                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-2005

McRae v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2648




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Recommended Citation
"McRae v. Smith" (2005). 2005 Decisions. Paper 249.
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                                                        NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                NO. 05-2648
                              ________________

                           TYRONE T. MCRAE;
                          NAJI SPORTSWEAR INC.

                                       v.

             JAMES TODD SMITH; CHARLES FISHER; FUBU
             GTFM INC; NAJEE INC.; J. ALEXANDER MARTIN

                                                 Tyrone T. McRae,
                                                             Appellant


                On Appeal From the United States District Court
                           For the District of Jersey
                          (D.C. Civ. No. 03-cv-05382)
                 District Judge: Honorable Anne E. Thompson
                        __________________________

                  Submitted Under Third Circuit LAR 34.1(a)
                             November 2, 2005

    Before: SLOVITER, SMITH and VAN ANTWERPEN, CIRCUIT JUDGES

                          (Filed:   November 8, 2005)

                             _________________

                                 OPINION
                             _________________


PER CURIAM

    Appellant Tyrone T. McRae, a New Jersey resident, and NAJI Sportswear
submitted an in forma pauperis civil complaint, 28 U.S.C. § 1915(a), against James Todd

Smith, Charles Fisher, Najee Inc., J. Alexander Martin, FUBU The Collection, and

GTFM, Inc. In an order entered on December 29, 2003, the District Court dismissed the

complaint with respect to the corporation because corporations may appear in federal

courts only through licensed counsel. Rowland v. Calif. Men’s Colony, Unit II Men’s

Advisory Council, 506 U.S. 194, 201-02 (1993). The court further concluded that all of

McRae’s claims derived from a trademark owned by the corporation, and that he had no

claims distinct from the corporation’s claims.

       McRae was granted leave to amend to articulate claims distinct from those based

upon the corporation’s trademark, if possible. He then filed an amended complaint with

essentially the same allegations and paid the filing fee. Defendants J. Alexander Martin,

FUBU The Collection LLC, and GTFM, Inc., a New York corporation, answered the

complaint and asserted counterclaims, and later moved for summary judgment or to

dismiss the complaint. In an order entered on March 21, 2005, the District Court granted

summary judgment to the above defendants, and dismissed the amended complaint in its

entirety.

       After the answering defendants indicated their wish to withdraw their

counterclaims, the District Court, in an order entered on April 1, 2005, dismissed them

without prejudice. Meanwhile, McRae moved for reconsideration, arguing that his

corporation had ceased to exist as of March 3, 1998, and he thus could pursue its



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trademark claims. Orders denying McRae’s requests for reconsideration and reargument

were entered on April 11 and 12, 2005. McRae appeals.

       We will affirm.1 McRae alleged trademark infringement, unfair competition, and

false designation of origin claims with regard to two trademarks, NAJI and FUBU. He

contended that the defendants infringed on the NAJI mark by manufacturing apparel with

the term NAJEE, and by obtaining and using the trademark FUBU, an acronym for “For

U By Us.” The District Court concluded, however, and, after carefully reviewing the

record, we agree, that McRae suffered no competitive injury independent of his

corporation. It is undisputed that the mark, the name NAJI, is held by McRae’s

corporation, Ikhanaten Armor, Inc., a Delaware corporation. Although McRae alleged

that he licenses the NAJI mark to his corporation, a copy of the trademark itself indicates

that the corporation is the registered owner.

       The District Court correctly held that Ikhanaten Armor, Inc. is the real party in

interest. McRae has no interests in the litigation separate from the corporation,2 and,


   1
     The appellees have argued that the appeal is untimely under Federal Rule of
Appellate Procedure 4(a)(1)(A). The argument lacks merit. The notice of appeal was
filed on April 20, 2005, and thus within 30 days of the order entered on March 21, 2005.
More to the point, it was filed within 30 days of the orders disposing of the counterclaims
and motions for reconsideration and reargument. This Court may hear appeals only from
final orders of the district court. 28 U.S.C. § 1291. The order must end the litigation as
to all claims and all parties. Andrews v. United States, 373 U.S. 334 (1963). The March
21 order was not appealable, and the time for appealing did not begin to run, until the
litigation was ended as to the counterclaims and the motions for reconsideration.
   2
   There was no evidence whatever that either McRae or his corporation had any
common law or commercial interests in the FUBU mark.

                                                3
although that fact prevents him from bringing this pro se lawsuit, importantly, it also

shields him from personal liability should a third party sue the corporation. Because

Ikhanaten Armor, Inc. is a corporation and the real party in interest, it remains only to be

said that, as the District Court properly held, McRae may not represent it pro se. See

Rowland, 506 U.S. at 202.

       Naji Sportswear is the sole proprietorship that remained after the corporation

ceased to exist. However, under both Delaware, 8 Del. Code § 278 (West 2001), and

New York, N.Y. Bus. Corp. Law § 1003 (McKinney 2003), law, a dissolved corporation

may continue to exist for the purpose of winding up its affairs, including bringing and

defending lawsuits (in federal court through licensed counsel).

       Defendants Smith, Fisher, and Najee Inc. never entered an appearance or otherwise

appeared in the case. Because the complaint and amended complaint cannot proceed as a

threshold matter, default judgment as to the defendants who did not answer or appear is

unavailable. The District Court’s disposition of matters is applicable to them as well.

       We will affirm the orders of the District Court dismissing the complaint and

amended complaint and denying the motions for reconsideration. McRae’s motion for

expedited summary action is denied.




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