XXVI. June 2, 1994 through June 8, 1995: The proceedings on remand of the Coalition’s appeal.

  1. Judge Zagel’s year-long failure to “articulate on the record” the reason for the seal.
  2. July-August 2, 1994: Judge Zagel invites the defendants to designate the materials they wish to remain sealed.
  3. August 2, 1994-May 14, 1995: The ongoing refusal to permit the clerk to create a docket.
  4. September 20, 1994: My letter to the Coalition regarding the defendants’ designations of materials they wished to remain sealed.
  5. October 26-27, 1994: American Citrus’s motion attacking my letter to the Coalition.
  6. October 27, 1994: Judge Zagel’s oral explanation for the seal order in which he attacked my character, but denied me any opportunity to be heard.
  7. The November 1994 rulings on the Coalition’s disputed claims for access.
  8. November 4-17, 1994: Discharge of the Seventh Circuit’s rule to show cause.
  9. December 1, 1994: The finding that Grove Fresh and I continued our attorney-client relationship even after I had been “relieved of all responsibility” for the Grove Fresh litigation on January 21, 1993; motion to set a hearing date on the contempt petitions.
  10. January 9, 1995: Response to American Citrus’s Motion to Supplement its Contempt Petition; AUSA Delaney’s statements regarding Moser’s false declaration.
  11. December 20, 1994-January 20, 1995: The cat-and-mouse games over the Rule 60(b) motion.
  12. January 20-February 1, 1995: Preparations for the contempt trial and efforts to secure due process in the Rule 60(b) proceedings.
    1. The press release strategy for clarifying whether the seal was a gag order.
    2. The Motion to Dismiss the Contempt Petitions for Failure to State a Claim.
    3. The Section 1927 motion.
    4. The recusal motion.
  13. The continued delays in creating a docket, which impeded my interlocutory appeals.
  14. February 3, 1995: The contempt trial
  15. February 9, 1995: The defendants’ reiteration of their contention that Grove Fresh and I had continued in an attorney-client relationship after January 21, 1993.
  16. My interlocutory appeals, and the second settlement between Grove Fresh and the defendants.
  17. March 15, 1995: My motion for clarification, denied.
  18. The obstruction of the record for my appeals.
  19. The Seventh Circuit’s abstention from ruling on my request for a record.
  20. The omission of 132 records from the 90c5009 docket.

A. Judge Zagel’s year-long failure to “articulate on the record” the reason for the seal.

By operation of FRAP 41, the mandate returning the case to Judge Zagel issued on June 2, 1994.

Logically speaking, the first order of business after June 2 was for Judge Zagel to comply with the Seventh Circuit’s mandate that he “articulate on the record” the reason why, four years earlier, he had sealed 90c5009.  Promptly complying with that mandate would have facilitated resolution of the unfinished business on his docket—the contempt petitions, and the FRCP 60(b) motion to rescind the settlement.

Nevertheless, except for off-the-cuff, ad hominem—and non-appealable—remarks uttered on October 27 (§E, below), Judge Zagel ignored this mandate for a full year. His first appealable explanation for the seal order came on June 9, 1995. His explanation came in the very same opinion in which he held me in contempt for having violated the previously unexplained order. See §XXVIII, below

B. July-August 2, 1994: Judge Zagel invites the defendants to designate the materials they wish to remain sealed.  

In July 1994 Judge Zagel invited the defendants to designate the items in the record they wanted to remain sealed. On August 1, McDermott Will & Emery filed The Labatt and Everfresh Defendants’ Responses and Objections Relative to the Sealed Court Files. The next day, Kowal filed the Designations of the American Citrus Defendants of Documents and Information That Should Remain Under Seal

Both sets of defendants objected to unsealing (a) any of the post-settlement papers, or (b) any papers that included references to allegedly confidential discovery materials. American Citrus and Lang had these additional objections:

  • They objected to the term “Home Juice organization” as a disparaging and scandalous term and argued that all references to “Home Juice organization” should be redacted from any papers that were unsealed.
  • They objected to the term “Home Juice formula” on the ground that the term would cause it “unfair and unsupported—but very real—injury to its reputation.”
  • They objected to unsealing paragraphs 33 through 45 of the amended complaint, which referred to eight individuals—including Marshall and Benton—who were not parties to the case, but were named as co-conspirators. American Citrus and Lang argued that these eight individuals did not have an adequate opportunity to their being named in the complaint.

