FEENER BUSINESS SCHOOLS v. Speedwriting Pub. Co., 5260.

• Decision Date: 22 November 1957
• Docket Number: No. 5260.,5260.
• Citation: 249 F.2d 609
• Parties: FEENER BUSINESS SCHOOLS, Inc., et al., Appellants, v. SPEEDWRITING PUBLISHING COMPANY, Inc., Plaintiff, Appellee.
• Court: U.S. Court of Appeals — First Circuit

249 F.2d 609 (1957)

FEENER BUSINESS SCHOOLS, Inc., et al., Appellants, v. SPEEDWRITING PUBLISHING COMPANY, Inc., Plaintiff, Appellee.

No. 5260.

United States Court of Appeals First Circuit.

November 22, 1957.

John P. Nalty, Boston, Mass., for Feener Business Schools, Inc., appellant.

Carleton L. Feener, pro se, appellant.

Lawrence R. Cohen, Boston, Mass., Samuel P. Sears and Brickley, Sears & Cole, Boston, Mass., on the brief for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

PER CURIAM.

Back in 1952, School of Speedwriting, Inc., a New York corporation, filed its complaint in the United States District Court for the District of Massachusetts against Feener Business Schools, Inc., a Massachusetts corporation. At this time School of Speedwriting, Inc., was a wholly owned subsidiary of Speedwriting Publishing Company, Inc., also a New York corporation. On July 20, 1954, the district court entered a final decree adjudging that plaintiff "has had and now has a valid common law trade-mark and trade name known as `Speedwriting' which is a coined original word. This common law trade-mark and trade name covers a type of service with a central source of origin, to wit, plaintiff and its publications"; and also adjudging that defendant has "infringed upon plaintiff's common law rights and fraudulently marketed its services and such use of plaintiff's trade-mark constitutes dilution of plaintiff's trade-mark rights." Wherefore, the final decree of July 20, 1954, enjoined the defendant, "its officers, agents, servants and employees," from using either of the terms "Speedwriting" or "Speed Writing" or any variation thereof directly or indirectly. On appeal that decree was affirmed by this court. 1955, 220 F.2d 747.

At this point it may be noted that Carleton L. Feener, principal officer of Feener Business Schools, Inc., was not a party individually to the original action in which his corporation was named as sole defendant. However, the injunction of July 20, 1954, was, by its terms, binding upon Carleton L. Feener as an officer of defendant corporation.

In February, 1956, two motions were filed in the district court on behalf of the named plaintiff, School of Speedwriting, Inc. — one asking for an order for damages in civil contempt against Feener Business Schools, Inc., and against its principal officer Carleton L. Feener, and another asking for a modification of the final decree of July 20, 1954, by deleting the sixth paragraph thereof. Subsequently the district court 139 F.Supp. 110 entered separate orders on the two motions. The order on contempt found that both respondents were in contempt of the court's final decree of July 20, 1954, and concluded with an order that "all of the costs and expenses of the plaintiff arising upon the prosecution of this rule for contempt be paid by the said defendants, Carleton L. Feener and Feener Business Schools, Inc., in the total sum of Twenty-Eight Hundred Fifty ($2,850.00) Dollars, which sum shall be paid to the plaintiff at the office of its attorneys in Boston in or within twenty (20) days from the service of this order of contempt". The so-called "modified final decree", also entered on February 27, 1956, reissued the original injunction, with the elimination of paragraph 6 thereof. On appeal we affirmed the order for contempt and the modified final decree. Feener Business Schools, Inc., v. School of Speedwriting, Inc., 1 Cir., 1956, 234 F.2d 1.

In our Per Curiam opinion filed in the foregoing case, we concluded with the following statement:

"Appellants have submitted for filing a document which they call a Reply Brief. For the most part it is not really a reply brief, but it contains photostats of documentary material intended to establish that the plaintiff below, School of Speedwriting, Inc., has ceased to exist as a legal entity. We have allowed this so-called Reply Brief to be filed; but we shall not undertake to determine whether, by the effect of the corporate merger referred to, the School of Speedwriting, Inc., has ceased to exist, or whether the continuing corporation, Speedwriting Publishing Company, Inc., should be substituted in its stead as party plaintiff. When the case gets back to the district court, of course that court will be free to entertain an appropriate motion under Rule 25 (c), F.R.C.P."

Some time then elapsed during which the Supreme Court considered and denied a petition for certiorari. 1956, 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 238.

Subsequently, after the case got back into the district court, counsel for plaintiff filed a motion "that Speedwriting Publishing Company, Inc. be substituted as plaintiff herein as of May 23, 1955." The motion stated that on principle "this motion should be allowed nunc pro tunc, to preserve the continuity of this action and the rights of the...