Here’s a 2017 ruling that slipped under the TTABLog radar. In this precedential order, the Board denied an FRCP 12(c) motion for judgment on the pleadings, directed at applicant’s counterclaims, because the motion was untimely. The Board followed its established practice of applying to motions for judgment on the pleadings the same deadline applicable to summary judgment motions under recently amended Rule 2.127(e)(1). Shared, LLC v. SharedSpaceofAtlanta, LLC, Opposition No. 91228478 (December 21, 2017) [precedential].
A motion for judgment on the pleadings, like a summary judgment motion, is “a pretrial device intended to save the time and expense of a full trial when a party is able to demonstrate, prior to trial, that there is no genuine dispute of material fact to be resolved, and the moving party is entitled to judgment on the substantive merits of the controversy as a matter of law.”
According to TBMP § 504.01 (June 2017), a motion for judgment on the pleadings should be filed “[a]fter the pleadings are closed, but within such time as not to delay the trial.” More significantly, FRCP 12(c) states that “After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings.” The Board’s “established practice” has been to apply to such motions the deadline that applies to summary judgment motions as set forth in Trademark Rule 2.127(e)(1).
Before January 14, 2017, the deadline for filing a summary judgment was, according to Rule 2.127(e)(1), “prior to the commencement of the first testimony period, as originally set or as reset.” That Rule was amended as of January 14, 2017, and clarified on July 21, 2017, to provide that a summary judgment motion “must be filed before the day of the deadline for pretrial disclosures for the first testimony period, as originally set or as reset.” [Emphasis supplied].
Applying the new summary judgment deadline to the subject FRCP 12(c) motion, the Board ruled that a motion for judgment on the pleadings must likewise be filed before the day of the deadline for pretrial disclosures for the first testimony period, as originally set or as reset.
Here, the deadline for opposer’s pretrial disclosures, as reset in the Board’s July 26, 2017 order, was August 7, 2017 (fifteen days before the opening of opposer’s testimony period on August 22). Opposer’s motion filed August 19, 2017 was therefore untimely, and so the Board denied the motion.