The designations of items that each set of defendants wished to remain sealed in their entirety differed in some respects, but they all agreed that the Coalition could have access to at least 181 of the records in the 90c5009 case file. 

C. August 2, 1994-May 14, 1995: The ongoing refusal to permit the clerk to create a docket. 

As we just noted, by August 2, 1994—i.e., less than three months after remand—the 90c5009 parties had agreed that the Coalition could have access to at least 181 of the records in the 90c5009 case file. 

However, Judge Zagel kept 90c5009 under a blanket seal for nine months beyond the date of that agreement, thereby delaying the creation of a docket for that period of time.  The events of those nine months are described below in §§D-Q.

D. September 20, 1994: My letter to the Coalition regarding the defendants’ designations of materials they wished to remain sealed.

As of September 20, 1994, which was four months after the remand:

  • Judge Zagel still hadn’t explained why, four years earlier, he had sealed 90c5009.
  • There was no gag order in the case (see §XII-J, above).
  • The law of the case was that the 90c5009 complaint was “based on information obtained from public agencies without help from the defendants or a court order” (see §XV-G-2, above).

On September 20, 1994, in reliance on the law of the case and the absence of a gag order, I sent the Coalition’s attorney a letter that marshaled facts “necessary to rebut the defendants’ groundless contentions” in support of their designations of materials that should remain sealed. Among other things, the letter:

  • Identified Marshall and Benton as two of the non-party co-conspirators who, according to American Citrus, had not had an opportunity to object to their being named in the 90c5009 complaint
  • Explained that Marshall and Benton had “confessed to criminal charges that they conspired to manufacture and distribute adulterated orange juice,” and had “admitted to the charges alleged in the complaint.”
  • Explained the perjury in the affidavit Bruno Moser had executed in the related criminal case. See §§XXVI-I, L, above.

The Coalition incorporated the information in my letter into its Memorandum In Support Of Intervenor’s Motion For Public Access To All Documents That Are, And Ever Were, In The 90c5009 Court File, which it filed in mid-October 1994. 

E. October 26-27, 1994: American Citrus’s motion attacking my letter to the Coalition. 

Ignoring the local rule requiring at least two days’ notice for motions, Kowal served notice on October 26 that the following day he would present the Motion of American Citrus to Supplement its Petition for Contempt Against John Messina. The motion alleged that my September 20th letter to the Coalition’s lawyer violated the seal order by:

  • Discussing facts relating to Grove Fresh’s use of the term “Home Juice formula.”
  • Discussing facts relating to the eight co-conspirators who were not joined as defendants.
  • Discussing witnesses who had invoked the Fifth Amendment.

The motion presumed that the seal was a gag order; it did not cite any legal authorities for indulging that presumption.

F. October 27, 1994: Judge Zagel’s oral explanation for the seal order in which he attacked my character, but denied me any opportunity to be heard. 

At the hearing on American Citrus’s motion Judge Zagel articulated for the first time the reasons for the seal order.  He told the Coalition that the “principal factor” behind the decision to seal 90c5009 was his low opinion of my willingness to obey court orders.[1]

Neither I nor my attorney had received timely notice of Kowal’s motion, so we weren’t present at the October 27 hearing. 

After reviewing a transcript, I asked for leave to file a memorandum responding to the court’s comments; Judge Zagel denied my request.  (R.437, 440.)

G. The November 1994 rulings on the Coalition’s disputed claims for access.

In November 1994 Judge Zagel made the following rulings on the Coalition’s claims for access:

  • He denied the Coalition access to the contempt papers and the FRCP 60(b) papers.
  • He denied the Coalition access to those briefs in which Grove Fresh outlined the evidence and legal theories supporting its conspiracy claims. 
  • He granted the Coalition access to certain other briefs and motions that did not discuss the evidence from discovery. 
  • He ruled that the complaint and certain other pleadings could be unsealed, but only after the names of the eight non-party co-conspirators were redacted to protect their privacy. 

