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Wine & Canvas Development LLC v. Weisser

United States District Court, S.D. Indiana, Indianapolis Division

October 26, 2017

WINE & CANVAS DEVELOPMENT LLC, Plaintiff,
v.
THEODORE WEISSER, YN CANVAS CA, LLC, and WEISSER MANAGEMENT GROUP, LLC, Defendants.

          ORDER ON MOTION FOR RELIEF FROM JUDGMENT AND ORDER ON COSTS

          TANYA WALTON PRATT, JUDGE.

         This matter is before the Court on Defendant Theodore Weisser's (“Weisser”) Motion for Relief from Judgment and Order on Costs filed pursuant to Federal Rule of Civil Procedure 60(b) (Filing No. 612). Following the entry of default judgment against Weisser and an evidentiary hearing on damages, the Court issued an Order on the damages hearing and entered Final Judgment (Filing No. 510; Filing No. 511), awarding Plaintiff Wine & Canvas Development LLC (“WNC”) its costs of litigation. Weisser now asks the Court for relief from the Order on Costs and the Final Judgment on the bases of newly discovered evidence and WNC's fraud or misrepresentations to the Court. For the following reasons, the Court DENIES Weisser's Motion for Relief from Judgment.

         I. BACKGROUND

         The disputes in this action surround WNC's allegations that Weisser and his business partner, Christopher Muylle (“Muylle”), having been intimately involved in the development of WNC, infringed on the WNC trademark, breached contracts and covenants not to compete, performed acts of deception, unfair competition, conversion and intimidation/extortion. WNC initially filed a Complaint in state court on November 28, 2011, asserting numerous claims, including trademark claims under the Lanham Act against both Weisser and Muylle. The case was removed to federal court on December 2, 2011. Initially, Weisser was represented by counsel; however, his attorneys withdrew their appearance on October 5, 2012, and the Court directed the Clerk to add Weisser to the docket as a pro se litigant (Filing No. 48). On October 22, 2012, Weisser filed an Answer to WNC's Amended Complaint and asserted counterclaims against WNC for violation of California's franchise code and for cancellation of the WNC trademark registration (Filing No. 51). Thereafter, Weisser virtually abandoned this case. During his self-representation, Weisser disregarded many Court Orders and procedures. In November 2012, WNC filed a motion for a more definite statement from Weisser, which the Court granted (Filing No. 112 at 3). Weisser failed to comply with this Court Order.

         WNC's Amended Complaint asserted claims against Weisser and his entities YN Canvas CA LLC and Weisser Management Group LLC (Filing No. 36). Weisser filed an answer for himself; however, his entities never answered the Amended Complaint. Third-party counterclaims were filed against Weisser and his entities on June 18, 2013 (Filing No. 101). Weisser and his entities never responded to these third-party counterclaims. Because Weisser and his entities did not respond, WNC moved for an entry of clerk's default pursuant to Federal Rule of Civil Procedure 55(a) (Filing No. 131). On November 22, 2013, a Clerk's Entry of Default was entered against third-party counterclaim defendants Weisser and his entities (Filing No. 210). Default also was entered against Weisser's entities as defendants to the Amended Complaint, but because Weisser had filed his Answer to the Amended Complaint, default was not entered against him individually. Id.

         On January 22, 2013, the Magistrate Judge held a telephonic status conference in which the parties were to participate. Weisser failed to appear for the status conference, and a show cause order was issued regarding his failure to appear and participate (Filing No. 77). Weisser responded to the show cause order on February 11, 2013 (Filing No. 80). However, on April 21, 2014, the Magistrate Judge held another telephonic status conference in which the parties were to participate, and again, Weisser failed to appear for the status conference (Filing No. 304).

         WNC sought to depose Weisser in January 2013 and served him with a deposition notice and subpoena in December 2012. Weisser failed to appear for his deposition. Thereafter, WNC asked the Court to compel Weisser to appear for his deposition (Filing No. 84). Weisser did not file a response to WNC's motion. The Court granted WNC's motion to compel Weisser's deposition but denied an award of sanctions (Filing No. 92). The Court also ordered Weisser to cooperate in scheduling his deposition. Despite the Court's Order, Weisser ignored WNC's efforts to reschedule his deposition and failed to cooperate in discovery. Because Weisser refused to cooperate in scheduling the deposition, WNC again sought court intervention, requesting sanctions and an order compelling the deposition (Filing No. 125). Weisser again did not file a response to WNC's motion. The Court denied the motion for sanctions because the deposition had not been rescheduled, so Weisser did not fail to attend a scheduled deposition (Filing No. 187). However, the Court reminded the parties that the previous motion to compel had been granted concerning Weisser's deposition. Id. at 2. The Court also warned Weisser that he could not avoid the discovery process simply by ignoring WNC's requests and advised him that his failure to appear for deposition could lead to sanctions, including a default judgment. Id. Weisser appeared for the deposition on December 5 and 6, 2013.

