ANELLO FENCE, LLC v. VCA SONS, INC. et al
Filing
188
OPINION & ORDER denying 170 Plaintiff's Motion for Reconsideration. etc. Signed by Judge John Michael Vazquez on 10/4/2019. (dam, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Not for Publication
ANELLO FENCE, LLC,
Plaintiff
Civil Action No. 13-3074
(JMV) (JBC)
v.
VCA SONS, INC. cl/b/a FREEDOM
FENCE, et a!.,
OPINION & ORDER
Defendants.
John Michael Vazpuez, U.S.D.J.
This matter concerns a dispute over the use of a trademark in competing outdoor fencing
businesses. D.E. 1. Currently pending before the Court is Plaintiff Anello Fence, LLC’s motion
for reconsideration, D.E. 170, of the Court’s January 28, 2019 Opinion and Order, D.E. 155, 156,
granting Defendant VCA’s motions for summary judgment. Plaintiff filed the motion for
reconsideration on April 14, 2019. D.E. 170. This motion for reconsideration was decided without
oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 78.1(b),
The Court has considered the parties’ submissions’ and, for the reasons that follow, the Court
denies Plaintiffs motion for reconsideration.
‘Plaintiffs brief in support of his motion will be referred to as “Pl.’s Br.” D.E. 170. Defendant’s
opposition to this motion will be referred to as “Def.’s Opp.” D.E. 179. Plaintiff replied, D.E. 182,
which he subsequently withdrew. D.E. 183. In any event, Local Civil Rule 7.l(d)(3) does not
permit replies to motions of reconsideration absent the Court’s permission, which the Court did
not provide.
I.
BACKGROUND
The Court included an extensive factual background in its January 28, 2019 Opinion
granting Defendant VCA’s motions for summary judgment, D.E. 155, which the Court
incorporates by reference here. On April 14, 2019, Plaintiff moved for reconsideration of the
Court’s finding that there was no genuine dispute of material fact that Plaintiff fraudulently
procured his trademark and did not have priority use of the trademark. Pl.’s Br. at 3,10.
II.
STANDARD OF REVIEW & ANALYSIS
In the District of New Jersey, motions for reconsideration can be made pursuant to Local
Civil Rule 7.10). The rule provides that such motions must be made within fourteen days of the
entry of an order. Substantively, a motion for reconsideration is viable when one of three scenarios
is present: (1) an intervening change in the controlling law, (2) the availability of new evidence
not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice.
Carmichael v. Everson, No. 03-4787, 2004 WL 1587894, at *1 (D.N.J. May 21, 2004) (citations
omitted). Granting a motion for reconsideration is an “extraordinary remedy,” to be granted
“sparingly.” NLlndus., Inc. v. Commercial Union Ins. Co., 93SF. Supp. 513, 516 (D.N.J. 1996)
(citations omitted).
A motion for reconsideration, however, does not entitle a party to a second bite at the apple.
Therefore, a motion for reconsideration is inappropriate when a party merely disagrees with a
court’s ruling or when a party simply wishes to re-argue its original motion. Sch. Specialty, Inc.
v. Ferrentino, No. 14-4507, 2015 WL 4602995, *24 (D.N.J. July 30, 2015); see also Florham
Park Chevron, Inc. v. Chevron U.S.A., 680 F. Supp. 159, 162 (D.N.J. 1988). Moreover, a motion
for reconsideration is not an opportunity to raise matters that could have been raised before the
original decision was reached. Bowers v. NCAA, 130 F. Supp. 2d 610, 613 (D.N.J. 2001).
2
Plaintiffs motion for reconsideration suffers from a number of infirmities. At the outset,
Plaintiff seeks relief under the wrong rule. Plaintiffs motion for reconsideration is premised on
Federal Rule of Civil Procedure 60(b). Pl.’s Br. at 2. However, Rule 60(b) “applies only to ‘final’
judgments and orders.” Penn W Associates, Inc. v. Cohen, 371 F.3d 118, 125 (3d Cir. 2004)
(quoting Torres v. Chater, 125 F.3d 166, 168 (3d Cir. 1997)). Importantly, “there is no final order
if claims remain unresolved and their resolution is to occur in the district court.” Id. (quoting
Aluminum Co. ofAmer. v. Beazer East, Inc., 124 F.3d 551, 557 (3d Cir.1997)). Because claims
remain unresolved in the present case, there is no final order pursuant to Rule 60(b), and therefore,
Plaintiff may not seek relief under Rule 60(b).
