author: GIBBONS, Circuit Judge.

text:
    Ingridhutte Kurt WOKAN v. ALLADIN INTERNATIONAL, INC., Appellant.
    No. 72-2106.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12 (6) July 2, 1973.
    Resubmitted Under Third Circuit Rule 12(6) Sept.. 12, 1973.
    Decided Sept. 13, 1973.

      David S. Malis, Malis, Tolson & Malis, Marvin Krasny, Adelman & Lavine, Philadelphia, Pa., for appellant.
    Frederich H. Ehmann, Jr., Philadelphia, Pa., for appellee.
    Submitted Under Third Circuit Rule 12(6) July 2, 1973
    Before GIBBONS and HUNTER, Circuit Judges.
    Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973
    Before GIBBONS, HUNTER and WEIS, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

In this diversity contract action, the defendant, Alladin International, Inc. (Alladin), appeals from the refusal of the district court to set aside a default judgment. The plaintiff, Ingridhutte Kurt Wokan (Ingridhutte), a West German glassware manufacturer, on April 20, 1972, filed a complaint in two counts. The first count sought $3,048.00, the price of goods actually delivered to Alladin. The second count sought $17,498.75 plus interest and storage charges, for goods ordered by Alladin, never delivered, but allegedly specially manufactured and not resalable. Process was served on Alladin’s president on May 2, 1972. Alladin did not respond in any manner, and a default judgment in the amount of $23,495.26 was entered on July 21, 1972. Thereafter, Ingridhutte issued execution attaching Alladin’s bank account at Fidelity Bank. Judgment was entered against the garnishee bank on August 17, 1972, in the amount of $9,796.36. This left an unsatisfied balance on the judgment of $13,698.90.

Counsel for Alladin (who is also an officer of the corporation) learned on August 14, 1972, that the account at Fidelity Bank had been attached. That day he called Ingridhutte’s attorney, advising that the funds attached represented money which had been advanced to Alladin by two of his acquaintances for the purpose of permitting Alladin to make a 20% settlement offer to its creditors, and that such a settlement offer had been made to and accepted by Alladin’s creditors other than Ingridhutte. On August 22, Alladin filed a motion pursuant to Fed.R.Civ.P. 55(c) and 60(b) to set aside the default judgment.

The first ground asserted for setting aside the default judgment was that it had been entered without notice to Alladin’s counsel, in violation of Rule 55(b) (2). This ground is entirely without merit. From the time the complaint was filed until August 14, 1972, there was no word from, never mind appear^ anee, on behalf of Alladin. See Port-Wide Container Co. v. Interstate Maintenance Corp., 440 F.2d 1195 (3d Cir. 1971).

The second ground for setting aside the default judgment was that it resulted from “mistake, inadvertence, surprise, or excusable neglect.” Fed.R. Civ.P. 60(b)(1). Alladin’s moving papers did not dispute that it owed the $3,048.00 referred to in the first count. On a motion to set aside a default or a default judgment, the moving party-must show that he has a meritorious defense. 6 J. Moore, Federal Practice ¶ 55.10[1], at 55-233 (2d ed. 1972). The district court, therefore, properly declined to reopen the judgment on the first count. It did, however, on September 28, 1972, order that the default judgment be opened on the second count, conditioned upon Alladin posting a bond for $14,500.00 to secure the $13,698.90 unsatisfied portion of the judgment, with interest, should Ingridhutte prevail on the merits. Financially embarrassed, Alladin was unable to post any such bond. On October 17, 1972, it moved to set aside the September 28, 1972 order and to set aside the default judgment unconditionally. The district court denied this motion on October 18, 1972, and this appeal followed. We have been advised by counsel that thereafter on November 13, 1972, Alladin filed a petition under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq., for an arrangement with its creditors. So far as we know, the Chapter XI proceeding has not resulted in an adjudication in bankruptcy. We are advised that no steps have been taken with respect to the judgment pursuant to Section 67(a) of the Bankruptcy Act, 11 U.S.C. § 107(a).

A motion pursuant to Rule 60(b)(1) for relief from a judgment is addressed to the sound discretion of the district court, and we may not disturb that court’s action in the absence of an abuse of discretion. Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951); Orange Theatre Corp. v. Rayherstz Amusement Corp., 130 F.2d 185, 187 (3d Cir. 1942), cert. denied, 322 U.S. 740, 64 S.Ct. 1057, 88 L.Ed. 1573 (1943). Here the facts relied upon to establish such “mistake, inadvertence, surprise, or excusable neglect” are, to say the least, weak. But the district court held them to be sufficient, and Ingridhutte has not urged by cross appeal that this holding was an abuse of discretion. The sole substantial issue on the appeal is the propriety of the condition to reopening.

