Opinion
99 Civ. 4677 (WK)
June 4, 2002
For Plaintiffs: Louis S. Ederer, Michael D. Pantalony, Gursky Ederer, P.C., New York, NY.
For Defendants MD Sportswear Corp. and Dalia Wallach: Leonard S. Baum, Dean T. Cho Solomon, Zauderer, Ellenhorn, Frischer Sharp, New York, NY.
For Defendant Bradlees, Inc.: Jay T. Hahn, Goodwin, Proctor Hoar, LLP, New York, NY.
For Defendant Marty Mirkin: William A. Rome, Hoffman Pollok Pickholz, LLP, New York, NY.
ORDER
On July 24, 2000, Plaintiffs Tommy Hilfiger Licensing, Inc. ("Tommy Hilfiger"), PRL USA Holdings, Inc. ("Polo"), Nike, Inc. ("Nike"), Adidas-Salomon AG, Adidas International BV, and Adidas America, Inc. (the last three manufacturers are hereinafter referred to as "Adidas") (collectively the "Plaintiffs") filed a Second Amended Complaint in this lawsuit which included various causes of action against, among others, Defendants M D Sportswear Corp. and Dalia Wallach (collectively the "Defendants"). The Defendants responded to that action by asserting counterclaims against Plaintiffs Polo, Nike, and Adidas for malicious prosecution. Thereafter, the Plaintiffs moved to dismiss those counterclaims. While their motion was still pending, we permitted the Defendants to amend and supplement their original malicious prosecution counterclaims by way of an Amended Answer. See Tommy Hilfiger Licensing, Inc. v. Bradlees, Inc. (S.D.N.Y. Jan. 11, 2002) 2001 WL 1702151, *7. After we allowed the parties to submit supplemental memoranda addressing any new issues implicated by the Amended Answer, see Tommy Hilfiger Licensing, Inc. v. Bradlees, Inc. (S.D.N.Y. Jan. 17, 2002) 2002 WL 64365, *1, we treated the Plaintiffs' original motion as a fully-briefed motion to dismiss the amended malicious prosecution counterclaims.
On April 25, 2002, we denied the Plaintiffs' motion to dismiss. See Tommy Hilfiger Licensing, Inc. v. Bradlees, Inc. (S.D.N.Y. April 25, 2002) 2002 WL 737477, *14. The Plaintiffs now move for reconsideration pursuant to Local Civil Rule 6.3 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York. "Motions for reconsideration governed by Local Civil Rule 6.3 are within the sound discretion of the district court." Stoner v. New York Ballet Co. (S.D.N.Y. April 8, 2002) 2002 WL 523270, *2. "The standard for reconsideration on such a motion 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 conclusion reached by the court." Shrader v. CSX Transp., Inc. (2d Cir. 1995) 70 F.3d 255, 257. The parties seeking reconsideration "may not `reargue those issues already considered.'" Stoner, 2002 WL 523270 at *2, quoting In re Houbigant, Inc. (S.D.N.Y. 1996) 914 F. Supp. 997, 1001.
When they moved to dismiss the Defendants' malicious prosecution counterclaims, the Plaintiffs argued, inter alia, that the Defendants' allegations failed to establish that the Plaintiffs initiated criminal or civil proceedings against them. However, since we were required to accept the allegations in the Amended Answer as true and to construe all reasonable inferences therefrom in favor of the Defendants, see Twinlab Corp. v. Signature Media Services, Inc. (S.D.N.Y. Dec. 7, 1999) 1999 WL 1115237, *3, we found that the Defendants' relevant allegations satisfied the applicable legal standard for the initiation of proceedings and therefore held that their allegations were sufficient to withstand the motion to dismiss. See Tommy Hilfiger Licensing, Inc., 2002 WL 737477 at *3.
