Digital Satellite Connections, LLC et al v. DISH Network Corporation et al
ORDER denying 211 Plaintiffs' Motion for Reconsideration of Summary Judgment Ruling. By Judge Robert E. Blackburn on 9/22/2015.(mlace, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-02934-REB-CBS
DIGITAL SATELLITE CONNECTIONS, LLC, and,
DISH NETWORK CORPORATION,
DISH NETWORK, LLC, and
DISHNET SATELLITE BROADBAND, LLC,
ORDER DENYING MOTION FOR RECONSIDERATION
The matter before me is the Plaintiffs’ Motion for Reconsideration of
Summary Judgment Ruling [#211]1 filed November 10, 2014. The defendant filed a
response [#213], and the plaintiffs filed a reply [#215]. I deny the motion.
I. STANDARD OF REVIEW
The bases for granting reconsideration are extremely limited:
Grounds warranting a motion to reconsider include (1) an
intervening change in the controlling law, (2) new evidence
previously unavailable, and (3) the need to correct clear
error or prevent manifest injustice. Thus, a motion for
reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or the
controlling law. It is not appropriate to revisit issues already
addressed or advance arguments that could have been
“[#211]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
raised in prior briefing.
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citations
On October 20, 2014, I entered an order [#196] concerning cross motions for
summary judgment filed by the parties. In their present motion, the plaintiffs seek
reconsideration of certain rulings in that order.
In the order, I granted the motion for summary judgment of the defendants on
claims one through six of the plaintiffs. Order [#196], pp. 8 - 9. Each of these
trademark claims failed because the plaintiffs failed to prove that DISHNET is a
trademark owned by one or both of the plaintiffs. In addition, I granted summary
judgment on the breach of contract claim of the plaintiffs because all claims based on
the breaches alleged by the plaintiffs are barred under the terms of the relevant
contracts. All of the claims asserted by the plaintiffs in their complaint were resolved
against the plaintiffs in the order [#196].
In addition, I granted the motion for summary judgment of the defendants
concerning certain of its counterclaims. Specifically, I granted summary judgment on
the first three elements of the breach of contract counterclaim. Order [#196], p, 10.
Those elements are (1) the existence of a contract; (2) performance by the
party claiming breach; and (3) failure to perform by the other party. Generally, the
trademark claims and counterclaims of the parties hinge on the December 13, 2010,
Dish Network Retailer Agreement between the plaintiffs and the defendants. In
addition, I granted the motion for summary judgment of the defendants on the first two
elements of their trademark claims. Those elements are (1) that Dish Network, LLC and
affiliates own a protectable trademark, DISHNET; and (2) that Dish Network, LLC and
affiliates have used and are using that mark in connection with goods or
In their present motion, the plaintiffs contend my order [#196] on the motions for
summary judgment contains manifest errors of law and fact. As noted by the plaintiffs,
the lynchpin of my summary judgment order is the conclusion that plaintiff, Digital
Satellite Connections (DSC), “as a sole proprietorship operated by [plaintiff] Kathy King,
executed a Dish Network Retailer Agreement which became effective as of December
31, 2010.” Order [#196], p. 4. Focused myopically, but improperly, on the question of
whether Kathy King herself executed the agreement, the plaintiffs contend I concluded
erroneously that there are no disputed issues of material fact about whether Kathy King
entered into the 2010 agreement. The evidence cited in the summary judgment order
[#196] indicates clearly that agents of DSC executed the agreement, and Kathy King
knew of that fact. Ms. King has stated under oath that she has no reason to dispute the
contention that Dish and DSC electronically accepted the terms and conditions of the
agreement. The additional evidence cited in the response [#213] of the defendants to
the instant motion further buttresses this position.
Even with a second bite at the apple, the plaintiffs have not shown that there is a
disputed issue of material fact concerning execution of the 2010 agreement by DSC,
with the knowledge of Kathy King. The plaintiffs have not shown any basis for
reconsideration of my ruling on this issue in the summary judgment order [#196]. The
lynchpin of that order, the undisputed fact that Kathy King doing business as DSC
executed the 2010 agreement, remains firmly in place.
The plaintiffs challenge also my ruling denying their motion for summary
judgment on their trademark related claims. In addition, they challenge my ruling that
the defendants are entitled to summary judgment on certain elements of their trademark
infringement counterclaims. Specifically, (1) that Dish Network, LLC and affiliates own a
protectable trademark, DISHNET; and (2) that Dish Network, LLC and affiliates have
used and are using that mark in connection with goods or services.
The plaintiffs claim there is no evidence that the defendants made a proper
request to the plaintiffs for transfer of the DISHNET trademark, as required by the
agreement. The plaintiffs seek to apply the notice provision of the Dish Network
Retailer Agreement, paragraph 17.10.2. Exhibit 7 [#100-3] [filed under restriction],
CM/ECF pp. 2 - 33 (Retailer Agreement). The Retailer Agreement refers to and
includes a separate Trademark License Agreement. Exhibit 7 [#100-3] [filed under
restriction], CM/ECF pp. 34 - 40 (Trademark License Agreement). The Trademark
License Agreement provides that a retailer “shall immediately upon the request of DISH,
Assign to Dish or its designated affiliate” any trademark rights subject to the agreement.
Id., ¶ 6.
The plaintiffs contend evidence submitted by the defendants of repeated
telephone conversations between DISH representatives and Ms. King in which DISH
requested and demanded that she transfer the DISHNET.COM domain name to DISH
are not valid evidence of a request required by the agreement. Why? Because
evidence of such conversations is hearsay, the plaintiffs contend. Reply [[#215], p. 1.
Evidence of requests made to Ms. King properly may be offered to show the request
was made, as opposed to showing the truth of a statement made as part of the request.
For this purpose, evidence of a request is not hearsay as defined by Fed. R. Evid.
801(c) because is not offered to prove the truth of a statement made as part of the
In addition, the defendants contend the first written demand made by DISH is not
valid because it was not made until after the 2010 Retailer Agreement and Trademark
License Agreement expired on December 31, 2012. This is yet another dead-end for
the plaintiffs. Explicitly, the right of the defendants to enforce many terms of the
Trademark License Agreement survives expiration of the Retailer and Trademark
License Agreements. Trademark License Agreement, Exhibit 7 [#100-3] [filed under
restriction], CM/ECF pp. 36 - 37, ¶¶ 6, 7, 12.
Assuming incorrectly that they have vitiated evidence showing valid execution of
the Retailer and Trademark License Agreements and the effectiveness of the terms of
those agreements after some portions expired, the plaintiffs contend my summary
judgment rulings concerning the trademark claims of the parties contain manifest errors
of law and fact. The contention of the plaintiffs is incorrect. The evidence in the record
demonstrates without dispute the terms of the Retailer and Trademark License
Agreements and the execution of those agreements by Kathy King dba DSC. Under the
terms of those agreements, the defendants are entitled to the use and ownership of the
trademarks and domain names at issue.
IV. CONCLUSION & ORDER
The plaintiffs have not demonstrated any basis for reconsideration of my order
[#196] on the motions for summary judgment. Thus, the motion to reconsider should be
THEREFORE, IT IS ORDERED that the Plaintiffs’ Motion for Reconsideration
of Summary Judgment Ruling [#211] filed November 10, 2014, is denied.
Dated September 22, 2015, at Denver, Colorado.
BY THE COURT:
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