1 17-2971 Harris-Clemons v. Charly Trademarks Ltd. 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 , IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 3 rd day of October, two thousand eighteen.
Present: P IERRE N. L EVAL , R ICHARD C. W ESLEY , D EBRA A NN L IVINGSTON , Circuit Judges

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_____________________________________ B ETTY H ARRIS -C LEMONS , Plaintiff-Appellee , v. 17-2971 C HARLY T RADEMARKS L IMITED , Defendant-Appellant,
C HARLY A CQUISITIONS L IMITED , S ONY M USIC E NTERTAINMENT , Defendants.

_____________________________________ For Defendant-Appellant: P ETER R. A FRASIABI , ONE LLP, Newport Beach, CA. For Plaintiff-Appellee: K ENNETH J. K RAYESKE , Kenneth J. Krayeske Law Offices, Hartford, CT.2 Appeal from a judgment of the United Stat es District Court for the District of Connecticut (Covello, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is VACATED and REMANDED for proceedings consistent with this order. Appellant Charly Trademarks Limited (“C TL”) appeals from an order of the United States District Court for the District of Connecticut dated August 31, 2017 denying its motion to intervene. Harris-Clemons v. Sony Music Entm’t , 2017 WL 4750636 (D. Conn. Aug. 31, 2017). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. This is not the first time CTL’s motion to in tervene has made its way to this Court. See Harris-Clemons v. Charly Acquisitions, Ltd. , 642 F. App’x 17 (2d Cir. 2016). A history of the proceedings in this case is given in de pth in our previous summary order. See id. at 18-21. After entering a default judgment against Charly Ac quisitions Ltd. (“Charly”) , the district court, at Plaintiff’s request, amended the judgment to add “Charly Trademarks Ltd.” on the theory that it was an “alias” of Charly. CTL had neither been named in the complaint nor served in the action. CTL moved to intervene on May 3, 2014, to dispute its inclusi on in the judgment. CTL claimed that it is in fact a separate legal entity, improperly identified as an alias. The district court determined at that time that CTL did not meet the requirements for either intervention as of right or perm issive intervention, as its moti on was not timely, and CTL had not shown it was a distinct legal en tity from Charly, suggesting its interests were already being adequately protected. We vacated that deni al by summary order, on the ground that CTL should be given the opportunity to establish that it is in fact a separate lega l entity, noting that if3 it indeed is, then it would be error to find CTL’ s motion was not timely. We also noted that if CTL is a separate legal entity from Charly, th en CTL could intervene to reverse the judgment apparently against it. Following our order vacati ng the district court’s denial and remanding for further proceedings, the district court received additional briefing and evidence on the issue of CTL’s corporate separateness. On August 31, 2017, the district court again denied CTL’s motion to intervene. We review the denial of a motion to intervene for abuse of discretion. Catanzano by Catanzano v. Wing , 103 F.3d 223, 232 (2d Cir. 1996). Generally, abuse of discretion occurs if the district court “has (1) based its ruling on an erroneous view of the law, (2) made a clearly erroneous assessment of the evidence, or (3) re ndered a decision that cannot be located within the range of permissible decisions.” Bridgeport Guardians, Inc. v. Delmonte , 602 F.3d 469, 473 (2d Cir. 2010) (internal quotation marks and citation omitted). To intervene as of right, an applicant “must (1) timely file an application, (2) show an interest in the action, (3) demonstrate that the in terest may be impaired by the disposition of the action, and (4) show that the interest is not pr otected adequately by the parties to the action.” Catanzano , 103 F.3d at 232; see also Fed. R. Civ. P. 24(a)(2). If the party fails to satisfy any one of the factors, the application for intervention must be denied. Catanzano , 103 F.3d at 232 (citing Farmland Dairies v. Commissioner , 847 F.2d 1038, 1043 (2d Cir. 1988)). When considering a motion to intervene by permi ssion under Rule 24(b), Fed. R. Civ. P., a court “considers substantially the same factors” as for an intervention as of right. “R” Best Produce, Inc. v. Shulman-Rabin Marketing Corp. , 467 F.3d 238, 240 (2d Cir. 2006). When this Court previously reviewed CTL’s mo tion to intervene, we determined that if CTL were able to show it is a separate entity, th e district court’s conclusions that CTL’s motion4 was not timely and that CTL’s interests in the matter were adequately represented by Charly would have no basis. On remand, the district court found that CTL failed to prove it is a separate entity, and it again conc luded Charly adequately represented its interests in this case. We disagree. To meet its burde n on remand, CTL provided the cour t with (1) an affidavit from one of its directors, Simon Lait; (2) Nevis “Certificates of Rene wal” from 2015, 2014, 2013, 2012, 2006, and 2002; (3) a Nevi sian “Certificate of Transfer of Domicile” from 1999; and (4) a Nevisian “Endorsement Certificate” from 1999. Wh ile Harris-Clemons is correct to point out we deemed a single Nevisian certificate of rene wal insufficient and “not properly authenticated” in 2016, the certificate in that case was annexed to the affidavit of CTL’s lawyer, Peter Afrasiabi. On remand, CTL relied on the Lait affidavit to authenticate the proffered documents, and Lait averred to personal knowledge of the certificates. See, e.g., Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc. , 896 F.2d 1542, 1551 (9th Cir. 1989) (fin ding that testimony by corporation’s chairman would be sufficient to authenticate registration statemen t filed with SE C under Fed. R. Evid. 901(b)(1), even if te stimony of attorney was not). 1 Harris-Clemons argues that CTL was required to produce a certificate of incorporation, but our first summary order states simply that something “such as” a certific ate of incorporati on could establish C TL’s assertions of separateness. Harris-Clemons , 642. F. App’x at 22. By providi ng an affidavit of a director authenticating certificates from CTL’s transfer to Nevis in 1999, as well as documents supporting its compliance with Nevisian law on regi stering agents since that time, CTL has come

