, Inc.

Were that standard to be applied, the appellants contend that the

stay of discovery was error. As a matter of law, the LLC-defendants have

no rights against self-incrimination. The factors that the lower court felt

were determinative differ from those other circuits use. To deny all

discovery from the LLC-defendants was an abuse of discretion. In

choosing what level of review is proper, the broader issue is whether the

determination to stay civil discovery is better committed to the view of a

single judge, or to a set of judicially-articulated standards.

II.

The Decision To Stay All Discovery, as to All Defendants
was Error, and a Need Exists for More Certain Standards to Guide
Lower Courts in Evaluating Whether to Stay, or to Limit Discovery.

A.
Varied Tests Across the Circuits, and None in this Circuit.

Federal courts evaluate requests to stay a civil action on a case-by-

case basis. In several circuits, multifactor tests guide lower courts when

the request to stay regards criminal charges against one defendant in the

25
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civil case. The determinative factors vary among the Circuits, and across a

range of stringency. No Seventh Circuit decision has been found that

delineates the determinative factors that could warrant a stay.15

In the Eighth Circuit, a “civil defendant cannot hide behind a

blanket invocation of the Fifth Amendment privilege [and thus,] to warrant

a stay, defendant must make a strong showing either that the two

proceedings are so interrelated that he cannot protect himself at the civil

trial by selectively invoking his Fifth Amendment privilege, {cit. om.}, or

that the two trials will so overlap that effective defense of both is

impossible." Koester v. American Republic Investments, Inc., 11 F.3d 818, 823

(8th Cir. 1993). In the Eighth Circuit, a stay would be granted only when

the defendant has made a “strong showing” of two factors: a real

interrelationship between the civil case allegations and the criminal

indictment, and that “he cannot protect” against loss of the privilege, or

alternatively, that an effective defense of both cases is “impossible.”

If a defendant in an 8th Circuit court was on the 7th Circuit side of the

Mississippi River, then that civil case might stayed without the “strong”
15
In one case with possible relevance, a specific showing of prejudice was required.
The “failure to indicate with precision how he would be prejudiced if the civil action went
forward while the criminal action was pending in state court is yet another factor which
leads the Court to the conclusion that he was not entitled to a stay." United States v.
Certain Real Property Commonly Known as 6250 Ledge Rd., 943 F.2d 721, 730 (7th Cir.
1991) ("blanket assertion of the privilege does not provide a sufficient basis for a district
court to grant a stay," at fn. 9).

26
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showings that he “cannot protect” the privilege or that it is “impossible” to

defend himself. It provokes the question of whether the view of a single

judge is preferable to a system of judicial standards.

In the Ninth Circuit, the factor given primacy is “the extent to which

the defendant’s fifth amendment rights are implicated.” Keating v. Office of

Thrift Supervision, 45 F.3d 322, 324-25 (9th Cir. 1995), cert. denied, 516 U.S.

827 (1995). After assessing that primary question, then “the

decisionmaker should generally consider the following factors: (1) the

interest of the plaintiffs in proceeding expeditiously with this litigation or

any particular aspect of it, and the potential prejudice to plaintiffs of a

delay; (2) the burden which any particular aspect of the proceedings may

impose on defendants; (3) the convenience of the court in the management

of its cases, and the efficient use of judicial resources; (4) the interests of

persons not parties to the civil litigation; and (5) the interest of the public

in the pending civil and criminal litigation.” Id. Here, the lower court did

not indicate that the primary factor in Keating carried much weight when it

granted the stay as to the LLC-defendants.

In the present case, the district court followed the unpublished

decision of another court in the district, Cruz v. County of DuPage, 1997 WL

27
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370194 (N.D. Ill. 1997).16 In part due to the lack of controlling,

multifactor test from any Seventh Circuit decision, the district judge in

Cruz had “extracted” from caselaw “some general guidelines for when a

stay should be granted [that] include (1) whether the two actions involve

the same subject matter; (2) whether the two actions are brought by the

government; (3) the posture of the criminal proceeding; (4) the effect on

the public interests at stake if a stay were to be issued; (5) the interest of the

plaintiffs in proceeding expeditiously with this litigation and the potential

prejudice to plaintiffs of a delay; and (6) the burden that any particular

aspect of the proceedings may impose on defendants.” The lower court

here deemed Cruz the “applicable law” to follow.

