Mennen Co. v. Gillette Co., 302

• Decision Date: 05 October 1983
• Docket Number: D,No. 302,302
• Citation: 719 F.2d 568
• Parties: The MENNEN COMPANY, Plaintiff-Appellant, v. The GILLETTE COMPANY, Defendant-Appellee. ockets 83-7583, 83-7647 and 83-7649.
• Court: U.S. Court of Appeals — Second Circuit

Page 568

719 F.2d 568

The MENNEN COMPANY, Plaintiff-Appellant, v. The GILLETTE COMPANY, Defendant-Appellee.

No. 302, Dockets 83-7583, 83-7647 and 83-7649.

United States Court of Appeals, Second Circuit.

Argued Sept. 15, 1983.

Decided Oct. 5, 1983.

Robert G. Sugarman, Weil, Gotshal & Manages, New York City (Deborah M. Lodge, Susanna M. Lowy, New York City, of counsel), for plaintiff-appellant.

Marie V. Driscoll, Cooper, Dunham, Clark, Griffin & Moran, New York City (Maxwell Breslau, Boston, Mass., of counsel), for defendant-appellee.

Before KAUFMAN, MESKILL, and PIERCE, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

We have before us several issues, all of them presenting the common question of whether the Mennen Co.'s notice of appeal of the dismissal of its trademark infringement suit against the Gillette Co. was timely filed. Mennen appeals from Judge Pollack's order denying its motion for an extension of time to appeal under Rule 4(a)(5) of the Federal Rules of Appellate Procedure, ¹ or, alternatively, for vacation of the judgment of dismissal to permit an appeal under Rule 60(b) of the Federal Rules of Civil Procedure. ² Gillette moves to dismiss Mennen's appeal of the judgment on the merits as untimely, and to dismiss appeals of separate judgments on attorneys' fees and costs as not presenting appealable issues. Because we find that Mennen's failure to file timely notice of appeal was the result not of its own negligence but of action by the clerk of the district court which misled the appellant, we deny the motions to dismiss and remand to that court with instructions to extend Mennen's time to appeal under Rule 4(a)(5).

The parties in this case are both titans in the manufacture and marketing of personal grooming aids, shaving accessories and similar items. Mennen initiated the underlying suit, from which this procedural controversy arose, in an attempt to bar Gillette's adoption on its Right Guard deodorant and anti-perspirant packages of a design consisting of a two-colored diagonal stripe. Claiming that this symbol bore a close resemblance to a two-stripe logo long used on its products, Mennen sued for a number of unfair trade practices. On May 27, 1983, the district judge, finding all claims meritless, ordered the suit dismissed, with attorneys' fees and costs awarded to Gillette.

In delivering his opinion from the bench, the judge instructed the parties to "[s]ubmit judgment on notice." Pursuant to this instruction, Gillette's counsel prepared a judgment, which was submitted to the Court and to Mennen. It was noticed for settlement on June 9, 1983. This proposed judgment contained three decretal paragraphs. One dismissed the case on the merits, and two awarded attorneys' fees and costs, respectively. The judgment was signed by the judge at a conference with the parties on June 14, 1983, entered by the clerk in the docket on June 15, and noted in the New York Law Journal on June 20. ³ A further judgment on costs, which referred to the prior judgment of June 15, was docketed June 24.

Without knowledge of the parties, however, the clerk had already entered a judgment on May 31 based on the judge's decision of May 27, contrary to the judge's direction to the parties to "[s]ubmit judgment on notice." This judgment likewise dismissed the complaint, and also awarded fees and costs. The erroneous entry of judgment apparently stemmed from faulty Minutes prepared by Judge Pollack's Deputy Clerk, although his transmittal memorandum to the Docket Clerk had been properly marked "judgment to be submitted" rather than "order signed." The existence of two redundant judgments must have been brought to the attention of the district judge some time prior to June 28, for on that day he made several modifications in the June 15 judgment which were intended to clarify, retroactively, that the June 15 judgment dealt only with attorneys' fees and costs, while the May 31 judgment disposed of the substantive claims. ⁴

On July 13 Mennen, by substitute counsel, filed a notice of appeal from the judgments of June 15, June 24 and June 28. Shortly thereafter, Mennen became aware of the entry of the May 31 judgment, and immediately petitioned the district court for an extension of time to appeal it. Judge Pollack denied the motion, and Mennen appealed the denial of that motion and the entry of the May 31 judgment as well. Gillette moves to dismiss the latter appeal as untimely, and the prior appeal as extending only to the fees and costs issues, which were agreed upon by the parties and hence, Gillette argues, were unappealable.

Mennen petitioned the district court for relief under both Rule 4(a)(5), Fed.R.App.P., which allows a 30-day extension of time to file a notice of appeal where excusable neglect or other good cause are shown, and Rule 60(b), Fed.R.Civ.P., which authorizes the vacating of final judgments for, inter alia, mistake, inadvertence, surprise, excusable neglect, or "any other reason justifying relief ...." ⁵ We need not, however, pass on the Rule 60(b) standard here, because Mennen qualifies for relief through the narrow window which Rule 4(a)(5) affords.

We are aware that the mere failure of the clerk to give the parties notification that judgment has been entered does not provide grounds for a finding of excusable neglect nor warrant an extension of time to appeal. Rule 77(d), Fed.R.Civ.P.; Fase v. Seafarers Welfare and Pension Plans, 574 F.2d 72, 76-77 (2d Cir.1978); Nichols-Morris Corp. v. Morris, 279 F.2d 81, 82-83 (2d Cir.1960). In addition, it is customarily the duty of trial counsel to monitor the docket and to advise himself when the court enters an order against which he wishes to protest. MCA, Inc. v. Wilson, 425 F.Supp. 457, 459 (S.D.N.Y.1977). One who fails to do so is indeed negligent, but where the omission occurs because the party has been misled by action of the court or its officers, such neglect may be excusable. See Hernandez-Rivera v. Immigration & Naturalization Service, 630 F.2d 1352 (9th Cir.1980); Lieberman v. Gulf Oil Corp., 315 F.2d 403 (2d Cir.), cert. denied, 375 U.S. 823, 84 S.Ct. 62, 11 L.Ed.2d 56 (1963). A particularly apposite case is Babich v. Clower, 528 F.2d 293 (4th Cir.1975). Plaintiff there was represented by both local and trial counsel, and to obviate possible confusion, the judge expressly directed the clerk to transmit his order to "all counsel of record." Id. at 295. Trial counsel never received the order, and failed to file a timely notice of appeal. While lack of notice normally will not excuse untimeliness, the court held that an extension of time was warranted where counsel had relied upon the judge's own instruction, with which the clerk did not comply.

Such is the case here. Mennen's initial ignorance of the May 31 judgment was attributable to the clerk's failure to abide by Judge Pollack's precise instructions, not to Mennen's own negligence. There were, subsequently, no clues offered to Mennen which would have been sufficient to alert it to the existence of the phantom judgment. ⁶ Gillette argues that the judge's June 28 modification and re-entry of the June 15...