Russell Road Food and Beverage v. Michael Galam

FILED
NOT FOR PUBLICATION DEC 01 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUSSELL ROAD FOOD AND No. 14-15286
BEVERAGE, LLC, a Nevada limited
liability company, D.C. No. 2:13-cv-00776-JCM-
NJK
Plaintiff - Appellant,
v. MEMORANDUM*
MICHAEL GALAM, an individual; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted November 17, 2014
San Francisco, California
Before: NOONAN and IKUTA, Circuit Judges, and DANIEL, Senior District
Judge.**
Russell Road Food and Beverage, LLC (Russell Road) appeals from an
order vacating a preliminary injunction precluding Michael Galam and the other
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Wiley Y. Daniel, Senior District Judge for the U.S.
District Court for Colorado, sitting by designation.
appellees (collectively “appellees”) from using the trademark Crazy Horse Too.
We have jurisdiction under 28 U.S.C. § 1292(a)(1).
The district court had the authority to hear the motion because the district
court complied with the procedure outlined in Rule 62.1 of the Federal Rules of
Civil Procedure and Rule 12.1 of the Federal Rules of Appellate Procedure, as well
as with our order granting appellees’ motion for a limited remand. The district
court did not clearly err in holding that appellees’ submission of The Power
Company’s guaranty and corporate resolution provided a basis for reconsidering or
modifying its previous order, whether the motion is construed as one under Rule
54(b) or Rule 59(e) of the Federal Rules of Civil Procedure. See A&M Records,
Inc. v. Napster, Inc., 284 F.3d 1091, 1098 (9th Cir. 2002); Kona Enters., Inc. v.
Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).
The district court erred in holding that The Power Company’s guaranty
proved that its Crazy Horse Too trademark was included in the collateral subject to
appellees’ lien, and that appellees therefore obtained ownership of the trademark
when they foreclosed. The trustee’s deed of sale shows that appellees purchased at
the non-judicial foreclosure sale only the real property formerly owned by RicRiz,
LLC, which did not include The Power Company’s trademark. The order of the
court in the forfeiture action, stating that the sale was to be a “sale for all
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purposes,” does not change the legal effect of the non-judicial foreclosure sale.
Even if appellees had attempted to enforce the guaranty (and there is no evidence
that they did so), the guaranty provided a security interest only in property “in the
physical possession of or on deposit with the Lender,” which appellees have not
shown includes the Crazy Horse Too trademark. Although The Power Company’s
corporate resolutions authorized The Power Company to give appellees a security
interest in the trademark, The Power Company did not expressly provide such a
security interest in the guaranty. Appellees have presented no document that gives
them a security interest in the Crazy Horse Too trademark owned by The Power
Company or that indicates they obtained the trademark in the foreclosure sale.
We reverse the district court’s order vacating the preliminary injunction and
remand for further proceedings to determine whether appellees have some other
basis for claiming ownership of the trademark and, if so, whether the trademark
was abandoned by the United States before it was acquired by appellees.
REVERSED AND REMANDED.
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