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Members 1st Federal Credit v. Metro Bank

January 21, 2011

MEMBERS 1ST FEDERAL CREDIT
UNION PLAINTIFF,
v.
METRO BANK, METRO BANCORP, INC.,
COMMERCE BANK/HARRISBURG, PENNSYLVANIA COMMERCE
BANCORP, INC., REPUBLIC FIRST
BANK, AND REPUBLIC FIRST BANCORP,
INC., DEFENDANTS



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

On October 22, 2010, the Court entered an order granting in part and denying in part Defendants' motion for partial summary judgment on the issue of damages. (Doc. No. 70.) The Court held that because Plaintiff failed to contest the Defendants' motion as to actual damages and treble damages, summary judgment would be granted on those issues. (Id. at 6-9.) Further, because Plaintiff had not introduced evidence regarding Defendants' gross sales, the Court granted Defendants' motion as to the disgorgement of Defendants' profits. (Id. at 9-10.) The Court denied Defendants' motion on the issue of attorneys' fees. (Id. at 10-11.) On October 28, 2010, Plaintiff filed a motion for partial reconsideration of the Court's order regarding the disgorgement of profits. (Doc. No. 71.) For the reasons stated more fully herein, the Court will grant Plaintiff's motion.

I. STANDARD OF REVIEW

A motion for reconsideration is a device of limited utility. Its purpose is to correct manifest errors of law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Accordingly, a party seeking reconsideration must demonstrate at least one of the following grounds prior to the court altering, or amending, a standing judgment: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court entered judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for reconsideration is appropriate in instances where the court has "patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension." Rohrbach v. AT & T Nassau Metals Corp., 902 F. Supp. 523, 527 (M.D. Pa. 1995), vacated in part on other grounds on reconsideration, 915 F. Supp. 712 (M.D. Pa. 1996) (citation omitted).

It may not be used as a means to reargue unsuccessful theories, or argue new facts or issues that were not presented to the court in the context of the matter previously decided. Drysdale v. Woerth, 153 F. Supp. 2d 678, 682 (E.D. Pa. 2001). "Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Cont'l Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995) (citation omitted).

II. DISCUSSION

At summary judgment the Court determined that Defendants had pointed to the absence of evidence supporting an accounting of profits. The Court concluded that because Plaintiff had produced no evidence regarding Defendants' profits or sales it failed to meet its burden under Section 35 of the Lanham Act. (Doc. No. 70 at 10.) Plaintiff argues reconsideration of this Court's order granting in part Defendants' motion for summary judgment is warranted because it was undisputed that Plaintiff could produce evidence of Defendants' gross sales. (Doc. No. 72 at 1-2.) Defendants dispute this argument, and in the alternative argue that even if Plaintiff had produced evidence of Metro Bank's profits or sales, the evidence produced could not be sufficient to award an accounting of profits. (Doc. No. 74-1.)

A. Whether the Evidence in Question Was Undisputed

In a motion for summary judgment, where the party opposing a motion for summary judgment bears the ultimate burden of proof on an issue at trial, the moving party discharges its burden by "pointing out" to the court that there is an absence of evidence supporting the nonmoving party's claim. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). The non-moving party then must identify evidence of record that creates a genuine issue of material fact if it is to survive summary judgment. Childers v. Joseph, 842 F.2d 689, 694-95 (3d Cir. 1988). Because evidence was not submitted at summary judgment regarding the amount of Defendants' gross profits and sales, summary judgment on that issue would only be improper where Plaintiff was not obligated to produce such evidence because it was not in dispute.

At summary judgment the Court relied on the following statements by Defendants in their Statement of Facts (Doc. No. 49), Brief in Support of Summary Judgment (Doc. No. 50), and Reply Brief in Support of Summary Judgment (Doc. No. 60) to conclude that there was a dispute regarding whether Plaintiff could establish Defendants' gross profits or sales:

1. "Metro Bank directed an interrogatory to Plaintiff requesting Plaintiff to 'identify any and all damages, costs, fees or otherwise that Plaintiff seeks, specify how Plaintiff calculated its alleged damages, costs and fees, and set forth with specificity the factual basis for each element of damages.' (Exh. H, Pl.'s Answers and Objections to Defs.' Interrogs., Interrog. No. 12). Plaintiff responded that 'Members 1st's [sic] directs defendants to the documents produced in response to defendants' first set of requests for production of documents, which include evidence of actual confusion and damages that Members 1st suffered as a result. By way of further answer, Members 1st's investigation into its monetary damages continues.' Id. Plaintiff never supplemented this response." (Doc. No. 49 ¶¶ 54-55.)

2. "Members 1st's claim for an accounting fails because it has not adduced any evidence to show that Defendants profited from the use of the Metro M Mark, let alone the amount of those profits." (Doc. No. 50 at 21.)

3. "Moreover, even before addressing the Banjo Buddies factors, Members 1st must also establish the existence of profits attributable to the alleged infringement." (Doc. No. 60 at 5.)

4. "Members 1st's claim to an accounting of profits fails on a more basic element than willfulness: It has adduced no evidence to establish the existence of Metro Bank's profits since first re-opening its branches under the Metro M Mark in June 2009, let alone that Metro Bank's profits, if any, are attributable to the alleged unlawful use of the Metro M Mark. On this ground alone -- and irrespective of ...


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