UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
October 16, 2006
CROTON WATCH CO, INC., PLAINTIFF,
NATIONAL JEWELER MAGAZINE, INC. AND TESLAR INSIDE CORPORATION, DEFENDANTS.
The opinion of the court was delivered by: George B. Daniels, District Judge
MEMORANDUM DECISION AND ORDER
Plaintiff, Croton Watch Co., Inc. moved, pursuant to Fed.R.Civ.P. 60 and Local Rule 6.3, for reconsideration of that portion of this Court's Memorandum Decision and Order, dated August 7, 2006, dismissing plaintiff's third cause of action against defendant Teslar Inside Corporation ("Teslar") for false advertising and unfair competition under the Lanham Act, 15 U.S.C. § 1125(a).
Plaintiff's action arises as a result of an article that was printed in a trade magazine concerning the resolution of a prior infringement action commenced by defendant Teslar against plaintiff. In dismissing plaintiff's Lanham Act claim, this Court ruled that the allegations regarding the subject article did not constitute commercial speech, but rather it was a journalistic article. The Lanham Act prohibits the use of false or misleading representations in commercial advertising or promotion. 15 U.S.C. § 1125(a). Plaintiff now argues that the Court "improperly imposed its own perception of trade industry `journalism' on the Amended Complaint" and failed to recognize "that it is customary in the industry for companies to issue `press releases' for the sole purpose of the press releases being picked up and disseminated widely by various trade publications." (Pl.'s Mem. Supp. Recons. Mot. at 3). Plaintiff maintains that the underlying facts in the article were not investigated by the journalist, nor were they the subject of any editorial commentary. Plaintiff argues that "[i]f discovery were to reveal that Teslar was involved in authoring the . . . article, then the article could hardly be called journalistic, much less journalistic as a matter of law as the Court found."*fn1
"To be entitled to reargument, a party `must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion.'" Eisemann v. Greene, 204 F.3d 393, 395 n.2 (2d Cir. 2000) (quoting Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999)); see also, Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) ("The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked - - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court."). "Reconsideration is an `extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.'" Winkler v. Metro. Life Ins. Co., 2006 WL 2850247, at *1 (S.D.N.Y. Sept. 28, 2006) (quoting In re Health Mgmt. Sys., Inc. Sec. Litig., 113 F.Supp.2d 613, 614 (S.D.N.Y. 2000)). A motion to reconsider should be denied where the movant simply seeks to relitigate an issue already decided by the Court. Shrader, 70 F.3d at 257. Such a motion may not be used as a substitute for an appeal of a final judgment. See, Newman v. RCN Telcom Servs., Inc., - - F.Supp.2d - -, 2006 WL 2588020, at *1 (S.D.N.Y. Sept. 5, 2006); SEC v. Ashbury Capital Partners, LiP., 2001 WL 604044, at *1 (SiD.N.Y. May 31, 2001)
Plaintiff does not specify any matter or controlling decision which it believes the Court overlooked.*fn2 Rather, plaintiff merely disagrees with the Court's finding that the allegations regarding the subject article do not constitute commercial speech for purposes of the Lanham Act. There is no merit to plaintiff's argument that the Court erred in disregarding Teslar's intent that its press release would serve as an informational source for the press. As this Court found, plaintiff could not state a cognizable claim, under the Lanham Act, by "simply alleging that defendant caused a journalist to write the article, the content of which plaintiff finds objectionable." Croton Watch v. Nat'l Jeweler Magazine, Inc., 2006 WL 2254818, at *10 (S.DiN.Y. Augi 7, 2006). Plaintiff's mere, unsubstantiated hope that discovery may yield evidence that Teslar was actively engaged in writing the article is insufficient to withstand a motion to dismiss.
Plaintiffs motion for reargument is denied.