Rule 60(b) gives the district court explicit authority to impose terms upon the opening of a default judgment. Rarely, however, have the federal courts had occasion to discuss what those terms may be. The few cases which have dealt with the problem are collected in Annot., Propriety of Conditions Imposed in Granting Relief From Judgment Under Rule of Civil Procedure 60(b), 3 A.L.R.Fed. 956 (1970). The condition most commonly imposed is the payment of costs or attorneys fees. E.g., Hendricks v. Alcoa Steamship Co., 32 F.R.D. 169 (E.D.Pa.1963). The imposition of a condition that a bond be posted to secure any judgment is discussed in Thorpe v. Thorpe, 124 U.S.App.D.C. 299, 364 F.2d 692 (D.C.Cir.1966); there the district court entered an order vacating a default on condition that the defendant deposit in a joint savings account for himself and the plaintiff the amount demanded in the complaint, which actually exceeded the amount of the default judgment. The defendant, unable to make such a deposit, appealed. Judge Leventhal wrote:

“It may also be appropriate, in some cases, for defendant to be required to post bond to secure the amount of the default judgment pending trial on the merits. However, the condition imposed in this case — that appellant place in a joint bank account, in escrow, not only the amount of the default judgment, but the maximum amount demanded by appellee in her complaint — is unusual, indeed, so far as we can ascertain, unprecedented.
It goes beyond placing the parties in the position they were in before the default; it seeks, rather, to place them in the position they were in prior to the action that preceded, and precipitated, the litigation.
Assuming, without deciding, that restoring the parties to the status quo ante the alleged wrong is appropriate in some cases, there is no showing of any justification for doing so in this ease.
-x- *x- -x-
When such an extraordinary condition is approved it must be accompanied by supporting findings to show that it represents a reasonable exercise of discretion.
If appellant’s claim that he simply is unable to comply with the condition imposed is true, serious questions are raised, questions having an aura of denial of due process of law. See Societe Internationale, etc. v. Rogers, 357 U.S. 197, 209-210, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958), where the Supreme Court stated, in another context, that imposition of an ‘impossible’ condition of a litigant’s right to a trial on the merits raises constitutional difficulties.” Id. at 694-95.

Judge Leventhal’s opinion in Thorpe v. Thorpe, supra, is as close as we have found to an authority in point. The order here, of course, is somewhat different in that it requires security only for the unsatisfied part of the judgment rather than for an amount in excess thereof equal to the original demand. The $9,796.36 obtained from Fidelity Bank was not affected by the order. As to that sum, apparently, it was intended that Alladin run the risk of not getting back any excess over the amount due on the first count if its defense on the second count should prevail. The security required was for the unpaid part of the judgment. We have the same difficulty with this condition to vacating the default as did Judge Leventhal with the condition imposed in Thorpe. We think it perfectly proper for a district court in an appropriate case to impose the condition to vacating a default judgment that the judgment holder not be deprived of any payment or security he has obtained as a result of the judgment. But it is difficult to imagine what set of circumstances would justify the imposition of a condition that the now disputed claim be made more secure than it was prior to the court’s action on the Rule 60(b) motion. There may be such circumstances, but they do not appear in this record.

In Thorpe v. Thorpe, supra, the District of Columbia Circuit remanded for findings which might support the unusual condition imposed, and for consideration of other less drastic conditions. Possibly in that domestic dispute circumstances justifying a requirement of pre-judgment security could at a hearing appear. We do not think any such circumstances could appear in this commercial lawsuit. Nevertheless, because the district court’s action under Rule 60(b) is discretionary, we believe a remand is appropriate. As we said earlier, Alladin’s factual showing of “mistake, inadvertence, surprise, or excusable neglect” was rather thin. Quite possibly the court was led to the exercise of discretionary power to reopen in part because of a mistaken belief that the condition of pre-judgment security for the full amount of Ingridhutte’s claim could be imposed on this record. Since we hold otherwise, the district court should have an opportunity to reconsider the motion to vacate the default judgment on the second count.

Nothing in this opinion shall be construed as a ruling upon the effect on the default judgment or the garnishment of Fidelity Bank of the Chapter XI proceeding.

The case will be remanded to the district court for further proceedings consistent with this opinion.

      . Although the record is not clear, apparently there were no supersedeas of the garnish-ment judgment and the amount was paid over.

      . The record does not disclose, and the parties have not advised, whether this appeal is prosecuted by a debtor in possession pursuant to Section 342 of the Bankruptcy Act, 11 U.S.C. § 742, or by a receiver pursuant to Sections 343 and 2(a) (3) of the Act, 11 U.S.C. §§ 743,11 (a) (3).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Ida Mae HOLLINGSWORTH et al., Plaintiffs-Appellees-Cross Appellants, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellant-Cross Appellee. FOLLEN WOOD PRESERVING COMPANY, INC., Plaintiff-Appellee-Cross Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellant-Cross Appellee.
    No. 73-1956
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 7, 1973.
    Semmes Luckett, Shed Hill Roberson, Clarksdale, Miss., for defendant-appellant.
    Jack F. Dunbar, Charles M. Merkel, Clarksdale, Miss., Mitchell M. Lundy, Grenada, Miss., for Hollingsworth and others.
    Jon M. Barnwell, Clarksdale, Miss., for Folien.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   PER CURIAM:

This diversity case arising out of a grade crossing collision between a train and a truck was tried to the court without a jury. The driver of the truck was killed and his wife sued Illinois Central under the Mississippi Wrongful Death Act. Miss. Code of 1942, § 1453. The owner of the truck sued for damages to the truck. Illinois Central eounterclaimed for damages to its engine. The district court made findings of fact and conclusions of law with the result of allowing recovery for the plaintiff wife and the truck owner on the basis of the negligence of Illinois Central but with damages reduced in half on a comparative negligence standard because of the concurring negligence of the truck driver.

All parties have appealed. We have carefully considered the assignments of error. We affirm as to the appeal and cross-appeals on the findings, conclusions, and opinion of the district court.