The “guidelines” that the Judge in Cruz had “extracted” from “the

cases cited by the parties,” do not include the primary factor of the Fifth

Amendment right from the Ninth Circuit’s Keating decision, and not the

“strong showing[s]” that the Eighth Circuit required in the Koester case.

Differences between the factors enumerated by the several circuit

courts provoke the concern that the “discretion” to stay, based on Fifth

Amendment considerations, varies - because the factors vary. Another

circuit court might reverse the stay ruling here, as not aligned with its

16
The Cruz case was a §1983 case that overlapped a criminal investigation.

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precedent. All cases that apply the ‘same’ Fifth Amendment should be

consonant in the factors that guide decisions to stay discovery, or not.

After applying the factors from the Cruz decision, the lower court

here stayed all discovery against all the corporate defendants in the civil

case, based on the individual co-defendant having been indicted.

Using those same factors from Cruz, the state court of Illinois refused

to stay a civil case against other corporate co-defendants of the same

individual defendant, in CHB Uptown Properties, LLC v. Financial Place

Apartments, LLC, 378 Ill.App.3d 105, 109, 881 N.E.2d 423 (Ill. App. 1st

Dist. 2007). The decision here to stay discovery, and the denial of a stay

of civil discovery in CHB, hinge on the first factor from the Cruz case –

whether the indictment and the civil suit “involve the same subject

matter.” That ‘sameness’ is not a stated factor in the Keating case from the

Ninth Circuit, or in cases from the First Circuit.

Factors unmentioned in the Cruz case are to be considered in First

Circuit cases. When the First Circuit reviewed a decision not to stay an

entire civil case, it set forth the “five factors that typically bear on the

decisional calculus: (i) the interests of the civil plaintiff in proceeding

expeditiously with the civil litigation, including the avoidance of any

prejudice to the plaintiff should a delay transpire; (ii) the hardship to the

29
Case: 09-2356 Document: 16 Filed: 07/31/2009 Pages: 65

defendant, including the burden placed upon him should the cases go

forward in tandem; (iii) the convenience of both the civil and criminal

courts; (iv) the interests of third parties; and (v) the public interest.” Then,

to that list, it “add[ed] (vi) the good faith of the litigants (or the absence of

it) and (vii) the status of the cases.” Microfinancial, Inc. v. Premier Holidays

Intern., Inc., 385 F.3d 72, 78(1st Cir. 2004). Factors (i), (ii) and (v) in

Microfinancial correspond to factors in Cruz, but the others listed by the

First Circuit vary, or certainly expand on those in Cruz.

Here, the lower court did not consider, or under Cruz would not

have considered, the “good faith of” the LLC-defendants “or the absence

of” that in seeking to shield those LLCs behind the privilege assertion of

their individual co-defendant. In the First Circuit, that could indicate an

error in the stay analysis, but here where no Seventh Circuit case sets out

the pertinent factors, the lower court limit its decision to the Cruz factors.

The appellants urge this Court to adopt a multifactor test that sets as

the primary consideration “the extent to which the defendant's fifth

amendment rights are implicated,” from the Keating case, and requires the

“strong showing” that Eighth Circuit in Koester had required. Having a

Seventh Circuit test, which sets out the appropriate factors would be

worthwhile, especially if the decision here to stay all discovery as to the

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LLC-defendants were to be vacated and remanded. The selected factors

should accords with the “interests of justice” analysis from the Supreme

Court’s Kordel decision, (“District Court denied the motion upon finding

that the corporation had failed to demonstrate that substantial prejudice

and harm would result from being required to respond to the

interrogatories,” supra, at 5).

Here, no discovery was provided by the LLC-defendants. No

privilege log was provided, or required, which shrouded all details about

the LLCs, and their representative and managers. In granting a stay of all

discovery from the LLC-defendants, the lower court applied the Cruz

factors to the circumstances facing the individual defendant. In practical

terms, no separate assessment as to the LLC-defendants was made by the

lower court. If applied, the Cruz factors of no privilege and real prejudice

would bear against granting the LLC-defendants a stay.

B.
No 5th Amendment Privilege Protects The LLC-Defendants.

This Court is urged, respectfully, to place the extent to which a 5th

Amendment privilege is at risk as the first and most important factor to

consider when a defendant seeks a blanket stay of discovery in a civil case

running parallel to a criminal case. Corollary considerations include

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asking whether less-prejudicial alternatives, such as a limiting protective

order, can serve effectively to balance the relative interests of the parties.

