United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
NORA BARRY FISCHER, District Judge.
Presently before the Court is Plaintiff Wonderland Nurserygoods Co.'s ("Wonderland") Motion for Reconsideration of the Court's Memorandum Order dated February 24, 2014, (Docket No. 234), granting Thorley Industries, LLC, d/b/a 4MOMS's ("Thorley") renewed Motion to Stay, (Docket No. 219), pending the outcome of inter partes reexamination of U.S. Patent No. 8, 047, 609 (the "'609 Patent") (filed Dec. 3, 2010), (Docket No. 1-2 at 2), at the U.S. Patent and Trademark Office ("PTO"). Wonderland timely filed its Motion for Reconsideration on March 10, 2014, (Docket No. 239), Thorley filed a Response, (Docket No. 240), Wonderland filed a Reply, (Docket No. 241), and Thorley filed a Sur-Reply, (Docket No. 243).
The Court held a Motion Hearing on April 1, 2014, (Docket No. 244), and ordered preparation of the transcript, which was filed of record on May 13, 2014, (Docket No. 245). Upon consideration of all the filings, the transcript of the Motion Hearing , the Court's prior Memorandum Order , and for the reasons stated herein, Wonderland's Motion  is DENIED, as Wonderland has failed to establish that reconsideration is warranted at this time.
I. MOTION FOR RECONSIDERATION
The purpose of a motion for reconsideration "is to correct manifest errors of law or fact or to present newly discovered evidence." Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)). The moving party bears a heavy burden to demonstrate that an order should be reconsidered, and the Court will only grant such a motion if the moving party shows: "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted [the motion]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice" Id. (citing North River Ins. Co. v. Cigna Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). Motions for reconsideration, moreover, should not be used to reargue or re-litigate old matters or to express disagreement with a Court's ruling. See E.E.O.C. v. U.S. Steel Corp., Civ. No. 10-1284, 2012 WL 1150799, at *6-7 (W.D. Pa. Apr. 5, 2012).
Here, Wonderland has failed to meet its burden to demonstrate that reconsideration of the Court's Order is appropriate. First, Wonderland has not cited any intervening change in controlling law to warrant reconsideration since the Court issued its Memorandum Order on February 24, 2014. See Max's Seafood Cafe, 176 F.3d at 677. As previously noted, a motion for reconsideration cannot be used to reargue old matters or express disagreement with a prior ruling. See E.E.O.C., 2012 WL 1150799, at *6-7. Even though Wonderland cites VirtualAgility, Inc. v. Salesforce.com, Inc., a case that issued on February 27, 2014, Wonderland does not rely on this case as a basis for an intervening change in controlling law. See VirtualAgility, Inc. v. Salesforce.com, Inc., Civ. No. 13-00011, 2014 WL 807588, *4 (E.D. Tex. Feb. 27, 2014).
Second, Wonderland's Motion for Reconsideration, (Docket No. 240), does not advance any new evidence that was not available when the Court granted Thorley's Renewed Motion to Stay. Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc., 602 F.3d 237, 252 (3d Cir. 2010). "[N]ew evidence, ' for reconsideration purposes, does not refer to evidence that a party obtains or submits to the court after an adverse ruling." Id. "Rather, new evidence in this context means evidence that a party could not earlier submit to the court because that evidence was not previously available." Id. ("Nothing in the record suggests that the evidence the Plaintiffs sought to present post-summary judgment was unavailable to them when they filed their summary judgment motion. Under these circumstances, the District Court did not abuse its discretion in denying the Plaintiffs' motion for reconsideration, and we therefore will not upset that ruling.").
