The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Johnson & Johnson Consumer Companies, Inc., brought this action against various corporate and individual defendants, alleging trademark infringement for certain cosmetic products. Plaintiff brought a motion for summary judgment, which was granted in part and denied in part by this court in a lengthy opinion issued on March 25, 2008. See Opinion and Order (March 25, 2008) ("3/25/08 Opinion"), ECF Docket Number 185. Rather than readying the remaining claims for trial, plaintiff thereafter filed successive motions to reopen discovery, and brought a second motion for summary judgment alleging that newly discovered evidence showed that defendants Michael Aini, Jacob Aini, and Choul Realty, Inc. were involved in the use of Plaintiff's mark in commerce. Plaintiff's motion included requests for attorneys' fees under the Lanham Act, 17 U.S.C. § 1117(a), and sanctions under Rules 37 and 56 of the Federal Rules of Civil Procedure. The motion was referred to the Honorable Roanne L Mann, United States Magistrate Judge on August 27, 2009. On December 1, 2009, Judge Mann issued a Report and Recommendation (the "R & R"), recommending denial of plaintiff's motion for summary judgment and deferral of the issue of sanctions until after trial.
On December 15, 2009, plaintiff filed objections to the R & R under seal, and, on January 5, 2010, defendant filed a memorandum in support of the R & R and in opposition to plaintiff's objections, also under seal. Plaintiff objects only to the magistrate judge's recommendations that (1) plaintiff's request for attorney fees be denied; and (2) consideration of plaintiff's request for sanctions be deferred until after trial. Defendants respond that plaintiff's objection as to the attorney fees issue under the Lanham Act is contrary to well-established precedent regarding the court's discretion to determine the scope of its reconsideration, and the constraints on reconsideration arising from the law of the case doctrine. They further argue that plaintiff forfeited its right to seek attorney fees and sanctions against defendants based on new material that was previously discoverable. For the reasons set forth below, plaintiff's requests for attorney fees and sanctions are denied without prejudice to renew after trial.
In reviewing a magistrate judge's R & R, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Where a party objects to an R & R, the court must engage in de novo review of those portions of the report to which the party specifically objects. See United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). This Order assumes familiarity with this case's factual background and procedural history.*fn1 While the court adopts the result recommended in the R & R as to plaintiff's requests for attorney fees and sanctions, it does so upon a different basis, set forth infra.
The court need not reach the parties' specific arguments regarding the availability of attorney's fees under the Lanham Act, because plaintiff has not prevailed as to the remaining defendants in this action. As a threshold matter, plaintiff is not entitled to an award of attorney fees from defendants against whom it has not yet prevailed. See Santana Prod., Inc. v. Sylvester & Assoc., Ltd., 279 F. App'x. 42, 43 (2d Cir. 2008) (quoting 15 U.S.C. § 1117(a)(3)) ("Under the Lanham Act, '[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.'") (emphasis added); see also Collins v. Aztar Corp., 210 F.3d 354, 354 (2d Cir. 2000) (finding that "a party must succeed on a significant issue in the litigation that achieves some of the benefits the party sought in bringing suit" before it can be deemed a "prevailing party" entitled to attorney fees under the Lanham Act). On March 25, 2008, this court denied plaintiff's motion for summary judgment against defendants I.C.E. Marketing, Corp. ("ICE"), Michael Aini ("M. Aini"), Jacob Aini ("J. Aini"), and Choul Realty Inc. ("Choul"). See Johnson & Johnson v. Aini, 540 F. Supp. 2d 374, 394 (E.D.N.Y. 2008). The court also granted summary judgment in favor of plaintiff against defendants I.B.E. Cosmetics, Inc., Harry Aini, Homeboys, and the Retail Defendants.*fn2 Id. However, plaintiff's renewed motion for summary judgment, with its ancillary request for attorney fees under the Lanham Act, involves only ICE, M. Aini, J. Aini, and Choul. Since plaintiff's renewed motion for summary judgment is denied for the reasons set forth in the R & R, plaintiff has not prevailed against these defendants and, consequently, is not entitled to recover attorney fees from them. Accordingly, the court will not reconsider its prior ruling denying attorney fees at this stage in the litigation.*fn3
With respect to plaintiff's request for sanctions under Rules 37 and 56 of the Federal Rules of Civil Procedure, that request is denied. Success on a motion for sanctions under Rule 56(g) is contingent on the court being "satisfied that an affidavit under this rule is submitted in bad faith or solely for delay." See FED. R. CIV. P. 56(g). Similarly, "[w]hether exercising its inherent power, or acting pursuant to Rule 37, a district court has wide discretion in sanctioning a party for discovery abuses[.]" See Reilly v. Natwest Markets Group Inc., F.3d 253, 267 (2d Cir. 1999). The court is not prepared to rule on the record now before it that the apparent inconsistencies in the "newly discovered" evidence support the negative inferences advocated by plaintiffs, or that the alleged misrepresentations in defendants' affidavits and testimony amount to fraud or willful misconduct. However, defendants are admonished that the court will seriously consider sanctions if, at the conclusion of trial, it finds that they engaged in wrongful conduct in connection with this case.
Wherefore, upon due consideration, the court adopts the R & R in its entirety.*fn4 The court further denies plaintiff's request for attorney fees and sanctions without prejudice to renew after trial.
DATED: Brooklyn, New York
DORA L. IRIZARRY United States ...