Opinion
00 Civ. 4866 (RWS)
July 11, 2001
MEMORANDUM OPINION
Plaintiff Mattel, Inc. ("Mattel") has moved for reconsideration of two aspects of this Court's April 18, 2001 opinion pursuant to Local Civil Rule 6.3. See Mattel, Inc. v. Robarb's, Inc., 139 F. Supp.2d 487 (S.D.N.Y. 2001). Defendants Robarb's, Inc. ("Robarb's"), Robert R. Carpenter, Robert E. Carpenter, Barbara Carpenter and Rollin K. Carpenter (collectively the "defendants") oppose. For the reasons set forth below, the motion will be granted solely to clarify the basis of the prior opinion on trademark damages.
Local Rule 6.3 provides in pertinent part: "There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." Thus, to be entitled to reargument and reconsideration, the movant must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion. See Ameritrust Co. Nat'l Ass'n v. Dew, 151 F.R.D. 237, 238 (S.D.N.Y. 1993); East Coast Novelty Co. v. City of New York, 141 F.R.D. 245, 245 (S.D.N.Y. 1992).
Local Rule 6.3 is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court. In deciding a reconsideration and reargument motion, the Court must not allow a party to use the motion as a substitute for appealing from a final judgment. See Morser v. AT T Info. Sys., 715 F. Supp. 516, 517 (S.D.N.Y. 1989); Korwek v. Hunt, 649 F. Supp. 1547, 1548 (S.D.N.Y. 1986), aff'd, 827 F.2d 874 (2d Cir. 1987). Therefore, a party may not "advance new facts, issues or arguments not previously presented to the Court." Morse/Diesel, Inc. v. Fidelity Deposit Co. of Md., 768 F. Supp. 115, 116 (S.D.N.Y. 1991). The decision to grant or deny the motion is within the sound discretion of the district court. See Schaffer v. Soros, No. 92 Civ. 1233, 1994 WL 592891, at *1 (S.D.N.Y. Oct. 31, 1994).
Upon receiving such a motion, a court may do any of the following. First, the motion may be denied, thereby leaving the original decision unaltered. See Lehmuller v. Incorporated Village of Sag Harbor, 982 F. Supp. 132, 135 (E.D.N.Y. 1997).
Alternatively, "the Court can grant a motion to reargue for the limited purposes of considering the effect of an overlooked matter," and after doing so may affirm and/or clarify the original decision. Lehmuller, 982 F. Supp. at 135-36; see In re First American Corp., No. M8-85, 1998 WL 148421, at *3 (S.D.N.Y. Mar. 27, 1998), aff'd, 154 F .3d 16 (2d Cir. 1998); Violette v. Armonk Assocs., L.P., 823 F. Supp. 224, 226-27, 231 (S.D.N.Y. 1993); Brignoli v. Balch Hardy Scheinman, Inc., 735 F. Supp. 100, 102-03 (S.D.N.Y. 1990). Finally, having granted a motion to reconsider, the Court may vacate the original decision. See Morin v. Trupin, 823 F. Supp. 201, 203 (S.D.N.Y. 1993); Travelers Ins. Co. v. Buffalo Reins. Co., 739 F. Supp. 209, 211-13 (S.D.N.Y. 1990).
Mattel seeks reconsideration of (1) that portion of the opinion stating that a showing of willfulness is a "requisite" for a trademark damage award, pursuant to George Basche Co., Inc. v. Blue Coral, Inc., 968 F.2d 1532, 1540 (2d Cir. 1992), see Robarb's, 139 F. Supp.2d at 494; and (2) that portion of the opinion directing Mattel to produce a witness for deposition and noting that Mattel's counsel had previously instructed a witness not to answer certain questions, see id. at 498.
Reconsideration is granted in part, solely to clarify the reasoning supporting the Court's holding on trademark damages. Although Basche specifies that a plaintiff may receive damages even if willfulness is not shown, 968 F.2d at 1540, district courts have discretion not to award damages if the plaintiff fails to demonstrate the defendants violated the trademark willfully, see id. ("Upon proof of actual consumer confusion, a plaintiff may still obtain damages" absent a showing of willfulness, but "a finding of willful deceptiveness is necessary in order to warrant an accounting for profits. . . .") (emphasis added); Burndy Corp. v. Teledyne Industries, Inc., 748 F.2d 767, 772 (2d Cir. 1984) (the decision as to whether a defendant will be ordered to account for its profits under § 1117 rests in the broad discretion of the district court, guided by principles of equity."). The Court denied summary judgment for Mattel for trademark damages in the exercise of this discretion and the prior opinion shall be deemed amended so that the nature of this holding is not misunderstood.
As to the Rule 30(d) deposition issue, reconsideration is denied, as is Mattel's request to submit affidavits. The new facts proffered do not change the basis of the holding, namely that the plaintiff was on notice of the nature of the proposed deposition pursuant to Rule 30(d), Fed.R.Civ.P., and was therefore required to provide witnesses who would testify as to their knowledge thereof.
It is so ordered.