Affirmed.


text:
    HYDROMETALS, INC., Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 73-2591
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 9, 1973.
    J. W. Bullion, Buford P. Berry, Dallas, Tex., for petitioner-appellant.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Jonathan S. Cohen, Tax. Div., Dept. of Justice, Lawrence B. Gibbs, Acting Chief Counsel, Michael B. Frosch, Int. Rev. Service, William S. Estabrook, III, Tax. Div., Dept. of Justice, Washington, D. C., K. Martin Worthy, Chief Counsel, Int. Rev. Service, W. B. Riley, Regional Counsel, W. J. Blackshear, Atty., Dallas, Tex., for respondent-appellee.
    Before'THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Upon consideration of the briefs and record, we affirm on the findings and opinion of the Tax Court.


text:
    ALLIED BITUMENS, INC., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
    No. 223, Docket 73-1813.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 25, 1973.
    Decided Nov. 2, 1973.
    Louis A. Bradbury, Atty., Tax Div., Dept, of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and Elmer J. Kelsey, Attys., John T. Elfvin, U. S. Atty., for the Western District of New York, on the brief), for defendant-appellant.
    Thomas J. Fori, Albany, N. Y. (Harry R. Hayes, Albany, N. Y., on the brief), for plaintiff-appellee.
    Before SMITH, FEINBERG and OAKES, Circuit Judges.
   PER CURIAM:

The United States appeals from a judgment of $13,192.89 with interest for plaintiff taxpayer Allied Bitumens, Inc. after a trial in a tax refund suit in the United States District Court for the Western District of New York, before Judge John T. Curtin. The judge held that the asphalt distributors and slurry machines used by taxpayer in road construction and repair were not “highway motor vehicles” within 26 U.S.C. § 4482(a) so as to be subject to the tax imposed by section 4481(a). We affirm substantially for the reasons set forth in Judge Curtin’s opinion, 353 F.Supp. 1128 (W.D.N.Y.1973). Although the judge did not discuss the effect of the last sentence of the pertinent Treasury Regulation, relied on heavily by the United States in this appeal, that sentence does not suggest a contrary result.

Judgment affirmed.

      . 26 C.F.R. 41.4482(a)-1.


text:
    Hattie T. WESTMORELAND, Appellant, v. Melvin LAIRD, Secretary of Defense of the United States, etc., et al., Appellees.
    No. 73-1414.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 3, 1973.
    Decided Nov. 8, 1973.
    Thomas F. Loflin, III, Durham, N. C. (Loflin, Anderson, Loflin & Goldsmith, and Ann F. Loflin, Durham, N. C., on brief), for appellant.
    Carl L. Tilghman, Asst. U. S. Atty., Thomas P. McNamara, U. S. Atty., on brief, for appellees.
    Before BRYAN, Senior Circuit Judge, and CRAVEN and WIDENER, Circuit Judges.
   PER CURIAM:

Complaining that she was illegally discharged from her employment with the United States in the Carolina Area Support Center Army-Air Force Exchange Service at Fort Bragg, North Carolina, because of her race and denial of procedural due process, Hattie T. Westmoreland, a Negro, sued for reinstatement and recovery of accrued but unpaid wages. From the judgment of the District Court dismissing the action for her failure to substantiate her claim in fact or in law, she appeals.

Upon consideration of the record and the arguments of counsel, on brief and orally, this court preceiving no error in the District Court’s findings of fact or conclusions of law, now affirms the judgment on review, for the reasons stated in the opinion of the District Judge. Westmoreland v. Laird et al, 364 F.Supp. 948 (1973).

Affirmed.


text:
    Robert E. WRIGHT, Sr., Plaintiff-Appellant, v. SOUTHWESTERN LIFE INSURANCE COMPANY, Defendant-Appellee.
    No. 73-2073
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 28, 1973.
    Rehearing and Rehearing En Banc Denied March 12, 1974.
    Bobby L. Culpepper, William H. Baker, Jonesboro, La, for plaintiff-appellant.
    Solomon S. Goldman, New Orleans, La, James L. Walsh, Dallas, Tex, David I. Garrett, Jr, Monroe, La, for defendant-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

      Rule 18, 5 Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Affirmed. We adopt the opinion of the district court. Wright v. Southwestern Life Insurance Co, W.D.La, 1972, 364 F.Supp. 981.


text:
    INTERNATIONAL WASTE CONTROLS, INC, et al., Appellants, v. SECURITIES AND EXCHANGE COMMISSION et al., Appellees.
    No. 309, Docket 73-2093.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 28, 1973.
    Decided Oct. 11, 1973.
    Arnold I. Burns, New York City (Schwartz, Mermelstein, Burns, Lesser & Jacoby, New York City, Stuart G. Schwartz, Allan A. Pines, New York City, Steven M. Turkowitz, Rockville Centre, N. Y., of counsel), for appellants.
    David Ferber, Sol, Washington, D. C. (Lawrence E. Nerheim, Gen. Counsel, Michael A. Macchiaroli, Atty, Securities & Exchange Commission, Washington, D. C., on the brief), for appellees.
    Before MOORE, MULLIGAN and OAKES, Circuit Judges.
   PER CURIAM:

This is an appeal from an order of the United States District Court for the Southern District of New York, Hon. Charles H. Tenney, granting the motion of the Securities and Exchange Commission to dismiss the complaint and denying plaintiffs’ motion for a preliminary injunction. The plaintiffs sought to enjoin a Commission investigation which clearly was within its jurisdiction. The Commission has also moved in the Southern District to enforce subpoenas issued against three of the plaintiffs here. The disposition of this appeal should permit the District Court to fix a hearing date on the subpoena enforcement ease. We affirm the order appealed from on the opinion of Judge Tenney filed on July 24, 1973. 362 F.Supp. 117. We consider the claims of the appellants to be without any merit.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHEASTERN MICHIGAN GAS CO., Respondent.
    No. 72-2174.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 15,1973.
    Decided Oct. 19, 1973.
    Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert A. Giannasi, Howard J. Kaufman, Attys., N.L.R.B., Washington, D. C., on brief, for petitioner.
    Gilbert C. Cox, Jr., Detroit, Mich., on brief, for respondent.
    Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.
   ORDER

This case is before us upon the application for enforcement of an order of the National Labor Relations Board that is reported at 198 N.L.R.B. No. 8.

