LOTTOTRON, INC. v. ATHILA STATION, ET. AL
Filing
189
OPINION. Signed by Judge Jose L. Linares on 9/1/2011. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LOTTOTRON, INC.,
Civil Action No.: 10-4318 (JLL)
Plaintiff,
v.
OPINION
ATHILA STATION, et al.,
Defendants.
LINARES, District Judge.
This matter comes before the Court by way of a motion for reconsideration of this Court’s
July 11, 2011 Letter Opinion and Order filed by Plaintiff [Docket Entry No. 180]. The Court has
considered the submission made in support of the instant motion. No oral argument was heard.
Fed. R. Civ. P. 78. Based on the reasons that follow, the motion is denied.
I. BACKGROUND
As the Court writes only for the parties, a familiarity with the factual and procedural
background of this matter will be presumed. Plaintiff’s original Complaint was filed on August 19,
2010. An Amended Complaint was filed on April 27, 2011. Defendant Partygaming PLC
(“Partygaming”) subsequently filed a motion to dismiss Plaintiff’s Complaint pursuant to Federal
Rules of Civil Procedure 12(b)(2) and 12(b)(6) [Docket Entry No. 148]. Defendant OIGE CG Ltd.
(“OIGE”) also filed a motion to dismiss Plaintiff’s Complaint pursuant to Federal Rules of Civil
Procedure 12(b)(2) and 12(b)(6) [Docket Entry No. 159]. On July 11, 2011, this Court granted
Defendants Partygaming and OIGE’s motions to dismiss for lack of personal jurisdiction, dismissing
with prejudice as to those defendants.
Currently before the Court is a motion for reconsideration of the Court’s July 11, 2011
holding as it pertains to its claims against Defendants Partygaming and OIGE. Plaintiff asks the
Court to reconsider its dismissal of all claims against those defendants.
II. LEGAL STANDARD
Local Rule 7.1(I) provides, in relevant part:
A motion for reconsideration shall be served and filed within 14 days after the entry of the
order or judgment on the original motion by the Judge or Magistrate Judge. A brief setting
forth concisely the matter or controlling decisions which the party believes the Judge or
Magistrate Judge has overlooked shall be filed with the Notice of Motion.
L.Civ.R. 7.1(I). “Reconsideration is an extraordinary remedy” and should be “granted ‘very
sparingly.’ ” See L.Civ.R. 7.1(I) cmt.6(d); see also Felons v. Lombard Investment Corp., Nos. 043993, 04-5768, 04-3992, 04-6105, 2005 WL 3104145, at *1 (D.N.J. Oct. 18, 2005). A judgment
may be altered or amended if the movant shows at least one of the following grounds: “(1) an
intervening change in the controlling law; (2) the availability of new evidence that was not available
when the court [issued its order]; or (3) the need to correct a clear error of law or fact or to prevent
manifest injustice.” Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)(citing N.
River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). When the assertion
is that the Court overlooked something, the Court must have overlooked “some dispositive factual
or legal matter that was presented to it.” McGovern v. City of Jersey, No. 98-5186, 2008 WL 58820,
at *2 (D.N.J. Jan. 2, 2008). Moreover, a motion for reconsideration may not be used to re-litigate
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old matters or argue new matters that could have been raised before the original decision was
reached. See, e.g., P. Schoenfeld Asset Mgmt., L.L.C. v. Cendant Corp., 161 F. Supp. 2d 349, 352
(D.N.J. 2001).1
III. DISCUSSION
Plaintiff asks the Court to reconsider its July 11, 2011 holding as it pertains to the dismissal
of all claims filed against Defendants Partygaming and OIGE.
The Court must first determine
whether Plaintiff’s arguments are properly raised under Local Civil Rule 7.1(I), thus permitting this
Court to reach the merits of the motion for reconsideration. Plaintiff his filed a timely motion for
reconsideration within fourteen days of this Court’s order of dismissal. However, Plaintiff must also
meet its burden to put forth dispositive facts or controlling decisions which they claim this Court
overlooked. L. Civ. R. 7.1(I).
