Kimberly-Clark Worldwide Inc v. First Quality Products Inc et al

Filing 760

MEMORANDUM AND ORDER - AND NOW, this 31st day of Jan., 2013, upon consideration of defts.' mtn. for reconsideration 685 , & pur. to the accompanying memorandum, it is ORDERED that said mtn. is DENIED. 621 (See memo for complete details.) Signed by Honorable William W. Caldwell on 1/31/13. (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KIMBERLY-CLARK WORLDWIDE, INC.,
Plaintiff

:
: CIVIL NO. 1:09-CV-1685

v.
:
FIRST QUALITY BABY PRODUCTS, LLC,
FIRST QUALITY PRODUCTS, INC.,
FIRST QUALITY RETAIL SERVICES, LLC,
FIRST QUALITY HYGIENIC, INC.,
Defendants and
Counterclaim Plaintiffs
v.

:
:
:
:

KIMBERLY-CLARK CORPORATION,
KIMBERLY-CLARK WORLDWIDE, INC.,
KIMBERLY-CLARK GLOBAL SALES, LLC,
Counterclaim Defendants

:
:

MEMORANDUM
I.

Introduction
Presently before the court is a motion for reconsideration (Doc. 685) filed

by defendants First Quality Baby Products, LLC, First Quality Products, Inc., First Quality
Retail Services, LLC, and First Quality Hygienic, Inc. (collectively “FQ”). FQ seeks
reconsideration of the court’s memorandum and order dated November 19, 2012 (Doc.
661), wherein the court (1) granted a motion to strike (Doc. 621) filed by Plaintiff
Kimberly-Clark Worldwide, Inc. (“KC”), and (2) denied FQ’s cross-motion to strike. For
the reasons that follow, we will deny FQ’s motion for reconsideration.

II.

Legal Standard
A court possesses the authority to revise interlocutory orders “when it is

consonant with justice to do so." See United States v. Jerry, 487 F.2d 600, 605 (3d Cir.
1973); Alea N. Am. Ins. Co. v. Salem Masonry Co., 301 Fed. Appx. 119, 121 (3d Cir.
2008) (nonprecedential) (citing Jerry). A motion for reconsideration “cannot be used
simply to relitigate a point of disagreement with the court, see Abu-Jamal v. Horn, No.
99-5089, 2001 WL 1609761 (E.D. Pa. Dec. 18, 2001). Nor can it be used “to introduce
new evidence, tender new legal theories, or raise arguments which could have been
offered or raised prior to entry” of the order. St. Mary’s Water Auth., 2007 WL 1412240
at *1 (in the context of a Rule 59(e) motion). In other words, a litigant’s motion cannot be
an attempt at a “second bite at the apple.” Bhatnagar v. Surrendra Overseas Ltd., 52
F.3d 1220, 1231 (3d Cir. 1995).
Rather, motions for reconsideration should be used “to correct manifest
errors of law or fact or to present newly discovered evidence.” Howard Hess Dental
Labs., Inc. v. Dentsply, Int’l, Inc., 602 F.3d 237, 251 (3d Cir. 2010) (quoting Harsco Corp.
v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)). A party seeking reconsideration should
show (1) a change in the controlling law, (2) new evidence, or (3) a clear error of law or
fact, or manifest injustice. See id.

III.

Discussion
FQ argues that reconsideration is warranted for several reasons, which we

will discuss in the paragraphs that follow. The first issue raised by FQ concerns the
2

reduction-to-practice date of the Rajala Patents. As noted in our November 19
memorandum, KC’s expert, Ms. Balogh, articulated a later reduction-to-practice date
than the date previously identified in KC’s interrogatory responses. Nevertheless, we
rejected FQ’s argument that, as a result of this new date, FQ was substantially justified in
raising a new theory of invalidity. Instead, we concluded that the two dates were
consistent, because both of them pre-dated publication of the Suzuki Patent, thus
supporting KC’s contention that Suzuki is not prior art. Ultimately, we decided to strike
the “supplemental” report of Mr. Gardner, which raised FQ’s new invalidity theory.
In the pending motion, FQ contends that we were wrongly persuaded that
the two reduction-to-practice dates were consistent. KC’s interrogatory responses
alleged—but, FQ argues, they failed to demonstrate—that the Rajala Patents’ invention
was reduced to practice before the Suzuki Patent was published. KC will ultimately bear
the burden of proving this issue,1 but according to FQ, KC’s interrogatory answers were
not supported by sufficient evidence to make this showing. FQ assumed that KC’s
insufficient evidence would lead the court to reject the reduction-to-practice date offered
by KC, and instead find that the date of invention for the Rajala Patents was their filing
date, and consequently conclude that Suzuki is prior art.