The Board, adopting the findings and recommendations of the trial examiner, determined that the company violated §§ 8(a)(5) & (1) of the Act by discontinuing work performance reviews and the wage increase policy and discontinuing the providing of new boots for meter readers without notice to or consultation with the union certified as the exclusive bargaining representative of the unit employees. The Board ordered the company to cease and desist from the unfair labor practices found, to resume the policies and practices unilaterally discontinued, to make all employees in the unit whole for wage increases and for any losses suffered by reason of discontinuance of the boot purchase policy and to post appropriate notices.

A review of the record convinces us that the findings of fact of the Board are supported by substantial evidence on the record considered as a whole and that the unfair labor practices occurred after June 23, 1971 within the jurisdictional six-month period prior to the filing of the unfair labor practice charge as provided by § 10(b) of the Act. Accordingly, it is hereby ordered that the order of the Board be enforced.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TENNESSEE LEATHER PRODUCTS, INC., Respondent.
    No. 73-1276.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 12, 1973.
    Decided Oct. 25, 1973.
    Joseph E. Mayer, Morton Namrow, Attys., N. L. R. B., on brief, for petitioner; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, N. L. R. B., of counsel.
    William M. Pate, James W. Wimberly, Jr., Atlanta, Ga., on brief, for respondent; Mitchell, Pate & Anderson, Atlanta, Ga., of counsel.
    Before PECK and McCREE, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   This case is before us upon the application for enforcement of an order of the National Labor Relations Board that is reported at 200 N.L.R.B. No. 73.

The Board found that respondent violated § 8(a)(1) of the Act, 29 U.S.C.A. § 158(a) (1), by threatening employees that if a union were selected it would close its plant and move and by coercively interrogating employees about union activities. The Board also found that the company violated § 8(a)(3) & (1) of the Act by discriminatorily discharging employee Ove Shoup and by laying off employee Hattie Massengill because of their union activities. The Board’s order requires the company to cease and desist from the unfair labor practices found, from interfering with, restraining or coercing its employees in exercise of their Section 7, 29 U.S.C.A. § 157, rights and directs the company to offer Shoup reinstatement and to make both employees whole for lost earnings. It also requires the posting of notices.

A review of the record convinces us that the findings of fact of the Board are supported by substantial evidence on the record, considered as a whole, and it is hereby ordered that the order of the Board be, and it hereby is, enforced.


text:
    Greta HUSSERL, Plaintiff-Appellee, v. SWISS AIR TRANSPORT COMPANY, LTD. also known as Swissair, Defendant-Appellant.
    No. 42, Docket 73-1501.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 23, 1973.
    Decided Oct. 31, 1973.
    George N. Tompkins, Jr., New York City (Condon & Forsyth, New York City, of counsel), for defendant-appellant.
    Eric Gewurz, Bellmore, N. Y. (Edward J. Waldman, Gewurz & Gewurz, P. C., Bellmore, N. Y., of counsel), for plaintiff-appellee.
    Before SMITH, MANSFIELD and OAKES, Circuit Judges.
   PER CURIAM:

The order of the district court is affirmed, essentially for the reasons set forth by Judge Tyler in his well considered opinion, 351 F.Supp. 702, at 706-707 (S.D.N.Y.1972).


author: RICH, Judge.

text:
    ALOE CREME LABORATORIES, INC., Appellant, v. ALOE 99, INC., Appellee.
    Patent Appeal No. 9026.
    United States Court of Customs and Patent Appeals.
    Oct. 25, 1973.
    James R. McKnight, Chicago, Ill., attorney of record, for appellant.
    Robert C. Garber, Washington, D. C., attorney of record, for appellee.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   RICH, Judge.

This appeal is from a decision of the Patent Office Trademark Trial and Appeal Board, 170 USPQ 539 (1971), granting a motion for summary judgment and dismissing appellant’s opposition to registration of “Aloe 99” in an oval background designed as a trademark for “Preparation for Treatment of Minor Burns, Cuts, Chafing, Abrasions, Skin Irritations, Diaper Rash, and NonPoisonous Insect Bites,” serial No. 282,758, filed October 18, 1967. We reverse.

Appellant-opposer bases opposition on the prior use and registration of seven hyphenated trademarks beginning with “ALO-,” the phonetic equivalent of “Aloe” and obviously intended to carry the same connotation, namely, ALO-OINTMENT, ALO-RELIEF, ALODERM, ALO-BODY, ALO-FACE, ALO-HANDS, and ALO-PLUS for creams, ointments, and lotions variously identified. ALO-DERM is registered on the principal register and all the others on the supplemental register. There is no contest as to priority in appellant.

