Marshak v. Original Drifters, Inc.

Background

Larry Marshak petitioned to vacate, or cancel, an April 2019 arbitration award involving the use of “The Drifters” name. The respondents were Original Drifters, Inc. and the Estate of William Pinkney.

The dispute arose from competing claims concerning musical groups using names that included “The Drifters” and “The Original Drifters.” The opinion recounts that Marshak claimed rights to “The Drifters” through earlier agreements and a trademark registration. A prior federal court proceeding found that the registration had been obtained through fraud, and the arbitrator relied on that history in rejecting Marshak’s claim against Original Drifters, Inc.

Marshak filed an arbitration demand in February 2016, alleging that the respondents violated a 1996 consent judgment. The arbitrator dismissed the claim against the Pinkney Estate before the hearing. After a hearing, the arbitrator denied Marshak’s claim against Original Drifters, Inc., finding that the trademark registration was invalid from the beginning and that the 1996 consent judgment could not give Marshak a basis to challenge the company’s use of the relevant names.

Motion to Dismiss

Marshak filed his federal petition to vacate the award on July 29, 2019. The Federal Arbitration Act requires notice of a request to vacate an arbitration award to be served within three months after the award is delivered. Because the award was delivered on April 30, 2019, the service deadline was July 30, 2019.

The summonses were not issued until August 12, 2019. Original Drifters, Inc. was served on October 10, 2019. Marshak’s counsel stated that the Estate’s counsel was served electronically on October 28, 2019, although the Estate disputed that service occurred. The court concluded that service on both respondents was untimely.

Marshak argued that the 90-day service period in Federal Rule of Civil Procedure 4(m) should apply and that the court could extend the deadline for good cause. He also argued that the deadline should be extended because he had experienced difficulties serving Original Drifters, Inc. in other litigation. The court rejected both arguments, concluding that the Federal Arbitration Act’s specific three-month deadline controlled and was not subject to equitable tolling.

Marshak further argued that the Estate was not an “adverse party” because it had not participated in the arbitration and had been dismissed before the hearing. The court rejected that argument, concluding that the Estate was a party to the arbitration because Marshak named William Pinkney as a respondent, the Estate was then substituted in the arbitration filings, and Marshak proceeded against it.

Ruling

Judge Gardephe denied Marshak’s motion to vacate the arbitration award and granted the respondents’ motion to dismiss. The court also denied all other pending motions as moot, including Willie Terrell Woods’s motion to intervene, directed the clerk to terminate the motions, and closed the case. The court resolved the case on the service deadline and did not decide the respondents’ separate argument that the arbitrator had not manifestly disregarded the law.