Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gallagher v. Funeral Source One Supply and Equipment Co.

United States District Court, D. New Hampshire

March 2, 2016

Robert P. Gallagher, et al.
v.
Funeral Source One Supply and Equipment Co., Inc., et al. Opinion No. 2016 DNH 042

          MEMORANDUM AND ORDER

          PAUL BARBADORO, District Judge.

         Robert 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.

         I. STANDARD OF REVIEW

         Reconsideration 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 omitted).

         II. ANALYSIS

         Gallagher's[1] 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.

         A. Summary Judgment Standard

         Gallagher 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 patently wrong.

         In the 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 meritless.

         B. Newly Submitted Evidence

         Gallagher 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.

         I 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.[2] Doc. No. 89-1 at 2.

         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." 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.