SMART VENT PRODUCTS, INC. v. CRAWL SPACE DOOR SYSTEM INC.

Filing 114

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 3/27/2017. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

SMART VENT PRODUCTS, INC.

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 13-5691 (JBS/KMW)

v.
CRAWL SPACE DOOR SYSTEM, INC.

MEMORANDUM OPINION
Defendant.

SIMANDLE, Chief Judge:
In this unfair competition and trademark infringement
action, Plaintiff Smart Vent Inc. (hereinafter, “Plaintiff”)
seeks clarification and/or partial reconsideration of the
Court’s August 15, 2016 Opinion and Order concerning Defendant
Crawl Space Door System, Inc.’s (hereinafter, Defendant”) Motion
for Partial Judgment on the Pleadings. See generally Smart Vent
Products, Inc. v. Crawl Space Door System, Inc., No. 13-5691,
2016 WL 4408818 (D.N.J. Aug. 16, 2016).

For the reasons that

follow, Plaintiff’s motion for clarification and/or partial
reconsideration will be denied.
1.

The Court finds as follows:

Factual and Procedural History. The Court thoroughly

described the relevant background of this case in Smart Vent,
Inc., 2016 WL 4408818 at *2-*4, and need not repeat it here.

As

relevant to the pending motion, the Court (1) granted
Defendant’s motion for judgment on the pleadings to the extent

it concerns Plaintiff’s allegations of FEMA and NFIP Compliance
and patent protection, and (2) denied it to the extent it
concerned Plaintiff’s allegations of TB-1 Compliance and the
trademark related issues.1

Plaintiff now takes issue with the

Court’s interpretation of Defendant’s use of individual
certifications to comply with FEMA regulations, as opposed to
obtaining an ICC-ES Evaluation Report as referenced in TB-1. The
Court found that Defendant’s “approach to certification . . .
comports with the facial requirements to certification under 44
C.F.R. § 60.3(c)(5), i.e, the actual binding regulations
underpinning the FEMA-administered NFIP.” Smart Vent Inc., 2016
WL 4408818 at *7.2

The Court reasoned that Plaintiff’s

allegations in its Complaint “readily admit” that Defendant
“engages engineers who certify” that Defendant’s flood vents
“meet or exceed the minimum net area requirements.” Id.

As a

result, the Court concluded that Defendant has “‘clearly
establishe[d]’ the absence of any ‘material issues of fact’ on

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Plaintiff has also filed a motion for partial summary judgment
on its unfair competition claims and for a permanent injunction
against Defendant [Docket Item 103], but the Court will address
that motion in a separate forthcoming opinion. This opinion
only addresses Plaintiff’s motion for reconsideration of the
Court’s August 16, 2016 Opinion and Order. [Docket Item 97.]
2 44 C.F.R. § 60.3(c)(5) requires that “designs” of flood vents
“must either be certified by a registered professional engineer
or architect or meet or exceed the following minimum criteria: A
Minimum of two openings having a total net area of not less than
one square inch for every square foot of enclosed area subject
to flooding shall be provided.” 44 C.F.R. § 60.3(c)(5).
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the question of whether it falsely or misleadingly advertised
its product as ‘FEMA’ and/or ‘NFIP’ compliant,” and therefore
dismissed those aspects of Plaintiff’s complaint with prejudice.
Id.
2.

Standard of Review. Local Civil Rule 7.1(i) provides

that a party moving for reconsideration must set forth
“concisely the matter or controlling decisions which the party
believes” the Court “overlooked” in its prior decision.
R. 7.1(i).

L. CIV.

The party seeking reconsideration, however, bears

the heavy burden of demonstrating either: “‘(1) an intervening
change in controlling law; (2) the availability of new evidence
not available previously; or (3) the need to correct a clear
error of law or prevent manifest injustice.’”

Andreyko v.

Sunrise Sr. Living, Inc., 993 F. Supp. 2d 475, 478 (D.N.J. 2014)
(citations omitted).
3.

A motion for reconsideration, however, constitutes an

extremely limited procedural vehicle, and does “not provide the
parties with an opportunity for a second bite at the apple,”
Tishcio v. Bontex, Inc., 16 F. Supp. 2d 511, 532 (D.N.J. 1998),
nor a vehicle “to relitigate old matters, or to raise [new]
arguments” that could have been presented in connection with the
court’s original decision.