Marshall and Flavor Fresh were among the non-party co-conspirators whose names were redacted.[2] Their names were redacted to protect their privacy even though they had publicly entered guilty pleas to related criminal charges. 

The redacted form of the 90c5009 complaint is incomprehensible, as the defendants intended it to be. 

H. November 4-17, 1994: Discharge of the Seventh Circuit’s rule to show cause.

On November 4, 1994, I filed a motion asking the Seventh Circuit to discharge the November 9, 1993 Rule to Show Cause. See §§XXVI-O, Z, above.

The Seventh Circuit granted my motion on November 17, 1994. 

I. December 1, 1994: The finding that Grove Fresh and I continued our attorney-client relationship even after I had been “relieved of all responsibility” for the Grove Fresh litigation on January 21, 1993; motion to set a hearing date on the contempt petitions.

In August 1994 the defendants had deposed me.  During the deposition Rivkin Radler & Kremer instructed me not to disclose 13 communications between Grove Fresh and me, including ten occurring on or after January 21, 1993, on the ground that those communications were protected by the attorney-client privilege. (R.435Ex.B,D.)  In order to sustain this claim, Grove Fresh had the burden of proving that the communications were “between a client and an attorney acting in his professional capacity.” F.T.C. v. Shaffner, 626 F.2d 32, 37 (7th Cir. 1980).

Defendants moved to compel discovery of those ten communications, alleging that my attorney-client relationship with Grove Fresh had terminated on January 21, 1993. (R.435¶4; R.436pp.4-6.)  At Judge Zagel’s request Grove Fresh, in lieu of a written response to the motion to compel, submitted for in camera review the ten letters and memos that were exchanged between Grove Fresh and me, and between co-counsel and me, on and after January 21, 1993.[3] 

At a hearing on December 1, 1994, Judge Zagel made the following comments as he sustained Grove Fresh’s claim of privilege for my communications with it both before and after January 21, 1993:

I read the documents in their entirety.  I think the claim of privilege is well-taken with respect to Grove Fresh’s attorney-client assertion, the attorney-client privilege with I think virtually every document.  And what is not covered by attorney-client is covered by work product. (emphasis added)

12/1/94 Tr. of Proceedings, p.2.

Judge Zagel also set the following schedule and made the following remarks:

  • He ordered that my deposition be concluded by December 9. 12/1/94 Tr. of Proceedings, p.6.
  • He ordered the defendants to file, by December 20, a reply brief in support of their FRCP 60(b) motion. Id.
  • He set a status hearing for December 22, at which he might rule on the FRCP 60(b) motion. Id.
  • He could not rule on the Coalition’s motion to remove the seal on the post-settlement proceedings until he ruled on the FRCP 60(b) motion. Id. at 5.
  • He would rule on the contempt petitions after he ruled on the Coalition’s motion to remove the seal on the post-settlement proceedings. Id.

On December 20, my attorneys received a voice mail message that the December 20th status hearing had been cancelled. Follow-up telephone calls yielded conflicting explanations about the reason for the cancellation. See §K, below.

The next day, my lawyers filed a motion to set a hearing date on the contempt petitions. On December 23, Judge Zagel granted the motion, setting the hearing for January 31. (Unrelated events would delay the start of the hearing to February 3.)

J. January 9, 1995: Response to American Citrus’s Motion to Supplement its Contempt Petition; AUSA Delaney’s statements regarding Moser’s false declaration.

