Opinion
99 Civ. 10713 (MBM)
March 19, 2001
LOUIS S. EDERER, ESQ., WALTER ELIOT BARD, ESQ., New York, NY, for Plaintiff
ROBERT M. MASON, ESQ., JAMES D. PETRUZZI, ESQ., Dallas, TX, for Defendant
OPINION AND ORDER
Plaintiff Tommy Hilfiger Licensing, Inc. sues Nature Labs, LLC for trademark infringement and related claims under both federal and New York state law. Nature Labs moved to transfer venue to the Northern District of Texas pursuant to under 28 U.S.C. 1404(a). I denied that motion on July 13, 2000. Nature Labs now moves pursuant to Local Civil Rule 6.3 for reconsideration. For the reasons stated below, the motion is denied.
I.
Hilfiger is a Delaware corporation with its principal place of business in Delaware. (Compl. ¶ 4) Hilfiger sells its products under various trademarks, including, "TOMMY HILFIGER" and its flag design. (Id. at ¶ 7-8) Nature Labs is a Texas Limited Liability Company with a place of business in Texas. (Id. at ¶ 5) Nature Labs sells a fragrance for pets called either "TOMMY HOLEDIGGER" or "TIMMY HOLEDIGGER," and its label evokes the flag design. (Id. at ¶ 11) Nature Labs sells the pet fragrance to retailers in New York. (12/29/99, Def. Mem. at p. 2)
II.
Nature Labs moves pursuant to Local Civil Rule 6.3 for reconsideration of my decision on July 13, 2000 denying its motion to transfer venue. Rule 6.3 requires the moving party to demonstrate that the court "overlooked controlling decisions or factual matters that were put before it on the underlying motion." U.S. Fid. Guar. Co. v. Braspetro Oil Services Co., No. 97 Civ. 6124JGKTHK, 98 Civ. 3099JGKTHK, 2001 WL 79899, at *ln.2 (S.D.N.Y. Jan. 30, 2001)
Defendant's Memorandum in Support of its Motion to Reconsider does not cite to any federal or local rule as the basis for its motion to reconsider. (10/27/00, Def. Mem. at pp. 1-3) However, plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Reconsider expressly assumes that Rule 6.3 is the basis for Defendant's motion. (11/3/00, P1. Mem. at p. 1 n. 2) Defendant's Reply does not contest defendant's assumption and its argument in support of reconsideration adopts the language of Rule 6.3. In particular, the brief directs the court to "facts the court overlooked and controlling decisions." (11/13/00, Def. Reply at p. 1)
Defendant fails to cite any such controlling decisions or facts. Defendant cited the fact that "sales are made FOB Texas and not New York." (11/13/00, Def. Reply at pp. 1-2) This means that the risk of non-delivery passes from the seller to the buyer in Texas. This fact was mentioned only once in support of the underlying motion, in an affidavit, (Harris Decl. ¶ 3), and defendant never made any argument in its briefs on the basis of that fact. Defendant's Memorandum in Support of its Motion to Reconsider suggests that this fact supports a finding that Texas is the "locus of operative facts." (Id.) However, on a motion for reconsideration the moving party "`may not advance . . . arguments not previously presented to the court.'" O'Brien v. Bd. of Educ., 127 F. Supp.2d 342, 345 (E.D.N.Y. 2001) (quoting Am. Alliance Ins. Co. v. Eagle Ins. Co., 163 F.R.D. 211, 213 (S.D.N.Y. 1995). Moreover, that the risk of non-delivery passes to the buyer in Texas rather than New York does not determine the locus of operative facts in this case.
Defendant also cited the fact that "any injunction would more easily be enforced in Texas." (11/13/00, Def. Reply at p. 2) This supposed fact is not grounds for reconsideration because it is more properly classified as an argument rather than a fact. Moreover, defendant made this argument in its briefs on the underlying motion, and there is no reason to believe that the court overlooked it. (6/15/00, Def. Reply at p. 3)
Defendant also referred ambiguously to the "nature of testimony of anticipated witnesses in view of likely contested issues." (11/13/00, Def. Reply at p. 2) Defendant appears to be referring to the argument made in his initial brief that the "convenience of the witnesses" favors transfer. (10/27/00, Def. Mem. at pp. 2-3) Defendant contends that the "critical testimony" in this case is likely to come from experts on consumer confusion. (Id.) This supposed fact also is not grounds for reconsideration because it also is more properly classified as an argument. Moreover, even if defendant were correct that the "critical testimony" will come from experts, that conclusion would not favor transfer because — as defendant actually acknowledges — the convenience of expert witnesses is given little or no weight. See 17 Moore's Federal Practice ¶ 111.13 (3d ed. 1999)
Finally, defendant cites Dwyer v. General Motors Corp., 853 F. Supp. 690 (S.D.N.Y. 1994). (11/13/00, Def. Reply at p. 2) This "legal authority" is not grounds for reconsideration because it is not controlling legal authority for this court. Furthermore, defendant cited Dwyer only once in its briefs on the underlying motion, in support of his argument that the parties' relative financial means favors transfer. (12/29/99, Def. Mem. at pp. 4-5) The Dwyer court does state that "[a] court may also consider the relative means of the parties in deciding a transfer motion." Dwyer, 853 F. Supp. at 693. However, my opinion did not overlook that argument. I concluded that the parties' relative relative means was not sufficient to overcome the plaintiff's choice of forum.
Dwyer is also consistent with other arguments defendant makes in its reconsideration briefs. However, these arguments were not put before the court in support of the underlying transfer motion, and therefore cannot be raised in a motion for reconsideration. See O'Brien, 127 F. Supp.2d at 345.
* * *
For the reasons stated above, the motion for reconsideration is denied.