1 Harris-Clemons argues that the Nevisian ce rtificates provided by CTL are not properly authenticated because they do not contain an “apostille,” which w ould be necessary, by treaty, to authenticate the certificates pursuant to Fe deral Rule of Civil Procedure (“FRCP”) 44(a)(2)(A)(ii). Because this ar gument is being raised for first time on appeal, we need not consider it. See Allianz Ins. Co. v. Lerner , 416 F.3d 109, 114 (2d Cir. 2005) (“[I]t is a well-established general rule that an appellate cour t will not consider an issue raised for the first time on appeal.”) (quoting Greene v. United States , 13 F.3d 577, 586 (2d Cir. 1994)).5 forward with sufficient evidence that it is more th an a “fictitious name or pseudonym” of Charly, see id. at n.4, which is all that is required to show that it is a separate legal entity. As for the motion to intervene, the bar for s howing inadequate repres entation is minimal, see Trbovich v. United Mine Workers of Am. , 404 U.S. 528, 636 n.10 (1972), and can be satisfied, for example, “by the failure of the re presentative in the fulfillment of his duty.” Stadin v. Union Elec. Co. , 309 F.2d 912, 919 (8th Cir. 1962); see also Butler, Fitzgerald & Potter v. Sequa Corp. , 250 F.3d 171, 180 (2d Cir. 2001) (citi ng collusion, adversity of interest, nonfeasance, or incompetence as situations in which the pres umption of adequacy may be overcome). Charly defaulted in this case. We cannot conclude on the bare record here that Charly adequately represents CTL, a se parate legal entity, in this action. Butler, Fitzgerald &
Potter , 250 F.3d at 180 (agreeing that “nonfeas ance . . . may suffice to overcome the presumption of adequacy” even when there is an identity of interest between the intervenor and existing party). The remaining intervenor-related factors are met here as well. Harris-Clemons has already garnished several domain names belongi ng to CTL in the name of enforcing her judgment against Charly and has held them for se veral years. This satisfies Rule 24(a)(2)’s requirement of a “direct, substantial, and legally protectable” interest. Bridgeport Guardians , 602 F.3d at 473 (quoting Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co. , 922 F.2d 92, 97 (2d Cir. 1990)). This interest may be impaired if intervention is not permitted. In sum, the district court abused its discre tion in denying CTL’s motion to intervene on remand. CTL has made a showing that it is a se parate corporation from Charly. By focusing on facts that suggest CTL may be an “alter ego” of Charly, a proposition that CTL contests and that Harris-Clemons has yet to establish, the district court applied the wrong standard. The6 record developed in the district court contains no basis for naming CTL in the default judgment imposing liability on Charly, either on the theory that it is an alia s, or an alter ego, of Charly. 2 For the reasons stated above, we VACATE AND REMAND for additional proceedings consistent with this order. We direct that on remand the district court remove all reference to “Charly Trademarks, Ltd.” from the judgment. In the event that CTL seeks to intervene for some purpose beyond its removal from the judgment, the district court should consider in the first instance what continuing interest , if any, would permit CTL’s intervention. 3
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

2 By finding that CTL is a separate legal entit y, we do not mean to imply that Harris-Clemons does not, or could not, establish on an appropriate showing that C TL is an alter ego of Charly. 3 Here, CTL seeks, in the alternative, that th e judgment be vacated in its entirety. Because CTL is a separate legal entity from Charly, ho wever, we fail to discern any basis on which it might seek to vacate the judgment against Charly, once CTL, as a separate legal entity, has been removed from that judgment. At any rate, give n the disposition here, we need not address the issue.