Opinion
No. 01 Civ. 4780 (HB)
April 23, 2002
OPINION AND ORDER
Plaintiff's motion for reconsideration is granted and my prior decision on defendant's motion for summary judgment adhered to.
Plaintiff Zeke N' Zoe Corporation ("ZNZ-Corp." or "plaintiff") moves for reconsideration pursuant to Fed.R.Civ.P. 59(e) ("FRCP") and Local Civil Rule 6.3 of that part of this Court's decision and order dated January 16, 2002 ("order") granting Marmellata Childrenswear, Inc.'s ("Marmellata's" or "defendant's") motion for summary judgment on plaintiffs cause of action for unfair competition. Specifically, I granted defendant's motion for summary judgment with respect to plaintiffs unfair competition and breach of contract claims, and denied defendant's motion for summary judgment on its counterclaims for malicious prosecution, abuse of process, and abuse of Copyright and Trademark statutes. Zeke N' Zoe Corp. v. Zeke N' Zoe LLC, No. 01 Civ. 4780 (HB), 2002 WL 72947, at *1 (S.D.N.Y. Jan. 18, 2002). For reasons detailed more fully below, plaintiffs motion for reconsideration with respect to its unfair competition claim against Marmellata pursuant to FRCP 59(e) and Local Civil Rule 6.3 is granted and my previous decision adhered to. Further, Marmellata's request for attorneys' fees that it has incurred to oppose plaintiffs motion for reconsideration is denied.
BACKGROUND
This Court provided a comprehensive and specific summary of the facts alleged in plaintiffs complaint in its prior opinion, Zeke N' Zoe Corp., 2002 WL 72947, at *1-2, and familiarity with that opinion is presumed.
DISCUSSION
1. Standard
In a motion for reconsideration brought pursuant to Local Rule 6.3 or FRCP 59(e), a plaintiff must demonstrate that the court overlooked controlling decisions or factual matters that were put before it on the underlying motion. Wiesner v. 321 West 16th St. Assoc., No. 00 Civ. 1423 (RWS), 2000 WL 1585680, at *2 (Oct. 25, 2000 S.D.N.Y.). "The standard for granting 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 Trans., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Although a party seeking reconsideration may advert to controlling decisions or factual matters that were before the court on the underlying motion, the party may neither put forth new facts, issues or arguments that were not presented to the court on that motion see Wiesner, 2000 WL 1585680, at *3, nor revisit issues that the court has already fully considered such that the motion becomes "a substitute for appealing from a final judgment." Id.
2. Summary Judgment on Unfair Competition Claim
Plaintiff argues that this Court should amend its prior ruling and judgment against Marmellata with respect to the unfair competition claim because "[a] finder of fact could easily conclude from Marmellata's own admissions and the undisputed facts before the Court that Marmellata traded on the ZnZ name in order to establish its own children's sleepwear line." (Pl's memorandum of law at 5). Further, plaintiff maintains that she presented sufficient evidence to establish that defendant sold garments to Kmart bearing designs that were owned by plaintiff prior to the formation of Zeke N' Zoe LLC — namely, the photographs that were submitted with plaintiff's June 18, 2001 declaration and that I referenced in footnote 11 of my prior opinion. (Pl's memorandum of law at 6-7). Defendant contends that my prior opinion was correctly decided and that plaintiff "failed to adduce any evidence whatsoever to create a genuine issue of material fact." (Def's memorandum at 1).
I agree with defendant that plaintiff has failed to satisfy the strict standard for reconsideration of my prior opinion under FRCP 59(e) and Local Civil Rule 6.3. Specifically, plaintiff has failed to advert to any "controlling decisions or data" that this Court overlooked in granting defendant's summary judgment motion on plaintiffs unfair competition claim. Shrader, 70 F.3d at 257. Although plaintiff maintains that she designed the artwork in the garments she photographed and submitted along with her June 18, 2001 declaration, during her deposition plaintiff openly admitted to defendant that Christopher Kenyon designed the artwork depicted in those photographs. (Def's memorandum of law at Ex. 2, Terranova-Bickford Dep. at 222-25). For this reason, it is hard to believe that plaintiff would continue to insist that she designed the articles in question. (See Pl's memorandum of law at 6-7). In addition, "Point I" of plaintiff's brief in support of her motion for reconsideration parrots almost verbatim "Point IC" of her previous brief in opposition to defendant's motion for summary judgment. As such, plaintiff has failed to demonstrate that I "overlooked" any arguments or data referenced in her first brief. For these reasons, I continue to adhere to my prior decision that plaintiff has put forth a "wholly unsubstantiated theory" that "Marmellata has used and continues to use numerous (unidentified) designs related to the Zeke N' Zoe mark and that Marmellata is representing itself to retailers as the new incarnation of ZNZ-LLC." Zeke N' Zoe Corp., 2002 WL 72947, at *1. However, as defendant has failed to allege with requisite specificity that plaintiff submitted this motion in bad faith, defendant's request for an award of attorneys' fees is denied.
CONCLUSION
For the foregoing reasons, plaintiffs motion for reconsideration of my prior decision granting Marmellata's summary judgment motion with respect to the unfair competition claim is granted and my prior decision adhered to, and defendant's request for an award of attorneys' fees is denied.