Need to keep this on file:
Presently before the court is Plaintiff's Motion for Reconsideration of this Court's order denying Plaintiff's motion
for summary judgment and granting Defendants' motions for summary judgment.
Having considered the submissions of the parties and heard oral argument, the court denies the motion and adopts the
following Order.
I. Background
As discussed at length in this Court's prior Order the founding members of the band RATT formed a California
partnership (“the RATT Partnership” or “Partnership”) in 1985.
Pursuant to the written agreement formalizing the Partnership (the “Partnership Agreement”), “each member . . . owned an equal 20%
share in the partnership, including in [several] RATT trademarks.”
Under the Partnership Agreement, no partner could transfer his interest without the unanimous written consent of all partners.
Partners could voluntarily withdraw from the RATT Partnership by giving the other partners three months written notice of the
withdrawing partner’s intent to withdraw, or could be involuntarily expelled from the RATT Partnership with the unanimous consent of
the other partners.
In the instant action, Plaintiff asserts that the Partnership assigned the RATT marks to Plaintiff in 1997. Plaintiff contends
that, at the time of the assignment, Defendant Juan Croucier had already been involuntarily expelled from the Partnership, and that
the remaining partners, Stephen Pearcy, Robert Blotzer, and Warren DeMartini, unanimously consented to the assignment of the marks to
Plaintiff WBS, Inc. Plaintiff now brings trademark-related causes of action against Croucier, who allegedly uses the RATT marks in
conjunction with his new band's activities. Croucier filed a counterclaim seeking declaratory relief.
Croucier and WBS filed cross-motions for summary judgment on the infringement claims against Croucier.
1 The court determined that no reasonable factfinder could conclude that Plaintiff had made a threshold showing of ownership of the RATT marks because there was no genuine dispute as to whether the 1997 assignment from the Partnership to WBS was valid. First, the court observed that ambiguous documents drafted by both Pearcy and DeMartini created a triable issue as to whether either of them remained in the Partnership in 1997, precluding a grant of summary judgment in WBS' favor. Furthermore, the court determined that, on the then-current
record, there was no genuine dispute that Croucier remained a member of the Partnership at the time of the supposed assignment.
Although WBS relied upon a letter purportedly expelling Croucier from the Partnership in early 1997, prior to the assignment, that
letter was signed by, and referred to the unanimous vote and consent of, only Blotzer and Pearcy.
The Partnership Agreement, however, required the unanimous consent of all partners, other than the partner being expelled.
By Plaintiff's own admission, DeMartini remained a member of the Partnership at all times. Blotzer and Pearcy could not, therefore, have expelled Croucier without DeMartini's consent, of which there was no evidence.
In addition, Pearcy submitted a declaration stating that he never discussed Croucier’s expulsion from the RATT Partnership with
Blotzer, never understood Croucier to have been expelled, and had no recollection of seeing the 1997 expulsion letter prior to this
litigation. Pearcy’s declaration stated that the letter “is not the product of any agreement I reached with Robert Blotzer or anyone else.” Plaintiff did not file any written objection to the Pearcy declaration. Although Plaintiff's counsel did, at oral argument, suggest that Pearcy lacked credibility, Plaintiff submitted no evidence that conflicted with or contradicted Pearcy's statement.
Indeed, as the court also noted, Blotzer himself took a position different than that advanced by WBS, stating in a deposition that
Croucier voluntarily withdrew from the Partnership, not that the other members of the Partnership unanimously expelled Croucier.
Now, on this motion for reconsideration, WBS argues that Croucier submitted evidence in bad faith and committed a fraud on
this Court by intentionally ignoring proceedings in an earlier, 2002 state court action between Pearcy and WBS. WBS contends that
this Court should have considered documents submitted in those proceedings, which, Plaintiff asserts, establish that Croucier is
collaterally estopped from challenging the validity of the assignment of the RATT marks to WBS.
