Gallagher et al v. Funeral Source One Supply and Equipment Co., Inc. et al

Filing 91

ORDER denying 89 Motion for Reconsideration Re: 81 Order on Motion for Summary Judgment. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Robert P. Gallagher, et al.
v.

Case No. 14-cv-115-PB
Opinion No. 2016 DNH 042

Funeral Source One Supply
and Equipment Co., Inc., et al.

MEMORANDUM AND ORDER
Robert Gallagher and his firm, Instrument Design and
Manufacturing Co. (“IDM”), sued Funeral Source One Supply and
Equipment Co., Inc. (“FS1”) and Affordable Funeral Supply, LLC
(“AFS”) for (1) patent infringement, (2) trade dress
infringement, (3) violations of the New Hampshire Consumer
Protection Act; and (4) unjust enrichment.

On November 4, 2015,

I granted defendants’ motion for summary judgment as to all of
plaintiffs’ claims.

Doc. No. 81.

motion for reconsideration.

I.

Plaintiffs have filed a

Doc. No. 89.

STANDARD OF REVIEW

Reconsideration is “an extraordinary remedy which should be
used sparingly.”

Palmer v. Champion Mortg., 465 F.3d 24, 30

(1st Cir. 2006).

Reconsideration is “appropriate only in a

limited number of circumstances: if the moving party presents

newly discovered evidence, if there has been an intervening
change in the law, or if the movant can demonstrate that the
original decision was based on a manifest error of law or was
clearly unjust.”

United States v. Allen, 573 F.3d 42, 53 (1st

Cir. 2009); see L.R. 7.2(d).

Accordingly, a party cannot use a

motion for reconsideration “to undo its own procedural failures”
or to “advances arguments that could and should have been
presented” earlier.

Id.

A motion for reconsideration is not “a

mechanism to regurgitate old arguments previously considered and
rejected.”

Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930

(1st Cir. 2014) (internal punctuation omitted).

II.

ANALYSIS

Gallagher’s1 motion for reconsideration (Doc. No. 89) raises
largely the same arguments that he presented in opposing
defendants’ motion for summary judgment.

Because my November 4,

2015 Order (Doc. No. 81) addressed these contentions, I decline
to engage with Gallagher’s arguments point-by-point.

Instead, I

respond to four specific criticisms.
A.

Summary Judgment Standard
Gallagher first contends that I misapplied the summary

judgment standard by construing evidence in the defendants’

Gallagher is the sole owner of IDM. I hereafter refer to
plaintiffs collectively as “Gallagher.”
1

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favor.

This argument focuses primarily on a January 17, 2014

telephone conversation between Gallagher and FS1’s president,
which, Gallagher argues, gave FS1 actual notice of its alleged
patent infringement.

Gallagher asserts that I erred by

“effectively decid[ing] that the testimony of Mr. Ward and AFS
[was] more credible than the testimony of Mr. Gallagher.”
No. 89-1 at 5.

Doc.

This argument is patently wrong.

In the November 4 Order, I set out the appropriate standard
of review, explaining that “evidence submitted in support of the
motion must be considered in the light most favorable to the
nonmoving party, drawing all reasonable inferences in its
favor.”

Doc. No. 81 at 5 (citing Navarro v. Pfizer Corp., 261

F.3d 90, 94 (1st Cir. 2001).

I then applied that standard

consistently throughout the order.

In describing the January

2014 exchange in particular, I found that, “[a]ccepting
Gallagher’s version of the January 17 conversation as true,
Gallagher’s statements were insufficient to give FS1 actual
notice.”

Id. at 8 (emphasis added).

Thus, I did not

“effectively decide[]” that Gallagher’s description of that
discussion was not credible.

Instead, I explicitly concluded

that, even when I credited Gallagher’s account fully, his
statements were insufficient to give FS1 actual notice of its
alleged infringement.

Gallagher’s argument that I made some

impermissible credibility determination is therefore meritless.
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B.

Newly Submitted Evidence
Gallagher next challenges the November 4 Order by pointing,

for the first time, to evidence that AFS continued to post a
photograph of the allegedly infringing driver on its website
long after AFS received actual notice of its alleged
infringement.

Because Gallagher’s opportunity to present this

evidence is long past, I reject his argument.
I denied Gallagher’s request for injunctive relief because
Gallagher had not sufficiently shown that either defendant was
likely to infringe his patent in the future.

Id. at 14-17.

To

support this conclusion, I relied in part on an affidavit from
an AFS employee, who stated that the company removed the image
of the offending driver from its website on April 10, 2014.
at 16 (citing Doc. No. 35-1 at 12).

Id.

Gallagher did not challenge

this affidavit, or present contrary evidence, in his objection
to the motion for summary judgment.

Instead, for the first time

in his motion for reconsideration, Gallagher noted that a “photo
of the AFS counterfeit injector needle driver could still be
found on the AFS website” in November 2015.2

Doc. No. 89-1 at 2.

