Waterkeeper Alliance, Inc. v. Spirit of Utah Wilderness, Inc.

Filing 244

OPINION & ORDER: re: 240 LETTER MOTION for Extension of Time to surrender or purge civil contempt addressed to Judge Nelson Stephen Roman from Joseph A. Vita dated October 15, 2021. filed by Jeffrey Salt. For the foregoing reasons, Salt's motion to alter or amend the judgement is DENIED. The Clerk of Court is kindly directed to terminate the motion at ECF No. 240. (Signed by Judge Nelson Stephen Roman on 10/21/2021) (ate)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
:
WATERKEEPER ALLIANCE INC.,
:
:
Plaintiff,
:
-against:
:
:
SPIRIT OF UTAH WILDERNESS, INC.,
d/b/a GREAT SALT LAKEKEEPER, or
:
GREAT SALT LAKE WATER KEEPERS,
:
Defendant.
:
---------------------------------------------------------------X
NELSON S. ROMÁN, United States District Judge:

10/21/2021
10-cv-1136 (NSR)
OPINION & ORDER

Before the Court is a motion by non-party Jeffrey Salt (“Salt”) seeking to amend or alter
the Court’s Order entered January 22, 2020 holding Defendant Spirit of Utah Wilderness, Inc.
(“SUW”), its officers, and Salt in civil contempt. (ECF No. 176.) Plaintiff, Waterkeeper Alliance,
Inc. (“Plaintiff” or “Waterkeeper”) opposes the motion on the basis that Salt has failed to
demonstrate entitlement to the relief requested. For the following reasons, Salt’s motion is
DENIED.
BACKGROUND
The Court assumes familiarity with the long procedural history of this action. In February
of 2010, Plaintiff commenced this action against Defendant SUW alleging trademark
infringement, unfair competition, and related New York State law claims. (Complaint (“Compl.”)
ECF No. 1.) Plaintiff is an environmental organization which has used the name “Waterkeeper”
and other related marks containing the term “keeper” since 1999. (Id.) Plaintiff purportedly has
member organizations who obtain a license from Plaintiff to use the Waterkeeper marks. (Id.)

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Defendant SUW was formerly a member organization of Plaintiff whose license was revoked.
(Id.)
On December 4, 2014, Plaintiff moved by Order to Show Cause for a default judgment
against all named Defendants. (ECF Nos. 83 & 84.) By Default Judgment dated May 8, 2015,
this Court enjoined SUW and its officers, agents, directors and employees, including Salt, from
using the “Waterkeeper Marks” as defined in paragraph 19 of the Complaint, including the marks
and terms Lakekeeper, Waterkeeper, Great Salt Lakekeeper, Great Salt Lake Water Keepers,
and/or variants of the aforementioned terms. (ECF No. 100.) Salt and SUW were specifically
enjoined from deploying those marks in conjunction with any email address, email list, electronic
bulletin board, list-serve, website, etc. (Id. at 10.) Salt was also enjoined from referring to himself
as the “Executive Director of the Great Salt Lakekeeper” or as the “Great Salt Lakekeeper. (Id.)
On July 27, 2016, Plaintiff filed a motion to hold Salt in contempt for violating the Default
Judgment after Plaintiff discovered that Salt continued to refer to himself as the Executive Director
of the Great Salt Lakekeeper and continued to use the email @greatsaltlakekeeper.org. (ECF Nos.
120 & 122.) In response, Salt filed two declarations on behalf of himself and Defendant. (ECF
Nos. 125 & 126.) On October 2, 2017, this Court granted Plaintiff’s motion and held Salt in
contempt (“Contempt Order”). (ECF No. 135). The Contempt Order commanded Salt to (1)
immediately comply with the terms of the Default Judgement; (2) provide Waterkeeper and the
Court with a complete list identifying with specificity all instances in which Salt had used the
Waterkeeper marks; (3) pay a $500 fine, plus a daily compliance fine of $100 per day for failure
to comply with the Default Judgment Order and the Contempt Order; and (4) pay a $700 fine for
each future violation of the Default Judgment order. (Id.) The Contempt Order, however, upon

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the condition of Salt’s compliance with the Default Judgment and Contempt Order, suspended the
fines. (Id.)
On February 8, 2018, Waterkeeper filed a motion for sanctions and to hold SUW and Salt
in further contempt, alleging that Salt continued to disobey the Court’s prior orders. (ECF No.
147.)