On January 9, 1995, my attorneys filed Mr. Messina’s Memorandum in Opposition to American Citrus’s Motion to Supplement its Contempt Petition. They made these arguments, among others:

  • The minute order sealing 90c5009 was not a gag order within the meaning of Chase v. Robson, 435 F.2d 1059 (7th Cir. 1970), and did not enjoin speech about the Grove Fresh litigation. (The Chase case is discussed above in §XII-J.)
  • The minute order sealing 90c5009 could not be construed as a gag order because: (a) the defendants didn’t ask for a gag order, and (b) the court didn’t make the findings that Chase requires for the issuance of a gag order.
  • Reading an implied injunction against speech into the minute order would make the order an improperly vague restriction on speech.
  • Punishing an attorney for an implied injunction against speech would violate due process.
  • If protecting the defendants’ reputation was the court’s concern when it sealed 90c5009, that concern had been mooted in October 1993, when the Department of Justice, in the sentencing proceedings in the related criminal case, filed papers in the public files that corroborated Grove Fresh’s allegations, i.e., Marshall’s proffer and Beuchel’s affidavit.  

In support of the Memorandum I submitted a declaration under penalty of perjury regarding my March 1994 conversation with Brian Delaney, the Assistant United States Attorney who had worked on the related criminal case. That conversation concerned the false statement about the date that Everfresh had purportedly stopped using the unsafe additive. According to Delaney, that statement was inserted in Moser’s declaration at the request of Moser’s attorney. See §§XXVI-I, L, V, above.

K. December 20, 1994-January 20, 1995: The cat-and-mouse games over the Rule 60(b) motion.   

John Belcaster was one of my lawyers. Dale Crider was the Rivkin Radler & Kremer partner who handled day-to-day matters for Mr. Troy’s estate in the post-settlement litigation.

On December 20, Crider notified Belcaster by voice mail that Judge Zagel had canceled the December 22nd status hearing on the Rule 60(b) motion. Belcaster followed up with telephone calls to Crider, Kowal, and Judge Zagel’s minute clerk, inquiring about the reason for the cancellation. He got conflicting accounts:[4]

  • Crider said that Kowal had requested the cancellation, but he claimed that Kowal had not told him the reason for the request.
  • The minute clerk said that Kowal had requested the cancellation on the ground that the parties were attempting to settle the Rule 60(b) motion.
  • Kowal contradicted Zagel’s minute clerk—he said he had requested cancellation because he had not yet filed, but was still planning to file, a reply on the Rule 60(b) motion. Belcaster asked when he planned to file. Soon, Kowal replied, but he didn’t specify a date.

As of January 20—a month later—Kowal had not filed his reply brief; no new status date had been set.

Crider finally acknowledged that he and the defendants were discussing settlement, but he wouldn’t share details and he excluded us from the discussions.

L. January 20-February 1, 1995: Preparations for the contempt trial and efforts to secure due process in the Rule 60(b) proceedings.

The contempt trial was scheduled for January 31, but as of January 20, Judge Zagel had not explained why he had sealed 90c5009, much less had he specified what the seal prohibited. Earlier, my lawyers had asked him to clarify that the seal was not a gag on speech comprised of information in the public domain, but he had sidestepped that request. See §XVI-W, above.

The Rule 60(b) proceedings also posed vexing problems. The Rule 60(b) motion sought declaratory and monetary relief against me (R.361pp.9-10), but, by June 1994 the defendants were contending that neither I nor my attorney was entitled to attend conferences in chambers or to conduct discovery; Judge Zagel had agreed and accorded me no due process rights.[5] Now, Rivkin Radler & Kremer and the defendants were working on a resolution of the Rule 60(b) motion, but they wouldn’t let my lawyers or me participate in the effort.

We attempted to resolve these problems by taking the steps described below.

1. The press release strategy for clarifying whether the seal was a gag order.

To test whether the seal order was a gag order and if so, to fix the scope of the gag, we devised a strategy utilizing a proposed press release. The proposed release would contain all of the information we thought was relevant to the pending disputes. Initially, we would send the release to the defendants only, not to the press, along with a cover letter that:

  • reiterated our contention that the seal was not a gag on information in the public domain;
  • acknowledged the defense’s contrary contention that the seal was a gag on all speech relating to the litigation; and
  • agreed to refrain from distributing the release for three days to afford the defense an opportunity to move for an order enjoining me from publishing whichever parts of the proposed release they contended were subject to the seal.

