19-1885-cv
Marshak v. Sheppard
                                   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.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
8th day of May, two thousand twenty.

Present:    JOHN M. WALKER, JR.,
            ROSEMARY S. POOLER,
            GERARD E. LYNCH,
                        Circuit Judges.
_____________________________________________________

LARRY MARSHAK,
                                       Plaintiff-Appellee,

                              v.                                                              19-1885

RICK SHEPPARD,

                        Defendant-Appellant. 1
_____________________________________________________

Appearing for Appellant:               Gregory R. Preston, Preston & Wilkins, LLC, Levittown, N.Y.

Appearing for Appellee:                Eric Miller Sommers, Sommers Law, PLLC, Bedford, N.H.

Appeal from the United States District Court for the Southern District of New York (Koeltl, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.

        Appellant Rick Sheppard appeals from the May 24, 2019 opinion and order of the United
States District Court for the Southern District of New York (Koeltl, J.), denying Sheppard’s
1
    The Clerk of Court is respectfully directed to amend the official caption as set forth above.
motion to vacate the district court’s injunction issued on August 26, 1987, which enjoined
Sheppard from infringing on Appellee Larry Marshak’s registered service mark by using the
name “The Drifters” for entertainment services. See Marshak v. Sheppard, 381 F. Supp. 3d 261
(S.D.N.Y. 2019); see also Marshak v. Sheppard, 666 F. Supp. 590 (S.D.N.Y. 1987). We assume
the parties’ familiarity with the underlying facts, procedural history, and specification of issues
for review.

        On appeal, Sheppard contends that the district court erred in denying his motion to vacate
the injunction under Fed. R. Civ. P. 60(b)(6) and (d). “We review the district court’s Rule 60
decision for abuse of discretion.” United Airlines, Inc. v. Brien, 588 F.3d 158, 175 (2d Cir.
2009); see also Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012) (“The decision whether to grant
a party’s Rule 60(b) motion is committed to the sound discretion of the district court, and
appellate review is confined to determining whether the district court abused that discretion.”
(internal quotation marks and citation omitted)).

        We conclude that the district court did not abuse its discretion in denying Sheppard’s
motion, for substantially the same reasons that the district court set out in its well-reasoned
opinion. Though Fed. R. Civ. P. 60(b)(6) authorizes a court to “relieve a party . . . from a final
judgment, order, or proceeding” for “any . . . reason that justifies relief,” a motion under this rule
“must be made within a reasonable time.” Fed. R. Civ. P. 60(c)(1); see, e.g., Rodriguez v.
Mitchell, 252 F.3d 191, 201 (2d Cir. 2001). Sheppard’s motion, which was filed approximately
thirty years after the injunction was first issued, almost twenty years after the decision
invalidating Marshak’s trademark on which the motion relies, and, according to Sheppard, as
long as five years after Sheppard learned of the invalidation of Marshak’s mark registration, was
untimely. Nor can we conclude that the district court abused its discretion in denying Sheppard
the “equitable” and “discretionary relief available under Rule 60(b),” Motorola Credit Corp. v.
Uzan, 561 F.3d 123, 127 (2d Cir. 2009), given that Sheppard concedes he continued to perform
using the name “The Drifters” in violation of the injunction.

        Finally, we agree with the district court that the registration application to the Patent and
Trademark Office (“PTO”) for the mark at issue did not constitute fraud on the district court that
would entitle Sheppard to relief under Fed. R. Civ. P. 60(d). Unlike in Hazel-Atlas Glass Co. v.
Hartford-Empire Co., the Supreme Court decision on which Sheppard relies, Sheppard’s
allegations of fraud do not suggest a “deliberately planned and carefully executed scheme to
defraud not only the Patent Office but the Circuit Court of Appeals.” 322 U.S. 238, 245 (1944).
Accordingly, Sheppard has not shown that the PTO application constitutes “fraud which
seriously affects the integrity of the normal process of adjudication.” Gleason v. Jandrucko, 860
F.2d 556, 559 (2d Cir. 1988).

        We have considered the remainder of Marshak’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk
