NOTE: This disposition is nonprecedential.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`NOTE: This disposition is nonprecedential.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