        07-0486-cv
        Hamptons Locations v. Rubens


                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
     TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
     AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
     COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
     FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
     OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").      A
     PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
     REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals
 2      for the Second Circuit, held at the Daniel Patrick Moynihan
 3      United States Courthouse, 500 Pearl Street, in the City of
 4      New York, on the 5 th day of February, two thousand ten.
 5
 6      PRESENT: RICHARD C. WESLEY,
 7               GERARD E. LYNCH,
 8                        Circuit Judges,
 9               MARK R. KRAVITZ, *
10                        District Judge.
11      ________________________________________________
12
13      Hamptons Locations, Inc. and Nancy Grigor,
14
15                      Plaintiffs-Counter-Defendants-Appellees,
16
17                 v.                                          07-0486-cv
18
19
20      Darrell Rubens, individually, and d/b/a Hampton Locations,
21
22                      Defendant-Counterclaimant-Appellant,
23
24      Richard Rubens and Barbara Rubens, each individually and d/b/a
25      Hampton Locations,
26
27                    Defendants-Counterclaimants.
28      ________________________________________________
29


               *
               The Honorable Mark R. Kravitz, of the United States
          District Court for the District of Connecticut, sitting
          by designation.
 1   APPEARING FOR APPELLANT:      M ICHAEL B. R ONEMUS, Ronemus &
 2                                 Vilensky, New York, NY
 3
 4
 5   APPEARING FOR APPELLEES:      P ATRICIA A. W EISS, Law Office of
 6                                 Patricia A. Weiss, Esq., Sag
 7                                 Harbor, NY
 8
 9
10        Appeal from the United States District Court for the
11   Eastern District of New York (Hurley, J.).
12
13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
14   AND DECREED that the judgment of said District Court be and
15   hereby is AFFIRMED:
16
17       Appellant Darrell Rubens appeals, inter alia, from an

18   order by the United States District Court for the Eastern

19   District of New York (Hurley, J.) on January 30, 2007,

20   entering judgment on a jury verdict.      Appellants Darrell

21   Rubens, Barbara Rubens, and Richard Rubens appeal an order

22   dismissing their counterclaims.     We assume the parties'

23   familiarity with the underlying facts, the procedural

24   history of the case, and the issues on appeal.

25        At the outset, appellees argue that we lack

26   jurisdiction over the appeal of Barbara and Richard Rubens

27   from the dismissal of their counterclaims, which appellees

28   claim was untimely filed.     Final judgment was not entered as

29   to Barbara and Richard Rubens until the conclusion of the

30   trial, on January 30, 2007.     See Fed. R. Civ. P. 54(b).

31   Under Federal Rule of Civil Procedure 4(a)(4)(A)(i), the

32   filing of a Rule 50(b) motion by any party extends the time


                                     2
1    for all parties to file a notice of appeal until 30 days

2    after disposition of that motion.    As Darrell filed such a

3    motion — not decided until June 4, 2009 — the filing of a

4    notice of appeal by Barbara and Richard on June 23, 2009 was

5    timely.   We have considered and rejected appellees’ more

6    technical objections to the notice of appeal.    On the

7    merits, the appeal fails.    The district court did not err

8    when it dismissed the Rubens’ counterclaims, as those claims

9    were baseless as a matter of law.

10       As for Darrell Rubens’s appeal, there was sufficient

11   evidence for a reasonable jury to conclude that Darrell

12   Rubens violated § 1125(d) of the Lanham Act.    Darrell

13   repeats to us his argument to the district court that the

14   Hamptons Locations mark should have been held generic as a

15   matter of law.    The district court did not err in rejecting

16   this argument.

17        We AFFIRM.

18
19                                      FOR THE COURT:
20                                      Catherine O’Hagan Wolfe,
21                                      Clerk
22
23
24




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