Marshak v. Sheppard
Marshak v. Sheppard
Opinion of the Court
The defendant, Rick Sheppard, has filed a motion to vacate an injunction issued by this Court on August 26, 1987, after the Court found that the defendant had infringed upon a valid service mark registered *263to the plaintiff, Larry Marshak.
I.
More than thirty years ago, Marshak brought suit against Sheppard and others for, among other things, infringing a United States service mark registered to Marshak ("the Mark") for use of the name "The Drifters" for entertainment services. Marshak,
In 1995, Marshak filed suit against Faye Treadwell in the District of New Jersey alleging that she had infringed upon the Mark. Marshak v. Treadwell,
The parties filed posttrial motions, and the district court held that the jury properly found that Marshak obtained the Mark by fraud but set aside the jury's finding of abandonment by Treadwell, thus making Treadwell the rightful owner of the "Drifters" mark.
On October 4, 2018, Sheppard filed this motion to vacate the permanent injunction against him that had been entered in this Court over thirty years ago. Sheppard alleges that Marshak has interfered with Sheppard's business opportunities by threatening to sue concert promoters or producers for promoting Sheppard's performances under the Drifters' name. Preston Decl. ¶ 10. According to Sheppard, these threats have caused at least two of his potential performances to be canceled - a January 2017 performance at a showcase *264produced by the Association of Performing Arts Professionals at the Hilton Hotel in New York City and a June 2017 New Jersey concert.
Sheppard moves to vacate the injunction against him on two grounds. He asserts that the Court should vacate the injunction pursuant to the catch-all provision in Federal Rule of Civil Procedure 60(b)(6) or, alternatively, under Rule 60(d)(3), which provides that a court can set aside a judgment for fraud on the court. Marshak argues that Sheppard's motion is untimely and does not implicate the extraordinary circumstances necessary to vacate the injunction under Rule 60(b)(6). Marshak also argues that Sheppard has presented no evidence of fraud on this Court for purposes of Rule 60(d)(3). Marshak adds that Sheppard has consistently violated the Court's injunction and thus Sheppard's unclean hands prevent him from obtaining the relief he seeks. See, e.g., Marshak Decl. Ex. 5. Marshak's arguments are persuasive.
II.
A.
Under Rule 60(b)(6), a motion to vacate a judgment may be granted "for any other reason justifying relief." This catch-all provision, however, should be invoked only when there are "extraordinary circumstances" that "work an extreme and undue hardship." Nemaizer v. Baker,
In this case, Sheppard brings a Rule 60(b)(6) motion more than thirty years after the injunction that he seeks to vacate was issued. He provides two unconvincing excuses for the delay. First, Sheppard "believes" that he did not learn of the Treadwell case finding the Mark invalid until sometime "within the last five years." Preston Reply Decl. ¶ 20. Second, he contends that he did not previously bring this motion because it was only recently that Marshak began enforcing the injunction by threatening to sue individuals with whom Sheppard contracted.
Sheppard's single, summary contention that he "believes" that he did not learn of the Treadwell case until sometime within the last five years is not persuasive evidence of that fact, and in any event five years is not a reasonable time to wait to bring a Rule 60(b)(6) motion. See Rodriguez v. Mitchell,
B.
Sheppard's alternative Rule 60(d)(3) theory is also unpersuasive. Rule 60(d)(3) permits a court to "set aside a judgment for fraud on the court." "Fraud on the court is fraud which seriously affects the integrity of the normal process of adjudication." Transaero, Inc. v. La Fuerza Area Boliviana,
Sheppard provides no evidence of fraud on the Court itself. Rather, he argues only that Marshak made allegedly fraudulent representations to the PTO, and that this Court in turn relied upon those representations. In this case, Judge Pollack carefully considered the relationship of Marshak, a manager of "The Drifters"; George Treadwell, another manager of the group who was succeeded by his widow, Faye Treadwell; and Sheppard, a former performer with the group. Judge Pollack specifically found that the representation by Marshak's assignors to the PTO that no other group had the right to use the Mark was not a willful, material misstatement because, among other reasons, the group managed by Faye Treadwell had performed largely outside the United States. That Treadwell lacked any right to use the Mark receives some support from the jury verdict in the Treadwell case which, although vacated by the district court, found that Treadwell had abandoned use of the Mark. Judge Pollack also relied on a prior decision by Judge Weinfeld which had similarly upheld Marshak's use of the Mark over objections that the trademark application contained false statements as to Marshak's exclusive and continuous use of the Mark. Marshak,
In any event, allegedly false representations made to the PTO are not tantamount to defrauding the Court. See Broyhill Furniture Indus., Inc. v. Craftmaster Furniture Corp.,
Additionally, Sheppard's fraud on the court argument is a thinly veiled attempt to reargue the defense he raised before this Court more than thirty years ago - that Marshak obtained the Mark by fraud. "However, a party may not use a Rule 60 motion as a means to relitigate a case." Ptak Bros. Jewelry v. Ptak, No. 06cv13732,
CONCLUSION
The Court has considered all the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the reasons explained above, Sheppard's motion to vacate the injunction issued by this Court on August 26, 1987 is denied . The Clerk is directed to close all pending motions and to close this case.
SO ORDERED.
The injunction and underlying decision were issued by Judge Milton Pollack.
Sheppard also alleges that Marshak threatened a concert promoter in connection with a show Sheppard was scheduled to perform in California in October 2017, but Sheppard does not state whether his performance was canceled after the threat. See Preston Decl. ¶ 14 & Ex. E.
Sheppard submitted an affidavit in this action in August 1987 in which he claimed that he did not have rights in the name "The Drifters" used alone, but that Faye Treadwell never abandoned the name "The Drifters." Marshak Decl. Ex. 1.
Reference
- Full Case Name
- Larry MARSHAK v. Rick SHEPPARD
- Cited By
- 5 cases
- Status
- Published