Here, a stay of all discovery, as to all defendants was error.

The lower court acknowledged that the LLC-defendants have no

privilege against self-incrimination. Also, the LLC-defendants were not

under criminal indictment. These threshold factors from the Cruz case did

not favor a stay that shielded the LLC-defendants from all discovery.

The lower court recognized that stay of all discovery would cause

“prejudice to plaintiffs.” It did not find that the LLC-defendants would, or

could face any “burden” from the criminal proceedings. Indeed, the LLC-

defendants were not party to those proceedings. No prejudice to the LLC-

defendants from providing discovery was shown. It thus was error, based

on a fair application of the Cruz factors, to stay all discovery in this case as

to the unindicted LLC-defendants. A protective order, limiting discovery,

was a workable option and a less-prejudicial one.

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C.

The Stay was Contrary to the Collective Entity Doctrine.

The stay of all discovery from all of the LLC-defendants, due to

factors applicable only to the individual defendant, was error. While the

Seventh Circuit has not ruled how the “collective entity” and the “act of

production” doctrines apply, substantial U.S. Supreme Court precedent

holds that the LLC-defendants are not entitled to ‘piggyback’ on the

privilege protections available to their individual co-defendant.

Longstanding precedent holds, and the lower court here agreed, that

the LLC-defendants have no privilege against self-incrimination. "The

constitutional privilege against self-incrimination …appl[ies] only to

natural individuals. ... it cannot be utilized by or on behalf of any

organization such as a corporation." United States v. White, 322 U.S. 694,

64 S. Ct. 1248, 88 L.Ed. 1542 (1944) (when corporation is subpoenaed,

corporation president must produce corporate documents).

Next, these unindicted LLC-defendants, which are not protected by

the privilege, may not resist production of corporate records, even if the

contents may incriminate an individual. Wilson v. United States, 221 U.S.

361 (1911) (“If the corporation were guilty of misconduct, he could not

33
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withhold its books to save it; and if he were implicated in the violations of

law, he could not withhold the books to protect himself from the effect of

their disclosures,” id., at 376).

Other cases affirm that a “collective entity,” including a LLC with

one owner, may not shield its records upon the individual owner’s asserted

right against self-incrimination. An “equally long line of cases has

established that an individual cannot rely upon the privilege to avoid

producing the records of a collective entity which are in his possession in a

representative capacity, even if these records might incriminate him

personally.” Bellis v. U. S., 417 U.S. 85, 88, 94 S. Ct. 2179, 40 L.Ed.2d 678

(1974) (records generated by corporate entities are not shielded by the

privilege against self-incrimination). The Bellis case, and those that follow

it, make clear the even one-person corporate and “collective entities” have

no privilege to refuse production of corporate records. "In view of the

inescapable fact that an artificial entity can only act to produce its records

through its individual officers or agents, recognition of the individual's

claim of privilege with respect to the financial records of the organization

would substantially undermine the unchallenged rule that the organization

itself is not entitled to claim any Fifth Amendment privilege." Id., at 90.

To shield the LLC-defendants records was error.

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These principles in Wilson and Bellis were reaffirmed in Braswell v. U.

S., 487 U.S. 99, 100, 108 S. Ct. 2284, 101 L.Ed.2d 98 (1988), which held

that “the custodian of corporate records may [not] resist a subpoena for

such records on the ground that the act of production would incriminate

him in violation of the Fifth Amendment.” In that case, Braswell operated

his business through two corporations, of which he was the sole

shareholder. “It is well settled that no privilege can be claimed by the

custodian of corporate records, regardless of how small the corporation

may be.” Id.17

In the present case, shielding the LLC-defendants from all civil

discovery was error based on the foregoing principles from the White,

Wilson, Bellis and Braswell decisions.18 “There is no question but that the

contents of the [LLC-defendants’] business records are not privileged."

Braswell, supra, at 102. The lower court erred in cloaking the “corporate

records” from discovery based on the privilege asserted by the individual

co-defendant. The conclusion in those cases attaches here even if these

“collective entity” LLCs are solely-owned by the individual defendant.