In arriving at its decision, the board relied on two prior decisions in American Aloe Corp. v. Aloe Creme Laboratories, Inc., 420 F.2d 1248 (7th Cir. 1970), and Aloe Creme Laboratories, Inc. v. Milsan, Inc., 165 USPQ 37 (5th Cir. 1970), to which appellant, but not appellee, was a party. In the board’s view, appellant had had a “fair opportunity procedurally, substantively and evidentially to pursue his claim the first time” in the prior cases and was thus “estopped to assert here that it has any rights in either ‘ALOE’, per se, or its equivalent.” The board found that in these cases the Fifth and Seventh Circuit Courts of Appeals

* * * have determined that the term “ALO” was not subject to exclusive appropriation by opposer. Each held that the term “ALOE” and its phonetic equivalent “ALO” are either generic or merely descriptive of creams and lotions which include as an ingredient a gel which is derived from a plant of the same name. Each case has been denied certiorari on writ [sic, petition?] to the United States Supreme Court.

It appears to have been the board’s view that since the descriptiveness of “ALOE” and “ALO” had been judicially decided and because the question of likelihood of confusion in trade is a question of law, the case could appropriately be disposed of on a motion for summary judgment. As we read the board opinion, it seems to us that summary judgment of dismissal of the opposition was also granted because appellant-opposer had not even offered facts to support a conclusion that “ALOE” or “ALO” are not merely descriptive.

Descriptiveness of “ALOE” and “ALO” is not the only issue in this ease. The primary issue in this opposition is likelihood of confusion, mistake, or deception under 15 U.S.C. § 1052(d) as between applicant’s and one or more of appellant’s marks when used on the goods for which they are registered or sought to be registered. “ALOE” or “ALO” constitute only parts of the marks and decision, as the board recognized, must be based on consideration of the marks as a whole.

While it is true that the ultimate issue of likelihood of confusion, etc., is “one of law,” there are many factual questions other than the descriptiveness of a part of the marks which opposer is entitled to have considered and on which it should be given an opportunity to present evidence. Appellant’s brief has not, unfortunately, pointed out what those questions of fact are because it has concentrated on pointing out that appellant wants an opportunity to produce evidence of “secondary meaning” of its several trademarks.

With respect to a trademark registered on the principal register, 15 U.S.C. § 1057(b) makes it unnecessary to prove secondary meaning. “ALODERM” is so registered. The other marks being registered on the supplemental register, appellant may well wish to establish secondary meaning as to them because they are not entitled to the benefits of § 1057(b). 15 U.S.C. § 1094. However, we deem that to be but a minor reason for not granting summary judgment. Relevant to the likelihood of confusion issue are many factual matters on which appellant might want to present evidence such as whether or not it has promoted its trademarks as a “family of marks,” their impact in the market place, the channels of trade in which the goods move, possible actual confusion, the impact of the marks on the purchasing public, and the like. These matters are not questions of law.

Believing, as we do, that appellant has a right to present evidence on such factual matters, we consider it was error to grant summary judgment. The decision of the board is therefore reversed and the case remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      . Citing and quoting from Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971).

      . We say “appears” because the board opinion contains an incomplete sentence at this crucial point and does not actually state what “question” is one of law.


author: ROBERT P. ANDERSON, Judge:

text:
    Norman A. PLOTKIN, Plaintiff-Appellant, v. C. Jackson GRAYSON, Jr., et al., Defendants-Appellees.
    Nos. DC-10, DC-11.
    Temporary Emergency Court of Appeals.
    Oct. 9, 1973.

      Norman A. Plotkin, pro se.
    Harlington Wood, Jr., Asst. Atty. Gen., Harold H. Titus, Jr., U. S. Atty., District of Columbia, William E. Nelson, and Allen W. Hausman, Dept. of Justice, Washington, D. C., for appellees.
    Before HASTIE, ANDERSON and JOHNSON, Judges.
   ROBERT P. ANDERSON, Judge:

The appellant, Norman A. Plotkin, during all of the times covered by this case and by its companion case on appeal, DC-11, was the owner of an apartment house, containing thirty-two dwelling units, at 164 Danforth Street, Jersey City, New Jersey, which he leased to month-to-month tenants. On December 23, 1971 he read in the New York Times a policy statement, issued the day before by the Price Commission, concerning the control of rents. Acting pro se, he sought to increase the rents payable by his tenants by notifying them on December 30th, in accordance with his interpretation of the policy statement, that their rents would be increased on February 1, 1972. Apparently unknown to Plotkin, the Commission on December 29, 1971 adopted and issued formal regulations governing rent increases. These were published in the Federal Register on December 30, 1971, and thereby became operative and enforceable.

Following Plotkin’s notice a dispute arose between some of his tenants and him as to whether or not the tenants had been properly notified pursuant to the new regulations, 6 C.F.R. §§ 301.501 and 301.502 (later renumbered as §§ 301.301 and 301.302). Plotkin sought a ruling from the District Office of Internal Revenue Service at Newark, New Jersey, which concluded that Plotkin’s notices did not comply with the regulations, particularly § 301.502(7), because they completely omitted three specific and mandatory statements set out verbatim in sub-section (7), paragraphs A, B and C, which cover the tenants’ rights to examine the documents supporting the proposed rent increase, their rights to consult with the landlord as to the basis for the proposed increase, and their rights to have the landlord verify the truth of his supporting statements and facts and to make the representation that the increase is not in violation of the Economic Stabilization Regulations.