II. Legal Standard
Under Federal Rule of Civil Procedure 60(b), a party may seek
reconsideration of a final judgment or court order for any reason
that justifies relief, including:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to
move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an
opposing party;
(4) the judgment is void;
(5) the judgment has been released or discharged; it is
based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
In addition, the court once again notes that Plaintiff's counsel continues to disregard the rules of this court. At the
summary judgment stage, counsel violated several of this Court's local rules. In the interest of resolving matters on the merits,
the court denied Defendant Croucier’s request to strike Plaintiff’s summary judgment motion, but instructed Plaintiff’s counsel to
comply with all procedural requirements in the future, on pain of sanctions. Despite that admonition, Plaintiff's counsel continues
to fail to adhere to the letter and spirit of the court's rules.
For example, although Plaintiff asks that this court consider, among other state court documents Plaintiff never placed in the
record at summary judgment, Pearcy's Separate Statement of Genuine Issues of Fact, no such statement was attached to Plaintiff's
Motion for Reconsideration or counsel’s supporting declaration. Instead, counsel attached the document in conjunction with its
reply, depriving Defendant of any opportunity to address the Lastly, Plaintiff has failed to meet his obligation to present
evidence in a manner that would allow this court to evaluate it.
Even if Plaintiff had presented a valid reason why the state court documents could not have been presented sooner,
Plaintiff's briefs repeatedly discuss and even quote those documents while citing only to "Declaration of Sherman" generally.
It is not the court's task to scour the nine exhibits attached to counsel's declaration, comprising well over one hundred pages, in
an effort to verify the accuracy of counsel's representations or otherwise unearth evidence that the elements of estoppel are met.
C. Partial Summary Judgment on Croucier’s Counterclaim
This Court denied Plaintiff’s motion for summary judgment and granted Defendant Croucier’s motion for partial summary judgment on
his Counterclaim. Plaintiff argues that the court, in granting summary judgment on Croucier’s Counterclaim, failed to consider
Plaintiff’s arguments that (1) the Partnership has been dissolved and (2) that the statute of limitations bars Croucier from seeking
declaratory relief. Plaintiff’s opposition to Croucier’s motion for partial summary judgment did include a one-paragraph argument that “by
operation of law, the Partnership is dead” as part of its larger argument that “Croucier has not overcome the prima facie ownership
by WBS.” Aside from the fact that the provision of law cited was repealed in 1999, the relevance of
document. Plaintiff also untimely filed a declaration in support of its reply and filed, without explanation, a "Notice
of Errata" that is in actuality a second, untimely reply. Plaintiff’s contention remains unclear to the court. Plaintiff now
argues that “[t]he existence of the Partnership is a disputed, material fact that relates directly to whether the assignment of
the trademarks was valid.” The logic of that bare assertion is no clearer at this stage, however, and provides
no basis for reconsideration. Plaintiff provides no explanation how the supposed dissolution of the Partnership has any bearing on
whether the Partnership’s assignment of the marks to WBS in 1997 was valid.
Plaintiff’s reconsideration motion also argues that this Court made no mention of Plaintiff’s “clear and legitimate argument that
the statute of limitations had run for Croucier’s counterclaims relating to declaratory relief as to ownership."
12.) Plaintiff provides no citations to this "clear and legitimate" argument, and its opposition to Croucier’s motion for
summary judgment made no mention of the statute of limitations. Plaintiff’s opposition did include a single sentence stating that
“the evidence is clear that Croucier knew in 2001 that Plaintiff had been assigned the Marks . . . .” The evidence cited to support that assertion, however, supports no such conclusion. That evidence includes a declaration from Plaintiff’s
counsel, stating only that excerpts of Croucier’s deposition are attached, a declaration from Blotzer, submitted
in support of an unrelated motion, opining on Croucier’s state of mind another declaration from Plaintiff’s
counsel, submitted in support of yet another motion and various documents, cited only as “Exhibit B,” that make no
reference to WBS’ assertion of ownership over the RATT marks Plaintiff's counsel's later explanation that the notice of
errata was necessary because he accidentally timely filed a rough draft of the reply strains credulity, particularly in light of
counsel's continued pattern of disregard for court rules and this Court's earlier admonition.
Thus, even if Plaintiff’s passing reference to Croucier’s knowledge constituted a “clear and legitimate argument
that the statute of limitations had run” on Croucier’s Counterclaim, Plaintiff submitted no evidence to support that
position.
IV. Conclusion
For the reasons stated above, Plaintiff’s Motion for
Reconsideration is DENIED.
IT IS SO ORDERED.
DEAN D. PREGERSON
United States District Judge