Plaintiff does not present intervening controlling law nor additional dispositive factual
evidence not reviewed in the Court’s original Opinion, so this Court will construe Plaintiff’s motion
for reconsideration to rest on the ground that the Court needs to correct a clear error of law or fact
or to prevent manifest injustice. Specifically, the error pointed to by Plaintiff is alleged to be this
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Plaintiff’s motion could be denied on this basis alone. See, e.g., P. Schoenfeld Asset
Mgmt., L.L.C. v. Cendant Corp., 161 F. Supp. 2d 349, 352 (clarifying that a motion for
reconsideration may not be used to re-litigate old matters or argue new matters that could have
been raised before the original decision was reached). “A party seeking reconsideration must
show more than a disagreement with the Court’s decision, and ‘recapitulation of the cases and
arguments considered by the court before rendering its original decision fails to carry the moving
party’s burden.’” G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990)(quoting Carteret Savings
Bank, F.A. v. Shushan, 721 F.Supp. 705, 709 (D.N.J.1989), appeal dismissed, 919 F.2d 225 (3rd
Cir. 1990)).
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Court’s incorrect construal of whether an “offer of sale” establishes personal jurisdiction over
Defendants Partygaming and OIGE. Since this Court rested its dismissal of claims not on the
grounds that an “offer of sale” may establish personal jurisdiction but rather on the failure of Plaintiff
to meet its burden of production in establishing a prima facie showing that Defendants even made
an offer of sale in this Forum, the motion for reconsideration is denied.
1.
Personal Jurisdiction over Defendant Partygaming
Plaintiff first seeks reconsideration of this Court’s dismissal of its claims with prejudice
against Defendant Partygaming. In its July 11, 2011 Opinion, the Court stated that “Plaintiff has .
. . failed to satisfy its burden of production in response to Partygaming’s motion to dismiss” since
it failed to provide a prima facie showing, with affidavits or other evidence, “that ‘at some point’
between August 19, 2004 and March 6, 2010 [Partygaming] offered an online gaming site through
its interactive website in this District.” (July 11, 2011 Opinion). This Court found insufficient the
two productions Plaintiff put forward demonstrating that Partygaming “purposefully directed its
activities” at residents of this Forum. First, Plaintiff merely disputed “the factual assertions and
qualifications of Partygaming’s affiant, Robert Hoskin, by way of reference to Partygaming’s
purported statements to a federal district court in Ohio that it is ‘one of the world’s largest online
gaming companies.’” (July 11, 2011 Opinion). Second, Plaintiff referred the Court to the complaint
in an Ohio action in which a putative class of “members and citizens” of various states, including
New Jersey, brought claims against Partygaming. (July 11, 2011 Opinion). Together, these bare
allegations were found by this Court as failing to satisfy Plaintiff’s burden of production with regard
to Partygaming’s motion to dismiss.
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In support of its motion for reconsideration, Plaintiff does not present arguments on any of
the grounds required for altering or amending a judgment. Plaintiff does not attempt to show, as
required, that the Court has overlooked one of the following grounds: an intervening change in the
controlling law; the availability of new evidence that was not available when the court issued its
order; or a need to correct a clear error of law or fact or to prevent manifest injustice. Plaintiff does
not introduce additional evidence of acts performed by Partygaming in particular with regard to
purposeful direction at this Forum. Rather, Plaintiff attempts to relitigate whether an unsubstantiated
“offer for sale,” alleged by Plaintiff without a prima facie showing that an offer was made by
Defendant Partygaming, independently confers personal jurisdiction in any judicial district in which
such an alleged offer was made.
