UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
August 1, 2007
PRINCE OF PEACE ENTERPRISES, INC. PLAINTIFF,
TOP QUALITY FOOD MARKET, LLC, ET AL., DEFENDANTS.
MEMORANDUM OPINION AND ORDER
On March 7, 2007, the Court issued a Memorandum Opinion and Order granting plaintiff's application for a preliminary injunction and confirming the order of seizure with respect to defendant W.J. Inc. a/k/a Kam Cui Yao Choi Hong ("W.J. Inc."), and denying plaintiff's application for a preliminary injunction and granting defendants' motion to vacate the order of seizure with respect to defendants Top Quality Food Market, LLC ("Top Quality"), A&C Supermarket, Inc. ("A&C"), and Favor Food, Inc. ("Favor Food"). On March 14, 2007, plaintiff filed a Motion to Correct the Order, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure and Local Rule 6.3. For the reasons set forth below, plaintiff's motion  is denied.
In the March 7 Order, the Court vacated the seizure order with respect to Top Quality, A&C, and Favor Foods-but not with respect to W.J. Inc.-because the Court found that plaintiff had failed to demonstrate a likelihood of success on the merits of its trademark infringement claims against these defendants. See Prince of Peace Enters. v. Top Quality Food Market, LLC, No. 07 Civ. 00349 (RJH), 2007 U.S. Dist. LEXIS 16391, 2007 WL 704171, at *5 (S.D.N.Y. Mar. 7, 2007). The Court's decision to vacate the seizure order with respect to these defendants but not W.J. Inc. rested largely on the fact that the pills seized at Top Quality, A&C, and Favor Foods had a "Supplement Facts" panel on the packaging as required by the FDA, while the pills seized at W.J. Inc. did not. The Court made this factual finding based on the only evidence in the record at that time: an affidavit from plaintiff's investigator, Wai Hing Lee Wong, attached to which were copies of boxes purchased from each of defendants' stores prior to the seizure. (Wai Hing Lee Wong Decl. A--D.) These pictures showed that the pills sold by Top Quality, A&C, and Favor Foods, but not W.J. Inc, had a "Supplemental Facts" panel on the packaging as required by the FDA. (Compare id. Exs. A--C (packaging from Top Quality, A&C, and Favor Food) with Ex. D (packaging from W.J. Inc.).)
Plaintiff now seeks a correction of the March 7 Order on the ground that "the Court mistakenly overlooked the fact that products seized from A&C and Favor Food failed to have required FDA labeling." Defendants A&C and Favor Food oppose plaintiff's motion primarily on the grounds that plaintiff did not submit evidence to the Court prior to the March 7 Order to demonstrate that the products seized from their stores did not have FDA labeling.
I. Standard of Review
Under Local Rule 6.3, motions for reconsideration usually are granted only when the moving party offers controlling decisions or facts that the court had originally overlooked and that might reasonably be expected to alter the court's original decision. See Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995); accord BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003). Similarly, "'Rule 60(b)(1) affords a party relief from a material mistake that changed the outcome of the court's judgment.'" BOUSA, Inc. v. United States (In re Bulk Oil (USA) Inc.), Nos. 93 Civ. 4492, 4494 (PKL), 2007 U.S. Dist. LEXIS 27346, 2007 WL 1121739, at *10 (S.D.N.Y. April 11, 2007) (quoting Matura v. United States, 189 F.R.D. 86, 89 (S.D.N.Y. 1999)). Such a motion is addressed to the sound discretion of the trial court and may only be granted on a showing of exceptional circumstances. See Mendell In Behalf of Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990). In evaluating a Rule 60(b) motion, the courts of this circuit also require that the evidence in support of the motion be highly convincing, that the movant show good cause for the failure to act sooner, and that no undue hardship be imposed on the other parties as a result. See, e.g., Kotlicky v. U.S. Fidelity & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987); Williams v. New York City Dep't of Corr., 219 F.R.D. 78, 84 (S.D.N.Y. 2003). A motion for reconsideration may not "treat the court's initial decision as the opening of a dialogue in which that party may then use such a motion to advance new theories or adduce new evidence in response to the court's rulings." Questrom v. Federated Dep't Stores, Inc., 192 F.R.D. 128, 131 (S.D.N.Y. 2000).
Plaintiff claims that the following exchange between the Court and plaintiff's counsel at the hearing on February 16, 2007 was sufficient to put into evidence the fact that the goods seized at A&C and Favor Food did not carry FDA labeling:
MR. YUEN: There is one actual error made by their argument because they said all the products fit to be sold in the United States, but I will ask the court to look at Exhibit D in one of our original papers and that was a product also distributed by Madison One that has no ingredient list and that one is strictly not allowed.
THE COURT: And which of the defendants had those on their shelves?
MR. YUEN: Just the item that I wanted to point out.
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