17
The “corporate custodians of 'one-man corporations' cannot assert a Fifth
Amendment privilege with respect to the production of corporate documents.” U.S. v.
Arizechi, 2006 WL 1722591 (D.N.J. 2006); accord, U.S. v. Feng Juan Lu, 248 Fed. Appx.
806, 2007 WL 2753030 (9th Cir. 2007).
18
See, footnote 12, supra, quoting a treatise summary of the holdings in these cases.

35
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The LLC-defendants have “an obligation is to produce” records, and

“that obligation is unaffected by the [individual codefendant’s] personal

Fifth Amendment privilege.” In re 25 Grand Jury Subpoenas Dated Oct. 21,

Oct. 22, and Dec. 3, 1986, 654 F.Supp. 647, 652 (N.D. Ind. 1987).

“Moreover, at least with respect to the content of the business documents,

no individual custodian of business documents can assert a personal Fifth

Amendment privilege claim even if there are incriminatory statements in

those records.” Pacific Mut. Life Ins. Co. v. American Nat. Bank and Trust Co.

of Chicago, 649 F.Supp. 281, 284 (N.D. Ill. 1986) (the “effect of permitting

custodians of partnership and corporate records to avoid production of

such records in reliance on the Fifth Amendment would be to extend the

privilege against self-incrimination to the collective entities," id., at 285).19

At a minimum, the LLC-defendants should have been required to provide

a privilege log; but quare: what privilege could these “corporate” entities

assert.

19
The individual "defendant was obligated to comply with the subpoena for the
partnership records despite the fact that they may have incriminated him." U.S. v. Kuta,
518 F.2d 947, 954 (7th Cir. 1975). "Trigona's claim of commingling [of personal and
business records] was speculative and overbroad and that the privilege was claimed in bad
faith in order to hinder the appellees ...[and the] evasiveness of this witness, his discredited
claims of lack of memory, his failure to offer any credible explanation as to how answers to
seemingly innocuous questions might be incriminating, his personal interest in frustrating
the efforts of the appellees to collect upon their judgment are ‘peculiarities of the case’
which the trial court could properly consider." Martin Trigona v. Gouletas, 634 F.2d 354,
362 (7th Cir. 1980), cert. den’d, 449 U.S. 1025 (1980).

36
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The lower court’s stay order acknowledged that the records of the

LLC-defendants are distinct, and separate from, records possessed by the

individual defendant. It granted the stay, but “with a direction that all

records of the corporate defendants and all records in the possession of the

defendant Rezko …be preserved.” {Dkt. #224}. That acknowledged

distinction fits within the caselaw principles on the “collective entity”

doctrine, which focuses on the contents of corporate records, or at least the

status of the records, i.e., corporate or individual, as well as with the focus

of the “act of production” doctrine as to whether a compelled production

of records may impact an individual's right against self-incrimination.20 It

is error to merge the analysis, or to disregard the doctrinal distinctions

between the records of an individual and those of a corporate entity,

particularly where a 5th Amendment privilege personal to the individual is

extended to collective entities that he owns.

The order granting a stay of all discovery as to all defendants was

error based on the collective entity doctrine. “Any claim of Fifth

Amendment privilege asserted by the [individual defendant] would be

20
On the issue of the “extent to which the collective entity rule and the act of
production doctrine limit one another ...the Seventh Circuit has not yet chosen a side.”
Pacific Mut. Life, supra.

37
Case: 09-2356 Document: 16 Filed: 07/31/2009 Pages: 65

tantamount to a claim of privilege by the corporation - which of course

possesses no such privilege.” Braswell, supra at 110.

The lower court assessed only the impact that a stay could have on

the individual defendant. It failed to consider the equally important

matter of a how a stay of all discovery from the unindicted LLC-

defendants (with no privilege) would prejudice the plaintiffs.

The appellants respectfully request that the order granting a stay of

discovery against the LLC-defendants be vacated, and that the matter be

remanded for consideration consistent with the collective entity doctrine,

and with such other factors as this Circuit deems appropriate.

III.

Dismissal, Sua Sponte and Without Notice, Was Error.

After the civil case stalled without any way to pursue discovery, the

lower court dismissed it, sua sponte, and “terminated [the] civil case,”

without notice or opportunity to be heard.

This Court has “cautioned district courts to provide parties with

notice and a fair opportunity to present evidence when they are

considering entering judgment sua sponte.” Tranzact Technologies, Ltd. v.

Evergreen Partners, Ltd., 366 F.3d 542, 549 (7th Cir. 2004), citing, S. Ill.

