WESTLAKE v. BARRERA ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STEVEN WESTLAKE,
Appellant
v.
EDGAR ALEXANDER BARRERA,
Appellee
______________________
2016-1189
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
92052260.
______________________
Decided: September 8, 2016
______________________
MARK E. LEVY, Hinman, Howard & Kattell, LLP,
Binghamton, NY, for appellant.
EDGAR ALEXANDER BARRERA, Grand Terrace, CA, pro
se.
______________________
Before PROST, Chief Judge, NEWMAN, and TARANTO,
Circuit Judges.
2 WESTLAKE v. BARRERA
PER CURIAM.
Steven Westlake filed a petition to cancel Edgar
Barrera’s trademark registration. Mr. Westlake did not
submit supporting evidence within the time allowed. The
Trademark Trial and Appeal Board found that his neglect
was not excusable, and it therefore dismissed the cancel-
lation petition. We affirm.
BACKGROUND
Mr. Barrera owns a registration, issued on August 4,
2009, for a mark consisting of “THE NATIONAL POLICE
GAZETTE THE LEADING ILLUSTRATED SPORTING
JOURNAL IN AMERICA” and a design. On March 29,
2010, Mr. Westlake petitioned to cancel the mark under
15 U.S.C. § 1064, alleging that Mr. Barrera committed
fraud in procuring the registration of the mark and that
the mark falsely suggests a connection with Mr. Westlake.
The Board gave the parties several extensions of time
for the submission of evidence but ultimately set July 29,
2014, as Mr. Westlake’s due date. See 37 C.F.R. § 2.121.
Mr. Westlake submitted no evidence by that date. Six
months later, on January 28, 2015, the Board issued a
show-cause order, giving him until February 12, 2015, to
demonstrate why judgment should not be entered against
him for failure to prosecute the case. Mr. Westlake re-
sponded six days late, on February 18, 2015. In his
response, he moved to reopen the time to respond to the
Board’s show-cause order, actually responded to the show-
cause order, and moved to reopen the period for submit-
ting evidence.
The Board allowed Mr. Westlake’s late response to the
show-cause order, finding that his six-day tardiness on
the show-cause order was excusable. The Board borrowed
generally applicable standards for excusable neglect,
considering “all relevant circumstances,” including “the
danger of prejudice to the [non-movant], the length of the
WESTLAKE v. BARRERA 3
delay and its potential impact on judicial proceedings, the
reason for the delay, including whether it was within the
reasonable control of the movant, and whether the mo-
vant acted in good faith.” Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993);
see also FirstHealth of Carolinas, Inc. v. CareFirst of
Maryland, Inc., 479 F.3d 825, 829 (Fed. Cir. 2007). Find-
ing that Mr. Barrera would incur no prejudice from excus-
ing the tardiness, which was minimal, and that Mr.
Westlake’s tardiness “was caused by his paralegal’s
automobile accident and resulting injuries,” not any bad
faith, J.A. 4, the Board excused the lateness of Mr.
Westlake’s response to the Board’s show-cause order. The
Board therefore considered the response, and the motion
to reopen the period for submitting evidence, on their
merits.
Upon doing so, however, the Board determined that
Mr. Westlake did not show good cause for his failure to
prosecute the case, i.e., for missing the July 2014 deadline
for submitting evidence. Again applying the Pioneer
framework, the Board concluded that Mr. Westlake’s
“failure to take testimony or offer evidence was not the
result of excusable neglect.” J.A. 7. The Board found that
the delay caused by Mr. Westlake’s failure to submit
evidence was substantial, as he did not seek more time
until after the scheduled testimony-submission periods of
both parties had expired—indeed, until after the Board
issued its show-cause order six months later. The Board
also found that Mr. Westlake did not explain why “he was
not diligent in prosecuting his case, except to say it was
difficult to publish [his periodical] on a monthly basis and
respond to the various motions filed by” Mr. Barrera. J.A.
6–7. The Board rejected Mr. Westlake’s assertion that
delays in the proceeding caused by Mr. Barrera should
excuse Mr. Westlake’s failure to submit evidence when
required. Instead, the Board found that the “reason for
4 WESTLAKE v. BARRERA
the delay was within [Mr. Westlake’s] control,” a fact
weighing “strongly” against him. J.A. 7.
Having found for those reasons that Mr. Westlake’s
failure to prosecute the case was not a result of excusable
neglect, the Board denied his motion to reopen the evi-
dence-submission period. And because Mr. Westlake
“ha[d] not submitted any record evidence or testimony in
support of his case,” the Board dismissed the petition to
cancel Mr. Barrera’s mark. J.A. 7.
Mr. Westlake appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(4)(B).
DISCUSSION
There is no challenge to the Board’s premises that in
this case missing the due date for submission of evidence,
if without good cause, constituted a failure to prosecute
that warranted dismissal of the petition to cancel. The
question before us is whether the Board committed re-
versible error in determining that Mr. Westlake did not
show good cause for his failure to submit evidence by the
due date. We review the Board’s determination under the
deferential standard limiting us to checking if the Board
abused its discretion. See Hewlett-Packard Co. v. Olym-
pus Corp., 931 F.2d 1551, 1552 (Fed. Cir. 1991). We find
no basis for disturbing the Board’s decision.
We see no error in the Board’s adoption of the Pioneer
framework for assessing excusable neglect, and we see no
abuse of discretion in the Board’s application of that
framework to the facts in this case. The Board deemed
Mr. Westlake’s delay to be “substantial,” and it found that
“the reason for the delay was within [Mr. Westlake’s]
control,” a factor “weigh[ing] strongly” against Mr.
Westlake. J.A. 6–7. The Board also rejected the argu-
ment that Mr. Barrera’s delays in the proceeding excuse
Mr. Westlake’s failure to prosecute. Mr. Westlake has not
shown that the Board committed an abuse of discretion in
WESTLAKE v. BARRERA 5
reaching any of those determinations. He argues that the
Board should have considered Mr. Barrera’s repeated
delays and bad faith in reaching its no-excusable-neglect
decision, but the Board did consider Mr. Barrera’s actions,
deeming them not to excuse Mr. Westlake’s failure to
prosecute his case. In essence, Mr. Westlake asks this
court to reevaluate the factors considered by the Board.
But that is not this court’s function under an abuse-of-
discretion standard of review. See, e.g., In re NTP, Inc.,
654 F.3d 1279, 1292 (Fed. Cir. 2011).
Mr. Westlake also directly alleges that Mr. Barrera
committed fraud in procuring registration of his mark.
That assertion is the basis of Mr. Westlake’s petition for
cancellation, which, as we have just explained, the Board
properly found Mr. Westlake failed to prosecute. Failure
to prosecute was the only ground, and a legally sufficient
ground, for the Board’s dismissal of the petition for can-
cellation without deciding anything about the fraud
charge except that there was no evidence timely submit-
ted to support it. The merits of the fraud charge are
therefore not before us.
CONCLUSION
For the foregoing reasons, the judgment of the Board
is affirmed.
AFFIRMED