FEDERAL TREASURY ENTERPRISE SOJUZPLODOIMPORT and Zakrytoe Aktsionernoe Obschestvo “Liviz“, Plaintiffs-Appellants, v. SPIRITS INTERNATIONAL N.V., SPI Spirits Limited, SPI Group SA, Yuri Shefler, Alexey Oliynik, Allied Domecq International Holdings B.V. and Allied Domecq Spirts & Wine USA, Inc., Defendants-Appellees.
No. 06-3532-cv.
United States Court of Appeals, Second Circuit.
Nov. 24, 2010.
623 F.3d 17 | 2010 WL 4812978
Both arguments fail. A government agency does not waive a defense of failure to timely exhaust administrative rеmedies by accepting and investigating a complaint. Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir.2001). A timeliness objection is only waived where an agency makes “a specific finding that the claimant‘s submission was timely.” Id. (quoting Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir.1992)). It is undisputеd that no findings regarding timeliness were included in the Final Decision, thus the government did not waive its timeliness argument.
As to Lanham‘s argument that the government waived its untimely exhaustion defense by failing tо plead it in its answer, Lanham has waived that argument by not raising it below. While we have discretion to review issues raised for the first time on appeal “where necessary to аvoid manifest injustice or where the argument presents a question of law and there is no need for additional factfinding,” Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir.2006) (citation omitted), we see no reason to exercise that discretion here. Accordingly, the judgment of the district court hereby is AFFIRMED.
See also, 2010 WL 3928910.
Kathleen M. Sullivan, (Daniel H. Bromberg, on the brief), Quinn Emanuel Urquhart & Sullivan, LLP, Redwood Shores, CA (John B. Quinn, David W. Quinto, Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, CA, Justin Hughes, Cardozo School of Law, New York, NY, Jeffrey A. Conciatori, Jonathan Oblak, William B. Adams, New York, NY, on the brief), for Appellant.
Eugene D. Gulland (Oscar M. Garibaldi, Neil K. Roman, Emily Johnson Henn, on the brief), Covington & Burling LLP, New York, District of Columbia, (Bradley J. Nash, Covington & Burling LLP, New York, NY, on the brief) for Defendants-Appellees Spirits International N.V., SPI Spirits Limited, SPI Group SA, Yuri Shefler, Alexey Oliynik.
David H. Bernstein (Michael Schaper, on the brief) Debevoise & Plimpton LLP, New York, NY, for Defendants-Appellees Allied Domecq.
Present JOSÉ A. CABRANES, BARRINGTON D. PARKER, Circuit Judges, P. KEVIN CASTEL,* District Judge.
Plaintiff-Appellant Federal Treasury Enterprise Sojuzplodoimport (“FTE“) appeals from a judgment of the United States District Court for the Southern District of New York (Daniels, J.) arising from litigation over ownership of the famous STOLICHNAYA vodka trademarks. FTE, an entity created by the Russian government and purportedly granted rights by the government to manage the trademarks, sued two groups of defendants: (1) Spirits International N.V., SPI Spirits Limited, SPI Group SA, Yuri Shefler, and Alexey Oliynik (collectively, the “SPI defendants“), who also claim to be
The principal dispute below was essentially whether Allied Domecq‘s claimed rights in the marks had become “incontestable” under the Lanham Act. See
FTE has also appealed the district court‘s dismissal of its common-law fraud and unjust enrichment claims. For the following reasons, we affirm the district court‘s dismissal of these claims. We also address a lingering joinder issue.
The district court dismissed FTE‘s fraud claim against the SPI entities and Allied Domecq, and its claim for aiding and abetting fraud against the latter, on the ground that FTE had failed to plead that it had relied on a false statement of the defendants. It pled instead that PepsiCo, a third party, had relied on SPI‘s false statements. The distriсt court, relying on Cement & Concrete Workers v. Lollo, 148 F.3d 194, 196 (2d Cir.1998), concluded that New York law did not permit a fraud action based on misrepresentations to a third party. Since the district court‘s decision, we held in City of New York v. Smokes-Spirits.com, Inc., 541 F.3d 425 (2d Cir.2008), that “allegations of third-party reliance ... are insufficient to make out a common law fraud claim under New York law.” Id. at 454. Lollo and Smokes-Spirits make clear that fraud claims may not be premised on false statements on which a third party relied. Consequently, we affirm the district court‘s dismissal of FTE‘s fraud claims.
FTE also contests the district court‘s dismissal of its claim of unjust enrichment against the SPI entities. The district court properly identified the three elements of an unjust enrichment claim under New York law: “(1) the defendant benefitted; (2) at the plaintiff‘s expense; and (3) equity and good сonscience require restitution.” The court then dismissed this claim because, it reasoned, any benefit the SPI entities received from the course of conduct FTE complаined of was not at FTE‘s expense. This was so, the district court stated, because FTE was not created by the Russian government until 2000; did not receive rights to any of the Russian STOLICHNAYA trademarks until 2002; and still has not received the rights to the Russian Federation‘s share of the profits of the American STOLICHNAYA trademarks. The district court also believed that FTE‘s pleading did not show that equity and goоd conscience required restitution.
We agree with the district court‘s holding, albeit for a different reason. Unjust enrichment is an equitable claim that is unavailable where an adеquate remedy at law exists. See Lucente v. Int‘l Bus. Mach. Corp., 310 F.3d 243, 262 (2d Cir.2002). FTE argues that legal remedies are inadequate because it seeks the return of the American STOLICHNAYA trademarks, but the complaint reveаls that it seeks only monetary relief on its unjust
Finally, as we have vacated the district court‘s decision as to several of FTE‘s claims and remanded for further proceedings, we observe that the complaint, and the exhibits attached to it, raise the question of whether there are absent, required parties, pursuant to
After considering the parties’ supplemental briefing on the issue, we are unable still to discern on the present record whether FGUP is a required party. FTE asserts that FGUP‘s claims to the American STOLICHNAYA marks (which it allegedly owned as thе legal successor to VVO-SPI) were assigned to FTE, thus rendering FGUP disinterested to the outcome of this dispute. However, the document to which FTE cites as evidence of this transfer—a 2002 dеcree of the Russian government—appears to refer only to the Russian STOLICHNAYA trademark, not the American mark. Even according to FTE‘s own complaint, the Russian government issuеd this order after Russian courts determined that the Russian trademarks had been misappropriated and were lawfully the property of the state, further suggesting that the decree was addressing the newly returned Russian trademarks, not the still-missing American ones. The only clear reference to non-Russian trademarks comes later, in a January 2005 decree wherein the Russian government gives FTE the right to “represent the interests of the Russian Federation in the courts on matters of recovery and protection of the rights of the Russian Federation to the trademarks for alcoholic products abroad.” This language, on its face, does not appear to be an obvious transfer of ownership from FGUP to FTE, and, in any case, purports to expire on January 1, 2006. Thus, we find that the record is insufficient for us to determine whether FGUP or the Russian Federation are necessary parties. On remand, we leave it to the district court to determine, in the first instance, whether the required parties are before it.
CONCLUSION
The judgment of the district court is hereby AFFIRMED with respect to FTE‘s fraud аnd unjust enrichment claims (claims 2, 3, and 9). In the separately filed companion opinion, we VACATE the judgment of the district court with respect to claims 1, 4-8, 10-13, and 15, and REMAND for further proceedings. We also