WINE & CANVAS DEVELOPMENT LLC v. WEISSER et al
ENTRY ON WNC'S 616 Motion for Leave to Take Depositions and to Extend Response Deadline; Alternatively, Motion to Strike with Prejudice. WNC's Motion for Leave to Take Depositions and to Extend Respon se Deadline; Alternatively, Motion to Strike with Prejudice is GRANTED as follows: WNC is granted leave to conduct depositions of Weisser's counsel, Ronald Waicukauski and Carol Nemeth Joven. The depositions shall be limited to inquiring into the factual basis for Weisser's Rule 60 (b) motion (Filing No. 612). The depositions shall be limited to thirty minutes ea ch and, if Weisser's counsel desire, the depositions shall be conducted at their offices in order to minimize disruption. The depositions shall be conducted no later than twenty-one (21) days from the date of this Entry, and WNC shall respond to Weisser's Rule 60(b) motion no later than fourteen (14) days after the depositions are completed. See Entry for additional information. Signed by Judge Tanya Walton Pratt on 6/27/2017. (SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
WINE & CANVAS DEVELOPMENT LLC,
THEODORE WEISSER, YN CANVAS CA, LLC,
and WEISSER MANAGEMENT GROUP, LLC,
Case No. 1:11-cv-01598-TWP-DKL
ENTRY ON WNC’S MOTION FOR LEAVE TO TAKE DEPOSITIONS AND
TO EXTEND RESPONSE DEADLINE; ALTERNATIVELY,
MOTION TO STRIKE WITH PREJUDICE
In November 2013, the Clerk of the Court entered a default against Defendant Theodore
Weisser (“Weisser”) on Wine & Canvas Development, LLC’s (“WNC”) trademark claims and, on
March 2, 2015, the Court held a damages hearing on those claims. On May 1, 2015, as part of its
final judgment, the Court issued an injunction prohibiting Weisser from infringing or using WNC’s
trademarks or representing himself as a licensee or authorized user of the trademarks (Filing No.
511). Weisser filed a motion for relief from the injunction pursuant to Federal Rule of Civil
Procedure 60(b)(2) and (3) on the ground that he discovered, only after the damages hearing and
issuance of judgment, that WNC did not own the trademarks at the time of the damages hearing
and the injunction. WNC filed the present motion (Filing No. 616), asking for leave to depose
Weisser’s two attorneys who represent him in this case to explore the factual foundation for his
motion for relief from judgment and to formulate its response to the motion.
Rule 60(b)(2) provides that a court may relieve a party from a final judgment, order, or
proceeding due to “newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b) . . . .” Rule 60(b)(3) provides that a
court may grant relief in cases of fraud, misrepresentation, or misconduct by an opposing party.
Rule 60(b)(2) and (3) motions must be made within a reasonable time but no later than one year
after the entry of judgment, order, or the date of the proceeding. Fed. R. Civ. P. 60(c)(1). A Rule
59 motion for a new trial must be filed no later than twenty-eight days after the entry of judgment.
Fed. R. Civ. P. 59(b).
In Weisser’s Rule 60 motion and his response on the present motion, he states that he did
not become aware of WNC’s transfer of its trademark until two documents―an “Intellectual
Property Agreement,” dated January 1, 2012, and “Trademark Ownership Acknowledgement,”
dated January 1, 2015, both signed by Anthony Scott on behalf of Wine & Canvas Development
LLC, as transferor, and Wine and Canvas IP Holdings, LLC, as transferee―were given to
Weisser’s counsel at the March 7, 2016 creditors’ meeting in WNC’s bankruptcy case. Weisser
contends that these documents show that WNC had transferred its trademark no later than January
1, 2015, and, therefore, WNC did not have standing to seek or obtain the injunction at the time of
the damages hearing or the time of the judgment.
WNC argues that it requires leave to depose Weisser’s two counsel in order to explore the
factual basis for Rule 60(b)(2) relief, specifically whether they could not have discovered WNC’s
trademark transfer with reasonable diligence in time to move for Rule 59 relief. WNC does not
describe what specific facts or avenues of inquiry that it intends to pursue, but Weisser did not
provide a counter argument. He argued only the lack of need to explore the date that the documents
were produced at the creditors’ meeting.
While the Court will indulge WNC’s asserted need to conduct discovery in order to
meaningfully respond to Weisser’s motion, it will indulge it only so far in light of the sensitivity
of deposing opposing counsel and the lack of any showing or argument that the discovery has
significant prospects of producing useful information.
Therefore, WNC’s Motion for Leave to Take Depositions and to Extend Response
Deadline; Alternatively, Motion to Strike with Prejudice (Filing No. 616) is GRANTED as
follows: WNC is granted leave to conduct depositions of Weisser’s counsel, Ronald Waicukauski
and Carol Nemeth Joven. The depositions shall be limited to inquiring into the factual basis for
Weisser’s Rule 60(b) motion (Filing No. 612). The depositions shall be limited to thirty minutes
each and, if Weisser’s counsel desire, the depositions shall be conducted at their offices in order
to minimize disruption. The depositions shall be conducted no later than twenty-one (21) days
from the date of this Entry, and WNC shall respond to Weisser’s Rule 60(b) motion no later than
fourteen (14) days after the depositions are completed.
P. Adam Davis
DAVIS & SARBINOFF, LLC
Ronald J. Waicukauski
PRICE WAICUKAUSKI & RILEY, LLC
Carol Nemeth Joven
PRICE WAICUKAUSKI & RILEY, LLC
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