Opinion
Civ. No. 01-3039 (DRD).
April 4, 2002
David W. Phillips, Esq., St. John Wayne, L.L.C., Newark, NJ, Jeffrey D. Marks, Esq., Law Offices of Jeffrey D. Marks, P.C., Clifton, NJ, Attorneys for Plaintiff, Fulcrum, Inc.
Joseph J. DePalma, Esq., Allyn Z. Lite, Esq., Lite, DePalma, Greenberg Rivas, LLC, Newark, NJ, David G. Adams, Esq., Venable, Baetjer, Howard Civiletti, LLP, Washington, D.C., Attorneys for Defendant, McKesson Automated Prescription Services, Inc.
OPINION
This matter comes before the Court on the motion of plaintiff Fulcrum, Inc. ("Fulcrum") for reconsideration of an Order, dated February 4, 2002, denying its motion for a preliminary injunction. Specifically, Fulcrum seeks reconsideration of the following three discrete holdings set forth in the opinion filed February 4, 2002:
A. that there remain factual issues regarding the accuracy of McKesson's pill counter, and injunctive relief cannot be had until those issues are adequately addressed;
B. that Fulcrum had not submitted evidence to establish that McKesson's pill counter is not accurate; and
C. that Fulcrum had not established "irreparable injury" as it had not established a cause and effect relationship between lost sales and false advertising.
This motion is a motion pursuant to Fed.R.Civ.P. 59(e). Motions for reargument in this District are governed by Local Civil Rule 7.1(g). The terms "reconsideration" and "reargument" are used interchangeably. See Public Interest Research Group v. Yates Indus., 790 F. Supp. 511, 512 n. 1 (D.N.J. 1991).
The standard for obtaining relief under Fed.R.Civ.P. 59(e) is a high one. See A.K. Stamping Co., Inc. v. Instrument Specialties Co., Inc., 106 F. Supp.2d 627, 662 (D.N.J. 2000). Generally, the "extraordinary remedy" of reconsideration, pursuant to Rule 59(e) or Local Civil Rule 7.1 is "to be granted sparingly." Id. (citing NL Indus., Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996)). To succeed on a motion to reargue, a party must set forth "dispositive factual matters or controlling decisions of law" that were overlooked by the court in its original decision. Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987); see also A.K. Stamping, 106 F. Supp.2d at 662.
"A party seeking reconsideration must show more than a disagreement with the Court's decision." G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990). Simple disagreement with the Court's initial decision "should be dealt with in the normal appellate process, not on a motion for reargument." Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 163 (D.N.J. 1988).
Analysis
A. Only One of the Five Claims of False Advertising Advanced by Fulcrum Were Dependent upon the Accuracy of the Pill Counters
In its motion, Fulcrum argues that I failed to consider the other four alleged instances of false advertising raised in Fulcrum's original brief. As Fulcrum notes, the other four instances relate to whether McKesson can imply in its advertising that the Baker Universal 2000 and Baker Universal 2010 are legal for trade.
Fulcrum has made a colorable showing that McKesson's earlier advertisements touting their scales' counting features would have constituted false advertising. Nonetheless, as I noted in my earlier Opinion, McKesson Automated Prescription Services, Inc.'s ("McKesson") subsequent actions seem to have remedied and cured, albeit incompletely, the false impression conveyed in its earlier advertisements. (Opinion at 13-14). Consequently, even if there remains some ambiguity with respect to the advertisements, such ambiguity would probably not create the sort of irreparable harm which would merit the granting of a preliminary injunction.
B. The Communication from Steven Cook of the NIST on the Issue of Accuracy and the Certification of Pill Counters
Notwithstanding McKesson's objection that Cook's e-mail, set forth in Exhibit 1 to the Supplemental Affidavit of James Maloy, constitutes unauthenticated hearsay, the e-mail does not address whether the Baker Universal 2000 and Baker Universal 2010 are accurate. The e-mail only states that accuracy "can vary greatly depending upon the individual design of the device and its method of defining sample size." In the original motion for a preliminary injunction, though I did not make specific reference to it, I did consider this e-mail together with all the other evidence submitted by the parties. However, in light of the evidence presented and the arguments made on the papers and in oral argument, I concluded that Fulcrum had not developed sufficient evidence regarding accuracy to justify the granting of a preliminary injunction.
C. Whether It Was a "Manifest Error of Law" to Require that Fulcrum Show Cause and Effect to Establish a Likelihood of Harm
Fulcrum argues that I should reverse my earlier decision regarding the preliminary injunction because I committed a "manifest error of law" by overlooking the holding ofWarner-Lambert Co. v. Breathasure, Inc., 204 F.3d 87, 95-96 (3d Cir. 2000). I note, as an initial matter, that I citedBreathasure's holding in my earlier decision at page 13. Thus the question is not whether I overlooked that case but, rather, whether I misapplied it. Breathasure examines and explains the Lanham Act's requirement that the plaintiff show that "there is a likelihood of injury to the plaintiff in terms of declining sales, loss of good will, etc." Johnson Johnson-Merck Consumer Pharm. Co. v. Rhone-Poulenc Rorer Pharm., Inc., 19 F.3d 125, 129 (3d Cir. 1994). In Breathasure, the Third Circuit held that a plaintiff need not come forward with specific evidence that the challenged false advertising claims actually resulted in some definite loss of sales; instead the plaintiff must establish that it has a reasonable basis for believing that it is likely to suffer injury as a result of the false advertising. See Breathasure, 204 F.3d at 95-96.
The instant action, however, is procedurally distinguishable from Breathasure because it involves a motion for a preliminary injunction under the Lanham Act, whereas the District Court's ruling in Breathasure followed a trial which concluded in a final judgment. Because the instant action was a motion for a preliminary injunction, I considered both the underlying merits of Fulcrum's claims as well as the standards for granting a preliminary injunction.
Generally, an injunction is "an extraordinary remedy which should be granted only in limited circumstances." Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989). To successfully obtain a preliminary injunction, the moving party must demonstrate that all four of the following factors favor preliminary relief: (1) the likelihood that the moving party will succeed on the merits; (2) the extent to which the moving party will suffer "irreparable harm" without injunctive relief; (3) the extent to which the nonmoving party will suffer irreparable harm if the injunction is issued; and (4) the public interest. See Clean Ocean Action v. York, 57 F.3d 328, 331 (3d Cir. 1995); American Tel. Tel. Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1426 (3d Cir. 1994). Here, even if Fulcrum has shown that it is likely to succeed on the merits, it has failed to show that any of the damages that may result from not granting the preliminary injunction would be irreparable and it has also failed to show how the public interest would be harmed by the failure to grant a preliminary injunction. See Opinion at 14. Therefore, there was no "manifest error of law" because I was aware of Breathasure's holding; applied it to the facts at hand; applied my conclusion regarding the merits to determine whether a preliminary injunction should be granted; and concluded that Fulcrum failed to show adequately the extent that it would suffer irreparable harm and how the public interest would be affected.
Conclusion
Because plaintiff has failed to establish any dispositive factual matters or controlling decisions of law which were overlooked by the Court, its motion for reconsideration is denied. An order implementing this decision will be entered.