PPC Broadband, Inc. v. Corning Gilbert Inc.

Filing 93

SUMMARY ORDER - That PPC's 50 Motion for Reconsideration is DENIED. Signed by Chief Judge Gary L. Sharpe on 1/5/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
PPC BROADBAND, INC.,
Plaintiff,

5:13-cv-1310
(GLS/DEP)

v.
CORNING OPTICAL
COMMUNICATIONS RF, LLC,
Defendant.
________________________________
SUMMARY ORDER
Plaintiff PPC Broadband, Inc. commenced this action asserting
patent infringement claims against Corning Optical Communications RF,
LLC.1 (Am. Compl., Dkt. No. 9.) In a Memorandum-Decision and Order
dated June 5, 2014, this court denied PPC’s motion for a preliminary
injunction. (Dkt. No. 49.) Pending is PPC’s motion pursuant to Federal
Rules of Civil Procedure 52, 59, and 60 for reconsideration of the court’s
order denying its motion for a preliminary injunction, and/or to amend the
findings of fact in that decision. (Dkt. No. 50.) For the reasons that follow,
the motion is denied.

1

Although defendant is named in the amended complaint as Corning Gilbert Inc., the
parties have since stipulated to amend the caption in order to reflect that Corning Gilbert Inc. is
now known as Corning Optical Communications RF, LLC. (Dkt. Nos. 47, 57.)

Motions for reconsideration proceed in the Northern District of New
York under Local Rule 7.1(g). “In order to prevail on a motion for
reconsideration, the movant must satisfy stringent requirements.” C-TC 9th
Ave. P’ship v. Norton Co. (In re C-TC 9th Ave. P’ship), 182 B.R. 1, 2
(N.D.N.Y. 1995). Such motions “will generally be denied unless the moving
party can point to controlling decisions or data that the court
overlooked—matters, in other words, that might reasonably be expected to
alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc.,
70 F.3d 255, 257 (2d Cir. 1995). “A court may justifiably reconsider its
previous ruling if: (1) there is an intervening change in the controlling law;
(2) new evidence not previously available comes to light; or (3) it becomes
necessary to remedy a clear error of law or to prevent manifest injustice.”
Johnson v. Lynn-Caron, No. 9:11-CV-0386, 2012 WL 3888175, at *4
(N.D.N.Y. Sept. 7, 2012) (citations omitted); see Doe v. N.Y.C. Dep’t of
Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983). “[A] motion to reconsider
should not be granted where the moving party seeks solely to re[-]litigate
an issue already decided.” Shrader, 70 F.3d at 257.2
2

The standards under the Federal Rules of Civil Procedure, also cited by PPC in its
motion, are substantially similar to that described above. See Batchelder v. Astrue, No.
10-CV-00267, 2013 WL 2384239, at *1 (N.D.N.Y. May 30, 2013) (“The standards for motions
to vacate under local district court rules are very similar to those used for motions to reconsider

2

The gist of PPC’s motion for reconsideration is that the court’s
decision “was based on an incomplete factual record that was
misrepresented by . . . Corning.” (Dkt. No. 50, Attach. 1 at 1.) Specifically,
PPC takes issue with the court’s reference to the testimony of its expert,
Mark Peterson, when this court noted that he “could not express an opinion
with a reasonable degree of certainty that the alleged price erosion is
caused by Corning.” (Id. (quoting Dkt. No. 49 at 9).) The court ultimately
concluded that PPC had not met its burden of demonstrating that it would
suffer irreparable harm if an injunction were not issued—or that any
irreparable harm was caused by Corning—and denied PPC’s motion. (Dkt.
No. 49 at 5-10.) PPC objects to the court’s reliance on Peterson’s
testimony, arguing that Corning only pointed the court to an excerpt of the
testimony that supported its argument and did not disclose the full
deposition transcript and context in which Peterson made this statement.
(Dkt. No. 50, Attach. 1 at 11-18.) Corning opposes the motion, arguing that
under Rule 60(b).”); Oakes v. Astrue, No. 5:06-CV-332, 2009 WL 10212506, at *1 (N.D.N.Y.
June 30, 2009) (“A motion to alter or amend a judgment pursuant to Rule 59(e) may be based
upon three possible grounds: (1) an intervening change in the controlling law, (2) the
availability of new evidence, or (3) the need to correct a clear error of law or prevent manifest
injustice.”); United States v. Local 1804-1, Int’l Longshoremen’s Ass’n, 831 F. Supp. 167, 169
(S.D.N.Y.1993) (“The purpose of post-judgment motions under Rule 52(b) is to give the district
court an opportunity to correct manifest errors of law or fact . . . or in some limited situations, to
present newly discovered evidence.”), aff’d sub nom. United States v. Carson, 52 F.3d 1173
(2d Cir. 1995).

