Health & Sun Research, Inc. et al v. Designer Skin LLC
Filing
70
ORDER denying 67 Motion for Reconsideration. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 12/19/2013. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HEALTH & SUN RESEARCH, INC.
d/b/a Kava Kava Intl. and
Vegas Tan,
Plaintiff,
v.
Case No. 8:12-cv-2319-T-33MAP
AUSTRALIAN GOLD, LLC,
Defendant,
________________________________/
AUSTRALIAN GOLD, LLC,
Counter-Plaintiff,
v.
HEALTH & SUN RESEARCH, INC.
d/b/a Kava Kava Intl. and
Vegas Tan,
Counter-Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Health and
Sun Research, Inc.’s Motion for Reconsideration (Doc. # 67),
which was filed on December 13, 2013.
Australian Gold, LLC
filed a Response in Opposition to the Motion (Doc. # 68) on
December 16, 2013.
For the reasons that follow, the Court
denies the Motion for Reconsideration.
I.
Legal Standard
It is within the Court's discretion to grant a motion for
reconsideration. Lussier v. Dugger, 904 F.2d 661, 667 (11th
Cir. 1990).
Arguments in favor of granting reconsideration
must be balanced against the desire to achieve finality in
litigation. Id.
As stated in Florida College of Osteopathic
Medicine, Inc. v. Dean Witter Reynolds, Inc., 12 F. Supp. 2d
1306, 1308 (M.D. Fla. 1998), “A motion for reconsideration
must demonstrate why the court should reconsider its past
decision and set forth facts or law of a strongly convincing
nature to induce the court to reverse its prior decision.”
Further, “in the interests of finality and conservation of
scarce judicial resources, reconsideration is an extraordinary
remedy to be employed sparingly.” Lamar Adver. of Mobile, Inc.
v. City of Lakeland, 189 F.R.D. 480, 489 (M.D. Fla. 1999).
This
Court
recognizes
three
grounds
to
justify
reconsideration of a prior order under Federal Rule of Civil
Procedure 59(e): “(1) an intervening change in controlling
law; (2) the availability of new evidence; and (3) the need to
correct clear error or manifest injustice.”
Fla. College of
Osteopathic Med., Inc., 12 F. Supp. 2d at 1308.
a
motion
for
reconsideration,
“[t]his
Court
In deciding
will
not
reconsider its judgment when the motion for reconsideration
fails to raise new issues but, instead, relitigates that which
the Court previously found lacking.” Ludwig v. Liberty Mut.
Fire Ins. Co., Case No. 8:03-cv-2378-T-17-MAP, 2005 U.S. Dist.
2
LEXIS 37718, at *8 (M.D. Fla. Mar. 30, 2005). In addition, “a
motion for reconsideration is not the proper forum for the
party to vent dissatisfaction with the Court’s reasoning.” Id.
at *11. (Internal citation and quotation marks omitted).
II.
Discussion
On November 25, 2013, the Court entered an Order granting
in part and denying in part Australian Gold’s Motion in
Limine. (Doc. # 60). Therein, the Court barred Health and Sun
from introducing exemplars of its Purple Rain and Royal Flush
products during trial based on Health and Sun’s failure to
disclose the exemplars to Australian Gold during discovery.
The Court explained:
During discovery, Australian Gold requested that
Health and Sun produce “an exemplar of each product
sold by Health & Sun having either of the Purple
Rain or Royal Flush marks affixed thereto.” (Doc. #
47 at 4). Health and Sun responded that it would
produce the requested items. (Doc. # 47-2 at 10).
However, it is undisputed that Health and Sun never
tendered an exemplar to Australian Gold for either
Purple Rain or Royal Flush.
(Doc. # 60 at 3).
Health and Sun has yet to produce a single exemplar of
its products to Australian Gold; nevertheless, Health and Sun
requests an Order of reconsideration from this Court allowing
Health and Sun to introduce evidence of its exemplars at
trial.
Health and Sun does not suggest that the Court
3
improperly applied the rule of law to the facts presented.
Nor has Heath and Sun pointed to a change in the governing
law.
Rather,
Health
and
Sun
argues
that
it
would
be
“fundamentally unfair” to allow Australian Gold to introduce
evidence of its products at trial while disallowing Health and
Sun’s presentation of like evidence. (Doc. # 67 at 1). Health
and Sun asserts that Australian Gold “is now seeking to do
precisely what it claimed was done to it - surprise [Health
and Sun] with a new exhibit that was never disclosed.” (Id. at
2).
However, Australian Gold points out “a fundamental
difference” – that is: “Health and Sun never requested product
exemplars from Australian Gold” during the discovery period.
(Doc. # 68 at 1).
lawsuit
is
based
Furthermore, because Health and Sun’s
on
the
existence
of
Australian
Gold’s
allegedly infringing products, Health and Sun can hardly claim
surprise concerning the existence of those same products.
comparison,
when
Australian
Gold
repeatedly
In
requested
exemplars from Health and Sun, Health and Sun indicated that
it had nothing to produce.
The Court disagrees with Health and Sun’s assertion that
“[b]oth [parties’ exemplars] should come in or none at all.”
(Doc. # 67 at 1).
The record shows that Australian Gold
requested exemplars from Health and Sun and that Health and
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