NL Indus., Inc. v. Commercial Union

Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996); see also Tishcio,
16 F. Supp. 2d at 532 (same).

Indeed, mere disagreement with
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the court’s decision should be dealt with through the normal
appellate process.

See Andreyko, 993 F. Supp. 2d at 478; see

also Shevline v. Phoenix Life Ins., No. 09-6323, 2015 WL 348552,
at *1 (D.N.J. Jan. 23, 2015) (same).

Importantly, “a decision

suffers from ‘clear error’ only if the record cannot support the
findings that led to the ruling . . . Thus, a party must do more
than allege that portions of a ruling were erroneous in order to
obtain reconsideration of that ruling: it must demonstrate that
(1) the holdings on which it bases its request were without
support in the record, or (2) would result in “manifest
injustice if not addressed.” Leja v. Schmidt Mfg., 743 F. Supp.
2d 444, 456 (D.N.J. 2010).
4.

Plaintiff’s Grounds for Reconsideration. Plaintiff

first argues that the Court erred in granting Defendant’s motion
with respect to Defendant’s statements that its engineered floor
vents are “FEMA-compliant” and NFIP-compliant.”

Specifically,

Plaintiff disagrees with the Court’s statement that Plaintiff
readily admit[s]” that Defendant “engages engineers who certify
that [Defendant] flood vents meet or exceed the minimum net area
requirements” because the Complaint also alleges that
Defendant’s certifications have overstated, and continue to
overstate, coverage areas for its engineered flood vents.” (Pl.
Br. at 6).

While the Complaint does contain allegations

regarding Defendants’ overstating of coverage areas, it also
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contains allegations that Defendant “engages engineers to sign
non-specific individual certifications in 14 states,” and that
Defendant “has hired engineers to sign and place stateregistration seals on these ‘Engineered Flood Vent
Certification’ documents.” (Compl. ¶¶ 34-35.)

Additionally,

Plaintiff states that Defendant “offers flood vent model 816CS
with a ‘certification’ that states that that model has a net
open area of 105 square inches, and services an enclosed area of
205 square feet.” (Id. at ¶ 44.)

This is sufficient to comport

with the facial requirements for certification under 44 C.F.R. §
60.3(c)(5).

Defendant clearly disagrees with the Court’s

interpretation of “FEMA-compliant” and NFIP-compliant” here, but
the proper avenue to challenge it is through the appellate
process, not through reconsideration. See Smart Vent Inc. v. USA
Floodair Vents, Ltd., No. 10-168, 2017 WL 1026541, at *5 (D.N.J.
Mar. 15, 2017)(denying Plaintiff’s motion for reconsideration on
similar grounds).
5.

Next, Plaintiff takes issue with the Court’s finding

that Plaintiff’s theory of liability for Defendant’s FEMAcompliant misstatements “hinges, in its entirety, upon Crawl
Space’s use of individual engineering certifications, rather
than the ICC-ES Evaluation Report referenced in TB-1.” Smart
Vent, Inc., 2016 WL 4408818, at *7.

It argues that it also

alleges that Defendant improperly inflates the net open area of
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its vents. (Pl. Br. at 7.)

But such alleged manipulation does

not relate to Defendant’s compliance with 44 C.F.R. §
60.3(c)(5), and Plaintiff fails to explain why the Court’s
statement was a “clear error of law” or needs reconsideration to
“prevent manifest injustice.”3
6.

Next, Plaintiff argues that where an engineered flood

vent is “FEMA-Compliant” or “NFIP-Compliant” is broader than
whether it is

44 U.S.C. § 60.3(c)(5)-compliant. In other words,

“a flood vent’s compliance with FEMA or the NFIP is not confined
to an examination of whether its manufacturer provided a
certification which meets the limited language of the C.F.R.
(Pl.’s Br. at 3.)

As a result, it argues, Defendant’s

“technical compliance with § 60.3(c)(5) is but a limited, if not
inconsequential, part of the FEMA/NFIP compliance picture with
respect to engineered flood vents, and [Defendant]’s statements
in marketing and advertising that its engineered flood events

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Defendant also argues that “[f]ailure to meet the requirements
of TB-1 is a failure to be compliant with that aspect of FEMA
and the NFIP. While this may not be explicitly set forth in the
Complaint, it is certainly set forth in all reasonable
inferences to be drawn from the Complaint.” (Pl. Br. at 7.) The
Court disagrees, as the Court will rely on the regulation itself
over interpretative guidance. See Beazer East, Inc. v. United
States EPA, 963 F. 2d 603, 611 n.7 (3d Cir. 1992)(“[w]e caution
that we will not defer to an interpretation that implies
language that cannot simply be found in the regulation.”).
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are ‘FEMA-compliant’ or ‘NFIP-compliant’ are literally false or,
at best, misleading.”
7.