On January 24, we sent such a letter and proposed press release to defense counsel, but they didn’t move for any relief. Instead, they sent a letter to Rivkin Radler & Kremer alleging that publication of the proposed press release would breach the settlement agreement between the defendants and Grove Fresh. If Grove Fresh didn’t stop me from publishing the proposed press release, they said, they would amend the Rule 60(b) motion and hold Grove Fresh accountable for my actions.

On January 27, Radler filed an emergency motion to enjoin me from publishing the proposed press release. Judge Zagel denied the motion on January 31 without clarifying the meaning or scope of the seal order. (R. 462.)

The strategy behind the proposed press release had failed—the meaning and scope of the seal order was as murky on January 31 as it had been on January 24. Considering all the uncertainties, I opted not to distribute the proposed press release.

2. The Motion to Dismiss the Contempt Petitions for Failure to State a Claim.

 On January 27, 1995, my attorneys filed Mr. Messina's Motion to Dismiss American Citrus' Contempt Petitions for Failure to State a Claim. The motion attached and incorporated by reference Mr. Messina’s Memorandum in Opposition to American Citrus’s Motion to Supplement its Contempt Petition, discussed above in §J, including the affidavit attesting to my conversation with Mr. Delaney.

The motion presented three arguments:

  1. On its face, the seal order only required that pleadings be filed under seal. None of the conduct alleged in the contempt petitions violated that requirement.
  2. As a matter of constitutional law the seal could not be construed as an implied injunction against speech because the court had not made the finings required by Chase.
  3. Even if the court construed the seal order as an implied injunction against speech it could not, under International Longshoreman’s Assoc. v. Philadelphia Trade Association, 389 U.S. 64, 75 (1967), enforce such a construction with its contempt powers.

The motion was presented on January 31. Judge Zagel denied the motion on the spot, without any written response from the defendants. (R. 459.)

3. The Section 1927 motion.

Also on January 27, 1995, my attorneys filed a motion to dismiss all of the post-settlement proceedings—i.e., the Rule 60(b) proceeding and the contempt proceedings—pursuant to 28 U.S.C. §1927 (“Section 1927 Motion”). (R.454.)  The Section 1927 Motion argued that the post-settlement proceedings had been instituted for the improper and vexatious purpose of enforcing an unethical restriction on my right to practice law. (R.454p.3.) 

In the alternative, the Section 1927 Motion sought leave for me to intervene in the Rule 60(b) proceeding and for summary judgment therein, on the ground that the defendants’ claims, if accepted, would require a finding that the defendants had improperly conditioned settlement on the execution of an illegal contract. (R.454pp.1-2; R.453Ex.B¶¶7-16.)

The motion was presented on February 1. Judge Zagel denied it on the spot, without any written response from the defendants. (R. 461)

4. The recusal motion.

I also filed on January 27 a Motion to Recuse Judge Zagel pursuant to 28 U.S.C. §455(a) on the following grounds:

  • The central issue in the Rule 60(b) proceedings was whether the consulting agreement was an illegal contract that violated the rules of ethics.
  • The defendants were alleging that during the settlement talks, Judge Zagel had told them that the Consulting Agreement was legal and ethical, and they had relied on his opinion when they demanded that I execute the Consulting Agreement as a condition of settlement.
  • The defense’s allegation that Judge Zagel had previously expressed an opinion on this disputed issue called into question whether he could be fair and impartial.

Judge Zagel denied recusal the motion on the spot, without any written response from the defendants.  (R.463)

M. The continued delays in creating a docket, which impeded my interlocutory appeals. 

Also on February 1, 1995, Judge Zagel approved draft orders (“the February 1st Orders”) removing the blanket seal on the 90c5009 case.[6]  

When the Clerk receives an order removing the seal from a case that was filed under seal, the policy and practice is to immediately enter on the docket all of the papers that have accumulated in the case file, including those items that are to remain sealed.[7] 

For reasons that do not appear in the record, Judge Zagel never transmitted the February 1st Orders to the Clerk.  Consequently, the case continued under seal, without a docket, for 103 more days.[8]  

N. February 3, 1995: The contempt trial

On February 3, 1995, Judge Zagel held a one-day bench trial on the contempt petitions and Rule 11 motion. 