38
Case: 09-2356 Document: 16 Filed: 07/31/2009 Pages: 65

Riverboat Casino Cruises, Inc. v. Triangle Insulation & Sheet Metal Co., 302

F.3d 667, 678 (7th Cir.2002). That opportunity was not provided here.

The Tranzact decision instructs “that sua sponte dismissals, …are

hazardous for three reasons: (1) they often conflict with the traditional

adversarial precepts of our system of justice by tending to make the district

court seem like a proponent of one side as opposed to a neutral decision-

maker; (2) they may prejudice plaintiffs by depriving them of the

opportunity to … argue against dismissal; and (3) they tend to defeat the

very purpose they are designed to serve -- judicial efficiency.” Id. Cf., Ruski

v. City of Bayonne, 811 A.2d 939, 941 (N.J. Super. App. Div. 2002), a “trial

court may be tempted to enter a dismissal order of this type because it

would dispose of a case at least temporarily, but case disposition for

disposition's sake is not the goal of our system.” The order here that

terminated the plaintiff’s case was “case disposition for disposition's sake,”

and it should be vacated.

The Riverboat Casino case set limits, which were not heeded before

the brief minute order below “terminated” the case. A district court lacks

unfettered power to dismiss sua sponte, where the plaintiff has (1) no

“proper notice that the district court was considering” a dismissal, and (2)

no “opportunity to present evidence in opposition to the court's entry” of

39
Case: 09-2356 Document: 16 Filed: 07/31/2009 Pages: 65

the order that terminated the case. Supra, 302 F.3d at 678. The lower

court gave plaintiffs no notice that the case might be terminated, and no

opportunity to be heard on the matter. “In sum, the district judge

terminated the case prematurely.” Doe v. Oberweis Dairy, 456 F.3d 704, 718

(7th Cir. 2006), cert. den’d, 549 U.S. 1278 (2007). The appellants request

that the panel "Reverse the district court's sua sponte order dismissing the

lawsuit." CPL, Inc. v. Fragchem Corp., 512 F.3d 389 (7th Cir. 2008).

Based on the foregoing, the sua sponte dismissal was error, and that

order should be reversed.

40
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Case: 09-2356 Document: 16 Filed: 07/31/2009 Pages: 65

STATEMENT REGARDING ORAL ARGUMENT

In view of the likelihood that no counsel will appear for appellees, the

Appellants do not request oral argument.

August 6, 2009
-S- Charles L. Thomason
_______________________
Charles L. Thomason
Counsel for Appellants

42
Case: 09-2356 Document: 16 Filed: 07/31/2009 Pages: 65

STATEMENT REGARDING TYPE SIZE AND STYLE

I certify that this brief complies with the type volume limitation set

forth in F.R.App.P. 32(a)(7)(B) because it contains less than 10,000 words,

not including parts of the brief exempted by F.R.App.P. 32(a)(7)(B)(iii).

This brief also complies with the typeface requirements of F.R.App.P.

32(a)(6), because this brief has been prepared using a proportionally spaced

typeface, specifically using Microsoft Word in 14 point Calisto MT.

FORM 6.
CERTIFICATE OF COMPLIANCE WITH
TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS,
AND TYPE STYLE REQUIREMENTS
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because:
X__this brief contains 8707 words, excluding the parts of the brief exempted by Fed.
R. App. P. 32(a)(7)(B)(iii), or
__this brief uses a monospaced typeface and contains [state the number of ] lines of
text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) because:
x__this brief has been prepared in a proportionally spaced typeface using MS-Word
in Calisto MT font 14 point or
__this brief has been prepared in a monospaced typeface using [state name and
version of word processing program] with [state number of characters per inch and
name of type style].
(s) _Charles L. Thomason_______________________________
Attorney for ____Appellants_____________________
Dated: _____6 AUG 2009_______________________

43
Case: 09-2356 Document: 16 Filed: 07/31/2009 Pages: 65

CIRCUIT RULE 31(e) STATEMENT

I certify that no Rule 31(e) statement is required because a “digital
version of each brief (including the appendix required by Circuit Rule 30(a)
to (c))[HAS BEEN OR IS BEING] furnished to the court at the time the
paper brief is filed.”

