544    Motion For Relief From Final Judgment

Fed. R. Civ. P. 60(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

  • (1) mistake, inadvertence, surprise, or excusable neglect;
  • (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
  • (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
  • (4) the judgment is void;
  • (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
  • (6) any other reason that justifies relief.

Fed. R. Civ. P. 60(c)(1) Timing. 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 the judgment or order or the date of the proceeding.

Fed. R. Civ. P. 6(b)(2) Extending Time; Exceptions A court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d),and (e), and 60(b).

Motions to set aside or vacate a final judgment rendered by the Board are governed by Fed. R. Civ. P. 60(b). [ Note 1.] Thus, upon such terms as are just, the Board, on motion, may relieve a party from a final judgment for one of the reasons specified in Fed. R. Civ. P. 60(b).

Fed. R. Civ. P. 60(b), as made applicable by 37 C.F.R. § 2.116(a), applies to all final judgments issued by the Board, including default and consent judgments, grants of summary judgments, and judgments entered after trial on the merits. As a practical matter, motions to vacate or set aside a final Board judgment are usually based upon the reasons set forth in subsections (1), (2) and/or (6) of Fed. R. Civ. P. 60(b).

For examples of cases involving a motion for a relief from a final judgment of the Board, see cases cited in the note below. [ Note 2.]

A motion for relief from judgment must be made within a reasonable time; and if the motion is based on reasons (1), (2), and/or (3), it must be filed not more than one year after the judgment was entered – the time will not be extended. [ Note 3.] The filing of the motion will not affect the finality of the judgment or suspend its operation. [ Note 4.]

Relief from a final judgment is an extraordinary remedy to be granted only in exceptional circumstances or when other equitable considerations exist. [ Note 5.] The determination of whether a motion under Fed. R. Civ. P. 60(b) should be granted is a matter that lies within the sound discretion of the Board. [ Note 6.]

Where a motion for relief from judgment is made without the consent of the adverse party or parties, it must persuasively show (preferably by affidavits, declarations, documentary evidence, etc., as may be appropriate) that the relief requested is warranted for one or more of the reasons specified in Fed. R. Civ. P. 60(b).

Because default judgments for failure to timely answer the complaint are not favored by the law, a motion under Fed. R. Civ. P. 55(c) and Fed. R. Civ. P. 60(b) seeking relief from such a judgment is generally treated with more liberality by the Board than are motions under Fed. R. Civ. P. 60(b) for relief from other types of judgments. [ Note 7.] See TBMP § 312.03. Among the factors to be considered in determining a motion to vacate a default judgment for failure to answer the complaint are (1) whether the plaintiff will be prejudiced, (2) whether the default was willful, and (3) whether the defendant has a meritorious defense to the action. [ Note 8.] See TBMP § 312.03.

If, in a cancellation proceeding, a petition to the Director is filed concurrently with a Fed. R. Civ. P. 60(b) motion to the Board for relief from judgment, and the petition and motion seek the same relief and require review of the same set of facts, the Board will rule first upon the motion for relief from judgment. [ Note 9.] If the Board grants the motion, the Director, as a ministerial act, will reinstate the subject registration. [ Note 10.]

Where the parties are agreed that the circumstances warrant the vacating or setting aside of a final judgment, a stipulation or consented motion for relief from the judgment should be filed. The stipulation or consented motion should set forth in detail the reasons why the parties believe that the vacatur or setting aside of a judgment is warranted under one or more of the subsections of Fed. R. Civ. P. 60(b) or under the Board’s general equitable authority. [ Note 11.] The Board does not automatically approve such stipulations or consented motions, but independently determines whether vacatur is warranted. See TBMP §501.01 (stipulations subject to Board approval). Please Note: That the parties have agreed to vacatur does not, by itself, warrant vacatur of a Board decision on the substantive merits of a dispute under the Board’s general equitable authority. [ Note 12.] Where, however, the parties stipulate or agree that the judgment was entered by mistake or is unwarranted in light of newly-discovered evidence, the requested vacatur may be supportable under Fed. R. Civ. P. 60(b)(1) or 60(b)(2).

Occasionally, a party files a Fed. R. Civ. P. 60(b) motion with the Board contemporaneously with, or during the pendency of an appeal. The Board has jurisdiction to entertain the motion. If the Board determines that the motion is to be denied, it will enter the order denying the motion. Any appeal of the denial may be consolidated with the appeal of the underlying order. If the Board is inclined to grant the Fed. R. Civ. P. 60(b) motion, it will issue a short memorandum so stating. The movant can then request a limited remand from the appellate court for that purpose. [ Note 13.]

NOTES:

 1.   See 37 C.F.R. § 2.116(a); see also Board of Trustees of the University of Alabama v. Pitts, 115 USPQ2d 1099, 1102-03 (TTAB 2015) (motions for relief from judgment normally made under Fed. R. Civ. P. 60(b)).

