Opinion
04 Civ. 2268 (RMB) (GWG).
January 26, 2006
DECISION AND ORDER
I. Background
By Decision and Order, dated October 11, 2005 ("Order"), the Court granted in part and denied in part the motion for summary judgment filed by Plaintiffs Cartier and Cartier International, B.V. (together, "Plaintiffs") and granted in part and denied in part the cross-motion for summary judgment filed by Defendants Sardell Jewelry, Inc. and Eli Sardar (together, "Defendants"). On or about November 17, 2005, Defendants moved for reconsideration of the Order or, in the alternative, for certification of an interlocutory appeal. (See Defendants' Memorandum in Support of the Motion for Reconsideration, dated November 11, 2005 ("Def. Mem."), at 1.) Plaintiffs filed an opposition on December 6, 2005. (See Plaintiffs' Memorandum in Opposition to the Motion for Reconsideration, dated December 5, 2005 ("Pl. Mem."), at 1.) Defendants did not file a reply.
For the reasons set forth below, Defendants' motion for reconsideration, or, in the alternative, for certification of an interlocutory appeal is denied.
II. Legal Standard
Motions for reconsideration are governed by Rule 59(e) of the Federal Rules of Civil Procedure and Local Civil Rule 6.3. See In re Salomon Analyst Level 3 Litig., 373 F. Supp. 2d 248, 249 (S.D.N.Y. 2005). While timely motions for reconsideration are permitted under Local Civil Rule 6.3, "[t]he standard for granting such . . . motions is strict, and 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 conclusions reached by the court." Shrader v. CSX Transp., 70 F.3d 255, 257 (2d. Cir. 1995).
A district court may grant permission to seek an interlocutory appeal where an "order involves a controlling question of law as to which there is substantial ground for difference of opinion and [where] an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). In determining whether a controlling question of law exists, a district court should consider whether: "reversal of the district court's opinion could result in dismissal of the action; reversal of the district court's opinion, even though not resulting in dismissal, could significantly affect the conduct of the action; or, the certified issue has precedential value for a large number of cases." Primavera Familienstifung v. Askin, 139 F. Supp. 2d 567, 570 (S.D.N.Y. 2001). "Only exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990) (citing Coopers Lybrand v. Livesay, 437 U.S. 463, 475 (1978)).
III. Analysis
Motion For Reconsideration
Defendants argue, among other things, that the Court erred in its conclusion that the trade dress at issue is not functional (Def. Mem. at 7-10); that the Court erred in its likelihood of confusion analysis (see Def. Mem. at 10); that the Court engaged in an inappropriate comparison of the products at issue citing Louis Vuitton Malletier v. Burlington Coat Factory Warehouse, 426 F.3d 532 (2d Cir. 2005) (see Def. Mem. at 7 n. 2); and that the Court "perhaps altogether overlooked" Defendants' expert report (see Def. Mem. at 7 n. 3).
Plaintiffs argue that Defendants' motion is untimely because Defendants failed to comply within the ten-day time period set forth in Local Civil Rule 6.3. (See Pl. Mem. at 1-2.) Plaintiffs also argue that Defendants "have utterly ignored the narrow parameters of Rule 6.3" by advancing arguments that should have been made in the summary judgment papers (see Pl. Mem. at 2-3); that the Court's analysis was consistent with Louis Vuitton (see Pl. Mem. at 5-6); and that the Defendants' expert report was "inadmissible speculation and conjecture" (see Pl. Mem. at 4).
Defendants do not contest the fact that their motion was filed on November 17, 2005, 25 days after the Order was entered, but argue that this Court's Individual Practices obviate the need for compliance with the ten-day time period. (See Letter from Noel W. Hauser to the Court, dated November 17, 2005.) The fact that the Court requires pre-motion conferences for motions does not obviate the need for compliance with the Local Civil Rules.See Camacho v. Brandon, 69 F. Supp. 2d 546, 548-549 (S.D.N.Y. 1999), aff'd, 236 F.3d 112 (2d Cir. 2000). Moreover, Defendants' letter requesting a pre-motion conference was submitted on November 16, 2005, 24 days after the Order was entered and 14 days after the expiration of the reconsideration period.