Plotkin appealed the decision of the District Office to the I.R.S. District Stabilization Manager, and thence to the Price Commission, both of which, in turn, affirmed the ruling of the District Office. He then, on December 5, 1972, filed, pro se, what he entitled an “action for Declaratory Judgment,” seeking a declaration by the district court that the Price Commission’s statement of policy published in the New York Times on December 23, 1971 was legally effective and binding, and that, in any event, the notice requirements of 6 C.FR. § 301.-502(7) were substantially complied with. This action was Docket Number Civil 241572 in the United States District Court for the District of Columbia; and it is, on appeal, in this court Docket Number - DC-10. The Government moved to dismiss the complaint on the grounds that (1) it was not in compliance with Rule 8(a), F.R.C.P., which provides that a complaint shall be “a short and plain statement of the claim showing that the pleader is entitled to relief . . .;” (2) that the action was moot; and (3) that the complaint failed to state a claim upon which relief could be granted. The district court granted the Government’s motion, and we affirm.

Plotkin’s reliance upon the newspaper report of the Price Commission’s statement of policy on December 23, 1971 and his effort to comply with what he conceived the implementation of that policy to be, did not relieve him of the duty to follow 6 C.F.R. § 301.502, which was binding upon him. At no time in the history of this case (DC-10) did Plot-kin give notice in the precise mandatory form, demanded by this section. He suggests that the notice- he did send was mailed a day or so ahead of the publication of the regulations in the Federal Register on December 30, 1971, and therefore preceded its effective date, and that the notice he gave substantially complied with the terms of § 301.-502(b)(7).

There is no valid argument that appellant escaped the notice regulations by fortuitous timing. Even if it were true that appellant mailed his notice before the regulations were adopted or published in the Federal Register, they would still apply to him. The “transaction” which must occur after December 28, 1971, for the notice regulations to apply is the rental increase, not the advance notice thereof. And the rental increases he sought to notice were to become effective February 1, 1972. See Price Commission Ruling 1972-41, February 8, 1972 (37 F.R. 3061, February 11, 1972).

Section 301.502 goes on to provide that the lessor “must notify the lessee of the proposed rent increase at least 30 days before the date it is to become effective,” and that this “notice shall be in writing and shall set forth,” inter alia, the three statements set out in § 301.502(b)(7)(A), (B) and (C). That not only the substance but also the precise words of the three statements are required is made clear by the fact that § 301.502(b)(7) does not explain the statements in general terms but actually sets them out word for word just as they must appear — complete with first person pronouns for the lessor and second person for the lessee. The statement set out in § 301.502(b)(7)(A) includes appropriate blanks to be filled in to meet each case, clearly indicating that the only language latitude afforded the landlord under the notice regulation is in the accurate tailoring of the four blank spaces to the individual circumstances. It is admitted by appellant that he failed to comply with the notice requirements of the regulation, and in particular did not include the three statements required by § 301.-302(b)(7).

We hold that the notice of December 30, 1971, which Plotkin gave, was not substantial compliance with the regulation in the first case, i. e. DC-10; and the ruling of the district court in granting the motion to dismiss is affirmed. There was and is no issue as to granting leave to the plaintiff to plead over again or file a substituted complaint because, by Executive Order 11695 promulgated by the President on January 11, 1973 and 6 C.F.R. § 130.32(a)(2), made pursuant to the Order, rents for all residential and nonresidential real property were exempted from control under the Economic Stabilization Program. The appellant, Plotkin, could thereafter establish rates for rental of his dwelling units at whatever amounts he may have chosen.

Docket Number DC-11

Although the increases in rent with which this case is concerned, relate to the same premises as those involved in the first case (i. e. DC-10), the present case is separate and distinct from DC-10 and must be so treated.

The DC-11 declaratory judgment action was brought by Plotkin, acting pro se, on December 26, 1972 and was docketed in the lower court as Civil No. 2548-72. From the allegations of the complaint, which, for the purpose of this motion to dismiss, must, in their factual content, be considered to be true, it is possible fairly to summarize the course of events which led up to the bringing of this declaratory judgment action.

On June 29, 1972, Plotkin gave notice to his tenants that their rent would be increased, effective on and after August 1, 1972, and he alleges that in so doing he meticulously followed the provisions of 6 C.F.R. § 301.502(7). Evidently a dispute arose with some of the tenants; and on July 1, 1972 Plotkin requested, in writing, a ruling of the Internal Revenue Service which would assure him that his notice was in proper form and properly served. The IRS initially ruled on July 13, 1972 that the notice failed to comply with the regulations, but on July 31, 1972, it rescinded that ruling and held that the notice did satisfy the provisions of § 301.502(7). The IRS, however, left in a somewhat indeterminate state, its approval of the amount of the increase while it awaited some additional records and documents from Plotkin. Within 10 days of the initial ruling denying Plotkin’s appeal and leaving the justification issue unresolved, he took a protective appeal to the Price Commission on both points. Plotkin alleges that the ruling of the Price Commission on November 6, 1972 did no more than say that “enforcement of its policy” was in the hands of “the Internal Revenue Service.” The IRS, however, said the whole matter had been referred to the Chairman of the Price Commission and one Wood, Assistant Attorney General.

There also arose several actions and proceedings by the tenants, or by various public officials on the behalf of the tenants, against Plotkin in the state courts and before administrative officials. The complaint in this action is heavily laden with references to and descriptions of phases of proceedings in other courts and tribunals and charges by Plotkin of fraud and conspiracy by various public officials against him. He also alleges persecution, deceptive practices and harsh treatment at the hands of some of them. Plotkin charges the defendants, all of whom are federal officials, with either encouraging or engineering these wrongful proceedings and acts of harassment.

