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RK Co. v. Harvard Scientific Corp.

January 16, 2007

RK COMPANY, PLAINTIFF,
v.
HARVARD SCIENTIFIC CORP., D/B/A MAGISTRATE JUDGE ARLANDER KEYS VIBRAGEN INC., THOMAS WAITE, (BY CONSENT) AND DR. JACKIE R. SEE, DEFENDANTS.
DR. JACKIE R. SEE, THIRD-PARTY PLAINTIFF,
v.
BARBARA BERRY, THIRD-PARTY DEFENDANT.



DEFENDANT DR. JACKIE R. SEE'S RENEWED MOTION FOR JUDGMENT

Defendant, Dr. Jackie R. See ("See"), by his attorney, Randall L. Hite, Esq., moves before this Court for an order under FRCP 52(c) for Judgment in favor of Defendant Dr. Jackie R. See and against the claims of RK Company, which is a renewal of the motion made during the trial of this matter.

In support of this motion, See states as follows:

1. The parties to this action consented to trial before this Court on July 19, 2005.

2. This matter was tried before the Court commencing on December 4, 2006. During the trial, See moved for Judgment pursuant to FRCP 52(c) on the grounds that Plaintiff RK Company, an Illinois Corporation was not a proper party to this action, as the investment had been made by "RK Company, a Common Law Trust" and further, as testified to by Robert Krilich, Sr., was just a "dba" for him personally.

3. The party which invested in Defendant Harvard Scientific Corp. ("HSC) is not the party as alleged in the complaint. All relevant pleadings in this action reference RK Company as a corporation formed under the laws of the State of Illinois and authorized to conduct business in the state.

4. At the time of trial, Plaintiff's proffered no contrary evidence that the named Plaintiff, RK Company, alleged in the operative complaint and throughout the pleadings in this action, to be an Illinois domestic corporation, was the party which invested in HSC. Rather, the uncontroverted evidence established that RK Company is either a "common law trust" or simply a fictitious business name for Robert Krilich, Sr, an individual, but it is not the separate legal entity of RK Company, and Illinois corporation, who is the named Plaintiff in this action. The Court is requested to take Judicial Notice of the pleadings filed in this action reciting that RK Company is an Illinois Corporation.

5. When Plaintiff originally moved this Court for an order under Rule 52(c), Defendants objected contending that capacity to sue had not been timely raised. As discussed below, no time limit exists in which to raise the capacity of a party to sue or maintain an action and Defendant made a timely motion under Rule 52(c) which is hereby renewed.

6. A search of the Illinois Secretary of State's Website under the terms "RK" and "RK Company" returns only "RK Company" and "The RK Company, I" The latter is clearly affiliated with Robert Krilich Sr., as his wife is listed as the President of the Company, the business address is the same address utilized by Krilich, and the Agent for Service of Process is Kim M. Plecner, who as testified to during the trial is in the employ of one or more Krilich controlled entities. On the other hand, "RK Company" lists Mary Ellen Knicke of Wyoming Ohio as being that corporation's President, and its agent's name is Edward E. Reda, Jr. (See Exhibit "A"). The RK Company, an Illinois Corporation was formed on November 5, 1998, as reflected in the attached Certification of Good Standing from the Illinois Secretary of State. This date is extremely significant, as the investments made which are the subject of this action were made on June 29, 1998 and July 3, 1998, more than 4 months before RK Company, an Illinois corporation was even incorporated. (Exhibit "B")

THIS MOTION FOR JUDGMENT IS TIMELY

7. A motion for judgment against a claim or defense may be made any time after a party has been fully heard on the issue and the court "can appropriately make a dispositive finding of fact on the evidence." [FRCP Rule 52(c), Adv. Comm. Notes]

8. A defense motion for judgment is usually made after plaintiffs complete their case-in-chief. See, e.g., Southern Travel Club, Inc. v. Carnival Air Lines, Inc. (5th Cir. 1993) 986 F.2d 125, 127. It can also be made after plaintiff's rebuttal evidence and before the matter is submitted by all parties. Granite State Ins. Co. v. Smart Modular Technologies, Inc. (9th Cir. 1996) 76 F.3d 1023, 1030-1031 (trial court properly granted defense motion after requiring plaintiff to present rebuttal evidence through offer of proof.)

9. Ordinarily, Rule 52(c) motions are not made until Plaintiffs have completed presentation of their evidence. However, when it is "manifestly clear" that Plaintiffs will not prove their claims, granting a Rule 52(c) motion at an earlier time is permissible. Stone v. Millstein (9th Cir. 1986) 804 F.2d 1434, 1437(court properly granted motion for involuntary dismissal under former Rule 41(b) after plaintiff's opening statement).

10. In the instant case, counsel for See, upon ascertaining, based upon evidence proffered during the prior day's trial testimony, that the wrong party had brought suit, the following morning immediately made this motion before the Court before resumption of the trial. See's counsel proffered records from the Illinois Secretary of State at that time in support of the motion. This motion would be entirely dispositive of this action, as the filing of an action by an incorrect party does not toll the limitation of actions period, and under any alleged theory, the limitations period has expired. Neither could this error be cured by amendment, as it is not merely a correction of a party, but is an entirely new party.

11. Although a party must have an opportunity to be heard before the court enters judgment on partial findings under Rule 52(c), there is no requirement that the court receive live testimony. Indeed, an offer of proof is an appropriate means for the court to receive and consider a party's proffered evidence. Granite State Ins. Co. v. Smart Modular Technologies, Inc., supra, 76 F.3d at 1030-1031 (court's request for offer of proof regarding plaintiff's rebuttal evidence to defendant's affirmative defenses provided sufficient opportunity to be heard.)

12. Rule 52(c) does not require any particular form of motion. An oral motion is sufficient. A motion for judgment usually is made orally and without prior notice ...


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