Opinion
Civil Action No.: 01cv3737 (JLL).
October 13, 2003
OPINION AND ORDER
Currently before this Court is a motion by Plaintiff Joseph Grayzel for reargument to modify this Court's Opinion and Order of December 4, 2003, granting the motion of Defendants St. Jude Medical, Inc., and Daig Corporation (hereinafter "Defendants") to enforce the Court's protective order and bar Plaintiff and his counsel from participation in the prosecution of the reexamination of United States Patent No. 4,850,960 (the "`960 patent"), the patent-in-issue in this case. This matter is resolved without oral argument. Fed.R.Civ.P. 78. For the reasons stated herein, Plaintiff's motion for reargument is DENIED.
BACKGROUND
On May 21, 2002, Plaintiff, Joseph Grayzel, entered into a Protective Order with Defendants. The purpose of the Protective Order was to prohibit improper disclosure or use of confidential information and "Attorneys' Eyes Only" information produced during the course of litigation. On December 20, 2002, Defendants filed a motion to enforce the Court's protective order, and to enjoin Plaintiff Grayzel and his attorneys from participation in the reexamination of the '960 patent. Oral argument on the issue was conducted before Magistrate Judge Ronald J. Hedges, U.S.M.J., on January 27, 2003, and a decision recommending that Defendants' motion be granted was rendered by Magistrate Judge Hedges on January 28, 2003.
On February 11, 2003, a Report and Recommendation, issued by Magistrate Judge Hedges was completed and filed. On February 27, 2003, Plaintiff filed objections to the Report. This Court considered the objections, and by opinion and order dated December 4, 2003, affirmed Magistrate Judge Hedges' decision and granted Defendants' motion.
Presently before this Court is Plaintiff Grayzel's motion for reargument regarding the portion of this Court's December 4 order barring Plaintiff from participating in the ex parte reexamination proceedings.
The terms `reconsideration' and `reargument' are interchangeable terms for purposes of a motion under Rule 7.1(g).Public Int. Research Group of N.J. v. Yates Indus., Inc., 790 F. Supp. 511, 512 n. 1 (D.N.J. 1991).
It should be noted that Plaintiff has also submitted a reply brief in further support of his motion for reargument. However, reply briefs and further briefs in connection with reargument motions are not permitted without the Court's permission. Allyn Z. Lite, New Jersey Federal Practice Rules (2004), L.Civ.R. 7.1 comment c. There is no record of such permission with respect to the present motion. Nonetheless, for the reasons explained below, the arguments contained therein (similar to the arguments included in Plaintiff's moving brief) were already presented and addressed by this Court in connection with Plaintiff's objections to the February 11 Report and Recommendation. As such, Plaintiff is not entitled to reconsideration of these matters.
LEGAL DISCUSSION
A. StandardMotions for reconsideration are governed by Local Civil Rule 7.1(g). This rule provides, in relevant part:
A motion for reargument shall be served and filed within 10 days after the entry of the order or judgment on the original motion by the Judge or Magistrate Judge. There shall be served with the notice a brief setting forth concisely the matters or controlling decisions which counsel believes the Judge or Magistrate Judge has overlooked.
L.Civ.R. 7.1(g). Prior to reaching the merits of a motion for reargument, the Court "must decide whether the arguments are properly raised under Local Rule 7.1(g)." Holten v. Chevron, U.S.A., 2002 U.S. Dist. LEXIS 10151, *4 (D.N.J. May 22, 2002). "The motion may address only those matters of fact or issues of law which were presented to, but not considered by, the court in the course of making the decision at issue." Id. (citingStudent Pub. Interest Research Group of N.J. v. Monsanto Co., 727 F. Supp. 876, 878 (D.N.J.), aff'd, 891 F.2d 283 (3d Cir. 1989)). Relief by way of motion for reargument is "an extraordinary remedy" that is to be granted "very sparingly." Yurecko v. Port Auth. Trans-Hudson Corp., 279 F. Supp.2d 606, 608 (D.N.J. 2003);Sagaral v. Mountainside Hosp., 2001 U.S. Dist. LEXIS 6872, *3 (D.N.J. Mar. 28, 2001); NL Indus., Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996). The operative term of the rule is the word "overlooked." Allyn Z. Lite, New Jersey Federal Practice Rules (2004). Only in circumstances "where matters were overlooked and which, if considered by the Court, might reasonably have resulted in a different conclusion, will the Court entertain such a motion." Bowers v. Nat'l Collegiate Athletic Ass'n, 130 F. Supp.2d 610, 613 (D.N.J. 2001).
The purpose of a motion for reargument is "to correct manifest errors of law or fact or to present newly discovered evidence."Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985),cert. denied, 476 U.S. 1171 (1986); Tischio v. Bontex, Inc., 16 F. Supp.2d 511, 532 (D.N.J. 1998). The motion may not be used to relitigate old matters, or argue new matters that could have been raised before the original decision was reached. P. Schoenfeld Assets Mgmt., L.L.C. v. Cendant Corp., 161 F. Supp.2d 349, 352 (D.N.J. 2001); NL Indus., 935 F. Supp. at 516; 11 Charles A. Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure: Civil 2d, § 2810.1 (1995). Mere disagreement with the Court does not show that the Court overlooked relevant facts or controlling law, United States v. Compaction Sys. Corp., 88 F. Supp.2d 339, 345 (D.N.J. 1999), and should be dealt with through the normal appellate process, S.C. ex rel. C.C. v. Deptford Township Bd. of Educ., 248 F. Supp.2d 368, 381 (D.N.J. 2003). With this legal framework in mind, the Court will now consider Plaintiff Grayzel's motion for reargument.
