     11-831-cv
     Lee v. Marvel Enterprises, Inc.

                          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 21st day of March, two thousand twelve.
 5
 6       PRESENT:
 7                    DENNIS JACOBS,
 8                         Chief Judge,
 9                    DENNY CHIN,
10                    SUSAN L. CARNEY,
11                         Circuit Judges.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       Stan Lee,
15                 Plaintiff-Appellee,
16
17                    -v.-                                               11-831-cv
18
19       Marvel Enterprises, Inc.,
20                Defendant-Appellee,
21
22                    and
23
24       Marvel Characters, Inc.
25                Defendant,
26
27                    -v.-
28
29       Stan Lee Media, Inc.,
30                Movant-Appellant.*
31       - - - - - - - - - - - - - - - - - - - -X

                *
               The Clerk of Court is directed to amend the official
         caption as shown above.
                                                  1
 1   FOR PLAINTIFF-APPELLEE:    Steven J. Shore (Ira Brad
 2                              Matetsky, William A. Jaskola, on
 3                              the brief), Ganfer & Shore, LLP,
 4                              New York, NY.
 5
 6   FOR DEFENDANT-APPELLEE:    David Fleischer, Haynes and
 7                              Boone, LLP, New York, NY.
 8
 9   FOR MOVANT-APPELLANT:      Raymond J. Dowd (Luke A.
10                              McGrath, on the brief),
11                              Dunnington Bartholow & Miller,
12                              LLP, New York, NY.
13

14       Appeal from a judgment of the United States District

15   Court for the Southern District of New York (Sweet, J.).

16

17       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

18   AND DECREED that the judgment of the district court is

19   AFFIRMED.

20

21       Movant-Appellant Stan Lee Media, Inc. (“SLMI”) appeals

22   the denial of its motion to vacate the judgment, intervene

23   as a real party in interest, and unseal certain documents.

24   We assume the parties’ familiarity with the underlying

25   factual allegations, the procedural history of the case, and

26   the issues on appeal.

27   [1] SLMI moves to vacate the judgment in the suit between

28   Lee and Marvel Enterprises, Inc., and Marvel Characters,


                                  2
1    Inc., under Federal Rule of Civil Procedure 60(b)(4) (“the

2    judgment is void”), 60(b)(5) (“applying [the judgment]

3    prospectively is no longer equitable”), and 60(b)(6) (“any

4    other reason that justifies relief”).   The timeliness of

5    such a motion is governed by Rule 60(c)(1), which requires

6    that it “be made within a reasonable time.”   SLMI did not

7    seek to vacate this judgment until more than five years

8    after final judgment.   Much shorter periods of time have

9    been held unreasonable.   See, e.g., Kellogg v. Strack, 269

10   F.3d 100, 104 (2d Cir. 2001) (per curiam) (twenty-six

11   months); Rodriguez v. Mitchell, 252 F.3d 191, 201 (2d Cir.

12   2001) (three-and-a-half years).   That SLMI’s management was

13   in an extended period of disarray does not excuse its more

14   than five-year delay in filing its Rule 60(b) motion.

15   [2] SLMI also argues that the judgment should be “set

16   aside” as a “fraud on the court.”   Fed. R. Civ. P. 60(d)(3).

17   Assuming, arguendo, that Rule 60(d)(3) is not subject to any

18   reasonable-timeliness requirement, SLMI has not sustained

19   its heavy burden of establishing a “fraud which does or

20   attempts to, defile the court itself, or is . . .

21   perpetrated by officers of the court so that the judicial

22   machinery cannot perform in the usual manner its impartial


                                   3
1    task of adjudging cases.”    Hadges v. Yonkers Racing Corp.,

2    48 F.3d 1320, 1325 (2d Cir. 1995) (internal quotation marks

3    omitted); accord Gleason v. Jandrucko, 860 F.2d 556, 559 (2d

4    Cir. 1988) (explaining that “fraud on the court” “is limited

5    to fraud which seriously affects the integrity of the normal

6    process of adjudication”).

7        SLMI primarily argues that the fraud on the court here

8    was that Lee and Marvel litigated and resolved Lee’s

9    interest in the 10% stake of Marvel’s television and movie

10   profits without including SLMI.    Even accepting arguendo

11   SLMI’s theory that it might have been entitled to whatever

12   money was owed to Lee under the terms of the Lee-Marvel

13   agreement, that would not mean that Lee and Marvel worked a

14   fraud on the court, especially since Lee claims that he

15   previously rescinded his agreement with SLMI, and there is

16   no indication that SLMI objected to the rescission.    If SLMI

17   was correct (that Marvel owed the 10% stake to SLMI and not

18   Lee), then SLMI could have brought a separate action against

19   Lee to recover that money.

20   [3] SLMI conceded during oral argument that the judgment

21   must be vacated before SLMI can intervene as a real party in

22   interest under Rule 19 of the Federal Rules of Civil


                                    4
1    Procedure.    This concession is well-taken.   As the

2    commentary to the 1966 Amendments to Rule 19 explain: the

3    failure to add a necessary party “does not by that token

4    deprive [the court] of the power to adjudicate as between

5    the parties already before it” and the absence of a

6    necessary party does not “negate the court’s power to

7    adjudicate as between the parties who have been joined.”

8    See Fed. R. Civ. P. 19, cmt. General Considerations to 1966

9    Amendments.    Accordingly, the judgment entered in the

10   dispute between Lee and Marvel remains enforceable as

11   between them regardless of whether SLMI was joined as a

12   party.   Thus, there is no basis to conclude that the

13   original judgment is void or must be vacated.    Since that

14   litigation has long been final, there is no pending action

15   in which SLMI might intervene.

16   [4] SLMI argues that the district court abused its

17   discretion in not unsealing certain documents from the

18   underlying litigation.   See Gambale v. Deutsche Bank AG, 377

19   F.3d 133, 139 (2d Cir. 2004) (identifying standard of

20   review).   The district court found as a matter of fact that

21   a copy of the documents that SLMI now seeks to unseal had

22   been produced to SLMI during discovery in the Stan Lee Media


                                    5
1    Inc. v. Marvel Entm’t, 07 Civ. 2238 (S.D.N.Y.).    That

2    factual finding, based on the declaration of Marvel’s

3    attorney, is reviewed for clear error.    Mobil Shipping &

4    Transp. Co. v. Wonsild Liquid Carriers Ltd., 190 F.3d 64, 67

5    (2d Cir. 1999).   SLMI has not aroused “‘the definite and

6    firm conviction’” that the district court’s finding that

7    SLMI received the documents was in error.    Id. at 67-68

8    (quoting Anderson v. Bessemer City, 470 U.S. 564, 574

9    (1985)).   SLMI has -- or, at least, had -- a copy of the

10   documents, so there is no need to unseal them.    Accordingly,

11   SLMI has not established that the district court erred in

12   denying its motion.

13   [5] Having decided the matter before us on the above

14   grounds, we do not reach the issue of res judicata.

15

16       Having considered SLMI’s remaining arguments and

17   finding them to be without merit, the judgment of the

18   district court is AFFIRMED.

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




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