Submitted to the US Court of Appeals on 30 Jun 2000:
"OPENING BRIEF FOR APPELLANT, MICHELANGELO DELFINO, "On Appeal From a Modified Preliminary Injunction of the United States District Court for the Northern District of California"
BRIEF OF APPELLANT, MICHELANGELO DELFINO
I. JURISDICTIONAL STATEMENT
A. District Court
Originally, this case was filed in state court, but removed to the District Court by Michelangelo Delfino pursuant to federal question (28 USC ß 1331) jurisdiction stemming from plaintiffsí [Varian Medical, Varian Semiconductor, Susan B. Felch & George Zdasiuk] Lanham Act (15 USC ß1125(a)) claims. [CR 848] Upon motions for summary judgment made following the close of discovery, the District Court determined that Plaintiffs had "...failed to show, among other required elements of a Lanham Act claim, that defendants are in commercial competition with plaintiffs." (CR 853 Lines 25-26, underscored added). The District Court granted defendants' summary judgment motions on the Lanham Act claim, then remanded the case to the Superior Court for lack of federal question jurisdiction in as much as "... [t]he Lanham Act claim was the only basis for this courtís removal jurisdiction." (CR 854-855).
B. U.S. Court of Appeal for the Ninth Circuit
On June 21, 1999 the District Court issued an order granting a preliminary injunction [CR 83-89], only as against defendant, Michelangelo Delfino, (hereafter "Delfino"), prohibiting him, inter alia, from posting messages about plaintiffs, their families and associates on the Internet. Subsequently, on November 19, 1999, the District Court modified the preliminary injunction to include defendant Mary Day ("Day"), and limiting defendants to only one Internet pseudonym each.[CR 798-801 Both defendants timely filed Notice of Appeal.[CR 2192-2197] This court has jurisdiction to review an order granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunction. 28 USC ß1292(a)(1). An appeal from an order granting modifications of an injunction may also necessitate the review of the underlying injunction. Gon v. First State Ins. Co. (9th Cir. 1989) 871 F2d 863, 866-867.
C. Related Cases
There are none other than Mary Day's appeal in this same action.
II. ISSUES ON APPEAL
1. The Preliminary Injunction Is Unconstitutional as a Prior Restraint of Free Speech.
2. Since Plaintiffs' Commercial Claims Were Found to Be Factually Nonexistent, There Was No Legal Basis for Placing Prior Restraints on Delfino Internet Postings.
3. As Plaintiffs' Lanham Act Claim Was Found to Be Factually Nonexistent, Resulting in the Case Being Remanded to Superior Court, There Was No "Federal Question Jurisdiction" for the District Court to Grant or Maintain the Preliminary Injunction.
III. STATEMENT OF FACTS AND OF THE CASE
Following removal, the District Court granted a preliminary injunction prohibiting Delfino from: (1) impersonating plaintiffs; (2) posting on the Internet or e-mailing any defaming or knowingly false information about plaintiffs, and others, and placing prior restraint on any content regarding, inter alia, their (a, b) sexual fidelity, (c) veracity, (d) sanity, (e) hallucinations, (f) technical competence, (g) physical weight, (h) lack of work at Varian, and (i) that Delfino is a current employee at Varian; (3) communicating with plaintiffs Felch or Zdasiuk; (4) using pseudonyms on the Internet without prior disclosure to the District Court; (5) destroying or altering potential evidence; and (6) conspiring with anyone to engage in any of the above five prohibited activities. ..."
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