Marshak v. Bridge

Filing 216

ORDER Denying 211 Movant's Motion for TRO. Signed by Senior Judge Graham Mullen on 5/16/2018. (jaw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
NO. 3:82-cv-566-GCM

LARRY MARSHAK,
Plaintiff,
v.
MICHAEL BRIDGE,
Defendant,
v.
WILLIE B. PINKNEY,
Third-Party Defendant

ORDER

ORIGINAL DRIFTERS, INC., Successor
in interest to Willie B. Pinkney,
Movant

THIS MATTER is before the court on the Motion for Temporary Restraining Order
without notice (Doc. No. 211), filed by Movant Original Drifters, Inc., as the alleged successor
in interest to Third-Party Defendant Willie B. Pinkney.
In 1996, this Court entered a consent judgment finding, inter alia, that Plaintiff “is the
owner of U.S. Service mark Reg. No. 1,081,338 for the incontestable service mark THE
DRIFTERS to identify entertainment services, namely a singing group, and has the unqualified
and exclusive right to use the throughout the United States the name or mark THE DRIFTERS to
identify a musical performing group, and enjoy the exclusive good will depriving therefrom.”
Plaintiff has recently sought to enforce this Consent Judgment against Movant in arbitration
proceedings in New York.

Movant, however, requests the Court to immediately stay the arbitration proceedings on
the grounds that courts in other districts have subsequently determined that Plaintiff’s ownership
of the trademark to “The Drifters” was fraudulently obtained. Movant argues that, accordingly,
Plaintiff’s initial suit lacked standing and that this Court should enjoin the New York arbitration
conducted pursuant to the 1996 Consent Judgment and ultimately vacate the 1996 Consent
Judgment.
The Court finds, however, that Movant is not properly a party in this matter at this time
as it has not been joined as a Third-Party Defendant, nor has it filed a motion to intervene
pursuant to Fed. R. Civ. P. 24 or a motion to substitute itself in the place of Third-Party
Defendant pursuant to Fed. R. Civ. P. 25. Movant admits as much in its memorandum: “Movant,
Original Drifters, Inc., is not a party to the within Consent Judgment . . . .” The Court does not
have the authority to review motions from parties not properly before the Court.
IT IS THEREFORE ORDERED that Movant’s Motion for Temporary Restraining
Order without notice (Doc. No. 211) is DENIED.
SO ORDERED.
Signed: May 16, 2018