At this trial I testified that on and after January 21, 1993, “I [did] not consider myself to have been discharged by Cecil Troy and Grove Fresh.”[9] 

Defendants did not call Radler or any other witness to testify otherwise. 

O. February 9, 1995: The defendants’ reiteration of their contention that Grove Fresh and I had continued in an attorney-client relationship after January 21, 1993.

On February 9, 1995, the 90c5009 defendants filed a brief in support of their Rule 60(b) motion in which they argued that Grove Fresh and I had continued in an attorney-client relationship after January 21, 1993.  (R.466, pp. 12-18.) 

The gist of their claim was that the Consulting Agreement was a condition of settlement, and that my rescission of the Consulting Agreement was tantamount to Grove Fresh rescinding that settlement:

[T]he settlement in this case involved two agreements:  the settlement agreement between the parties and the consulting agreement between Mr. Messina and the defendants.  Whether or not these agreements are linked on their face, the parties and Mr. Messina all understood that no settlement would occur unless full agreement was obtained as to both of these agreements so as to ensure total and complete peace.  The defendants relied on the representations of Grove Fresh’s counsel, including those of Mr. Messina via his personal lawyers, that Mr. Messina agreed with the propriety of the consulting agreement and that he intended to abide by it and the confidentiality terms of the settlement agreement.

(Consolidated Memorandum 2-3) [emphasis added]. 

P. My interlocutory appeals, and the second settlement between Grove Fresh and the defendants.

On or about March 2, 1995, I filed a notice of appeal from the February 1st order denying me leave to intervene in the Rule 60(b) proceeding. 

On some date prior to March 17, 1995, Troy’s heirs, without notice to me, settled the Rule 60(b) claims.  The settlement terms are not in the record. 

On March 17, 1995, Judge Zagel issued a minute order granting the 90c5009 defendants’ motion to withdraw the Rule 60(b) motion pursuant to the settlement.  (R. 473) 

Q. March 15, 1995: My motion for clarification, denied.

On March 15, my attorneys presented Mr. Messina’s Motion to Clarify That Papers On Appeal Need Not Be Filed Under Seal . Judge Zagel denied the motion without offering any clarification one way or the other. (R.474.)

That same day my attorneys presented Mr. Messina’s Motion to Reconsider Redaction of References to Non-Party Co-Conspirators . Judge Zagel never ruled on the motion.

R. The obstruction of the record for my appeals.

On April 5, 1995, I learned that the Clerk’s office had not received the February 1st Orders removing the seal from the 90c5009 file, and that a record for my appeal did not exist.[10] Five days later I sent a letter to Donald Walker, Judge Zagel’s courtroom deputy, asking him to forward the February 1st Orders to the Clerk so that the record for the appeal could be prepared.  I followed up with telephone calls on April 21, April 25, and May 1.  Judge Zagel did not act on the requests.[11]

On April 17, 1995, and April 28, 1995, I filed further notices of appeal from recent orders.[12]

On April 20, 1995, the defendants moved to dismiss the appeal I had filed on March 2, 1995, alleging that I lacked standing because Grove Fresh had discharged me as its attorney prior to the April 1993 settlement. (R.527¶43(d).)  Troy’s heirs, who four months earlier had prevailed on the claim that Grove Fresh and I had continued as attorney and client after January 21, 1993, joined in the motion.  (Id.)

On May 1, 1995, the defendants sent Judge Zagel a copy of their motion to dismiss my appeal for lack of standing.  (R.527¶43(a).)

S. The Seventh Circuit’s abstention from ruling on my request for a record.

On May 2, 1995, I filed in the Seventh Circuit a Motion for Relief from the District Court Regarding the Record on Appeal.[13]  The motion asked for an order (a) directing Judge Zagel to transmit the February 1st Orders to the Clerk of the district court and (b) directing the Clerk of the district court to create a complete docket sheet. 

