AFL Telecommunications LLC v. Fiberoptic Hardware LLC et al
Filing
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ORDER denying 36 Motion for Reconsideration. Preliminary injunction 34 is modified as set forth in this order. Signed by Judge David G Campbell on 11/18/2011.(NVO)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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No. CV11-01081-PHX-DGC
AFL Telecommunications LLC,
ORDER
Plaintiff,
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vs.
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Fiberoptic Hardware, LLC and George
Kyrias,
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Defendants.
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Defendant Fiberoptic Hardware, LLC asks the Court to reconsider the October 5,
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2011 preliminary injunction. Doc. 36. The Court requested additional briefing on the
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merits of an injunction on used and refurbished splicers (Doc. 37) and reviewed the
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memoranda filed by the parties. Docs. 36, 39, 40. Requests for oral argument are denied
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because the issues have been fully briefed and oral argument will not aid the Court’s
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decision.
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Defendant’s motion for reconsideration.
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I.
See Fed. R. Civ. P. 78(b).
For the reasons below, the Court will deny
Background.
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Plaintiff sought preliminary injunctive relief with respect to its Lanham Act claims
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and copyright infringement claims. Doc. 6. The Court concluded that the Lanham Act
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claims raise serious questions, that Plaintiff is likely to suffer irreparable harm absent
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preliminary relief, that the balance of equities tips sharply in Plaintiff’s favor, and that an
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injunction is in the public interest.
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simultaneous proposed injunctions (Doc. 32), the Court entered a preliminary injunction
Doc. 30, at 16.
After reviewing the parties’
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on October 5, 2011.
Doc. 34.
Defendant now asks the Court to reconsider the
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preliminary injunction as applied to the sale of used and refurbished splicers. Doc. 36.
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II.
Legal Standard.
Motions for reconsideration are disfavored and should be granted only in rare
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circumstances.
See Stetter v. Blackpool, No. CV 09-1071-PHX-DGC, 2009 WL
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3348522, at *1 (D. Ariz. Oct. 15, 2009). A motion for reconsideration will be denied
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“absent a showing of manifest error or a showing of new facts or legal authority that
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could not have been brought to [the Court=s] attention earlier with reasonable diligence.”
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LRCiv 7.2(g)(1); see Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Mere
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disagreement with an order is an insufficient basis for reconsideration. See Ross v.
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Arpaio, No. CV 05-4177-PHX-MHM, 2008 WL 1776502, at *2 (D. Ariz. 2008). Nor
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should reconsideration be used to ask the Court to rethink its analysis. Id.; see N.W.
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Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988).
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Courts in this district have identified four circumstances where a motion for
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reconsideration will be granted: (1) the moving party has discovered material differences
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in fact or law from those presented to the Court at the time of its initial decision, and the
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party could not previously have known of the factual or legal differences through the
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exercise of reasonable diligence, (2) new material factual events have occurred after the
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Court’s initial decision, (3) there has been a material change in the law after the Court’s
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initial decision, or (4) the moving party makes a convincing showing that the Court failed
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to consider material facts that were presented to the Court at the time of its initial
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decision.
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215 F.R.D. 581, 586 (D. Ariz. 2003).
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III.
See, e.g., Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc.,
Discussion.
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Neither Defendant nor Plaintiff presented arguments on the distinction between
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new and used or refurbished splicers in their briefing on Plaintiff’s motion for a
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preliminary injunction. Docs. 6, 21, 22. The parties did not raise the issue until their
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joint report to the Court on September 30, 2011 (Doc. 32) in response to the Court’s
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request for simultaneous proposed injunctions.
Doc. 30, at 17.
The preliminary
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injunction ordered by the Court does not enjoin Defendant from selling used or
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refurbished splicers. Defendant is permitted to do so as long as “it can demonstrate that
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such fusion splicer has been manufactured and licensed for sale and use in the United
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States” and that “such fusion splicer has [not] been materially altered or modified” in a
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manner consistent with the preliminary injunction. Doc. 34. Defendant now reiterates
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that these requirements in the preliminary injunction should apply only to new splicers.
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Doc. 36-2.
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regarding used and refurbished splicers, that Plaintiff has not established that it will suffer
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irreparable harm with respect to the used and refurbished splicers, that the balance of
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equities tips in Defendant’s favor, and that the public would be harmed if used and
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refurbished products were kept from the market. Doc. 36.
Defendant argues that Plaintiff is not likely to succeed on the merits
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In its order granting a preliminary injunction, the Court determined that Plaintiff’s
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Lanham Act claims raise serious questions as to whether there are material differences
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between the domestic fusion splicers distributed by Plaintiff and the gray market goods
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resold by Defendant. Doc. 30, at 13. Plaintiff argued, and Defendant did not dispute,
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that “the public interest is usually the right of the public not to be deceived or confused.”
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Doc. 30, at 11 (quoting Century 21 Real Estate LLC v. All Prof’l Realty, Inc., No. CIV-
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10-2751, 2011 WL 221651, at *13 (E.D. Cal. Jan. 24, 2011)). The Court agrees with
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Plaintiff that Defendant has not provided evidence that a used gray market splicer is any
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different from a new gray market splicer other than additional wear and tear. Doc. 39,
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at 2. Defendant claims that “because used products ‘generally cost the customer less’
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consumers expect used and new products to be different.”
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Champion Spark Plug Co. v. Sanders, 331 U.S. 125, 130 (1947)). The wear and tear
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contemplated by the Supreme Court in Champion Spark Plug Co. is not the concern that
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necessitated the preliminary injunction. The concern here is improper licensing. Plaintiff
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identified a confused consumer, the Minnesota Air National Guard (the “ANG”), that
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purchased grey market splicers not licensed for domestic use from Defendant, and as a
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Doc. 36, at 6 (quoting
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result, received an error message and was unable to update the software in the field. See
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Doc. 30, at 12. The Court concludes, and Defendant has not shown otherwise, that both
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new and used grey market splicers are capable of causing consumer confusion due to
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improper licensing. The scope of the preliminary injunction is therefore appropriate.
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Defendant has not shown material differences in fact or law that were not and
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could not have been presented to the Court prior to ordering the preliminary injunction.
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Nor does Defendant allege new factual events, an intervening change in the law, or that
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the Court failed to consider facts that were before it. Defendant claims that it seeks to
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present new evidence that it previously had no reason to present because Plaintiff’s
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motion for a preliminary injunction did not address used and refurbished splicers.
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Doc. 36, at 4-5. This reasoning is not proper grounds for the Court to grant a motion for
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reconsideration.
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Defendant is correct that it was not the Court’s intent to prevent Defendant from
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selling any Fujikura splicer. Doc. 36, at 4, n.2. The preliminary injunction currently
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prohibits Defendant from selling “any fusion splicer bearing any of the FUJIKURA
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marks . . . unless it can demonstrate that such fusion splicer has been manufactured and
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licensed for sale and use in the United States . . . .” Doc. 34, at 1. To avoid any
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confusion that may arise from the fact that no Fujikura splicers are manufactured in the
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United States, and absent objection from Plaintiff, the Court will modify that sentence of
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the preliminary injunction to prohibit Defendant from selling “any fusion splicer bearing
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any of the FUJIKURA marks . . . unless it can demonstrate that such fusion splicer has
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been licensed for sale and use in the United States . . . .” Fed. R. Civ. P. 54(b).
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IT IS ORDERED:
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Defendant’s motion for reconsideration (Doc. 36) is denied.
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2.
The preliminary injunction (Doc. 34) is modified as set forth in this order.
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Dated this 18th day of November, 2011.
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