The opinion of the court was delivered by: Judge Caputo
Presently before the Court is Defendant Salil Gupta's motion for relief from judgment under Federal Rule of Civil Procedure 60, and, or in the alternative, to strike Defendant Salil Gupta from caption and judgment. (Doc. 236.) For the reasons set forth below, the Defendant's motion will be denied and the Court will not remove Defendant Salil Gupta from the judgment on trademark infringement in action 3:99-CV-1624.
On August 6, 2001, the Defendants filed for summary judgment on several counts. (Doc. 44.) The motion included an argument for removing Salil Gupta as a named defendant in action 3:99-CV-1624. On December 18, 2001, the Defendants' motion was granted in part, and denied in part. (Doc. 84.) The motion was initially denied as to the removal of Defendant Salil Gupta from actions 3:99-CV-1574 and 3:99-CV-1624. (Doc. 84.) On January 7, 2002, Defendants moved to reconsider the partial denial of summary judgment, including on the viability of the claims against Defendant Salil Gupta. (Doc. 85.) On July 10, 2002, the Court granted in part the Defendants' motion for reconsideration, and the Court dismissed all claims against Salil Gupta in action 3:99-CV-1624. (Doc. 126.) However, the Court denied the Defendants' motion as to Salil Gupta in action 3:99-CV-1574, and those claims against Defendant Salil Gupta remained to proceed to trial. (Doc. 126.)
On March 20, 2003, judgment was entered in favor of the Plaintiffs for breach of contract and trademark infringement on action 3:99-CV-1624. (Docs. 207, 208.) The judgment entered on trade infringement was entered against "Defendants, Dr. Giriwarlal Gupta, Dr. Kiran Gupta, Dr. Salil Gupta, and Old West Cowboy Boots Corporation" in action 3:99-CV-1624. (Doc. 208.) On June 23, 2003, Defendant Salil Gupta filed the present motion for relief from judgment under Federal Rule of Civil Procedure 60, and, or in the alternative, to strike Defendant Salil Gupta from caption and judgment. (Doc. 236.)
This motion is fully briefed and ripe for disposition.
Rule 60(a) provides that "[t]he court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record." FED. R. CIV. P. 60(a). This provision deals solely with errors described as clerical, or as an oversight or omission. WRIGHT, MILLER & KANE, 11 FEDERALPRACTICE& PROCEDURE§ 2854. When a change is substantive in nature, relief is inappropriate under Rule 60(a). Id. Alternatively, Rule 60(b) states that "the court may relieve a party from a final judgment" for a number of reasons, including "mistake, inadvertence, surprise, or excusable neglect," because the judgment is "void," and "any other reason that justifies relief." FED. R. CIV. P. 60(b)(1-6). However, a motion under Rule 60(b) must be made within a reasonable time, and for reasons (1), (2), and (3), no more than a year after the entry of judgment. FED. R. CIV. P. 60(c)(1).
Defendant Salil Gupta argues that he should be removed from judgment on the trademark infringement claim of action 3:99-CV-1624, as he was previously dismissed from this suit in the Court's motion for reconsideration of summary judgment. In contrast, Plaintiff Jama Corporation argues that Defendant Salil Gupta's motion should be denied on two grounds. First, Plaintiff argues the Defendant's motion is untimely. Under Rule 60(a), there is no time limitation on such a motion. Second, pursuant to Rule 60(b), a motion invoking sections (1), (2), or (3) must be made within one year of judgment, and all Rule 60(b) motions must be made within a reasonable time. Both conditions are met, and therefore, the Defendant's motion is timely.
Second, the Plaintiff notes that it is unclear whether the inclusion of Salil Gupta was "clearly inadvertent clerical error" pursuant to Rule 60(a). A case before the First Circuit Court of Appeals, Bowen Inv., Inc. v. Carneiro Donuts, Inc., 490 F.3d 27 (1st Cir. 2007), is instructive as to the facts of this case. In Bowen, the jury awarded the plaintiffs damages for a breach of contract claim and a trademark infringement claim. Id. at 28. Judgment was entered against one defendant, the franchisee corporation. Id. Six months later, the plaintiffs moved to correct the judgment pursuant to Rule 60(a) to include the principal of the franchisee corporation. Id. The plaintiffs admit that the verdict form identified only the franchisee corporation, and not the principal, but that this had been done on the understanding that, if the jury found for plaintiffs, the principal would be held jointly and severally liable. Id. In determining whether the Rule 60(a) motion was properly denied, the First Circuit Court of Appeals looked to the jury charge conference between the parties and the court. At the jury charge conference, the court gave the plaintiff the choice between including or excluding the principal for all breach of contract claims. Id. at 29. The plaintiff's counsel replied that they would all be excluded. Id. at 29-30. Thus, the First Circuit Court of Appeals affirmed the district court's denial of the Rule 60(a) motion, holding that the exclusion of the principal was not a clerical error. Id. See also Stradley v. Cortez, 518 F.2d 488 (3d Cir. 1975) (holding that Rule 60(a) was inappropriate when judgment was entered against only one defendant instead of both defendants). In Stradley, the Third Circuit Court of Appeals similarly held that the court did not have the authority to change the judgment to add an additional defendant, and that the district court had abused its discretion in sua sponte permitting a new trial on these grounds Id. at 490.
In this case, there were numerous times at which Salil Gupta was listed as included for purposes of the trademark infringement claim in action 3:99-CV-1624. In reviewing the transcript of the jury charge conference, the record demonstrates that the Court listed Salil Gupta as a defendant in the trademark infringement jury instruction. (Trial Tr. vol. 7 , 21, Mar. 12, 2003.) In discussing the charge for trademark infringement, the Court stated that "the Defendants, Giriwarlal Gupta, Kiran Gupta, Salil Gupta and Old West Cowboy Boots . . . began to use the trademark after that date in an area where JAMA, Inc., was selling the product." (Trial Tr. vol. 7 , 21, Mar. 12, 2003.) However, counsel for the Defendant did not object to the jury instruction at this time, or at any time later in the jury charge conference.
The inclusion of Salil Gupta was not clearly a clerical error, as the jury instructions include Defendant Salil Gupta as a Defendant in the trademark infringement claim. (Trial Tr. vol. 7 , 200, Mar. 12, 2003.) Again, counsel for the Defendant failed to object to the inclusion of Salil Gupta. The Court asked counsel at the end of the jury instructions if they had anything to add. (Trial Tr. vol. 7 , 217, Mar. 12, 2003.) Counsel for defendant had the opportunity to object to the inclusion of Salil Gupta in the trademark infringement jury charge, but failed to do so at this time.
Similarly, the jury verdict slip does not specifically name Salil Gupta, or fail to name him. (Doc. 205.) The verdict slip asks if "the Guptas" used the trademark of "Old West" in an infringing manner, and if "the Guptas" willfully used the trademark. (Id.) Judgment was then entered against three members of the Gupta family - Giriwarlal Gupta, Kiran Gupta, and Salil Gupta. (Doc. 208.) Due to the number of inclusions of Salil ...