The Plaintiffs contend that we overlooked one of their arguments in reaching the foregoing determination and ask us to reconsider our decision on that basis alone. Specifically, they now argue, as they previously did in their supplemental memorandum in support of their motion to dismiss, that "the Defendants' allegations could not possibly show that the Plaintiffs' conduct" amounted to an initiation of the proceedings against the Defendants "because the MD Defendants did not allege, nor by their pleading could they, that plaintiffs `initiated' any determination by the Bronx DA and/or the NYPD that the MD Defendants had the requisite intent to be charged with criminal counterfeiting." Pls.' Brief at 7. See also Pls.' Supplemental Memorandum in supp. of Mot. to Dismiss at 7-9.
Despite Plaintiffs' contentions to the contrary, we did not overlook this argument. We carefully considered all of the Plaintiffs' contentions (as well as any legal authorities they cited in support thereof). Ultimately, however, we determined that the Defendants' allegations sufficiently satisfied the applicable legal standard for the initiation of proceedings so as to survive the motion to dismiss. While the Plaintiffs may disagree with our application of the relevant law to the Defendants' allegations, their disagreement with our decision is not the appropriate subject of a motion for reconsideration. In seeking reconsideration, the moving party may not revisit issues that the Court has already fully considered such that the motion becomes a substitute for an appeal. See Zeke N' Zoe Corp. v. Zeke N' Zoe, LLC (S.D.N.Y. May 15, 2002) 2002 WL 1000957, *1. See also In re Solv-Ex Corp. Securities Litigation (S.D.N.Y. April 30, 2002) 2002 WL 980400 ("A Rule 6.3 motion is `not a motion to reargue those issues already considered when a party does not like the way the original motion was resolved'"). Since we did not overlook the Plaintiffs' argument and have determined that the Defendants' allegations satisfied the applicable standard, we hereby deny the Plaintiffs' motion for reconsideration.
Although the Defendants have asked us to award them the reasonable attorney fees and costs they expended in responding to this motion for reconsideration, we decline to do so. Since the Defendants have not specifically set forth a statutory basis for their fee request, we assume that they seek fees in accordance with our inherent authority to impose such a sanction. We may, through the discretionary exercise of our inherent power, award reasonable attorneys fees to the prevailing party when the opposing party has "`acted in bad faith, vexatiously, wantonly, or for oppressive reasons.'" Fornar Corp. v. Magnetic Resonance Plus, Inc. (S.D.N.Y. 1996) 935 F. Supp. 443, 448. However, since the Defendants have not alleged with any specificity that the Plaintiffs submitted their motion for reconsideration in bad faith, we will not invoke our discretion to issue such an award in this instance and their request for attorneys fees is denied. See Zeke N' Zoe Corp., 2002 WL 1000957 at *2.
Although the Defendants cite to two Ninth Circuit decisions which affirmed sanctions awarded in accordance with Federal Rule of Civil Procedure 11 and Federal Rule of Bankruptcy Procedure 9011, they do not actually state or explain in their opposition brief that they are seeking fees under Rule 11 and they do not indicate that they provided a specific Rule 11 notice to the Plaintiffs. See Chatham Partners, Inc. v. Fidelity and Deposit Co. of Maryland (S.D.N Y Oct. 19, 2001) 2001 WL 1262960, *1 (recognizing that a district court "cannot award attorneys' fees to a party who has not filed a Rule 11 notice"). Indeed, even were we to construe their reference to Rule 11 case law as a request for sanctions in the form of attorneys' fees under that rule, such a request, made in an opposition brief and not by way of a separate motion, would be insufficient to comply with the procedure enumerated in Rule 11. See Nuwesra v. Merrill Lynch Fenner Smith, Inc. (2d Cir. 1999) 174 F.3d 87, 94 (explaining that "[a] motion for sanctions [under Rule 11] . . . must `be made separately from other motions or requests' and must `describe the specific conduct alleged to violate [the rule]'"). Hence, even if they had specifically requested Rule 11 sanctions in their opposition brief, such sanctions would be inappropriate under the circumstances.
SO ORDERED.