 2.   See 3PMC, LLC v. Huggins, 115 USPQ2d 1488, 1489-90 (TTAB 2015) (following remand, granting relief from judgment by affirming Board’s holding in In re First Nat’l Bank of Boston, 199 USPQ 296 (TTAB 1978) which held that the Board will not take cognizance of fractions of a day and will assume that an opposition and express abandonment, filed on the same day, were filed at the same instant, and therefore, concluding that application was not subject to an opposition when abandoned); Rolex Watch USA Inc. v. AFP Imaging Corp., 107 USPQ2d 1626, 1628 (TTAB 2013) (after remand, granting relief from judgment, under United States Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994)); Pramil S.R.L. v. Michael Farah, 93 USPQ2d 1093, 1095-96 (TTAB 2009) (Fed. R. Civ. P. 60(b)(2) motion denied because registration not yet in existence at time of Board’s decision was not "newly discovered evidence;" motion not brought within reasonable time; and evidence relied upon merely cumulative or not of a type that would change the result); Kraft Foods, Inc. v. Desnoes & Geddes Ltd., 64 USPQ2d 1154, 1157-58 (TTAB 2002) (motion for relief from judgment under Fed. R. Civ. P. 60(b)(4), Fed. R. Civ. P. 60(b)(5) and Fed. R. Civ. P. 60(b)(6) denied); CTRL Systems Inc. v. Ultraphonics of North America Inc., 52 USPQ2d 1300, 1302 (TTAB 1999) (Fed. R. Civ. P. 60(b)(1) motion denied; counsel and client share duty "to remain diligent in prosecuting or defending the client’s case") (finding that General Motors Corp. v. Cadillac Club Fashions Inc., 22 USPQ2d 1933 (TTAB 1992) is no longer good law in light of the Supreme Court's decision in Pioneer Investment Services Co. v. Brunswick Associates. Ltd. Partnership, 507 U.S. 380, 396-97 (1993)); S. Industries Inc. v. Lamb-Weston Inc., 45 USPQ2d 1293, 1296 (TTAB 1997) (Fed. R. Civ. P. 60(b)(1) motion granted; petitioner contributed to respondent’s delay and confusion); Jack Lenor Larsen Inc. v. Chas. O. Larson Co., 44 USPQ2d 1950, 1952-54 (TTAB 1997) (Fed. R. Civ. P. 60(b)(4) and Fed. R. Civ. P. 60(b)(6) motion, based on alleged failure to receive correspondence from Board, denied, given presumption of receipt of correspondence, passage of 12 years, and resulting hardship to third parties); Consorzio del Prosciutto di Parma v. Parma Sausage Products Inc., 23 USPQ2d 1894, 1896 (TTAB 1992) (Fed. R. Civ. P. 60(b)(6) motion granted; petition withdrawn based on apparent acceptance by examining attorney of settlement agreement obviating basis for refusal of petitioner’s applications); Djeredjian v. Kashi Co., 21 USPQ2d 1613, 1615 (TTAB 1991) (Fed. R. Civ. P. 60(b)(1) motion granted; respondent’s failure to answer resulted from mistake due to involvement in numerous Board proceedings); Regatta Sport Ltd. v. Telux-Pioneer Inc., 20 USPQ2d 1154, 1155-56 (TTAB 1991) (Fed. R. Civ. P. 60(b)(1) motion granted; respondent’s employees had limited knowledge of English and were unaware cancellation and opposition were separate proceedings). Cf. In re Sotheby’s Inc., 18 USPQ2d 1969, 1969-70 (Comm’r 1989) (denying petition to file a late response to Office action withholding decision on §§ 8 & 15 declaration where declarant was not registrant of record despite argument that attorney never so informed registrant).

 3.   See Fed. R. Civ. P. 60(b); Fed. R. Civ. P. 6(b)(2); Pramil S.R.L. v. Michael Farah, 93 USPQ2d 1093, 1094-96 (TTAB 2009) (Fed. R. Civ. P. 60(b)(2) motion based on registration that issued after cancellation was ordered was denied because the evidence was not new, because motion was not filed until 6 months after new registration issued); Djeredjian v. Kashi Co., 21 USPQ2d 1613, 1615 (TTAB 1991) (Fed. R. Civ. P. 60(b)(1) based on excusable neglect was timely when filed only 15 days after entry of default judgment); Bass Anglers Sportsman Society of America, Inc. v. Bass Pro Lures, Inc., 200 USPQ 819, 822 (TTAB 1978) (Fed. R. Civ. P. 60(b)) motion denied as untimely where judgment was entered under 37 C.F.R. § 2.135 and applicant was mistaken as to consent to abandonment by opposer but delayed over a year to file motion).

 4.   See Fed. R. Civ. P. 60(c).

 5.   See Djeredjian v. Kashi Co., 21 USPQ2d 1613, 1615 (TTAB 1991).

 6.   See Djeredjian v. Kashi Co., 21 USPQ2d 1613, 1615 (TTAB 1991); see also Board of Trustees of University of Alabama v. Pitts, 115 USPQ2d 1099, 1104 (TTAB 2015) (where opposer did not invoke Fed. R. Civ. P. 60(b), opposer’s request for vacatur was assessed under the Board’s "general equitable authority" because vacatur is an equitable remedy) (citing U.S. Bancorp Mortg. Co. v. Bonner Mall Partnership, 513 U.S. 18, 26-27 (1994)) (further citations omitted).

