United States District Court, D. New Jersey
C. CECCHI, U.S.D.J.
matter comes before the Court by way of Defendant Uncle
Dave's Brass Model Trains' ("Defendant")
motion for reconsideration of the Court's March 21, 2017
Order denying Defendant's motion for attorneys' fees
and costs ("Order"). (ECF No. 152 ("Motion for
Reconsideration")). For the reasons that follow,
Defendant's Motion for Reconsideration is
February 2, 2011, Plaintiff Morning Sun Books, Inc.
("Plaintiff") brought this copyright and trademark
infringement action against Defendant as well as Division
Point Models, Inc., K Johnson Ltd., Kenneth Johnson, and
Jack Vansworth. (ECF No. 1). On December 13, 2013, Defendant
moved for summary judgment on all counts of Plaintiffs
complaint. (ECF No. 65). On April 8, 2015, before the Court
issued a decision on the motion, Plaintiff and Defendant
entered into a settlement agreement, (ECF No. 145-1 (the
"Settlement Agreement")), and on April 9, 2015, the
parties filed a stipulation of dismissal dismissing with
prejudice all of Plaintiff s claims against Defendant. (ECF
No. 109 (the "Stipulation of Dismissal")).
Stipulation of Dismissal provides in relevant part,
"Defendant. . . hereby retains its rights to seek an
award of attorneys' fees, but only following entry of a
final judgment (or its equivalent) terminating the
lawsuit[.]" (ECF No. 109 at 2). The Stipulation of
Dismissal further provides that "Plaintiff... would
oppose" Defendant's motion for attorneys' fees
and costs. (Id.). Plaintiff subsequently settled
with the remaining defendants in this action and on March 7,
2016, the Court entered an order dismissing the case. (ECF
No. 119). On May 9, 2016, Defendant filed a motion for
attorneys' fees and costs. (ECF No. 135).
March 21, 2017, the Court entered an Order denying
Defendant's motion for attorneys' fees and costs,
finding that Defendant was not a "prevailing party"
in this litigation. (ECF No. 151 at 2-3). Moreover, the Court
held that even if the Court were to find Defendant as the
prevailing party, it would not find an award of fees
appropriate under the Copyright Act or the Lanham Act based
on the circumstances and history of this case. (Id.
at 4). On April 15, 2017, Defendant filed a Motion for
Reconsideration. (ECF No. 152).
Court will reconsider a prior order only where a different
outcome is justified by: (1) an intervening change in
controlling law; (2) the availability of new evidence not
previously available; or (3) the need to correct a clear
error of law or prevent manifest injustice. See N. River
Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218
(3d Cir. 1995). A court commits clear error of law "only
if the record cannot support the findings that led to [the]
ruling." ABS Brokerage Servs., LLC v. Penson Fin.
Servs., Inc., No. 09-4590, 2010 WL 3257992, at *6
(D.N.J. Aug. 16, 2010) (citing United States v.
Grape, 549 F.3d 591, 603-04 (3d Cir. 2008)). "Thus,
a party must... demonstrate that (1) the holdings on which it
bases its request were without support in the record, or (2)
would result in 'manifest injustice' if not
addressed." Id. "Mere 'disagreement
with the Court's decision' does not suffice."
Id. (citations omitted).
preliminary matter, the Court notes that Defendant's
Motion for Reconsideration is untimely. Defendant filed its
motion on April 15, 2017, twenty-five days after the
Court's March 21, 2017 decision denying Defendant's
motion for attorneys' fees and costs, and eleven days
after the time period set forth in Local Rule 7.1(i). (ECF
No. 152). Indeed, Defendant concedes that its Motion for
Reconsideration was not filed within 14 days after the
Court's Order. (ECF No. 152-1 at 1). Defendant further
"concede[s] that [it] may have erred in believing that
reconsideration was controlled by Rule 59(e), rather than
Local Rule 7.1(i)." (ECF No. 158 at 6; see also
Id. at 8 (Defendant admitting that "the failure to
file what could easily have been a simple motion was [its]
the Court will consider the arguments made in Defendant's
Motion for, Reconsideration. For the reasons set forth below,
the Court once again finds that Defendant is not entitled to
attorneys' fees and costs, and will deny Defendant's
Motion for Reconsideration.
first contends that the Court erroneously applied
Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health & Human Resources in its March
21, 2017 Order denying Defendant's motion for
attorneys' fees and costs. (ECF No. 152-1 at 2). In
Buckhannon, the Supreme Court explained that some
statutes permit courts to award attorneys' fees and costs
to "prevailing parties." 532 U.S. 598, 602 (2001).
In determining whether a party has prevailed in a certain
matter, courts must determine whether such party "has
been awarded some relief by the court[.]" Id.
at 603. Two ways in which a party may make such a showing is
through a judgment on the merits or a court-approved
settlement agreement. See Id. at 604.
concedes that neither a judgment on the merits nor a
court-approved settlement agreement exist in this matter.
(ECF No. 158 at 7; see also ECF No. 152-1 at 3).
Nevertheless, Defendant avers that it is the prevailing party
because Buckha ...