The Court held an evidentiary hearing regarding Waterkeeper’s motion wherein

Waterkeeper’s General Counsel testified. (ECF No. 160.) Based upon credible testimony and the
exhibits proffered, this Court issued an order (“Second Contempt Order”) holding that Salt
continued to violate the Default Judgment and failed to comply with the Contempt Order by (1)
publicly referring to himself as the “Great Salt Lakekeeper” and “Lakekeeper” on Linkedin.com
and on his website, greatsaltlakekeeper.org; (2) failing to provide Waterkeeper or the Court with
a list of the instances in which he violated the Default Judgment; (3) failing to pay the fines as
required

under

the

Contempt

Order;

(4)

continuing

to

use

the

email

address

[e-mail] subsequent to the date of the orders; and (5) continuously
maintaining the website “greatsaltlakekeeper.org.” (Id.) Based on the Court’s findings, Salt was
directed to (1) post a statement on his website, related LinkedIn accounts, and any other places
that describe his work or employment history that states he has no right to use the trademarks of
the Waterkeeper Alliance; (2) pay the fines set forth in the Contempt Order within 45 days, or
serve a detailed affidavit detailing his personal finances; and (3) answer any interrogatories or
document requests issued by Waterkeeper. (Id.)
On December 5, 2019, Waterkeeper filed a motion seeking to hold SUW, its officers, and
Salt in further contempt and for an order of imprisonment. (ECF No. 168.) Waterkeeper submitted
with its motion documentary evidence that demonstrates Salt registered SUW with the State of
Utah Division of Corporations and Commercial Code as a non-profit corporation. (ECF No. 171.)

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The registration indicated that SUW would be conducting business as, among other names, “Great
Salt Lake Watershed Council,” “Great Salt Lakekeeper,” and “Great Salt Lake Water Keepers.”
(Id.) Additionally, a copy of Salt’s LinkedIn page indicated that he publicly represented himself
as “Jeff Salt owner, Comics Aeroplane, Great Salt Lakekeeper.” (Id.) On January 22, 2020, the
Court issued an order finding this evidence sufficient to conclude that SUW, its officers, and Salt
were continuing to disobey its prior orders (“Imprisonment Order”). (Id.) The Court ordered Salt
to surrender to the United States Marshal on March 23, 2020 to be incarcerated until he purged
himself of the contempt. (Id.) On February 20, 2020, Salt filed the instant motion to amend or
alter the Court’s Imprisonment Order. (ECF No. 176.) 1 Plaintiff filed an opposition on March 13,
2020. (ECF No. 180.)
Since this motion has been filed, the Court has granted Salt fourteen extensions to the
deadline for his surrender. (ECF Nos. 183, 187, 189, 194, 201, 205, 209, 213, 218, 225, 227, 231,
234, & 239.) The extensions were due to the COVID-19 pandemic, as well as Salt’s inability to
travel due to purported medical issues. As of the date of this Order, Salt has failed to comply with
the Court’s Contempt Order and Second Contempt Order by failing to (1) provide Waterkeeper
and the Court with a complete list of all instances in which Salt used the Waterkeeper Marks; (2)
serve on Plaintiff’s counsel a detailed affidavit describing his personal finances; and (3) provide
answers to interrogatories and document requests. Salt has also failed to provide medical
documentation detailing his inability to travel. The Court’s last endorsement directed Salt to

On October 15, 2021, counsel for Salt filed a letter bringing the present motion to the Court’s attention
and attempting to supplement it with additional arguments and case law. (ECF No. 240.) As this letter was filed
more than a year after the Court’s January 22, 2020 contempt order, it is untimely and will not be considered. See
Fed. R. Civ. P. 60(c)(1). See Reese v. McGraw-Hill Cos., 293 F.R.D. 617, 625 (S.D.N.Y. 2013) (“Plaintiffs’ motion
to file a supplemental memorandum in support of its Rule 60(b)(2) motion is essentially a second motion pursuant to
Rule 60(b)(2). It was submitted well over a year after the issuance of this Court’s Order dismissing the case and is
dismissed as untimely.”).
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comply with its Orders by October 15, 2021 or surrender to the United States Marshal by October
18, 2021. (ECF No. 239.) Salt did not comply or surrender.
LEGAL STANDARD
District Courts may employ Rule 59(e) when they need to “correct a clear error of law or
prevent manifest injustice.” Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004)
(citing Collision v. Int’l Chem. Workers Union, Local 217, 34 F.3d 233, 236 (4th Cir. 1994)). A
Rule 59(e) motion should not be used to “advance ‘new facts, issues or arguments not previously
presented to the Court, nor may it be used as a vehicle for re-litigating issues already decided by
the Court.’” American ORT, Inc. v. ORT Israel, No. 07 Civ. 2332(RJS), 2009 WL 233950 at *3
(S.D.N.Y. Jan. 22, 2009) (citing Grand Crossing L.P. v. U.S. Underwriters Ins. Co., No. 03 Civ.
5429(RJS), 2008 WL 4525400, at *1 (S.D.N.Y. Oct. 6, 2008)).
Rule 59(e) provides “[a] motion to alter or amend a judgment must be filed no later than
28 days after the entry of the judgment.” Fed. R. Civ. P. R. 59(e). The clock for a Rule 59(e)
motion begins once the Court’s order has been issued. See In re Bear Stearns Cos., Inc. Sec.
Derivative, and ERISA Litig., 08 MDL No. 1963, 2011 WL 321142, at *6 (S.D.N.Y. Feb. 1, 2011)
(measuring the timeliness of a Rule 59(e) motion beginning with the date the orders at issue were
made); Wiesner v. 321 West 16th St. Assocs., 2000 WL 1585680, at *2 (S.D.N.Y. Oct. 25, 2000)
(“In this case, the time period began running as of [the] date of the entry of the order denying the
preliminary injunction.”). Further, Federal Rule of Civil Procedure 6(b)(2) expressly prohibits
time extensions to file a motion under Rule 59(e), even when a litigant is pro se. See Corines v.
Am. Physicians Ins. Trust, 615 F. App’x 708, 708 (2d Cir. 2015) (“A district court is not
empowered to extend the time to file a Rule 59(e) motion.”); see also Hill v. Napoli, No. 6:09-CV6546-MAT, 2014 WL 6750515, at *1 (W.D.N.Y. Dec. 1, 2014) (refusing to expand Rule 59(e)