However, even if the Court were to treat Plaintiffs motion as one made pursuant to Local
As noted, the rule requires any motion for
Civil Rule 7.10), it is grossly out of time.2
reconsideration to be made within fourteen days of the relevant order. The Court issued its Order
on January 28, 2019. D.E. 156. Plaintiff did not file its motion for reconsideration until April 14,
2019. D.E. 170. Accordingly, Plaintiff has not complied with the time requirement, and the Court
denies Plaintiffs motion for reconsideration as untimely. See, e.g., Oriakhi v. Bureau ofPrisons,
No. 07-264, 2009 WL 1874199, at *4 (D.N.J. June 29, 2009) (“An untimely filed motion for
reconsideration ‘may be denied for that reason alone”) (quoting Morris v. Siemens Components,
Inc., 938 F. Supp. 277, 278 (D.N.J. l996D; see also Garrison v. Porch, No. 04-1114, 2008 WL
1744730, at *2 (D.N.J. Apr. 11,2008) (“[A] district court may deny a motion for reconsideration
simply because it was filed beyond the [time] provided by [Local Civil] Rule 7.1(i)”).
Finally, Plaintiffs motion also fails on the merits. As noted, there are three narrow grounds
on which a motion for reconsideration may be granted. Plaintiff submits the following in support
2
Plaintiff does not explain why his motion is untimely.
3
of his motion: (1) “newly discovered” evidence pertaining to Defendant VCA’s first use of the
name Anello3; (2) reliance on a prior “State Court injunction”; and (3) an argument that the Court’s
finding that Plaintiff obtained his trademarks through fraud should be vacated because any
mistakes were due to the error of Plaintiffs then counsel.
P1.’s Br. at 4-13.
The “newly
discovered” evidence is actually historical information that Plaintiff knew, or should have known
of, before the motions for summary judgment were decided.4 As to any prior state injunction, the
Court addressed the arguments at length in its Opinion, and finds them to be without merit. Finally,
as to alleged erroneous illegal advice, the Court views such a claim with a jaundiced eye in light
of the fact that Plaintiff admitted during his deposition that he never received a necessary
assignment although he had previously claimed to have obtained one. Likewise, Plaintiff himself
was well aware of the relevant facts. In any event, Plaintiff asks the Court to rely on new facts
(his attorney’s error), which were clearly available to him when the motion for summary judgment
was decided several years afier the alleged faulty advice. Plaintiff, however, did not raise those
facts in his opposition to summaxyjudgment. In short, Plaintiff fails to demonstrate an intervening
change in the controlling law, the availability of new evidence not previously available, or the need
to correct a clear error of law or prevent manifest injustice.
‘
Plaintiff also asks the Court to “allow[] limited discovery on the issue of Defendants’ fraud” and
requests that the Court “impose sanctions on Defendants. for the fraud that [they] committed[.]”
Pl.’s Br. at 4, 13. The Court declines both requests.
.
.
“For example, Plaintiff relies on historical advertisements by Defendant VCA. Yet, Plaintiff freely
admits that “I know Defendants’ ads in the Yellow Pages very well.” D.E. 170-1 at 1 ¶ 3. Thus,
by his own admission, Plaintiff should have been able to locate the relevant information during the
discovery period in this case.
4
III. CONCLUSION
For the reasons stated above, and for good cause shown,
IT IS on this
4th
day of October, 2019,
ORDERED that Plaintiffs motion for reconsideration, D.E. 170, is DENIED.
/
6*cko x’\tJOHN’ MICHAEL vtkuEz, U.S.D.J.
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