As to the second factor, Wonderland does not assert that the claimed new evidence of competition which it advances was unavailable prior to the Court's ruling on same. Indeed, Wonderland admits that none of its allegedly new evidence of competition was before the Court when the Court ruled on Thorley's Motion to Stay. See Docket No. 240 at 6-7 ("Thus, it is understandable that the Court misapprehended the extent to which Wonderland and Thorley compete; Wonderland's expert did not address competition or lost profits in 2013 so that this case would not be delayed by an attempt to revise Wonderland's damage claim."). Wonderland's proffered reason for its failure to disclose new evidence of competition was its apparent goal to "keep the case on track for trial." (Docket No. 240 at 6). Wonderland's trial litigation strategy, however, does not equate to new evidence that was previously unavailable to Wonderland. See Howard Hess Dental Labs. Inc., 602 F.3d at 252.
Wonderland also asserts that it was unable to marshal evidence of direct competition "in the one day allotted for responding to the Show Cause Order." (Docket No. 240 at 11). However, Wonderland is incorrect to the extent that additional time would justify going outside the factual record to obtain new evidence of competition. Thorley maintains that Wonderland's response to Thorley's interrogatory on "any product which [Wonderland] contend[s] competes in the marketplace with the mamaRoo" discloses only the Graco SweetPeace. (Docket No. 241-4 at 4). Moreover, Wonderland never supplemented its interrogatory response under Federal Rule of Civil Procedure 26(e) to include the Nuna Leaf or Glider. (Docket Nos. 241 at 7, 242).
"Rule 26(e) sets forth a party's continuing obligation to supplement its initial disclosures and responses to discovery requests, if the initial disclosures or responses are incomplete or incorrect." Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., 906 F.Supp.2d 399, 412 (W.D. Pa. 2012). "Failure to abide by the disclosure requirements in these provisions is governed by Rule 37(c)(1), which provides that [i]f a party fails to provide information... as required by Rule 26(a) or (e), the party is not allowed to use that information... to supply evidence... at a trial, unless the failure was substantially justified or is harmless.'" Id. (quoting FED. R. CIV. P. 37(c)(1)). Prior to excluding evidence, the Third Circuit has held that a district court must consider four factors: "(1) the prejudice or surprise of the party against whom the excluded evidence would have been admitted; (2) the ability of the party to cure that prejudice; (3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and (4) bad faith or willfulness [sp] in failing to comply with a court order or discovery obligation." Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 148 (3d Cir. 2000). Although the Court does not find that Wonderland acted willfully or in bad faith, the remaining three factors weigh in Thorley's favor, as Wonderland did not disclose these new products until the actual day of jury selection; Thorley had been provided with no discovery on these products; and fact and expert discovery closed more than one year prior to said disclosures.
Furthermore, any argument that the relevant market comprises more than just the "mamaRoo and the SweetPeace" raises serious doubt as to the accuracy of the proffered testimony of Mr. Scott Hampton ("Hampton"), Wonderland's damages expert, and opens the door to a renewed Daubert Motion by Thorley to exclude Hampton's testimony. Hampton issued his Expert Report on March 15, 2013, and his deposition was taken on May 16, 2013. (Docket Nos. 114, 241). Yet, Hampton did not disclose the Nuna Leaf or Glider, both of which were apparently available as of February, 2013, according to factual evidence submitted by Wonderland on March 10, 2014, more than one year after the close of fact discovery. (Docket Nos. 239-4 at 6, 241 at 9). Thorley maintains that even if Wonderland does not seek damages based on "new products, " this strategy does not "relieve its expert of correctly identifying the scope of the market, " (Docket No. 241 at 12), and this Court agrees, (Docket No. 234 at 11).
Third, Wonderland not only failed to demonstrate any clear error of law or fact, but it also failed to demonstrate the need to correct manifest injustice. See Max's Seafood Cafe, 176 F.3d at 677. Any prejudice against Wonderland due to delay from the stay pending final resolution of reexamination proceedings does not outweigh the prejudice against Thorley in the event that the patent is canceled at the PTO, for reasons already discussed at length throughout the Court's prior Memorandum Opinion of February 24, 2014. (Docket No. 234).
Thus, the Court finds that reconsideration of the Court's stay is not ...