manipulative conduct, which would be adverse to the public interest, not even to settle a lawsuit, nor to avoid a possible reversal upon appeal should an appellate panel reject our analysis of the functionality of plaintiff's trademark.
Plaintiff has submitted a proposed stipulated order. Loaded with "whereas" clauses, this stipulated order seeks to have the Court "rule" on the proposed settlement.
Because there is no proposed settlement, and never was, there is nothing to rule on. This Court deals only with actual cases and controversies. It should decline to take any action to assist an end run around the competition in the toggle business.
Plaintiff may make such application to the Court of Appeals as may be appropriate. That Court undoubtedly has the power to withdraw and vacate its Mandate, because the Mandate was based upon the untruthful representation that there was in fact a proposed settlement upon which this Court should rule. As noted earlier, defendants have never agreed to a proposed settlement.
This Court declines to sign the proposed stipulated order ruling on the phantom proposed settlement, and leaves the parties where it finds them.
The application is denied.
Dated: White Plains, New York
March 22, 1994
CHARLES L. BRIEANT
EXHIBIT ANNEXED TO MEMORANDUM & ORDER DATED MARCH 22, 1994 in 92 Civ. 5123 (CLB), MECHANICAL PLASTICS CORP. v. TITAN TECHNOLOGIES, INC., et al.
STIPULATED ORDER RULING ON PROPOSED SETTLEMENT
WHEREAS, by Memorandum and Order dated June 17, 1993, the District Court granted partial Summary Judgement and the Clerk of the Court has entered a Partial judgment thereon on June 30, 1993; and
WHEREAS, the plaintiff has taken a timely appeal to the Court of Appeals for the Second Circuit, Docket No. 93-7730; and
WHEREAS, the District Court has stayed proceedings as to the remaining issues, as well as the Certificate to the Commissioner of Patents and Trademarks pursuant to Rule 62(h); and
WHEREAS, the parties, with the assistance of the Staff Counsel of the Court of Appeals for the Second Circuit, have been actively engaged in settlement discussions; and
WHEREAS, the parties, in light of the settlement discussions, by stipulation filed with and mandated by the Court of Appeals for the Second Circuit on December 22, 1993, withdrew the appeal without costs and without attorneys' fees and without prejudice, subject to reinstatement by written notice to the Clerk of the Court of Appeals within 30 days of a ruling by the District Court on the proposed settlement; and
WHEREAS, it has now become apparent that despite the best efforts of all parties involved, no settlement of the issues can be reached and the parties are desirous of reinstating the appeal so that an ultimate resolution of the issues can be had; and
WHEREAS, the District Court has been apprised of the parties attempts to settle their differences and the ultimate failure of said attempts and now has the opportunity to "rule on the proposed settlement" pursuant to the stipulation filed with and mandated by the Court of Appeals for the Second Circuit on December 22, 1993; it is hereby
ORDERED that this Stipulated Order shall constitute this Court's ruling on the parties proposed settlement; and, it is further
ORDERED that counsel for appellant may reinstate the appeal, pursuant to the terms of the stipulation filed with and mandated by the Second Circuit Court of Appeals on December 22, 1993; and, it is further
ORDERED that the stay of proceedings and of the Certificate to the Commissioner of Patents and Trademarks, remain in place, as originally Ordered by this Court, as long as the appeal is prosecuted in good faith.
Dated: White Plains, New York
March . 1994
Hon. Charles L. Brieant
United States District Judge