It is evident that by December of 1972 the appellant Plotkin was engaged on many fronts in numerous disputes; and, he alleges, he could get no relief from the IRS and the Price Commission. In an endeavor to consolidate them in one action in a single forum, he gathered together his bag full of troubles and, labeling it a declaratory judgment action, filed it in the United States District Court for the District of Columbia, there to be sorted out and put to rights. The district court examined the 69 paragraphs of the complaint and concluded, not without reason, that it was not in conformity with Rule 8(a), F.R.C.P., which requires that a complaint be “a short and plain statement of the claim showing that the pleader is entitled to relief . . . . ” On this ground and also because the complaint failed to state a claim entitling the plaintiff to relief, the district court granted the defendants’ motion to dismiss.

We agree with the conclusions and ruling of the district court, but in order more fully to emphasize the necessity of following the procedures expressly provided by the Economic Stabilization Act, we particularly point out that, in the circumstances of this case, a declaratory judgment action does not lie.

From the record before us it must be. assumed that the written notice given by the landlord Plotkin to his tenants fully complied with the procedural requirements of § 301.502. The defendants-appellees have not denied this or pointed out anything to the contrary. Moreover, it is confirmed by the July 31, 1972 ruling of the IRS, following the irregular procedure initiated by Plotkin, that the notice was valid. This means that once Plotkin had given the proper notices to his tenants, the orderly procedure set out in paragraphs A, B and C of § 301.-502(7) immediately came into operation.

Under the regulatory scheme the tenants were not entitled to withhold the rent increases sought which they did on the ground that they were not justified by the rent regulations. Instead, they were required to pay them and, as the notice itself had directed, seek their remedy through an examination of the available documentation and discuss the matter with appellant. If they then believe that their rent increases were invalid, or could be attacked on other grounds, they, the tenants, not the appellant could seek IRS review; but meanwhile they were required by law to pay the rental increases. § 301.302, 37 F.R. 13226 (July 4, 1972); see also § 301.502 (C), 36 F.R. 25387 (December 30, 1971). Assuming proper notice, the regulations clearly contemplate that the lessor would be entitled to the usual summary procedures under local state law for nonpayment of rent, and that it would be no defense for lessees that the increase was otherwise invalid under the rent regulations. In short, appellant-landlord’s proper remedy for nonpayment of the August 1, 1972, rent increase, was not through the channels of the IRS, but in the local courts. It was up to his tenants to pursue IRS and Price Commission reviews.

The landlord, Plotkin, had, in the regulations, a clear recourse to a remedy. He chose not to follow it and consequently has become mired in purposeless controversies. This complaint for a declaratory judgment against federal officials, who have brought no actions against him under the Economic Stabilization Act, contains neither the proper parties nor the pertinent allegations on which to adjudicate the issues under the Act between him and his tenants, relating to a justification for the proposed rent increases of August 1,1972.

This principle is of great importance to the regulatory structure governing these kinds of cases. It is the lessees, not the Government, much less the lessor, who are to be the effective policemen in the first instance. They can usually be counted on, because of their interest, to attack proposed rent increases which may be questionable. On the lessees’ shoulders fall much of the administrative burden which would otherwise rest on the Government. To permit any lessor a series of appeals through the IRS, and then a declaratory judgment in the United States District Courts, just because he feared that his tenants might contest the substantive validity of his rental increase or to compel the Commission to give him an advisory opinion would seriously interfere with the intended enforcement procedure by placing a potentially heavy and unnecessary administrative workload where it was not intended to fall, all for the purpose of affording the lessor a benefit marginal, at best, because under the regulation he would be entitled to collect the rental increase from the date it became operative. See Public Serv. Comm’n v. Wycoff Co., 344 U.S. 237, 243-247, 73 S.Ct. 236, 97 L.Ed. 291 (1952). The Court said at 246, 73 S.Ct. at 241:

. . the declaratory judgment procedure will not be used to preempt and prejudge issues that are committed for initial decision to an administrative body or special tribunal any more than it will be used as a substitute for statutory methods of review.”

Under these circumstances, the District Court’s dismissal of the case is also affirmed as a sound exercise of its discretion in accordance with this principle applicable to declaratory judgment actions.

      . § 301.502(b)(7)(A), (B) and (C) read as follows:
      “(A) You have the right to examine the documentation which supports this proposed rent, increase in order to satisfy yourself that the proposed rent increase is in accordance with the rent regulations prescribed by the Price Commission. This documentation is located at ........ , and may be inspected upon request between the hours of......through ......on...... (specify days of the week).
      (B) If you do not understand the basis for this increase or believe that the increase is not allowable under the rent regulations of the Price Commission, advise us and we will arrange a suitable meeting time with you at a location convenient to your residence to discuss the proposed increase and explain its justification.
      (C) It is hereby declared under the penalties of perjury that the foregoing statements and facts are true to the best of my (our) knowledge and belief; and that the increase in your rent is not in violation of the Economic Stabilization Regulations.”

      . On July 19, 1973, Chief Judge Tamm ordered this case (DC-10) consolidated with another declaratory judgment action brought by the appellant Plotkin against Grayson, et al. on December 26, 1972 and carrying docket number 2548-72 in the United States District Court for the District of Columbia; this second case was docketed in this court as # DS-11, which will be taken up and discussed below.

      . This is not to say that minor or typographical errors, which leave the full substance of the notice clear and unequivocally understandable, would violate the holding of strict compliance.

