United States District Court, D. New Hampshire
Robert P. Gallagher, et al.
Funeral Source One Supply and Equipment Co., Inc., et al. Opinion No. 2016 DNH 042
MEMORANDUM AND ORDER
BARBADORO, District Judge.
Gallagher and his firm, Instrument Design and Manufacturing
Co. ("IDM"), sued Funeral Source One Supply and
Equipment Co., Inc. ("FS1") and Affordable Funeral
Supply, LLC ("AFS") for (1) patent infringement,
(2) trade dress infringement, (3) violations of the New
Hampshire Consumer Protection Act; and (4) unjust enrichment.
On November 4, 2015, I granted defendants' motion for
summary judgment as to all of plaintiffs' claims. Doc.
No. 81. Plaintiffs have filed a motion for reconsideration.
Doc. No. 89.
STANDARD OF REVIEW
is "an extraordinary remedy which should be used
sparingly." Palmer v. Champion Mortg., 465 F.3d
24, 30 (1st Cir. 2006). Reconsideration is "appropriate
only in a limited number of circumstances: if the moving
party presents newly discovered evidence, if there has been
an intervening change in the law, or if the movant can
demonstrate that the original decision was based on a
manifest error of law or was clearly unjust." United
States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009); see
L.R. 7.2(d). Accordingly, a party cannot use a motion for
reconsideration "to undo its own procedural
failures" or to "advances arguments that could and
should have been presented" earlier. Id . A
motion for reconsideration is not "a mechanism to
regurgitate old arguments previously considered and
rejected." Biltcliffe v. CitiMortgage, Inc.,
772 F.3d 925, 930 (1st Cir. 2014) (internal punctuation
Gallagher's motion for
reconsideration (Doc. No. 89) raises largely the same
arguments that he presented in opposing defendants'
motion for summary judgment. Because my November 4, 2015
Order (Doc. No. 81) addressed these contentions, I decline to
engage with Gallagher's arguments point-by-point.
Instead, I respond to four specific criticisms.
Summary Judgment Standard
first contends that I misapplied the summary judgment
standard by construing evidence in the defendants' favor.
This argument focuses primarily on a January 17, 2014
telephone conversation between Gallagher and FS1's
president, which, Gallagher argues, gave FS1 actual notice of
its alleged patent infringement. Gallagher asserts that I
erred by "effectively decid[ing] that the testimony of
Mr. Ward and AFS [was] more credible than the testimony of
Mr. Gallagher." Doc. No. 89-1 at 5. This argument is
November 4 Order, I set out the appropriate standard of
review, explaining that "evidence submitted in support
of the motion must be considered in the light most favorable
to the nonmoving party, drawing all reasonable inferences in
its favor." Doc. No. 81 at 5 (citing Navarro v.
Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001). I then
applied that standard consistently throughout the order. In
describing the January 2014 exchange in particular, I found
that, "[a]ccepting Gallagher's version of the
January 17 conversation as true, Gallagher's statements
were insufficient to give FS1 actual notice."
Id. at 8 (emphasis added). Thus, I did not
"effectively decide" that Gallagher's
description of that discussion was not credible. Instead, I
explicitly concluded that, even when I credited
Gallagher's account fully, his statements were
insufficient to give FS1 actual notice of its alleged
infringement. Gallagher's argument that I made some
impermissible credibility determination is therefore
Newly Submitted Evidence
next challenges the November 4 Order by pointing, for the
first time, to evidence that AFS continued to post a
photograph of the allegedly infringing driver on its website
long after AFS received actual notice of its alleged
infringement. Because Gallagher's opportunity to present
this evidence is long past, I reject his argument.
denied Gallagher's request for injunctive relief because
Gallagher had not sufficiently shown that either defendant
was likely to infringe his patent in the future. Id.
at 14-17. To support this conclusion, I relied in part on an
affidavit from an AFS employee, who stated that the company
removed the image of the offending driver from its website on
April 10, 2014. Id. at 16 (citing Doc. No. 35-1 at
12). Gallagher did not challenge this affidavit, or present
contrary evidence, in his objection to the motion for summary
judgment. Instead, for the first time in his motion for
reconsideration, Gallagher noted that a "photo of the
AFS counterfeit injector needle driver could still be found
on the AFS website" in November 2015. Doc. No. 89-1
cannot use a motion for reconsideration "to undo its own
procedural failures" or to "advances arguments that
could and should have been presented earlier."
Allen, 573 F.3d at 53. Here, Gallagher had ample
opportunity to present this evidence before I ruled on the
defendants' motion for summary judgment, and failed to do
so. See id. ("A court will deny a motion for
reconsideration based on the new evidence' exception if
that evidence in the exercise of due diligence could have
been presented earlier.") (alterations, citations and
punctuation omitted). He instead waited until his motion for
reconsideration; but gave no explanation, let alone ...