The Fashion Exchange LLC v. Hybrid Promotions, LLC et al

Filing 343

OPINION & ORDER re: 310 LETTER MOTION to Reopen Fact Discovery As To Defendant Hybrid Promotions (Pre-Motion Conference Letter Regarding) addressed to Magistrate Judge Ona T. Wang from Scott Zarin, Esq. dated May 2, 2019. filed by The Fashion Exchange LLC, 308 LETTER MOTION to Compel (Reconsideration of Order On) addressed to Magistrate Judge Ona T. Wang from Scott Zarin, Esq. dated April 30, 2019. filed by The Fashion Exchange LLC. For the foregoing reasons, Plaintiff's request to reopen discovery is DENIED, and Plaintiff's motion for reconsideration of the Court's April 9, 2019 Order is DENIED. The Clerk is directed to close ECF 308 and ECF 310. (Signed by Magistrate Judge Ona T. Wang on 11/15/2019) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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THE FASHION EXCHANGE LLC,
Plaintiff,
-againstHYBRID PROMOTIONS, LLC, et al.,
Defendants.
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14-CV-1254 (SHS) (OTW)
OPINION & ORDER

ONA T. WANG, United States Magistrate Judge:
On April 9, 2019, the Court denied Plaintiff The Fashion Exchange LLC’s (“Plaintiff”) letter
motion to compel the depositions of Defendant Jarrod Dogan, Defendant Gavin Dogan, and
Defendant Hybrid Promotions, LLC’s (“Hybrid”) former CEO Brad Shapiro. (ECF 305). Plaintiff
now moves for reconsideration of this Court’s order denying a second deposition of Jarrod
Dogan and requests that discovery be reopened so that Plaintiff may serve its first deposition
notices for Gavin Dogan and Brad Shapiro. (ECF 308, 310). For the reasons that follow, both of
Plaintiff’s motions are DENIED.
I.

Motion for Reconsideration
A. Legal Standard
Reconsideration is an “extraordinary remedy to be employed sparingly in the interests

of finality and conservation of scarce judicial resources.” RST (2005) Inc. v. Research in Motion
Ltd., 597 F. Supp. 2d 362, 365 (S.D.N.Y. 2009) (quoting In re Health Mgmt. Sys., Inc. Sec. Litig.,
113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)). “The major grounds justifying reconsideration are ‘an
intervening change of controlling law, the availability of new evidence, or the need to correct a

clear error or prevent manifest injustice.’” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956
F.2d 1245, 1255 (2d Cir. 1992) (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice &
Procedure § 4478). The movant carries the heavy burden of “point[ing] 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 motion for reconsideration, however, is not meant to be an opportunity for the
movant to “relitigat[e] old issues” or take a “second bite at the apple.” See Sequa Corp. v. GBJ
Corp., 156 F.3d 136, 144 (2d Cir. 1998). Ultimately, whether to grant a motion for
reconsideration is left to the “sound discretion of the district court.” Vincent v. Money Store,
No. 03-CV-2876 (JGK), 2011 WL 5977812, at *1 (S.D.N.Y. Nov. 29, 2011).
B. Analysis
Here, Plaintiff seeks reconsideration of the Court’s denial of its motion to compel a
second deposition of Jarrod Dogan. (ECF 308). In its order, the Court pointed to the absence of
any showing by Plaintiff why a second deposition was needed, finding Plaintiff’s summary
reference to Mr. Dogan as a named defendant insufficient. (ECF 305 at 4-5). Plaintiff now
argues that the Court erred in failing to consider the fact that Plaintiff was unable to question
Mr. Dogan at his first deposition as to the issue of “willfulness” due to Judge Stein’s bifurcation
of discovery. 1 (ECF 308 at 1).
Plaintiff failed, however, to raise this argument in its initial motion to compel, which
itself was filed more than a year after Judge Stein’s bifurcation decision and more than two

On July 23, 2014, Judge Stein stayed discovery against the retailer defendants except as to the issue of confusion.
(ECF 90). On November 17, 2017, Judge Stein then permitted limited discovery as to eight retailer defendants and
discovery against Hybrid regarding “actual confusion and sales.” (ECF 215).

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months after the close of discovery, arguing instead that Mr. Dogan should be deposed on
topics for which Hybrid’s 30(b)(6) witness was unable to answer. (ECF 290). Nowhere in
Plaintiff’s initial motion does it discuss the effect of bifurcation on Plaintiff’s ability to effectively
depose Mr. Dogan at his first deposition. A motion for reconsideration “is not intended as a
vehicle for a party dissatisfied with the Court’s ruling to advance new theories that the movant
failed to advance in connection with the underlying motion.” See Parrish v. Sollecito, 253 F.
Supp. 2d 713, 715 (S.D.N.Y. 2003).
Even taking Plaintiff’s argument on its merits, Plaintiff does not claim that the Court
overlooked controlling law or that the Court failed to consider evidence that is now newly
available. Instead, Plaintiff merely argues that it would be “manifestly unjust” not to allow a
second deposition of Mr. Dogan. (ECF 308 at 1). Plaintiff acknowledges, however, that in the
second phase of discovery, it deposed Hybrid’s 30(b)(6) witness on the issue of trademark
applications and willfulness. (ECF 308 at 2-3).2 Mr. Dogan’s deposition transcript also shows,
contrary to Plaintiff’s representation, that Plaintiff already questioned Mr. Dogan at his
deposition about Hybrid’s trademark applications and willfulness. (See, e.g., ECF 316-1 at 186:610 (questioning whether Dogan was aware of Fashion Exchange’s Hybrid mark); 215:13-216:9
(questioning about Hybrid’s intent to use the mark at the time of application); 230:4-7
(questioning on why Hybrid applied for a trademark); 239:5-241:5 (questioning why Hybrid
applied to cancel Fashion Exchange’s trademark)). It is clear that Plaintiff had ample