      . There is nothing in this case to preclude the landlord, Plotkin, from seeking to collect in the state courts the unpaid increase in rent for the months subsequent to August 1, 1972 in which the tenant occupied the premises; nor, in the event that any tenant has reason to believe that a violation of Part 301 of Chapter III of Title 6 of C.F.R. has taken place, is he prevented from making contact with “the nearest Office of the Internal Revenue Service.” § 301.502(e).


text:
    Nelson Lee BURNETT, Plaintiff-Appellant, v. Joe H. DICKERSON and J. E. Wiggins, Defendants-Appellees.
    No. 73-1611.
    United States Court of Appeals, Fifth Circuit.
    Nov. 1, 1973.
    David J. Nagle, Houston, Tex., for plaintiff-appellant.
    G. Robert Friedman, Houston, Tex., for Joe E. Dickerson.
    Joseph G. Rollins, Houston, Tex., for J. E. Wiggins.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   PER CURIAM:

This civil rights action under 42 U.S. C. § 1983 arises out of an incident in which defendant police officers allegedly beat the plaintiff while arresting him. A description of the incident is included in a previous opinion of this court, styled Burnett v. Short, 441 F.2d 405 (5 Cir. 1971), but a short summary is included here for clarity.

Early in the evening of November 30, 1966, plaintiff became embroiled in a fracas involving Clyde Lamb and Laura Fay Kuykendall. Lamb shot the plaintiff in the right leg. Police officer Edward Rich, on patrol in the area, immediately drove up to the scene of the incident and jumped from his vehicle. Lamb shot officer Rich in both wrists, but the officer managed to make a plea for aid over his police radio. Within minutes a large number of police officers, including the two defendants, arrived on the scene. Another officer in the group, C. A. Nelson, saw plaintiff limping away and restrained him from leaving. “He looked like he was hurt and he was leaving the scene, and I thought he might be involved in it,” Nelson testified at trial. Officer Nelson also testified that he would not have let the plaintiff leave the scene, and that he felt he was placing him under arrest. He added that plaintiff’s face was already bloody when he was arrested. After Nelson had stopped Burnett, Laura Kuykendall ran up to Nelson and accused Burnett of assaulting her. Several officers, including Dickerson and Wiggins, handcuffed Burnett and, over his resistance, placed him in a patrol wagon. The fact that Burnett resisted is undisputed. Burnett testified that police officers beat and kicked him repeatedly on the street, in a patrol wagon and in an ambulance. He was taken to a hospital and treated for many serious wounds. No charges were ever filed against him, and he was subsequently released from custody.

Burnett brought an action under 42 U.S.C. § 1983, claiming that officers Dickerson and Wiggins, acting under color of state law, deprived him of rights secured by the Constitution. At trial, substantial evidence was received regarding the incident described above, and the case was submitted to a jury. The jury', in answers to special interrogatories, found the following facts to be true: Neither defendant arrested the plaintiff. Wiggins used greater force than was reasonable and necessary under the circumstances to secure the arrest of the plaintiff, but Dickerson did not. The unreasonable force by Wiggins was not a proximate cause of the plaintiff’s injuries, if any. Neither defendant subjected the plaintiff to unlawful physical contact subsequent to the arrest of plaintiff. The jury awarded the plaintiff no compensatory, punitive or nominal damages. The court entered judgment in accordance with the jury’s verdict, and this appeal followed.

Appellant argues that the court erred in failing to direct a verdict in his favor on the issue of liability, in instructing the jury that the testimony was conflicting on the issue of whether the defendants arrested the appellant and in failing to overturn the jury’s finding that neither defendant arrested appellant. These contentions are totally without merit. Viewing the evidence in the light most favorable to the defendants, as we must, the jury’s verdict is clearly supported by the evidence. If the defendants’ witnesses are believed, the officers acted entirely reasonably under the circumstances. The officers had rushed to a scene in which a great deal of violence had already been committed. A fellow officer and a civilian had already been wounded. There was apparently blood all over the place. Laura Fay Kuykendall was screaming hysterically and accusing appellant of having assaulted her. Appellant was limping away from the scene, wounded, with blood on his face. Not only was it reasonable for the officers to detain appellant, it would have been unreasonable for them to do otherwise. Had the jury believed appellant’s story that he had been severely beaten by the police officers, it would have been unreasonable for them to reach a verdict in favor of the defendants. But their answers to the court’s interrogatories demonstrate that they did not believe that appellant’s version of the incident was supported by a preponderance of the evidence. Appellant has in all respects failed to demonstrate that this verdict was unreasonable.

Appellant also argues that the court erred in failing to charge the jury that a mistake of fact does not exonerate a police officer who has arrested a person without a warrant and without probable cause. Regardless of the merit of this argument, it does not apply to this ease, since the jury found that neither defendant arrested the plaintiff. The court’s charge to the jury included the following instruction:

Accordingly, a peace officer’s arrest is not unlawful where he is proceeding in good faith, even though it may be subsequently determined that he was operating under an honest and reasonable misunderstanding of the facts. Nor is there any civil recovery permitted where it is established that there was probable cause for arrest and the arresting officer acted in good faith, even though the arrested person was subsequently found innocent of the charge upon which he was arrested.

These two sentences must be considered together, and so considered, they are consistent with the rule that a later finding of innocence does not invalidate an arrest made with probable cause. See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).

Appellant also argues that the court erred in failing to instruct the jury with respect to false imprisonment and cruel and unusual punishment. However, appellant’s entire false imprisonment issue is based on the premise that the arrest itself was illegal, a premise which is not supported by the record. Likewise, his argument with respect to cruel and unusual punishment is based on the premise that he was injured by the defendants, which the jury specifically found not to be true.

We have examined carefully all of appellant’s other assignments of error, and find them all to be without merit.

The judgment is

Affirmed.