August 6, 2009
-S- Charles L. Thomason
_______________________
Charles L. Thomason
Counsel for Appellants

44
Case: 09-2356 Document: 16 Filed: 07/31/2009 Pages: 65

CERTIFICATE OF SERVICE

The undersigned certifies that two complete copies of the foregoing Brief of

Appellants was served by U.S. MAIL upon counsel for the Appellees, on this 6th day of

August, 2009, addressed to:

David C. Gustman, Esq.
Michael J. Kelly, Esq.
Kellye L. Fabian, Esq.
FREEBORN & PETERS LLP
311 South Wacker Drive
Suite 3000
Chicago, Illinois 60606
Counsel for Antoin S. Rezko, PJ Chicago, L.L.C., Chicago PJ L.L.C., East Coast
PJ, L.L.C., Abdelhamid Chaib, Chaib Investments, L.L.C., AR Pizza, L.L.C., Newco
Pizza, L.L.C.

I declare under penalty of perjury that the above is true and correct.

Executed on August 6, 2009, at Louisville, KY

-S- Charles L. Thomason
_______________________
Charles L. Thomason
Counsel for Plaintiffs
lee_thomason@papajohns[dot]com

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Case: 09-2356 Document: 16 Filed: 07/31/2009 Pages: 65

CIRCUIT RULE 30(d) STATEMENT

I certify that all materials required by Circuit Rule 30(a) and Circuit

Rule 30(b) are included in the filings made on behalf of appellants.

August 6, 2009
-S- Charles L. Thomason
_______________________
Charles L. Thomason
Counsel for Appellants

46
Case
Case:
1:04-cv-03131
09-2356 Document:
Document16217 Filed:
Filed
07/31/2009
03/02/2007 Pages:
Page 165of 1
Case
Case:
1:04-cv-03131
09-2356 Document:
Document16218 Filed:
Filed
07/31/2009
03/02/2007 Pages:
Page 165of 2
Case
Case:
1:04-cv-03131
09-2356 Document:
Document16218 Filed:
Filed
07/31/2009
03/02/2007 Pages:
Page 265of 2
Order Form (01/2005) Case
Case:
1:04-cv-03131
09-2356 Document:
Document16246 Filed:
Filed
07/31/2009
04/29/2009 Pages:
Page 165of 1

United States District Court, Northern District of Illinois

Name of Assigned Judge Samuel Der-Yeghiayan Sitting Judge if Other
or Magistrate Judge than Assigned Judge

CASE NUMBER 04 C 3131 DATE 4/29/2009
CASE Papa John’s International, Inc., et al. Vs. PJ Chicago, LLC, et al.
TITLE

DOCKET ENTRY TEXT

In view of the fact that this case is five years old and the record being unclear as to which Defendants are in
or affected by the Bankruptcy, the instant action is hereby terminated without prejudice to reinstate once
Plaintiffs decides that the Bankruptcy is no longer an impediment for the case to proceed against one or more
of the Defendants. All pending dates and motions are hereby stricken as moot. Civil case terminated.

Docketing to mail notices.

Courtroom Deputy maw
Initials:

04C3131 Papa John’s International, Inc., et al. Vs. PJ Chicago, LLC, et al. Page 1 of 1
Case
Case:
1:04-cv-03131
09-2356 Document:
Document16248 Filed:
Filed
07/31/2009
05/22/2009 Pages:
Page 165of 2

THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

PAPA JOHN’S INTERNATIONAL, INC., )
and )
P.J. FOOD SERVICE, INC., )
)
Case No. 04-C-3131
Plaintiffs, )
)
Judge Samuel Der-Yeghiayan
vs. )
)
ANTOIN REZKO, et al. )
)
Defendants. )
)

Notice of Appeal to United States Court of Appeals for the Seventh Circuit

Plaintiffs, Papa John's International, Inc. and P.J. Food Service, Inc., appeal to the

United States Court of Appeals for the Seventh Circuit from the final order, entered on

April 29, 2009, by the United States District Court for the Northern District of Illinois

{dkt. # 246}, that "terminated" plaintiffs’ case, as well as earlier interlocutory orders.

The parties to the orders appealed from and the names and addresses of their

respective attorneys are on the attached certificate of service.

Date: May 22, 2009

Respectfully submitted,

_-s- Charles L. Thomason__
Charles L. Thomason, Counsel
Papa John’s International, Inc.
2002 Papa John’s Boulevard
Louisville, KY 40299
(502) 261-4773
Admitted Pro Hac Vice for Plaintiffs