The Court made no such error, as Plaintiff simply

disagrees with the Court’s decision and presents an inappropriat
grounds for reconsideration. See Hackensack Riverkeeper v. Del.
Ostego Corp., No. 05-4806, 2007 WL 1749963, at *3 (D.N.J. June
15, 2007) (“The substance of Plaintiff’s argument, however, is
that the Court came to the wrong conclusion, not that the Court
overlooked controlling standard and law.”).

The Court

thoroughly explained why it granted Defendant’s motion for
judgment on the pleadings with respect to Defendant’s FEMA and
NFIP compliant allegations, as it explained that Plaintiff’s
reliance on the language of TB-1 is misguided, mainly because
“[t]he [FEMA] bulletins do not create regulations; rather, they
provide specific guidance for complying with the requirements of
existing NFIP regulations.” Smart Vent Inc., 2016 WL 4408818 at
*2 n.3. As the Court noted in a related case, Smart Vent, Inc.
v. USA Floodair Vents, Ltd., 193 F. Supp. 3d 395, 402 n.9
(D.N.J. 2016):
In other words, the guidance provided in TB-1 provides only
FEMA's persuasive interpretation of the NFIP, but stops
short of creating new legal requirements or otherwise
heightening the regulations expressed in 44 C.F.R. § 60.3.
As a result, Smart Vent cannot point to TB-1 as a
controlling regulation, nor can the Court find [Defendant]
in breach of the NFIP solely on account of its failure to
follow TB-1's guidance, because TB-1 directs itself only to
guidance, not binding requirements. Stated differently, the
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Court cannot find anything false or misleading in
[Defendant] advertisement of an NFIP-compliant flood vent,
simply because its vents fall short of the guidance
provided in TB-1, because its certification process
otherwise comports with the limited facial requirements
of 40 C.F.R. § 60.3(c)(5).
The Court declines to deviate from its reasoning in this
prior Smart Vent matter, and finds no reason to reconsider its
decision in this case based on the same argument.
8.

Plaintiff next submits that the Court misstated

certain portions of TB-1. (Pl. Br. at 8.)

Specifically,

Plaintiff takes issue with the Court’s statement that TB-1
“provides only specific guidance for complying with the
requirements of existing NFIP regulations, and then directs
users to consult, if necessary, the actual legal requirements of
the NFIP under 44 C.F.R. § 60.3.” Smart Vent Inc., 2016 WL
4408818 at *2 n.3 (citations and quotation marks omitted).
Plaintiff also disagrees with the Court’s statement that TB-1
“directs consumers to closely inspect the requirements of 44
C.F.R. § 60.3.” Id. at *3. Not only is Plaintiff misguided by
focusing on minor disagreements that are not appropriate for a
motion for reconsideration, but TB-1 explicitly states that
“Title 44 of the U.S. Code of Federal Regulations contains the
NFIP criteria for floodplain management,” and emphasizes
“[c]areful attention to compliance with the NFIP regulations for

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flood openings,” which are found at Section 60.3. (Ex. 1 to
Compl. at 4, 28.)
9.

Finally, Plaintiff argues that the Court erred because

TB-1 links the use of compliant flood openings and the reduction
of flood insurance premiums, so it is clear that Defendant
advertises its engineered flood vents as “FEMA-compliant” and/or
“NFIP-compliant” in an effort to convince consumers that they
will qualify for a lower flood insurance premium. (Pl. Br. at
10-13.) Plaintiff did not make this argument in its briefing, so
the Court will not entertain this new argument on a motion for
reconsideration, as it does not apply that this information was
not previously available at the time of the original motion. See
Estate of Harrison v. Trump Plaza Hotel & Casino, No. 12-6683,
2015 WL 3754996, at *2 (D.N.J. June 16, 2015)(“new arguments
cannot serve as the basis for the Court’s reconsideration of its
prior Opinion and Order.”).
10.

An accompanying Order will be entered.

March 27, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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