Filed: Mar. 21, 2012
Latest Update: Feb. 22, 2020
Summary: 11-831-cv Lee v. Marvel Enterprises, Inc. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUM
Summary: 11-831-cv Lee v. Marvel Enterprises, Inc. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMM..
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11-831-cv
Lee v. Marvel Enterprises, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 21st day of March, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 DENNY CHIN,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 Stan Lee,
15 Plaintiff-Appellee,
16
17 -v.- 11-831-cv
18
19 Marvel Enterprises, Inc.,
20 Defendant-Appellee,
21
22 and
23
24 Marvel Characters, Inc.
25 Defendant,
26
27 -v.-
28
29 Stan Lee Media, Inc.,
30 Movant-Appellant.*
31 - - - - - - - - - - - - - - - - - - - -X
*
The Clerk of Court is directed to amend the official
caption as shown above.
1
1 FOR PLAINTIFF-APPELLEE: Steven J. Shore (Ira Brad
2 Matetsky, William A. Jaskola, on
3 the brief), Ganfer & Shore, LLP,
4 New York, NY.
5
6 FOR DEFENDANT-APPELLEE: David Fleischer, Haynes and
7 Boone, LLP, New York, NY.
8
9 FOR MOVANT-APPELLANT: Raymond J. Dowd (Luke A.
10 McGrath, on the brief),
11 Dunnington Bartholow & Miller,
12 LLP, New York, NY.
13
14 Appeal from a judgment of the United States District
15 Court for the Southern District of New York (Sweet, J.).
16
17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
18 AND DECREED that the judgment of the district court is
19 AFFIRMED.
20
21 Movant-Appellant Stan Lee Media, Inc. (“SLMI”) appeals
22 the denial of its motion to vacate the judgment, intervene
23 as a real party in interest, and unseal certain documents.
24 We assume the parties’ familiarity with the underlying
25 factual allegations, the procedural history of the case, and
26 the issues on appeal.
27 [1] SLMI moves to vacate the judgment in the suit between
28 Lee and Marvel Enterprises, Inc., and Marvel Characters,
2
1 Inc., under Federal Rule of Civil Procedure 60(b)(4) (“the
2 judgment is void”), 60(b)(5) (“applying [the judgment]
3 prospectively is no longer equitable”), and 60(b)(6) (“any
4 other reason that justifies relief”). The timeliness of
5 such a motion is governed by Rule 60(c)(1), which requires
6 that it “be made within a reasonable time.” SLMI did not
7 seek to vacate this judgment until more than five years
8 after final judgment. Much shorter periods of time have
9 been held unreasonable. See, e.g., Kellogg v. Strack, 269
10 F.3d 100, 104 (2d Cir. 2001) (per curiam) (twenty-six
11 months); Rodriguez v. Mitchell,
252 F.3d 191, 201 (2d Cir.
12 2001) (three-and-a-half years). That SLMI’s management was
13 in an extended period of disarray does not excuse its more
14 than five-year delay in filing its Rule 60(b) motion.
15 [2] SLMI also argues that the judgment should be “set
16 aside” as a “fraud on the court.” Fed. R. Civ. P. 60(d)(3).
17 Assuming, arguendo, that Rule 60(d)(3) is not subject to any
18 reasonable-timeliness requirement, SLMI has not sustained
19 its heavy burden of establishing a “fraud which does or
20 attempts to, defile the court itself, or is . . .
21 perpetrated by officers of the court so that the judicial
22 machinery cannot perform in the usual manner its impartial
3
1 task of adjudging cases.” Hadges v. Yonkers Racing Corp.,
2 48 F.3d 1320, 1325 (2d Cir. 1995) (internal quotation marks
3 omitted); accord Gleason v. Jandrucko,
860 F.2d 556, 559 (2d
4 Cir. 1988) (explaining that “fraud on the court” “is limited
5 to fraud which seriously affects the integrity of the normal
6 process of adjudication”).
7 SLMI primarily argues that the fraud on the court here
8 was that Lee and Marvel litigated and resolved Lee’s
9 interest in the 10% stake of Marvel’s television and movie
10 profits without including SLMI. Even accepting arguendo
11 SLMI’s theory that it might have been entitled to whatever
12 money was owed to Lee under the terms of the Lee-Marvel
13 agreement, that would not mean that Lee and Marvel worked a
14 fraud on the court, especially since Lee claims that he
15 previously rescinded his agreement with SLMI, and there is
16 no indication that SLMI objected to the rescission. If SLMI
17 was correct (that Marvel owed the 10% stake to SLMI and not
18 Lee), then SLMI could have brought a separate action against
19 Lee to recover that money.
20 [3] SLMI conceded during oral argument that the judgment
21 must be vacated before SLMI can intervene as a real party in
22 interest under Rule 19 of the Federal Rules of Civil
4
1 Procedure. This concession is well-taken. As the
2 commentary to the 1966 Amendments to Rule 19 explain: the
3 failure to add a necessary party “does not by that token
4 deprive [the court] of the power to adjudicate as between
5 the parties already before it” and the absence of a
6 necessary party does not “negate the court’s power to
7 adjudicate as between the parties who have been joined.”
8 See Fed. R. Civ. P. 19, cmt. General Considerations to 1966
9 Amendments. Accordingly, the judgment entered in the
10 dispute between Lee and Marvel remains enforceable as
11 between them regardless of whether SLMI was joined as a
12 party. Thus, there is no basis to conclude that the
13 original judgment is void or must be vacated. Since that
14 litigation has long been final, there is no pending action
15 in which SLMI might intervene.
16 [4] SLMI argues that the district court abused its
17 discretion in not unsealing certain documents from the
18 underlying litigation. See Gambale v. Deutsche Bank AG, 377
19 F.3d 133, 139 (2d Cir. 2004) (identifying standard of
20 review). The district court found as a matter of fact that
21 a copy of the documents that SLMI now seeks to unseal had
22 been produced to SLMI during discovery in the Stan Lee Media
5
1 Inc. v. Marvel Entm’t, 07 Civ. 2238 (S.D.N.Y.). That
2 factual finding, based on the declaration of Marvel’s
3 attorney, is reviewed for clear error. Mobil Shipping &
4 Transp. Co. v. Wonsild Liquid Carriers Ltd., 190 F.3d 64, 67
5 (2d Cir. 1999). SLMI has not aroused “‘the definite and
6 firm conviction’” that the district court’s finding that
7 SLMI received the documents was in error.
Id. at 67-68
8 (quoting Anderson v. Bessemer City,
470 U.S. 564, 574
9 (1985)). SLMI has -- or, at least, had -- a copy of the
10 documents, so there is no need to unseal them. Accordingly,
11 SLMI has not established that the district court erred in
12 denying its motion.
13 [5] Having decided the matter before us on the above
14 grounds, we do not reach the issue of res judicata.
15
16 Having considered SLMI’s remaining arguments and
17 finding them to be without merit, the judgment of the
18 district court is AFFIRMED.
19
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
23
6