 7.   See Information Sys. and Networks Corp. v. United States, 994 F.2d 792, 795 (Fed. Cir. 1993) ("Rule 60(b) is applied most liberally to judgments in default.") (quoting Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 403 (5th Cir. 1981)).

 8.   See Djeredjian v. Kashi Co., 21 USPQ2d 1613, 1615 (TTAB 1991) (Fed. R. Civ. P. 60(b)(1) motion granted pending showing of meritorious defense where other two elements were established); and Regatta Sport Ltd. v. Telux-Pioneer Inc., 20 USPQ2d 1154, 1155-56 (TTAB 1991) (Fed. R. Civ. P. 60(b)(1) motion granted; excusable neglect shown where respondent’s employees had limited knowledge of English and were unaware opposition and cancellation were separate proceedings, potential defense was meritorious, and no substantial prejudice to opposing party). Compare Jack Lenor Larsen Inc. v. Chas. O. Larson Co., 44 USPQ2d 1950, 1952-54 (TTAB 1997) (Fed. R. Civ. P. 60(b)(6) motion denied as untimely when filed 12 years after cancellation; (Fed. R. Civ. P. 60(b)(4) motion denied because judgment was not void).

 9.   See National Telefilm Associates, Inc. v. Craig Denney Productions, 228 USPQ 61, 61-62 (Comm’r 1985).

 10.   See National Telefilm Associates, Inc. v. Craig Denney Productions, 228 USPQ 61, 62 (Comm’r 1985).

 11.   See Board of Trustees of University of Alabama v. Pitts, 115 USPQ2d 1099, 1102-04 (TTAB 2015) (denying an opposer’s unopposed request for vacatur pursuant to an agreement settling opposer’s district court case, under 15 U.S.C. § 1071(b), challenging the Board’s dismissal of opposition, where opposer’s request did not rest upon any provisions of Fed. R. Civ. P. 60(b), nor had opposer demonstrated exceptional circumstances or any other equitable considerations warranting the use of the Board’s general equitable authority to issue vacatur orders). Cf. Ballet Tech Found. Inc. v. The Joyce Theater Found. Inc., 89 USPQ2d 1262 (TTAB 2008), final judgment vacated as moot upon settlement on appeal, Ballet Tech Found. Inc. v. The Joyce Theater Found. Inc., consolidated Opposition No. 91180789 and Cancellation No. 92042019 (TTAB November 14, 2013) (not a precedent) (vacatur was necessary to prevent cancellation of Respondent’s registrations and allow its application for registration to go forward.).

 12.   Cf. U.S. Bancorp Mortg. Co. v. Bonner Mall Partnership, 513 U.S. 18, 29 (1994) (under 28 U.S.C. § 2106, "mootness by reason of settlement does not justify vacatur of a judgment under review" in the absence of "exceptional circumstances") (cited in Board of Trustees of University of Alabama v. Pitts, 115 USPQ2d 1099, 1102 (TTAB 2015)). The Board also applies its equitable discretion to party-agreed vacaturs entered in the form of signed consent judgments in civil actions contesting Board decisions. The Board generally will give effect to such vacaturs only if they reflect the court’s resolution of the dispute on the merits. But the Board generally will not give effect to party-agreed vacaturs in consent judgments that reflect only the parties’ agreement to settle the dispute. Compare United States v. City of Detroit, 329 F.3d 515, 523-24 (6th Cir. 2003) (en banc) (agreed vacatur of decision of lower tribunal was appropriate because it reflected parties’ agreement on a critical fact upon which liability turned) with Ass’n for Retarded Citizens of Conn., Inc. v. Thorne, 30 F.3d 367, 370 (2d Cir. 1994) (where agreed vacatur in consent judgment reflected only parties’ agreement to settle and did not reflect an agreed adjudication on the merits, the vacatur bound only the parties themselves), cert. denied, 115 S. Ct. 727 (1995). See also 15 U.S.C. § 1071(b)(1) (empowering district courts to review Board decisions by "adjudg[ing]" certain matters); 5 U.S.C. § 706 (requirement for any court review of an agency decision is that the reviewing court "shall review the whole record or those parts of it cited by a party"). The Federal Circuit, the Board’s primary reviewing court, generally does not enter consented orders requiring the Board to vacate the decision on review, but instead usually remands the case back to the Board for initial determination of whether vacatur is appropriate. See In re Carmine’s Broadway Feast Inc., 423 F. App’x 981, 981 (Fed. Cir. 2011) (citing U.S. Bancorp, 513 U.S. at 29); MidAmerican Energy Co. v. Mid-America Energy Resources, Inc., 250 F.3d 754 (Fed. Cir. 2000) (table), (citing U.S. Bancorp, 513 U.S. at 29).

 13.   See Home Products International v. U.S., 633 F.3d 1369, 1378 n.9 (Fed. Cir. 2011); Pramil S.R.L. v. Farah, 93 USPQ2d 1093, 1095 (TTAB 2009).