In response, defendants stated that they only learned of “this
apparent vestigial jpg image,” which was reportedly stored on a
third-party server, when they received Gallagher’s initial
motion for reconsideration in November 2015. The image has
since been deleted, and is no longer available online. Doc. No.
90 at 5.
2

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A party cannot use a motion for reconsideration “to undo
its own procedural failures” or to “advances arguments that
could and should have been presented earlier.”
at 53.

Allen, 573 F.3d

Here, Gallagher had ample opportunity to present this

evidence before I ruled on the defendants’ motion for summary
judgment, and failed to do so.

See id. (“A court will deny a

motion for reconsideration based on the ‘new evidence’ exception
if that evidence in the exercise of due diligence could have
been presented earlier.”) (alterations, citations and
punctuation omitted).

He instead waited until his motion for

reconsideration; but gave no explanation, let alone an adequate
justification, for his delay.

See Doc. No. 89-1 at 2.

Given

that history, I decline to consider Gallagher’s late-submitted
evidence.
C.

Patent Infringement Claim
Next, Gallagher contends that I erred in granting summary

judgment as to his patent infringement claim.

I granted

defendants’ motion because Gallagher did “not produce[] evidence
that he suffered compensable infringement damages after he
provided” actual notice to the defendants of their alleged
infringement.

Doc. No. 81 at 12.

I noted, however, that under

some circumstances, a design patent holder can recover a
reasonable royalty or $250, even though he cannot prove that the
infringer profited from his infringement.
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Id. at 13 n.10.

Yet,

because Gallagher did not “base[] his opposition to defendants’
summary judgment motion” on that basis, and because the record
contained no evidence “to support a possible claim that” he was
entitled “to a measurable royalty payment,” I declined “to rule
against [defendants] on the basis of an argument that Gallagher
ha[d] not presented.”

Id.

Gallagher now argues that he is

entitled to a reasonable royalty or minimum damages.

See Doc.

No. 89-1 at 6-7.
As explained above, Gallagher cannot use his motion for
reconsideration to “advance arguments that could and should have
been presented” previously.

Allen, 573 F.3d at 53.

In his

motion to reconsider, Gallagher neither claims that he in fact
presented this argument before, nor explains his failure to
raise the issue previously.

Moreover, although Gallagher

asserts that he is “entitled to reasonable royalty,” Doc. No.
89-1 at 6, he presents no evidence upon which a reasonable
royalty payment could be based, likely because the record
contains no such evidence.

See Apple Inc. v. Motorola, Inc.,

757 F.3d 1286, 1328 (Fed. Cir. 2014) (reversed on other
grounds).

I therefore will not entertain Gallagher’s argument

here.
D.

Consumer Protection Act Claim
Gallagher finally argues that I erred in granting

defendants’ motion as to his New Hampshire Consumer Protection
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Act (“CPA”) claim.

I granted defendants’ motion because

Gallagher presented “insufficient evidence that either defendant
acted with the scienter required for a CPA violation.”

Doc. No.

81 at 26-27; see Kelton v. Hollis Ranch, LLC, 155 N.H. 666, 66869 (2007) (explaining that the CPA requires “a degree of
knowledge or intent,” and that defendants are not liable for a
“good faith mistake”).

In his motion for reconsideration,

Gallagher argues that I “confused” 35 U.S.C. § 287’s actual
notice standard with the CPA’s scienter requirement.

Gallagher

is, again, mistaken.
I did not apply the actual notice standard in considering
Gallagher’s CPA claim.

I instead concluded that, even when I

construed all relevant evidence in the light most favorable to
Gallagher, he had not provided sufficient evidence that either
defendant acted with the culpable mental state required for a
CPA violation.

Gallagher’s motion for reconsideration, which

merely reiterates his previous contentions on this point, does
not convince me otherwise.

I therefore reject Gallagher’s

argument.

III.

CONCLUSION

Unfortunately, it appears that the parties have lost sight
of what this case is about.

Gallagher sold his patented driver

for a number of years, but (at all times relevant to this suit)
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failed to mark his product adequately.

AFS bought fifty

allegedly infringing drivers from a foreign manufacturer, and
then sold forty-eight of those devices for a net profit of less
than $1,000.

See Doc. No. 35-1 at 9.

FS1 purchased twenty-five

drivers from AFS, which it then resold, also for less than $1000
in profit.

See Doc. No. 35-2 at 5.

Neither defendant sold the

“knockoff” device after receiving legally adequate notice of
their alleged infringement; both took prompt steps to abate
their purported misconduct.

Yet, rather than securing a “just,

speedy, and inexpensive” resolution to this dispute, Federal
Rule of Civil Procedure 1, the parties have spent two years
filing a seemingly endless series of motions - discovery
motions, motions to amend, motions to dismiss, motions to
reconsider, replies, sur-replies.
In sum, both sides have expended exceptional resources in
litigating an unexceptional dispute, and it is time for this to
end.

Plaintiffs’ motion for reconsideration (Doc. No. 89) is

denied.

The clerk shall schedule a status conference to address

any outstanding claims.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
March 2, 2016
cc:

Ross Kenneth Krutsinger, Esq.
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Frank B. Mesmer, Jr., Esq.
Laura L. Carroll, Esq.
Zachary Rush Gates, Esq.

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