As the Court already emphasized to the parties, dissatisfaction with the answer of a 30(b)(6) witness is not
justification for compelling a deposition of another individual. See Oct. 4, 2018 Conf. Tr. at 17:22-24 (noting the
deposing party “do[esn]’t get to choose who testifies on behalf of the organization”).

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opportunity to procure the deposition testimony it needed, and it would not be “manifestly
unjust” to reject Plaintiff’s bid for another bite at the apple. 3
II.

Motion to Reopen Discovery
In addition, Plaintiff seeks to reopen discovery for the limited purpose of deposing Brad

Shapiro and Gavin Dogan. (ECF 310 at 1). A party seeking to reopen discovery must show good
cause, which requires showing that “despite its having exercised diligence, the applicable
deadline could not have been reasonably met.” Joye v. Psych, Inc., No. 14-CV-3809 (AT) (HBP),
2016 WL 3141659, at *5 (S.D.N.Y. June 3, 2016). After review of the parties’ letters, the Court
determines that a conference is unnecessary to decide this issue.
Similar to Plaintiff’s argument for deposing Jarrod Dogan, Plaintiff wishes to depose Mr.
Shapiro and Gavin Dogan to cover any insufficient answers obtained from Hybrid’s 30(b)(6)
witness. (ECF 290 at 2; ECF 310 at 2). As the Court made clear in its April 9, 2019 opinion,
Plaintiff is not entitled to choose a different or supplemental 30(b)(6) witness merely because it
is dissatisfied with the answers provided by Hybrid’s 30(b)(6) witness. (ECF 305 at 2-3). 4 In that
opinion, the Court also noted that if Plaintiff believed that Mr. Shapiro or Gavin Dogan had
information that Hybrid as a company lacked, Plaintiff should have sought to depose them in
their individual capacity or at least requested a discovery deadline extension, neither of which

Plaintiff also argues that it did not have the opportunity at Mr. Dogan’s deposition in 2015 to question him about
Plaintiff’s 2016 cease-and-desist letters. (ECF 308 at 3). Plaintiff does not explain why questions on those letters
are relevant, especially since Plaintiff acknowledges that the letters were sent to retailers, not to Hybrid. (ECF 308
at 3).
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Plaintiff also cannot be said to have exercised diligence. Plaintiff has never issued deposition notices or
subpoenas to Mr. Shapiro or Gavin Dogan. Although Plaintiff claimed that it learned of the need for deposing Mr.
Shapiro on November 8, 2018, Plaintiff did not raise the issue with the Court until more than two months later.
(ECF 290 at 2-3).

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Plaintiff ever did. See Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First LLC,
273 F.R.D. 367, 372 (S.D.N.Y. 2010) (denying request for additional depositions where the
movant failed to show that it did not know of the need for the depositions earlier); NAS
Electronics, Inc. v. Transtech Electronics PTE Ltd., 262 F. Supp. 2d 134, 151 (S.D.N.Y. 2003)
(denying motion to reopen discovery where plaintiffs failed to file a discovery motion or
request an extension request before the discovery deadline). Plaintiff knew of the need to show
willfulness at the outset of this action nearly six years ago, having pleaded willfulness in its
complaint, 5 and thus cannot assert that it needs additional evidence to rebut a new defense or
mount a new claim. See Bakalar v. Vavra, 851 F. Supp. 2d 489, 494 (S.D.N.Y. 2011) (denying
motion to reopen discovery where defendants argued they needed additional evidence to
rebut a defense they knew existed since the beginning of the suit). Accordingly, there is no
good cause to re-open discovery for deposing Brad Shapiro and Gavin Dogan.
III.

Conclusion
For the foregoing reasons, Plaintiff’s request to reopen discovery is DENIED, and

Plaintiff’s motion for reconsideration of the Court’s April 9, 2019 Order is DENIED. The Clerk is
directed to close ECF 308 and ECF 310.
SO ORDERED.
s/ Ona T. Wang
Ona T. Wang
United States Magistrate Judge

Dated: November 15, 2019
New York, New York

“Defendants’ conduct is willful, deliberate and was undertaken in bad faith . . . .”See Complaint (“Compl.”) (ECF
1), ¶¶ 88, 95, 102, 109. Plaintiff also requested statutory damages under the Lanham Act “due to Defendants’
willful and intentional violation of Plaintiff’s rights.” Compl. at 5.

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