Timeliness
Defendants' motion is untimely by 15 days. Local Civil Rule 6.3 provides that "a notice of motion for reconsideration or reargument of a court order determining a motion shall be served within ten (10) days after the entry of the court's determination of the original motion." While courts have held that a motion for reconsideration can be brought after the expiration of the ten-day time period, the movant must provide a compelling reason to ignore the time limit. See Darby v. Societe des Hotels Meridien, No. 88 Civ. 7604, 1999 WL 642877, at *2 (S.D.N.Y. Aug. 24, 1999); see also Snall v. City of New York, No. 97 Civ. 5204, 1999 WL 1129054, at *4 (E.D.N.Y. Oct. 19, 1999).
Weekends and holidays have been excluded in calculating the ten-day time period. See FED. R. CIV.P. 6(a).
The Order was entered on October 12, 2005. Defendants raised the issue of reconsideration for the first time in a November 16, 2005 letter to the Court (see Letter from Noel W. Hauser to the Court, dated November 16, 2005), 24 days after the Order was entered, and have provided no compelling reason for ignoring the ten-day time period. See Snall, 1999 WL 1129054, at *4.
Merits
Even if the motion had been timely, Defendants' request would have to be denied because Defendants have not identified any factual matters or controlling decisions that were overlooked and might reasonably have altered the outcome. See Shrader, 70 F.3d at 257.
The Court is comfortable with its earlier analysis of whether the trade dress at issue was merely functional and whether the similarities between the products created a likelihood of confusion. See Cartier v. Samo's Sons, Inc., et al., No. 04 Civ. 2268, 2005 WL 2560382, at *6-10 (S.D.N.Y. Oct. 11, 2005). Defendants have not met their burden of demonstrating "that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion" on either of these points. Dellefave v. Access Temporaries, Inc., No. 99 Civ. 6098, 2001 WL 286771, at *1 (S.D.N.Y. March 22, 2001).
This Court, consistent with the Second Circuit's decisions, including Louis Vuitton, conducted a comparison of the watches as one part of its likelihood of confusion analysis. See Cartier, 2005 WL 2560382, at *7 ("Because Defendants' Watch so closely resembles the Tank Francaise, there is a likelihood of confusion."). Contrary to Defendants' assertion that the Second Circuit "specifically disapprov[ed] of a 'side by side' comparison of a product said to be protected by the Lanham Act with a product said by the plaintiff to violate plaintiff's rights," (Def. Mem. at 7), it is clear that a side-by-side comparison may be appropriate so long as courts "maintain a focus on the ultimate issue of the likelihood of consumer confusion."Louis Vuitton, 426 F.3d at 538. The Court considered, among other things, "the general impression conveyed to the purchasing public by the respective marks" and the "context in which [the marks] are found." Cartier, 2005 WL 2560382, at *6-7 (internal citations omitted); see Cartier, Inc. v. Four Star Jewelry Creations, Inc., 348 F. Supp. 2d 217, 245 (S.D.N.Y. 2004) ("watches will often be viewed in isolation in display cases, in catalogs and on wearers' wrists. In these multifarious contexts, the court finds that even consumers who are familiar with Cartier's designs would be unlikely to notice small but nonetheless significant differences between . . . [a Cartier watch] and a copy."). The products were so similar as to cause a likelihood of confusion. See Cartier, 2005 WL 2560382, at *6-7.
Finally, Defendants' expert report was reviewed and considered along with Defendants' other arguments and evidence. See Cartier, 2005 WL 2560382, at *6-7.
Motion For Leave To File An Interlocutory Appeal
Defendants request that the Court authorize an interlocutory appeal from the Order. (See Def. Memo at 19.) Plaintiffs counter that Defendants have made "no attempt . . . to meet the stringent standards set forth in 28 U.S.C. § 1292(b)." (See Pl. Mem. at 6-7.)
Defendants have not met their high burden of showing "exceptional circumstances" to justify an immediate appellate review. See Klinghoffer, 921 F.2d at 25. Reversal of this Court's opinion would not result in dismissal of this action nor would it significantly affect the conduct of this litigation.Primavera, 139 F. Supp. 2d at 570. Defendants likewise have not shown that any issue in the Court's Order has "precedential value for a large number of cases." See id. The Court, therefore, declines to certify an interlocutory appeal. See Klinghoffer, 921 F.2d at 25.
The Defendants' request (see Letter from Noel W. Hauser to the Court, dated January 23, 2005) to stay the proceedings before Magistrate Judge Eaton, objected to by Plaintiffs (see Letter from Tal S. Benschar to the Court, dated January 24, 2005), is denied. See also Order dated October 28, 2005 (Magistrate Referral).
IV. Conclusion
For the reasons stated in the Order and herein, Defendants' motion for reconsideration and for leave to file an interlocutory appeal is denied.