On May 12, 1995, the Seventh Circuit denied without prejudice “those portions of the motion which request relief directed at the District Court record … until they have been determined in the District Court in the first instance.” (Id.) 

T. The omission of 132 records from the 90c5009 docket.

As of May 15, 1995, there were approximately 380 records in the 90c5009 case file.[14]  On May 15-18, 1995, a deputy clerk whose initials are “cmf” removed the seal on the 90c5009 case when she entered 248 of the 380 90c5009 records on the electronic docket (“May 1995 Docket”).[15] 

The records that were omitted from the May 1995 Docket are identified at R.542Ex. G-1, G-3 and include the following:

  • the motion papers underlying the December 1994 oral ruling that my communications with Grove Fresh after January 21, 1993, were privileged (R.435,436);
  • the papers filed by defendants in August 1993, November 1993 and February 1995 alleging that Grove Fresh and I had continued in an attorney-client relationship after January 21, 1993 (R.361¶12;R.466pp.12-18);
  • the Section 1927 Motion and the recusal motion that I had presented on February 1, 1995, and the minute orders denying those motions, which were the subject of my appeal (R.454,456,461,463);
  • other orders that Judge Zagel had issued in March 1995 that I was also seeking to appeal (R.473,345,474); and
  • The contempt petitions, and the responses to those petitions, which Judge Zagel adjudicated in the Contempt Order that would issue on June 9, 1995. (R.403,404,409,430,449.) 

At a previously scheduled status hearing on June 9, 1995 (misdated by the docket as May 9), I presented a motion for an order permitting the Clerk to docket the papers underlying the pending appeals, but which had been omitted from the May 1995 Docket. (R.251.).  Judge Zagel entered and continued this motion until June 16, 1995. (R.252.) 

On June 9, 1995, while the motion to complete the record was pending in district court, the Seventh Circuit granted the motion to dismiss my March 1995 appeal for lack of standing.  (R.257.)  One week later, the district court denied as moot my motion to complete the record. (R.478.)

The records that were omitted from the May 1995 Docket were docketed two years later, after I had incurred $40,000 in attorney’s fees for an investigation of the docket and for the preparation of a series of motions to require the docketing of the omitted records.[16] 

[1] 10/27/94 Tr. of Proceedings, p. 8.

[2] In an April 1990 settlement Grove Fresh had covenanted not to sue Marshall and Flavor Fresh for acts and omissions up to the date of settlement.  Grove Fresh made this settlement before it knew about the facts underlying the conspiracy claims it later alleged in the 90c5009 complaint.  The covenant not to sue barred Grove Fresh from naming Marshall and Flavor Fresh as party-defendants in 90c5009, but it did not preclude Grove Fresh from seeking to hold the other co-conspirators jointly and severally liable for the damages caused by Marshall and Flavor Fresh.

[3] 11/22/94 Tr. of Proceedings, p. 8.

[4] Belcaster memorialized these accounts in a declaration under penalty of perjury dated January 27, 1995. The declaration is Exhibit E in the Appendix of Exhibits to Section 1927 Motion.

[5] 6/20/94 Tr. of Proceedings, pp. 13-18.

[6] 2/1/95 Tr. of Proceedings, pp. 16-17.

[7] These procedures are described in an 8/7/00 letter from deputy clerk Nelida Finch. A copy of the Nelida Finch letter is posted on the website.

[8] Affidavit of John P. Messina ¶169 (October 31, 2000) [“JPM Affidavit”].

[9] 2/3/95 Tr. of Proceedings, pp. 144

[10] JPM Affidavit ¶176.

[11] JPM Affidavit ¶¶177-78.

[12] JPM Affidavit  ¶¶189,193.

[13] JPM Affidavit ¶178.

[14] JPM Affidavit ¶¶179-81.

[15] Since Judge Zagel never transmitted the February 1st Orders to the Clerk, the basis on which “cmf” unsealed the case and made entries on the docket is unclear.  Presumably, either Judge Zagel or Walker gave “cmf” an oral instruction to unseal the case and enter records on the docket. 

[16] JP M Affidavit ¶¶208-18.