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time period for a pro se plaintiff as his status “does not exempt him from compliance with relevant
rules of procedural and substantive law.”) (internal citations and quotation marks omitted).
However, “[a]n untimely motion for reconsideration is treated as a Rule 60(b) motion.”
Lora v. O’Heaney, 602 F.3d 106, 111 (2d Cir. 2010); see also Sigmen v. Colvin, No. 13-0268,
2015 WL 5944254, *3 (E.D.N.Y. Oct. 13, 2015) (considering an untimely motion for
reconsideration pursuant to Rule 59(e) as a Rule 60(b) motion) 2. Rule 60(b) provides that
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(b). This rule “strikes a balance between serving the ends of justice and
preserving the finality of judgments.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986) (internal
citations omitted).
The Second Circuit has instructed that “Rule 60(b) provides ‘extraordinary judicial relief’
that may be granted ‘only upon a showing of exceptional circumstances.’” Harrison v. N.Y.C.
Admin. For Children’s Servs., No. 02 Civ.947 RCC RLE, 2005 WL 2033378, at *1 (S.D.N.Y.
Aug. 23, 2005) (quoting Nemaizer, 793 F.2d at 61). “The burden is on the moving party to
demonstrate that it is entitled to relief, and courts ‘[g]enerally . . . require that the evidence in
support of the motion to vacate a final judgment be highly convincing.’” Thai-Lao Lignite
(Thailand) Co., Ltd. v. Gov’t of Lao People’s Democratic Republic, 864 F.3d 172, 182 (2d Cir.

This is also true for Local Rule 6.3 motions for reconsideration. Miller v. Norton, No. 04-CV-3223
(CBA), 2008 WL 1902233, at *1 (E.D.N.Y. Apr. 28, 2008) (“[A] motion pursuant to Federal Rule of Civil
Procedure 59(e) and/or Local Rule 6.3 . . . would be untimely. Therefore, his motion will be treated as one made
pursuant to Federal Rule of Civil Procedure 60(b).”).
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2017) (quoting Kotlicky v. U.S. Fid. & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987)). A Rule 60(b)
motion may not be used “to relitigate issues already decided.” Maldonado v. Local 803 I.B. of T.
Health & Welfare Fund, 490 F. App’x 405, 406 (2d Cir. 2013).
DISCUSSION
I.

Salt’s Rule 59(e) Motion is Untimely
Here, the Imprisonment Order was issued on January 22, 2020. (ECF No. 171.) Under

Rule 59(e), Salt was required to file his motion on or before February 19, 2020. Salt did not file
his motion until February 20, 2020. (ECF No. 176.) Therefore, Salt’s motion is untimely.
II.

Salt Has Not Shown Exceptional Circumstances
The Court has considered Salt’s motion under Rule 60(b). Salt has not advanced any

meaningful basis to grant his motion to amend the Court’s Imprisonment Order. Salt makes three
arguments: (1) the Court lacked personal jurisdiction over Salt; (2) Plaintiff filed false and
fraudulent claims; and (3) the Court erred in applying the law when it held Salt in civil contempt.
However, Salt has raised these alleged facts and arguments in his previous Rule 59(e) motion dated
October 30, 2017, (ECF Nos. 137 & 138), which the Court denied (ECF No. 151).
For his second argument, Salt alleges Plaintiff committed fraud by (1) misrepresenting the
facts by claiming SUW continues to use the names Great Salt Lake Water Keepers and Great Salt
Lakekeeper when it cancelled the registration years ago, and (2) misrepresenting the existence of
a license agreement with SUW for the use of the name Great Salt Lakekeeper. (ECF No. 176 at
14-15.) While fraud is actionable under Rule 60(b), Plaintiff’s allegations have already been
considered and ruled on by this Court. Salt admits in his motion that “the Court [was] already
aware of these actions taken by [SUW] because Mr. Salt provided the Court with this information
as part of his motion to intervene in this case.” (Id.) Additionally, as discussed above, this

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information was also included in his previous Rule 59(e) motion, (ECF No. 138 at 5-6), which the
Court dismissed (ECF No. 151.) As Rule 60(b) motions cannot be used to relitigate issues already
decided, Salt’s motion must be dismissed.
CONCLUSION
For the foregoing reasons, Salt’s motion to alter or amend the judgement is DENIED.
The Clerk of Court is kindly directed to terminate the motion at ECF No. 240.

Dated: October 21, 2021
White Plains, New York

SO ORDERED:

________________________________
NELSON S. ROMÁN
United States District Judge

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