United States District Court, D. New Jersey
MISTER SOFTEE, INC., MISTER SOFTEE SALES AND MANUFACTURING, LLC, and SPABO ICE CREAM CORP., Plaintiffs,
REZA AMANOLLAHI, Defendant.
OPINION and ORDER (Reconsideration)
the Court is the motion (ECF no. 134) of plaintiff SPABO Ice
Cream Corp. ("Spabo") for partial reconsideration
of my Opinion and Order of September 30, 2016 (ECF nos. 129,
130). Spabo for the most part prevailed on that motion for
summary judgment, but it seeks reconsideration of the portion
of my opinion that denied an award of damages for future
royalties. (Opinion Section III.B, pp. 20-23)
Order and Opinion by this Court dated July 1, 2014 (ECF nos.
29-30) granted a preliminary injunction to prohibit Amano
from infringing Mister Softee's federally registered
trademarks and from violating non-compete provisions in
twenty-two Mister Softee Dealer Franchise Agreements (the
"Franchise Agreements"). See Mister Softee, Inc.
v. Amanollahi, 2:14-CV-01687 KM MCA, 2014 WL 3110000
(D.N.J. July 1, 2014) (hereinafter, "Amanollahi
followed. Spabo then moved for summary judgment on a range of
issues. My Order and Opinion on that motion (ECF nos. 129,
130) granted a permanent injunction as to both infringement
of Spabo's trademarks and enforcement of the (now
expired) non-compete provisions. I also granted Spabo summary
judgment for recovery of the balance due under the Truck
Notes, entitlement to Attorney's fees, and dismissal of
Amano's counterclaims. I denied summary judgment,
however, as to Spabo's claim of entitlement to the future
royalties that would have been owed over the entire ten-year
term of the 22 franchise agreements if Spabo had not
I write for the parties, familiarity with my prior Opinion is
The Applicable Standard
not review the standards governing summary judgment, which
are stated in my prior Opinion. The standards governing a
motion for reconsideration are well settled. See
generally D.N.J. Loc. Civ. R. 7.1(i). Reconsideration is
an "extraordinary remedy, " to be granted
"sparingly." NL Indus. Inc. v. Commercial Union
Ins. Co., 935 F.Supp. 513, 516 (D.N.J. 1996). Generally,
reconsideration is granted in three scenarios: (1) when there
has been an intervening change in the law; (2) when new
evidence has become available; or (3) when necessary to
correct a clear error of law or to prevent manifest
injustice. See North River Ins. Co. v. CIGNA Reinsurance
Co., 52 F.3d 1194, 1218 (3d Cir. 1995); Carmichael
v. Everson, 2004 WL 1587894, at *1 (D.N.J. May 21,
2004). Local Rule 7.1(i) requires such a motion to
specifically identify "the matter or controlling
decisions which the party believes the Judge or Magistrate
Judge has overlooked." Id.; see also Egloff v. New
Jersey Air Nat'l Guard, 684 F.Supp. 1275, 1279
(D.N.J. 1988). Evidence or arguments that were available at
the time of the original decision will not support a motion
for reconsideration. Damiano v. Sony Music Entm't,
Inc., 975 F.Supp. 623, 636 (D.N.J. 1997); see also
North River Ins. Co., 52 F.3d at 1218; Bapu Corp. v.
Choice Hotels Int'l, Inc., 2010 WL 5418972, at *4
(D.N.J. Dec. 23, 2010) (citing P. Schoenfeld Asset Mgmt.
LLC v. Cendant Corp., 161 F.Supp.2d 349, 352 (D.N.J.
in summary form, are the facts and authorities that Spabo
believes I "overlooked" in my prior opinion:
a. Amano "abandoned" the franchises before Spabo
terminated the franchise agreement.
b. Cases such as Postal Instant Press, Inc. v.
Sealy, 43 Cal.App.4th 1704 (1996) permit future
royalties in the case of a total failure to perform.
raises nothing that was overlooked. As for (a), Spabo
documents this "overlooked" fact by
quoting my two prior opinions. As for (b),
Sealy was cited in my Opinion at p. 22, where I
cited some out-of-state cases that generally were consistent
with the directly applicable New York case law. The other
authorities cited in Spabo's reconsideration motion date
from 2003, 2007, and 2011. None of them represent controlling
New York law.
fact, the case primarily relied on in this section of my
Opinion- Kenford Co. v. Erie Cty.,67 N.Y.2d 257,
261 (N.Y. 1986)-was the only case cited by the plaintiff in
support of its motion for summary judgment on this point. The
plaintiffs motion for reconsideration ignores