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it did not misrepresent or conceal evidence, and that the deposition
testimony at issue here does not constitute new evidence that would be a
proper basis for a motion for reconsideration. (Dkt. No. 58 at 7-10.)
The court begins by noting that PPC is correct that Corning only
provided the court with excerpted pages of Peterson’s deposition in
response to PPC’s motion for a preliminary injunction. (Dkt. No. 39, Attach.
15.) However, this omission went unaddressed by PPC in motion practice
for the underlying motion, as PPC likewise failed to provide the court with
the full deposition transcript, and did not make its argument regarding the
context of the testimony, in its reply in further support of its motion. (Dkt.
No. 44.) Although the surrounding portions of the testimony do provide
further context, the court disagrees with PPC’s characterization that
Corning “misrepresent[ed]” the testimony. (Dkt. No. 50, Attach. 1 at 18.)
Even when the excerpt of Peterson’s testimony initially provided by Corning
is read in addition to the context now provided by PPC, the most that can
be said is that Peterson’s testimony as to causation was inconsistent and
inconclusive, as he expresses seemingly contradictory opinions. (Dkt. No.
50, Attach. 3 at 67-73.) Moreover, although the court was selective in what
it cited in its order denying the motion for a preliminary injunction, the
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record provided to the court on that motion contained evidence that
supported its denial.
Furthermore, the fact remains that the entire deposition transcript
was not provided to the court on the motion for preliminary injunction, and,
thus, PPC has not met the standard for a motion for reconsideration. The
court cannot overlook facts that were not before it at the time of its ruling on
the underlying motion. See Lichtenberg v. Besicorp Grp. Inc., 28 F. App’x
73, 75 (2d Cir. 2002) (“In order to prevail [on a motion for reconsideration],
the moving party must demonstrate that the [c]ourt overlooked controlling
decisions or factual matters that were put before the [c]ourt on the
underlying motion.” (internal quotation marks and citations omitted));
Nowacki v. Closson, No. 99-CV-975, 2001 WL 175239, at *1 (N.D.N.Y.
Jan. 24, 2001) (“The high burden imposed on the moving party has been
established in order to . . . prevent the practice of a losing party examining
a decision and then plugging the gaps of the lost motion with additional
matters.” (internal quotation marks and citations omitted)); Polin v.
Kellwood Co., 132 F. Supp. 2d 126, 130 (S.D.N.Y. 2000) (“[A] motion for
reconsideration . . . is limited to the record as to which reconsideration is
sought. It does not permit the building of a different record.”)
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Further, PPC cannot demonstrate that the remainder of Peterson’s
deposition constitutes new evidence that should now be considered,
because it has not argued, and presumably would be unable to prove, that
this evidence was “neither in [its] possession nor available upon the
exercise of reasonable diligence at the time the [underlying] decision was
rendered.” Lynn-Caron, 2012 WL 3888175, at *5. As the moving party
with the burden of establishing the irreparable harm required for a
preliminary injunction to issue, it was PPC’s obligation to present this
information to the court at the time of the motion, in order to rebut the
assertion made by Corning, and it did not do so. See Apple Inc. v.
Samsung Elecs. Co., 695 F.3d 1370, 1374 (Fed. Cir. 2012) (“Thus, to
satisfy the irreparable harm factor in a patent infringement suit, a patentee
must establish both of the following requirements: 1) that absent an
injunction, it will suffer irreparable harm, and 2) that a sufficiently strong
causal nexus relates the alleged harm to the alleged infringement.”) In
short, PPC has not argued an “intervening change in the controlling law” or
that reconsideration is “necessary to remedy a clear error of law,” and has
not shown the existence of “new evidence [that was] not previously
available” to it at the time of its motion for a preliminary injunction, such that
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there are no proper grounds on which to grant its motion for
reconsideration. Lynn-Caron, 2012 WL 3888175, at *4; see Fed. R. Civ. P.
60(b)(2). Its motion for reconsideration is therefore denied.
Accordingly, it is hereby
ORDERED that PPC’s motion for reconsideration (Dkt. No. 50) is
DENIED; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
January 5, 2015
Albany, New York

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