The Board denied Opposer Lumber Liquidator's request for reconsideration of the denial of its summary judgment motion because the motion was untimely. A summary judgment motion must be filed before the deadline date for pre-trial disclosures, but Lumber Liquidator filed its motion three days after the deadline date. Lumber incorrectly applied Rule 2.196 in adding three days to the deadline. Lumber Liquidators Services, LLC v. Columbia Insurance Co., 2022 USPQ2d 31 (TTAB 2022) [precedential] (Order by Interlocutory Attorney Jennifer Krisp).

Rule 2.127(e)(1) states, in pertinent part, that "A motion for summary judgment must be filed before the day of the deadline for pretrial disclosures for the first testimony period, as originally set or as reset." (emphasis by the Board). Lumber's pre-trial disclosures were due on Saturday, July 3, 2021, after the Board granted a consented motion for extension of discovery and trial dates. Lumber filed its summary judgment motion on July 5, 2021. Lumber Liquidators claimed that it pre-trial disclosures were not due until July 6th, since July 3rd was a Saturday, July 4th a Sunday, and July 5th a Federal holiday. And so, Lumber argued, its motion was timely filed on the day before its pre-trial disclosures were due.

Rule 2.196, entitled "Times for taking action: Expiration of Saturday, Sunday or Federal holiday," states:

Whenever periods of time are specified in this part in days, calendar days are intended. When the day, or the last day fixed by statute or regulation by or under this part for taking any action or paying any fee in the Office falls on a Saturday, Sunday or Federal holiday within the District of Columbia, the action may be taken, or the fee paid, on the next succeeding day that is not a Saturday, Sunday or a Federal holiday. (emphasis by the Board)

The Board observed that Rule 2.196 does not use the terms "deadline" or "due date." The "day of the deadline" referred to in Rule 2.127(e)(1) may, of course, be a Saturday, Sunday or Federal holiday. Therefore, the issue at hand was "whether Rule 2.196 applies in determining the timeliness of a motion for summary judgment that is filed subsequent to 'the day of the deadline for pretrial disclosures for the first testimony period, as originally set or as reset.'" The Board said no.

Trademark Rule 2.196 is stated "so as to address and provide guidance on the timeliness of a wide range of actions during the lifecycle of an application or registration:" for example, a response to an Office action, the filing of a petition to the director, the filing of a notice of opposition, or the filing of a notice of appeal from a final refusal. Rule 2.196 defines when "the action may be taken."

Trademark Rule 2.127(e)(1) was adopted and subsequently clarified "in order to to establish certainty in the litigation schedule by highlighting the separation between the discovery and trial phases of proceedings, thereby serving to avoid surprise to parties at the time when they are focused on and preparing for trial." See KID-Systeme GmbH v. Turk Hava Yollari Teknik Anonim Sirketi, 125 USPQ2d 1415, 1416 n.3, (TTAB 2018).

The Board faced a similar issue in Asustek Comput. Inc. v. Chengdu Westhouse Interactive Entm't. Co., 128 USPQ2d 1470 (TTAB 2018), involving a motion to compel discovery. Pursuant to Rule 2.120(f)(1), such a motion must be filed "before the day of the deadline for pretrial disclosures for the first testimony period as set or re-set." The Board rejected Austek's position that, because the day before the deadline day was a Sunday, it could timely file its motion on the following day. Not so said the Board. The motion to compel had to be filed before the deadline day.

In Asustek,  the Board pointed out that Rule 2.196 "does not apply to the relevant provision of Trademark Rule 2.120(f)(1), which does not fix a particular day by which a motion to compel must be filed, but instead ensures that the motion be filed before the day of another event (pretrial disclosures) occurs." The Board, anticipating that similar timeliness issues might arise with respect to a motion for summary judgment, stated that "[m]otions for summary judgment, just as motions relating to discovery, must be filed before the proceeding enters the trial phase."

In the case at hand, the Board observed that "[t]he overriding interest in assuring that all matters relating to the discovery phase are closed and resolved prior to trial is evident in and achieved from a proper application of Trademark Rule 2.196 to motions for summary judgment as well as motions to compel discovery."

Here, the trial phase of the proceeding began on July 3, 2021, the due date for the opposer's pre-trial disclosures. Rule 2.196 operates to extend that date to July 6, 2021, but "the day of the deadline" was not moved or changed. The last day for filing a motion for summary judgment was not a date "'fixed to 'the day of the deadline for' Opposer's pre-trial disclosures." (emphasis by the Board). Therefore, the last day on which either party could file a motion for summary judgment was July 2, 2021, the day before the deadline for pretrial disclosure, as reset.

Therefore, Lumber Liquidator's summary judgment motion was untimely.

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