B. Entitlement to Reargument
The Court must first determine whether Plaintiff's arguments are properly raised under Local Rule 7.1(g), thus permitting this Court to reach the merits of the motion for reargument. Plaintiff must meet his burden to put forth dispositive facts or controlling decisions which he claims this Court overlooked. L.Civ.R. 7.1(g). This Court finds that all arguments now raised by Plaintiff were previously raised and already considered by this Court in conjunction with Plaintiff's Objections to the Report and Recommendation. Plaintiff has failed to demonstrate that this Court overlooked a controlling decision of law or dispositive factual matter in rendering the December 4 decision, and accordingly, is not entitled to reconsideration of the decision.
Initially, Plaintiff maintains that paragraph 19 of the Protective Order does not apply to him, as it only applies to recipients of "Attorneys' Eyes Only" Information. He asserts that he has never had access to any such information, and that his access to "Confidential Information" cannot preclude him from participating in the reexamination. This argument, however, was previously raised in Plaintiff's objections to Judge Hedges' February 11 Report and Recommendation, see Memorandum in Support of Plaintiff's Objections to Report and Recommendation, page 6, and as such, was already considered by this Court.
This sections provides:
Except as expressly provided in this paragraph, any person who has come into the possession of ATTORNEY'S EYES ONLY INFORMATION of another party shall be prohibited from any involvement in the prosecution of (1) any foreign or domestic patent applications corresponding to U.S. Patent No. 4,850,960, including any continuations, continuations-in-part, divisionals, or foreign counterparts thereof; and (2) any foreign or domestic patent applications related to the subject matter of U.S. Patent No. 4,850,960. The terms and restrictions of this paragraph shall extend for one year from the date this litigation is finally concluded, including any and all appeals.
(Decl. of A. Calmann in Support of Pl.'s Objections to the Report and Recommendation (hereinafter "Calmann Decl."), Exh. B).
The Protective Order provides, at paragraph 14:
All Discovery Materials designated as ATTORNEYS' EYES ONLY INFORMATION . . . shall not be disclosed by the Receiving Party to anyone other than Trial Counsel, Independent Experts or Consultants retained for this litigation, and certain other individuals as provided for in Paragraph 16.
(Calmann Decl., Exh. B).
The Protective Order further provides, at paragraph 15:
All Discovery Materials designated as CONFIDENTIAL INFORMATION but not as ATTORNEYS' EYES ONLY INFORMATION . . . shall not be used by the Receiving Party for any purpose other than in connection with this litigation. . . .
(Id.).
Next, Plaintiff contends that the mere access to confidential information does not warrant extending the prosecution bar to Plaintiff based on the potential for inevitable disclosure of said information. As Judge Hedges observed, however, reexamination proceedings before the Patent and Trademark Office in connection with the Patent are ex parte, and therefore, Defendants would have no way of knowing what information Plaintiff might disclose to the patent examiner. He specifically noted:
And now you're going into in ex parte proceeding that they're not a party to, that they don't have any opportunity to know what's happening in; as a result of which, your client has an opportunity to amend his claims on the patent and the like. And they have no idea what's going to happen in this give-and-take between the examiner and your client or you at the Trademark Office. And they have absolutely no way to protect themselves from any disclosure, inadvertent or not, of confidential information that might be turned over.
(Report and Recommendation, Jan. 27, 2003, Tr. 10:8-17). Judge Hedges further noted:
Well, [Plaintiff] has it — he has confidential information in his head. Are we supposed to cleave his brain in half and have the part that has confidential information left someplace else when he's talking to the patent examiner?
(Id., Tr. 24:17-21). Again, Plaintiff's argument is one which was presented to this Court in its objections to the February 11 Report and Recommendation. This Court has already considered this argument, and thus, refuses to reconsider same in connection with the present motion sub judice.
Finally, Plaintiff maintains that he would be severely prejudiced if he were barred from involvement in reexamination of the '960 patent. Judge Hedges specifically addressed this contention, and concluded that any such prejudice was self-inflicted because "Plaintiff chose the course of action that the plaintiff engaged on." (Report and Recommendation, Jan. 28, 2003, Tr. 8:14-21). Moreover, this argument was already presented to and considered by this Court in rendering its December 4 decision, see Memorandum in Support of Plaintiff's Objections to Report and Recommendation, pages 18-19, and therefore, is inappropriate for presentation on reargument.
To conclude, this Court holds that Plaintiff is not entitled to reargument pursuant to Local Rule 7.1(g). The arguments which Plaintiff now raises were previously presented and argued in his objections to the February 11 Report and Recommendation. These matters were not overlooked by the Court, nor do they constitute "matters of fact or issues of law which were presented to, but not considered by, the court in the course of making the decision at issue," Holten, 2002 U.S. Dist. LEXIS 10151, at *4. Accordingly, Plaintiff is not entitled to reconsideration on these issues. Plaintiff's motion is therefore denied.
CONCLUSION
IT IS, this 13th day of October, 2003, hereby
ORDERED that Plaintiff' motion for reargument [99] of the Court's December 4, 2003 Opinion and Order is DENIED.