Specifically, Plaintiff argues that a 1994 amendment to 35 U.S.C. § 271(a) and subsequent
case law demonstrate that offers for sale confer personal jurisdiction as they “are indeed
infringements in the judicial district in which such offers were made.” (Pl. Br. at 2). This Court has
already reviewed case law interpreting § 271(a) in its determination that an offering on an online
gaming site, “taken as true, does not show that Partygaming’s activities were purposefully directed
toward the residents of this forum, as the mere ‘offer’ of a website does not necessarily imply that
those residents accessed or interacted with such site. See Toys ‘R’ Us, Inc. v. Step Two, S.A., 318
F.3d 446, 452 (3d Cir. 2003); Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124
(W.D. Pa. 1997)(‘A passive Web site that does little more than make information available to those
who are interested in it is not grounds for the exercise of personal jurisdiction.’)” (July 11, 2011
Opinion). In response to this, Plaintiff asserts that this jurisprudence is irrelevant since defendants
offered an interactive rather than a passive gaming website, and “[w]hether a wagerer in New Jersey
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ever availed himself of these websites makes them no less interactive, and, more importantly, makes
the defendants’ offers no less acts of infringement.” (Pl. Br. at 3). In addition, Plaintiff notes that
Partygaming has not denied that such offers were made (Pl. Br. at 1 n.1). However, without
additional evidence that offers were in fact made in this Forum, the mere reassertion of legal
arguments and an assertion of defendant’s non-denial does not satisfy Plaintiff’s burden of
production sufficient to warrant personal jurisdiction.
Plaintiff mistakes this Court’s recognition that offers of sale may constitute acts of
infringement under current law with a mandate for the Court to recognize that an alleged offer of
sale that lacks a prima facie showing of purposeful direction at this forum necessarily constitutes an
act of infringement sufficient to assert jurisdiction of named defendants. Since Plaintiff has not
made the requisite prima facie showing of an offer of sale in this Forum, nor has it included
additional evidence or changes in controlling law not considered by the Court, Plaintiff’s motion for
reconsideration of this Court’s dismissal of its claims is denied.
2.
Personal Jurisdiction over Defendant OIGE
Plaintiff also seeks reconsideration of this Court’s dismissal of its claims with prejudice
against Defendant OIGE. In its July 11, 2011 Opinion, the Court stated that “Plaintiff has . . . failed
to produce evidence linking the activities of [OIGE and OIGE NV], or the Intercasino website, to
this forum.” {July 11, 2011 Opinion). This Court found insufficient the three productions Plaintiff
put forward demonstrating that OIGE “purposefully directed its activities” at the residents of this
forum. Plaintiff pointed to 1) an adjudication by the British Advertising Standards Authority
regarding Intercasino, in which OIGE CG trading as Intercasino is a named party; 2) the Interpartners
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program, which is apparently “an affiliate program operated by OIGE N.V.” on behalf of properties
including Intercasino; and 3) a Securities Exchange Commission document stating that OIGE NV
had renewed its license for the software operating the Intercasino website (July 11, 2011 Opinion).
Together, these bare allegations were found by the court as failing to satisfy Plaintiff’s burden of
production with regard to OIGE’s motion to dismiss.
As in its arguments for reconsideration regarding Partygaming’s dismissal, Plaintiff does not
present arguments on any of the grounds required for altering or amending a judgment as Plaintiff
does not show an intervening change in the controlling law; the availability of new evidence that
was not available when the court issued its order; nor a need to correct a clear error of law or fact
or to prevent manifest injustice. Specifically, Plaintiff does not introduce additional evidence of acts
performed by OIGE or OIGE NV in particular with regard to purposeful direction at this forum.
Moreover, Plaintiff does not present controlling law with respect to an offer of sale that this Court
did not consider in its original Opinion. Plaintiff relies on the same legal arguments with regard to
OIGE’s unsubstantiated “offer for sale” as it presents in its arguments regarding defendant
Partygaming. (Pl. Br. at 1). This Court has already considered those legal arguments and reasserts
with regard to defendant OIGE that Plaintiff has not made a prima facie showing of purposeful
direction at this Forum nor has it included additional dispositive factual or legal matter to warrant
amendment of its original Opinion regarding dismissing defendant OIGE. Plaintiff’s motion for
reconsideration of this Court’s dismissal of its claims against OIGE is therefore denied.
IV. CONCLUSION
For the foregoing reasons, the motion for reconsideration is hereby denied.
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An appropriate Order accompanies this Opinion.
DATED: September 1, 2011
/s/ Jose L. Linares
United States District Judge
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