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HESTER INDUS. v. TYSON FOODS

November 15, 1997

HESTER INDUSTRIES, INC., Plaintiff, against TYSON FOODS, INC., Defendant.


The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND

 Pending before the Court are several post-judgment motions made by defendant Tyson Foods, Inc. ("Tyson") and plaintiff Hester Industries, Inc. ("Hester").

 First, Tyson moves, pursuant to Fed. R. Civ. P. 59(e) and Rule 7(g) of the Local Rules for the Northern District of New York, to alter or amend a judgment of this Court dated August 11, 1997. According to Tyson, the Court made clear errors of fact upon which the judgment is based, and thus the motion should be granted to prevent manifest injustice. Tyson further requests that the Court stay execution of the judgment.

 Second, Hester requests that in the event the Court grants in whole or in part Tyson's Rule 59(e) motion, the Court grant Hester's cross-motion to alter or amend under Rule 59(e). Hester also seeks, pursuant to Rule 60(a), to correct certain clerical errors in the decision of this Court dated July 29, 1997.

 For the reasons that follow, Tyson's Rule 59(e) is DENIED, and accordingly, Hester's Rule 59(e) cross-motion need not be addressed. Further, Tyson's motion to stay execution pending appeal is GRANTED to the extent stated herein, and Hester's Rule 60(a) motion to correct clerical errors is GRANTED to the extent stated herein.

 II. DISCUSSION

 A. Tyson's Rule 59(e) Motion

 A motion to alter or amend judgment made pursuant to Fed. R. Civ. P. 59(e) must adhere to stringent standards. The Court's ruling on such a motion "[is] committed to the sound discretion of the district judge and will not be overturned on appeal absent an abuse of discretion." McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983). Rule 59(e) recognizes three possible grounds upon which relief may be based: (1) an intervening change in controlling law; (2) the availability of new evidence not previously available; (3) the need to correct a clear error of law or fact; and (4) to prevent manifest injustice. Atlantic States Legal Foundation v. Karg Bros., 841 F. Supp. 51, 53 (N.D.N.Y. 1993). The first two grounds are inapplicable to the matter at hand. No intervening changes in the law have occurred and new evidence has not come to light that previously was unavailable. That leaves us with only grounds three and four--Tyson must demonstrate a clear error of law or fact, or manifest injustice in the Court's July 29, 1997 decision.

 Tyson argues that the Court made manifest errors of fact upon which the judgment is based, and that the motion should be granted to prevent manifest injustice. The substance of Tyson's argument is that the Court did not properly calculate the monetary sanction imposed against Tyson for civil contempt resulting from Tyson's failure to adhere to a prior Dismissal Order issued by the Court. Specifically, Tyson asserts that the Court made manifest errors with respect to its analysis of (1) cost; (2) processing cost; (3) Price/Costco; and (4) takeout value. Each of these issues will be addressed in turn.

 (1) Cost Analysis

 The Court imposed against Tyson a civil monetary sanction of $ 8,599,272.84. The Court arrived at that figure by calculating Tyson's total net sales dollars relating to the use of the WING FLING mark, which was $ 9,732,054. From that figure, the Court deducted processing costs of $ 1,132,781.16 to arrive at the sanction amount.

 Tyson argues that, in calculating processing costs, the Court failed to deduct selling, general and administrative and interest costs from net sales dollars. According to Tyson, sufficient evidence was introduced at trial to warrant deducting these costs.

 Although there was testimony at trial as to other costs, Tyson is incorrect in asserting that such testimony sufficiently established its costs. As previously explained, Tyson bore the burden of establishing its costs. See July 29, 1997 decision of this Court, at 23. Here, Tyson failed to properly quantify these costs to the Court. Thus, the Court did not, as Tyson asserts, overlook or misconstrue the testimony relating to these costs, but rather determined that the evidence did not sufficiently ...


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