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Mister Softee, Inc. v. Amanollahi

United States District Court, D. New Jersey

March 30, 2016

MISTER SOFTEE, INC., MISTER SOFTEE SALES AND MANUFACTURING, LLC, and SPABO ICE CREAM CORP., Plaintiffs,
v.
REZA AMANOLLAHI, Defendant.

          OPINION and ORDER (Reconsideration)

          MCNULTY. U.S.D.J.

         Before 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)

         Background

         An 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").[1] See Mister Softee, Inc. v. Amanollahi, 2:14-CV-01687 KM MCA, 2014 WL 3110000 (D.N.J. July 1, 2014) (hereinafter, "Amanollahi F).

         Discovery 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 cancelled diem.

         Because I write for the parties, familiarity with my prior Opinion is assumed.

         I. The Applicable Standard

         I will 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. 2001)).

         II. Discussion

         Here, 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.

         Spabo 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.[2] The other authorities cited in Spabo's reconsideration motion date from 2003, 2007, and 2011. None of them represent controlling New York law.

         In 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 ...


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