Lucky's Detroit, LLC v. Double L Inc.

Filing 64

ORDER denying 63 Motion for Reconsideration. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LUCKY’S DETROIT, LLC,
Plaintiff,
Case No. 09-14622
HON. LAWRENCE P. ZATKOFF

v.
DOUBLE L INC.,
Defendant.
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ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
This matter is before the Court on Plaintiff’s motion for reconsideration [dkt 63]. Pursuant
to E.D. Mich. L.R. 7.1(h)(2), no response is permitted. The Court finds that the facts and legal
arguments are adequately presented in Plaintiff’s motion and brief such that the decision process
would not be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(h)(2),
it is hereby ORDERED that the motion be resolved on the brief submitted. For the reasons set forth
below, Plaintiff’s motion for reconsideration is DENIED.
Local Rule 7.1(h) governs motions for reconsideration, stating that “the court will not grant
motions for rehearing or reconsideration that merely present the same issues ruled upon by the court,
either expressly or by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3) (emphasis added). The
same subsection further states, “[t]he movant must not only demonstrate a palpable defect by which
the court and the parties . . . have been misled but also show that correcting the defect will result in
a different disposition of the case.” Id.

A defect is palpable when it is “obvious, clear,

unmistakable, manifest, or plain.” Chrysler Realty Co., LLC v. Design Forum Architects, Inc., 544
F.Supp. 2d 609, 618 (E.D. Mich. 2008).

Plaintiff challenges the Court’s January 25, 2012, order in which the Court addressed the
parties’ cross-motions for summary judgment. The Court denied Plaintiff’s motion and granted
Defendant’s motion, finding Defendant’s federal registrations valid and Plaintiff was infringing
Defendant’s marks. Plaintiff now contends that the Court made four palpable defects in its decision:
(1)

The Court’s holding that Defendant’s marks, if valid, are not weakened by
widespread third party use and enjoy a wide scope of protection;

(2)

The Court’s holding that Defendant owned valid federal trademark registrations;

(3)

The Court’s holding that Defendant’s marks are incontestable and cannot be
challenged on the basis that they are merely descriptive; and

(4)

The Court’s failure to view the evidence in the light most favorable to the
non-moving party when weighing the Sixth Ciruit’s Frisch factors (i.e., strength of
the mark, relatedness of the goods, similarity of the marks, evidence of actual
confusion, marketing channels used, likely degree of purchaser care, intent in
selecting the mark, and likelihood of expansion of product lines).

The difficulty with Plaintiff’s four defects is that Plaintiff has merely set forth arguments that
the Court previously addressed in reaching its decision on the parties’ cross-motions for summary
judgment. For instance, Plaintiff argues that it provided evidence to the Court regarding the
widespread third-party use of Defendant’s marks. The Court analyzed the evidence presented in its
opinion and order. Applying Sixth Circuit and Federal Circuit case law, the Court concluded that
Plaintiff failed to show the marks cited in its evidence were actually being used in commerce.
Plaintiff further misconstrues the Court’s decision by arguing that “the Court presumably and
summarily found the ‘Lucky’s’ and ‘Lucky’s Steakhouse’ marks to be strong marks, based on its
conclusion that the marks are incontestable, a conclusion which itself represents a palpable defect.”
Contrary to Plaintiff’s reading of the Court’s decision, the Court utilized six pages of its decision
to analyze the strength of Defendant’s marks. Rather than “summarily” concluding that the marks

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were strong, as Plaintiff now argues, the Court analyzed the marks use in connection with the
restaurant market, the advertisement of the marks by Defendant, the customer recognition of the
marks, and Plaintiff’s failure to show widespread third party use in Southeast Michigan.
Furthermore, while Plaintiff contends that the Court did not view the evidence in the light most
favorable to the non-moving party, the Court notes that it was presented with cross-motions for
summary judgment. The Court provided extensive analysis on each one of the four defects that
Plaintiff now raises.
In essence, Plaintiff reasserts the same arguments previously reviewed by this Court, and
Plaintiff fails to show that reconsidering its arguments will result in a different disposition of the
parties’ cross-motions for summary judgment. The instant motion expresses only Plaintiff’s
disagreement with the Court’s decision. Such disagreement is not a proper premise on which to base
a motion for reconsideration. See, e.g., Simmons v. Caruso, No. 08-cv-14546, 2009 WL 1506851,
at *1 (E.D. Mich. May 28, 2009); Cowan v. Stovall, No. 2:06-CV-13846, 2008 WL 4998267, at *2
(E.D. Mich. Nov. 21, 2008). As such, Plaintiff’s motion for reconsideration fails to state a palpable
defect by which the Court has been misled. Rather, Plaintiff’s motion presents issues that the Court
has already ruled upon. See E.D. Mich. L.R. 7.1(h)(3).
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for reconsideration [dkt 63]
is DENIED.
IT IS SO ORDERED.

S/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE

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Dated: February 15, 2012
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of this Order was served upon the attorneys of record
by electronic or U.S. mail on February 15, 2012.

S/Marie E. Verlinde
Case Manager
[phone]

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