Luv N' Care, Ltd. et al v. Regent Baby Products Corp.

Filing 123

MEMORANDUM OPINION AND ORDER re: #103892 115 MOTION for Reconsideration filed by Luv N' Care, Ltd., Admar International, Inc. For the above reasons, plaintiffs' motion for reconsideration is denied. The Clerk of the Court is directed to close plaintiffs' motion [Dkt. No. 115]. (Signed by Judge Shira A. Scheindlin on 1/23/2014) (cd) Modified on 1/24/2014 (ca).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDCSDNY
DOCUMENT
ELECTI\ONlCALLY FILED .

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\ DATE l~~ED: = , Z:l~ .~_
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1_._.__ ~ __ , ....

LUV N' CARE, LTD. and ADMAR
INTERNATIONAL, INC.,

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.-­

MEMORANDUM OPINION
AND ORDER

Plaintiffs,
- against­

10 Civ. 9492
REGENT BABY PRODUCTS CORP.
d/b/a/ BABY KING,
Defendant.

._--------------------------------------------------

)(

SHIRA A. SCHEINDLIN, U.S.D.J.:

On December 11,2013, I granted defendant's motion for partial
summary judgment on plaintiffs' federal trade dress infringement claims as to its
flip-top cap and hard spout cup and cap combination and plaintiffs' state law claim
for tortious interference with prospective business relations. On December 26,
2013, plaintiffs filed a motion seeking reconsideration of my ruling on the federal
trade dress infringement claims. For the following reasons, plaintiffs' motion for
reconsideration is denied.

First, plaintiffs' motion is untirrely. Plaintiffs have brought this

1

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motion under Federal Rule of Civil Procedure 60(b Yand defendant has treated it as
such. 2 However, Rule 60(b) permits relief "from afinal judgrrent, order, or
proceeding" (emphasis added). The December 11, 2013 Opinion and Order
granted defendant's motion for partial sumnary judgment. Because that decision
did not fully adjudicate the parties' claims, it was not appealable and thus not final
for the purposes of Rule 60(b).3 Therefore, plaintiffs' motion for reconsideration
cannot be brought under Rule 60(b). Rather, plaintiffs must proceed under Local
Rule 6.3 which requires litigants to bring motions for reconsideration within
fourteen days of the initial determination, unless otherwise provided by the Court.
The instant motion is denied as untimely because plaintiffs filed the motion for
reconsideration fifteen days after my initial order and did not seek an extension of
the deadline from the Court.

See 12/26113 Plaintiffs' Memorandum of Law in Support of Motion
for Reconsideration of the Court's Opinion and Order Granting Defendant's
Motion for Partial Summary Judgment ("PI. Mem."), at 1.
See 1110114 Defendant's Memorandum of Law in Opposition to
Plaintiffs' Rule 60(b) Motion, at 2-5.
2

See 12 James Wm. Moore et al., Moore's Federal Practice, § 60.23
(2011) ("The standard test for whether a judgment is 'final' for Rule 60(b)
purposes is usually stated to be whether the judgment is sufficiently 'final' to be
appealed."); United States v. 228 Acres ofLand & Dwelling, 916 F.2d 808,811 (2d
Cir.1990) ("An order that denies summary judgment or grants partial summary
judgment cannot by itself be the basis for an appeal, since it is nonfinal.").
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2

Second, even if plaintiffs' motion was considered on its merits,
plaintiffs have presented no evidence or argument justifying reconsideration of the
December 11, 2013 Opinion and Order. The standard for granting a motion for
reconsideration pursuant to Local Rule 6.3 is strict in order to "to prevent the
practice of a losing party examining a decision and then plugging the gaps of a lost
motion with additional matters.,,4 "Reconsideration 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."s Typical grounds for reconsideration include "an
intervening change of controlling law, the availability of new evidence, or the need
to correct a clear error or prevent manifest injustice.,,6
Plaintiffs assert that the December 11, 2013 Opinion and Order did
not adequately consider the "total image embodying [Luv n' Care's] trade dress" or
the "physical products" of either plaintiff or its competitors. 7 I appropriately

AEP-PRI Inc. v. Galtronics Corp. Ltd., No. 12 Civ. 8981,2013 WL
5289740, at *1 (S.D.N.Y. Sept. 19,2013) (quoting Nziman v. NY. Univ. Hosps.
Ctr., No. 95 Civ. 6469,2005 WL 926904, at *1 (S.D.N.Y. Apr. 21,2005)).
4

5

Shrader v. CSX Transp., Inc., 70 F.3d 255,257 (2d Cir. 1995).

6

Virgin Atl. Ai1V1UYS, Ltd. v. National Mediation Rd., 956 F.2d 1245,

1255 (2d Cir. 1992) (quotation omitted).
7

PI. Mem. at 1.

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considered the disputed trade dress's total image in concluding that it is generic,
including plaintiffs' own description of the trade dress, as well as physical
examples and over fifty different catalog images, full color photographs and other
exhibits submitted by Regent as part of its motion for partial summary judgment.
Plaintiffs now want the Court to consider additional physical products, but it was
free to submit these at any point during the extensive briefing on Regent's motion
and cannot do so now for the first time on reconsideration. Plaintiffs also argue for
the first time that Regent failed to show that the "trade dress became generic before
Regent entered the market."g Again, plaintiffs may not use a motion for
reconsideration to raise new arguments for the first time when they were free to
raise them during the original briefing. 9
For the above reasons, plaintiffs' motion for reconsideration is denied.
The Clerk of the Court is directed to close plaintiffs' motion [Dkt. No. 115].

8

Id. at 2-3.

Plaintiffs' remaining arguments are frivolous. Plaintiffs argue that
Regent "conceded" a material issue of fact by stating that its own products are
different from LNC's. However, a statement about Regent's products does not
raise a material issue of fact as to whether LNC's products are generic. Plaintiffs
also claim that their state law unfair competition claims can proceed on generic
trade dress. While this may be true, the December 11, 2013 Opinion and Order
only addressed the federal Lanham Act claim raised by defendant on its motion for
partial summary judgment.
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SO ORDERED:

Dated:

New York, New York
January 23,2014

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-AppearancesFor Plaintiffs:
Lee A. Goldberg, Esq.
Morris E. Cohen, Esq.
Goldberg Cohen, LLP
1350 Avenue of the Americas, Suite 425
New York, New York 10019
[phone]

For Defendant:
James J. Foster, Esq.

Wolf, Greenfield & Sacks, P.e.

600 Atlantic Avenue

Boston, Massachusetts 02210

[phone]
John T. Johnson, Esq.

David Tadahiko Yaegashi, Esq.

John Stephen Goetz, Esq.

Kristen A. McCallion, Esq.

Fish & Richardson P.C.

601 Lexington Ave, 52nd floor

New York, New York 10022

[phone]

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