Precedential No. 37: Applying Revised Rules, TTAB Denies Motion for Judgment on the Pleadings as Untimely
Here's a 2017 ruling that slipped under the TTABLog radar. In this precedential order, the Board denied an FRCP 12(c) motion for judgment on the pleadings, directed at applicant's counterclaims, because the motion was untimely. The Board followed its established practice of applying to motions for judgment on the pleadings the same deadline applicable to summary judgment motions under recently amended Rule 2.127(e)(1). Shared, LLC v. SharedSpaceofAtlanta, LLC, 125 USPQ2d 1143 (TTAB 2017) [precedential].
A motion for judgment on the pleadings, like a summary judgment motion, is "a pretrial device intended to save the time and expense of a full trial when a party is able to demonstrate, prior to trial, that there is no genuine dispute of material fact to be resolved, and the moving party is entitled to judgment on the substantive merits of the controversy as a matter of law."
According to TBMP § 504.01 (June 2017), a motion for judgment on the pleadings should be filed "[a]fter the pleadings are closed, but within such time as not to delay the trial." More significantly, FRCP 12(c) states that "After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." The Board’s "established practice" has been to apply to such motions the deadline that applies to summary judgment motions as set forth in Trademark Rule 2.127(e)(1).
Before January 14, 2017, the deadline for filing a summary judgment was, according to Rule 2.127(e)(1), "prior to the commencement of the first testimony period, as originally set or as reset." That Rule was amended as of January 14, 2017, and clarified on July 21, 2017, to provide that a summary judgment motion "must be filed before the day of the deadline for pretrial disclosures for the first testimony period, as originally set or as reset." [Emphasis supplied].
Applying the new summary judgment deadline to the subject FRCP 12(c) motion, the Board ruled that a motion for judgment on the pleadings must likewise be filed before the day of the deadline for pretrial disclosures for the first testimony period, as originally set or as reset.
Here, the deadline for opposer’s pretrial disclosures, as reset in the Board’s July 26, 2017 order, was August 7, 2017 (fifteen days before the opening of opposer's testimony period on August 22). Opposer’s motion filed August 19, 2017 was therefore untimely, and so the Board denied the motion.
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TTABlog comment: Well, that's a neatly wrapped little package.
Text Copyright John L. Welch 2018.
posted by John L. Welch @ 1/12/2018
4 comments
4 Comments:
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So the deadline for the summary judgment motion or judgment on the pleadings was August 6, 2017, right? So what happens if August 6, 2017 is a Sunday - does the deadline toll to the same day as the deadline for the pretrial disclosures? Or does the deadline revert to the BUSINESS day immediately prior to the deadline for the pretrial disclosures?
According to 37 C.F.R. § 2.127(e)(1), "a motion for summary judgment must be filed before the day of the deadline for pretrial disclosures for the first testimony period, as originally set or as reset." The key phrase is "before the day." This language expresses the Board's requirement that the motion for summary judgment must be filed before pretrial disclosures are due rather than on a specific day. So the motion must be filed before the deadline for pretrial disclosures for the plaintiff's first testimony period. If that deadline falls on a Saturday, Sunday, or Monday, then the motion for summary judgment must be filed on the Friday before because it is the first business day before the deadline while Monday would be the day of the deadline.
This reading also accords with the Board's decision in Estudi Moline Dissey, S.L. v. BioUrn Incorporated, 123 USPQ2d 1268 (TTAB 2017) [precedential]. There the Board found that if the deadline for serving discovery requests fall on a weekend or holiday, the requests must be served on the first business day before then.
Because the Board used the same language in 37 C.F.R. § 2.120(f)(1), a motion to compel discovery responses must is also subject to the same deadline if pretrial disclosures are due on a Saturday, Sunday, or Monday.
Robert, I don't agree. If the first day of a period falls on a Sunday or holiday, then that is the day the document or item is due, not before. IMHO, Dissey says that you don't move to the next business day. But it doesn't say you go back to the first prior business day.
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