         WNC moved to dismiss the counterclaims of Weisser on July 25, 2013 (Filing No. 133). Weisser never responded to the motion to dismiss his counterclaims. The Court ruled on WNC's motion and dismissed Weisser's first counterclaim, but the second counterclaim survived dismissal (Filing No. 145 adopted by Filing No. 179 and Filing No. 184). WNC then moved for summary judgment on Weisser's second counterclaim on February 21, 2014 (Filing No. 266). Again, Weisser did not respond to WNC's motion. The Court ruled on WNC's motion and entered summary judgment against Weisser on his second counterclaim, leaving him with no counterclaims against WNC (Filing No. 342).

         In November 2012, the Court entered a Case Management Order establishing deadlines for discovery, disclosures, and dispositive motions (Filing No. 59). Despite the case management order, Weisser never filed a preliminary witness or exhibits list. He never filed a final witness list or a final exhibits list. Weisser also disregarded the Court's order to file preliminary jury instructions, an issue instruction, and verdict forms in preparation for trial. Weisser did not participate with the other parties in attempting to file any joint instructions or verdict forms.

         The Court held a final pretrial conference on October 22, 2014, as trial was scheduled to begin on November 17, 2014. The parties were ordered to appear and participate in the final pretrial conference. Weisser failed to appear and participate in the final pretrial conference. On October 22, 2014, the Court ordered Weisser to show cause within seven days, in writing, why he should not be sanctioned under Federal Rule of Civil Procedure 16(f) for his failure to appear (Filing No. 396). Weisser failed to timely respond in writing to the Court's Order, and on November 10, 2014, the Court entered a default judgment against him (Filing No. 408).

         As a result of the Entries of Default and Orders on the Motions to Dismiss and Motions for Summary Judgment, the only claims remaining for trial were WNC's trademark infringement claim and false designation of origin claim against co-defendant Muylle after November 18, 2011, and Muylle's counterclaim for abuse of process against WNC and WNC's owners and operators: Anthony Scott (“Scott”), Tamara McCracken, and Donald McCracken. The Court informed the parties that a separate hearing after the trial would be held to determine damages as to the Defaulted Defendants (Filing No. 411).

         This case proceeded to trial by jury on November 17, 2014, and the jury rendered a verdict on November 20, 2014, against WNC. Weisser had made flight arrangements to attend the trial prior to the default entry against him, and he appeared on the second day of trial and testified on behalf of Muylle. (See Filing No. 449 at 2.) Six days after the jury trial, on November 26, 2014, Weisser retained counsel (the same counsel who had represented Muylle throughout the litigation and at trial) who entered an appearance on his behalf and filed a Motion to Set Aside the Judgment of Default that had been entered against him (Filing No. 449). That motion was denied (Filing No. 464).

         The Court set a hearing to determine damages as to the Defaulted Defendants. The damages hearing was held on March 2, 2015, and Weisser and WNC were permitted to present exhibits and testimony at the hearing. WNC also asked the Court to incorporate the evidence that had been admitted during the November 2014 jury trial, which the Court granted (Filing No. 495). The parties submitted proposed findings of fact and conclusions of law three weeks after the damages hearing (Filing No. 505, Filing No. 509).

         On May 1, 2015, the Court issued its Order on the damages hearing and entered Final Judgment (Filing No. 510; Filing No. 511). The Court determined that co-defendant YN Canvas was liable for damages in the amount of $5, 088.39 on WNC's breach of contract claim. Injunctive relief also was granted against Defaulted Defendants Weisser, YN Canvas, and Weisser Management Group, prohibiting them from, among other things, using WNC's trademarks. The Court also determined that WNC was entitled to recover its costs of this action from these Defaulted Defendants. Id. After WNC submitted its Bill of Costs, the Court entered an order awarding costs against Weisser and in favor of WNC in the amount of $10, 593.17 (Filing No. 548). On April 29, 2016, Weisser filed his Motion for Relief from Judgment and Order on Costs, asking the Court to set aside the underlying Judgment for injunctive relief and the related Order on costs based on newly discovered evidence and fraud on the Court (Filing No. 612).

         II. L ...


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