January 23, 2014
LUV N' CARE, LTD. and ADMAR INTERNATIONAL, INC., Plaintiffs,
REGENT BABY PRODUCTS CORP. d/b/a/BABY KING, Defendant.
Lee A. Goldberg, Esq., Morris E. Cohen, Esq., Goldberg Cohen, LLP, New York, New York, for Plaintiffs.
James J. Foster, Esq., Wolf, Greenfield & Sacks, P.C., Boston, Massachusetts, John T. Johnson, Esq., David Tadahiko Yaegashi, Esq., John Stephen Goetz, Esq., Kristen A. McCallion, Esq., Fish & Richardson P.C., New York, New York, for Defendant.
MEMORANDUM OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
On December 11, 2013, I granted defendant's motion for partial summary judgment on plaintiffs' federal trade dress infringement claims as to its flip-top cap and hard spout cup and cap combination and plaintiffs' state law claim for tortious interference with prospective business relations. On December 26, 2013, plaintiffs filed a motion seeking reconsideration of my ruling on the federal trade dress infringement claims. For the following reasons, plaintiffs' motion for reconsideration is denied.
First, plaintiffs' motion is untirrely. Plaintiffs have brought this motion under Federal Rule of Civil Procedure 60(b) and defendant has treated it as such. However, Rule 60(b) permits relief "from a final judgment, order, or proceeding" (emphasis added). The December 11, 2013 Opinion and Order granted defendant's motion for partial summary judgment. Because that decision did not fully adjudicate the parties' claims, it was not appealable and thus not final for the purposes of Rule 60(b). Therefore, plaintiffs' motion for reconsideration cannot be brought under Rule 60(b). Rather, plaintiffs must proceed under Local Rule 6.3 which requires litigants to bring motions for reconsideration within fourteen days of the initial determination, unless otherwise provided by the Court. The instant motion is denied as untimely because plaintiffs filed the motion for reconsideration fifteen days after my initial order and did not seek an extension of the deadline from the Court.
Second, even if plaintiffs' motion was considered on its merits, plaintiffs have presented no evidence or argument justifying reconsideration of the December 11, 2013 Opinion and Order. The standard for granting a motion for reconsideration pursuant to Local Rule 6.3 is strict in order to "to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." "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. Typical grounds for reconsideration include "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice."
Plaintiffs assert that the December 11, 2013 Opinion and Order did not adequately consider the "total image embodying [Luv n' Care's] trade dress" or the "physical products" of either plaintiff or its competitors. I appropriately considered the disputed trade dress's total image in concluding that it is generic, including plaintiffs' own description of the trade dress, as well as physical examples and over fifty different catalog images, full color photographs and other exhibits submitted by Regent as part of its motion for partial summary judgment. Plaintiffs now want the Court to consider additional physical products, but it was free to submit these at any point during the extensive briefing on Regent's motion and cannot do so now for the first time on reconsideration. Plaintiffs also argue for the first time that Regent failed to show that the "trade dress became generic before Regent entered the market. Again, plaintiffs may not use a motion for reconsideration to raise new arguments for the first time when they were free to raise them during the original briefing.
For the above reasons, plaintiffs' motion for reconsideration is denied. The Clerk of the Court is directed to close plaintiffs' motion [Dkt. No. 115].