1

FQ claims that Suzuki is prior art. Because Suzuki was published before the
Rajala Patents’ application was filed, KC will bear the burden of proving an earlier
reduction-to-practice date for the Rajala Patents. If KC cannot prove that the Rajala
Patents’ invention was reduced to practice on an earlier date, then the date of filing
the application will serve as the date of invention for the Rajala Patents.
3

This argument does not persuade us to grant reconsideration of our
decision to strike Mr. Gardner’s “supplemental” report. It does not reveal any clear error
of law or fact in our earlier conclusion that FQ’s failure to raise its new invalidity defense
in a timely manner was neither substantially justified nor harmless.2 At earlier phases of
this litigation, FQ was, at the very least, aware of KC’s allegation that Suzuki is not prior
art. It was FQ’s choice to conclude that this allegation was not supported by sufficient
evidence, and assume that it would ultimately fail. Nothing prevented FQ from identifying
Igaue earlier, as an alternative invalidity defense, even though FQ expected the evidence
to establish that Suzuki was prior art. We stand by our earlier conclusion that FQ’s late
attempt to introduce an entirely new theory of invalidity was not substantially justified.
Reconsideration is not warranted on the basis of this argument, and we will turn to FQ’s
two remaining arguments for reconsideration.
FQ’s second basis for seeking reconsideration is that exclusion of evidence
is an “extreme sanction” under Third Circuit precedent, and KC has not shown sufficient
prejudice to warrant this sanction. FQ contends that the prejudice to KC is minor,
because KC can respond to FQ’s new invalidity defense simply by deposing Mr. Gardner
and preparing a brief responsive expert report.3 We reject this argument for the same

2

As noted above, reconsideration could also be granted on the basis of
showing that a change in controlling law has occurred, or that new evidence has been
discovered. FQ has made no such showing in the pending motion.
3

We note that the parties do not agree on this point. According to KC, far more
would be required, including a revisitation of claim construction issues (see Doc. 622
at 9-10).
4

reasons we rejected it when FQ originally raised it, and we reiterate our earlier
conclusion that KC would be substantially prejudiced if FQ were permitted to raise a new
invalidity defense so late in this litigation.
Third, FQ seeks reconsideration of our November 19 ruling on the basis
that it treats the parties differently, and therefore, is manifestly unjust. Specifically, FQ
notes that we previously permitted KC to supplement an expert report prepared by Mr.
Butterworth. By striking Mr. Gardner’s “supplemental” report, FQ argues, we treated FQ
so differently from KC that our decision was manifestly unjust. We find Mr. Butterworth’s
supplemental report easily distinguishable from that of Mr. Gardner, on the basis that Mr.
Gardner’s new report introduced an entirely new theory of invalidity, never before raised
by FQ. In light of the distinguishable circumstances under which these two experts
supplemented their reports, we find no manifest injustice in our treatment of the parties.
Finally, FQ argues that our decision to deny FQ’s cross-motion to strike
was manifestly unjust. In its cross-motion to strike, FQ argued that if the court decided to
strike Mr. Gardner’s supplemental report, then it should also strike the new information
raised in Ms. Balogh’s rebuttal report. Our November 19 ruling rejected this argument.
In the pending motion for reconsideration, FQ emphasizes that the reduction-to-practice
story set forth in Ms. Balogh’s report was “entirely new,” and that the evidence upon
which Ms. Balogh relied was not disclosed in KC’s interrogatory answers. (Doc. 686 at
19.) As noted above, FQ’s review of KC’s interrogatory answers led FQ to believe that
KC would be unable to prove an early reduction-to-practice date. Hence, FQ concluded

5

that date of invention would be the filing date for the Rajala Patents, and Suzuki would
qualify as prior art. FQ contends that it is now prejudiced by Ms. Balogh’s reliance on
evidence that KC never previously identified.
This point is well-argued. FQ explains the above-described prejudice far
more clearly in the pending motion than it did in its original briefs on the cross-motions to
strike. Unfortunately for FQ, this argument comes too late. FQ cannot use a motion for
reconsideration to take a second bite at the proverbial apple. At this juncture, FQ must
satisfy a more difficult burden in order for reconsideration to be granted. We conclude
that FQ has fallen short of the requisite standard of showing clear error or manifest
injustice. There is no clear error in our November 19 memorandum and order, nor did
we treat the parties so differently as to establish manifest injustice. To the extent that we
treated the parties differently, we did so on the basis of this distinction: Mr. Gardner’s
report introduced an entirely new theory of invalidity, never before asserted by FQ,
whereas Ms. Balogh’s report was consistent with KC’s contention that Suzuki is not prior
art, a theory which KC had previously asserted.
For all of the reasons discussed above, we conclude that FQ’s motion for
reconsideration should be denied. We will issue an appropriate order.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: January 31, 2013

6

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KIMBERLY-CLARK WORLDWIDE, INC.,
Plaintiff

:
: CIVIL NO. 1:09-CV-1685

v.
:
FIRST QUALITY BABY PRODUCTS, LLC,
FIRST QUALITY PRODUCTS, INC.,
FIRST QUALITY RETAIL SERVICES, LLC,
FIRST QUALITY HYGIENIC, INC.,
Defendants and
Counterclaim Plaintiffs
v.

:
:
:
:

KIMBERLY-CLARK CORPORATION,
KIMBERLY-CLARK WORLDWIDE, INC.,
KIMBERLY-CLARK GLOBAL SALES, LLC,
Counterclaim Defendants

:
:

ORDER
AND NOW, this 31st day of January, 2013, upon consideration of
Defendants’ motion for reconsideration (Doc. 685), and pursuant to the accompanying
memorandum, it is ORDERED that said motion is DENIED.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge