UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert P. Gallagher, et al.

v. Case No. 14-cv-115-PB Opinion No.

Funeral Source One Supply and Equipment Co., Inc., et al.

MEMORANDUM AND ORDER

Robert Gallagher and his firm, Instrument Design and

Manufacturing Co. (“IDM”), sued Funeral Source One Supply and

Equipment Co., Inc. (“FS1”) and Affordable Funeral Supply, LLC

(“AFS”) for (1) patent infringement, (2) trade dress

infringement, (3) violations of the New Hampshire Consumer

Protection Act; and (4) unjust enrichment. On November 4, 2015,

I granted defendants’ motion for summary judgment as to all of

plaintiffs’ claims. Doc. No. 81. Plaintiffs have filed a

motion for reconsideration. Doc. No. 89.

I. STANDARD OF REVIEW

Reconsideration is “an extraordinary remedy which should be

used sparingly.” Palmer v. Champion Mortg.,

(1st Cir. 2006). Reconsideration is “appropriate only in a

limited number of circumstances: if the moving party presents newly discovered evidence, if there has been an intervening

change in the law, or if the movant can demonstrate that the

original decision was based on a manifest error of law or was

clearly unjust.” United States v. Allen,

(1st

Cir. 2009); see L.R. 7.2(d). Accordingly, a party cannot use a

motion for reconsideration “to undo its own procedural failures”

or to “advances arguments that could and should have been

presented” earlier.

A motion for reconsideration is not “a

mechanism to regurgitate old arguments previously considered and

rejected.” Biltcliffe v. CitiMortgage, Inc.,

(1st Cir. 2014) (internal punctuation omitted).

II. ANALYSIS

Gallagher’s1 motion for reconsideration (Doc. No. 89) raises

largely the same arguments that he presented in opposing

defendants’ motion for summary judgment. Because my November 4,

2015 Order (Doc. No. 81) addressed these contentions, I decline

to engage with Gallagher’s arguments point-by-point. Instead, I

respond to four specific criticisms.

A. Summary Judgment Standard

Gallagher first contends that I misapplied the summary

judgment standard by construing evidence in the defendants’

1 Gallagher is the sole owner of IDM. I hereafter refer to plaintiffs collectively as “Gallagher.” 2 favor. This argument focuses primarily on a January 17, 2014

telephone conversation between Gallagher and FS1’s president,

which, Gallagher argues, gave FS1 actual notice of its alleged

patent infringement. Gallagher asserts that I erred by

“effectively decid[ing] that the testimony of Mr. Ward and AFS

[was] more credible than the testimony of Mr. Gallagher.” Doc.

No. 89-1 at 5. This argument is patently wrong.

In the November 4 Order, I set out the appropriate standard

of review, explaining that “evidence submitted in support of the

motion must be considered in the light most favorable to the

nonmoving party, drawing all reasonable inferences in its

favor.” Doc. No. 81 at 5 (citing Navarro v. Pfizer Corp.,

(1st Cir. 2001). I then applied that standard

consistently throughout the order. In describing the January

2014 exchange in particular, I found that, “[a]ccepting

Gallagher’s version of the January 17 conversation as true,

Gallagher’s statements were insufficient to give FS1 actual

notice.” Id. at 8 (emphasis added). Thus, I did not

“effectively decide[]” that Gallagher’s description of that

discussion was not credible. Instead, I explicitly concluded

that, even when I credited Gallagher’s account fully, his

statements were insufficient to give FS1 actual notice of its

alleged infringement. Gallagher’s argument that I made some

impermissible credibility determination is therefore meritless.

3 B. Newly Submitted Evidence

Gallagher next challenges the November 4 Order by pointing,

for the first time, to evidence that AFS continued to post a

photograph of the allegedly infringing driver on its website

long after AFS received actual notice of its alleged

infringement. Because Gallagher’s opportunity to present this

evidence is long past, I reject his argument.

I denied Gallagher’s request for injunctive relief because

Gallagher had not sufficiently shown that either defendant was

likely to infringe his patent in the future. Id. at 14-17. To

support this conclusion, I relied in part on an affidavit from

an AFS employee, who stated that the company removed the image

of the offending driver from its website on April 10, 2014. Id.

at 16 (citing Doc. No. 35-1 at 12). Gallagher did not challenge

this affidavit, or present contrary evidence, in his objection

to the motion for summary judgment. Instead, for the first time

in his motion for reconsideration, Gallagher noted that a “photo

of the AFS counterfeit injector needle driver could still be

found on the AFS website” in November 2015.2 Doc. No. 89-1 at 2.

2 In response, defendants stated that they only learned of “this apparent vestigial jpg image,” which was reportedly stored on a third-party server, when they received Gallagher’s initial motion for reconsideration in November 2015. The image has since been deleted, and is no longer available online. Doc. No. 90 at 5. 4 A party cannot use a motion for reconsideration “to undo

its own procedural failures” or to “advances arguments that

could and should have been presented earlier.” Allen,

. Here, Gallagher had ample opportunity to present this

evidence before I ruled on the defendants’ motion for summary

judgment, and failed to do so. See

(“A court will deny a

motion for reconsideration based on the ‘new evidence’ exception

if that evidence in the exercise of due diligence could have

been presented earlier.”) (alterations, citations and

punctuation omitted). He instead waited until his motion for

reconsideration; but gave no explanation, let alone an adequate

justification, for his delay. See Doc. No. 89-1 at 2. Given

that history, I decline to consider Gallagher’s late-submitted

evidence.

C. Patent Infringement Claim

Next, Gallagher contends that I erred in granting summary

judgment as to his patent infringement claim. I granted

defendants’ motion because Gallagher did “not produce[] evidence

that he suffered compensable infringement damages after he

provided” actual notice to the defendants of their alleged

infringement. Doc. No. 81 at 12. I noted, however, that under

some circumstances, a design patent holder can recover a

reasonable royalty or $250, even though he cannot prove that the

infringer profited from his infringement.

at 13 n.10. Yet,

5 because Gallagher did not “base[] his opposition to defendants’

summary judgment motion” on that basis, and because the record

contained no evidence “to support a possible claim that” he was

entitled “to a measurable royalty payment,” I declined “to rule

against [defendants] on the basis of an argument that Gallagher

ha[d] not presented.”

Gallagher now argues that he is

entitled to a reasonable royalty or minimum damages. See Doc.

No. 89-1 at 6-7.

As explained above, Gallagher cannot use his motion for

reconsideration to “advance arguments that could and should have

been presented” previously. Allen,

. In his

motion to reconsider, Gallagher neither claims that he in fact

presented this argument before, nor explains his failure to

raise the issue previously. Moreover, although Gallagher

asserts that he is “entitled to reasonable royalty,” Doc. No.

89-1 at 6, he presents no evidence upon which a reasonable

royalty payment could be based, likely because the record

contains no such evidence. See Apple Inc. v. Motorola, Inc.,

(Fed. Cir. 2014) (reversed on other

grounds). I therefore will not entertain Gallagher’s argument

here.

D. Consumer Protection Act Claim

Gallagher finally argues that I erred in granting

defendants’ motion as to his New Hampshire Consumer Protection

6 Act (“CPA”) claim. I granted defendants’ motion because

Gallagher presented “insufficient evidence that either defendant

acted with the scienter required for a CPA violation.” Doc. No.

81 at 26-27; see Kelton v. Hollis Ranch, LLC,

, 668-

69 (2007) (explaining that the CPA requires “a degree of

knowledge or intent,” and that defendants are not liable for a

“good faith mistake”). In his motion for reconsideration,

Gallagher argues that I “confused” 35 U.S.C. § 287’s actual

notice standard with the CPA’s scienter requirement. Gallagher

is, again, mistaken.

I did not apply the actual notice standard in considering

Gallagher’s CPA claim. I instead concluded that, even when I

construed all relevant evidence in the light most favorable to

Gallagher, he had not provided sufficient evidence that either

defendant acted with the culpable mental state required for a

CPA violation. Gallagher’s motion for reconsideration, which

merely reiterates his previous contentions on this point, does

not convince me otherwise. I therefore reject Gallagher’s

argument.

III. CONCLUSION

Unfortunately, it appears that the parties have lost sight

of what this case is about. Gallagher sold his patented driver

for a number of years, but (at all times relevant to this suit)

7 failed to mark his product adequately. AFS bought fifty

allegedly infringing drivers from a foreign manufacturer, and

then sold forty-eight of those devices for a net profit of less

than $1,000. See Doc. No. 35-1 at 9. FS1 purchased twenty-five

drivers from AFS, which it then resold, also for less than $1000

in profit. See Doc. No. 35-2 at 5. Neither defendant sold the

“knockoff” device after receiving legally adequate notice of

their alleged infringement; both took prompt steps to abate

their purported misconduct. Yet, rather than securing a “just,

speedy, and inexpensive” resolution to this dispute, Federal

Rule of Civil Procedure 1, the parties have spent two years

filing a seemingly endless series of motions - discovery

motions, motions to amend, motions to dismiss, motions to

reconsider, replies, sur-replies.

In sum, both sides have expended exceptional resources in

litigating an unexceptional dispute, and it is time for this to

end. Plaintiffs’ motion for reconsideration (Doc. No. 89) is

denied. The clerk shall schedule a status conference to address

any outstanding claims.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

March 2, 2016

cc: Ross Kenneth Krutsinger, Esq.

8 Frank B. Mesmer, Jr., Esq. Laura L. Carroll, Esq. Zachary Rush Gates, Esq.

9