SANDRA J. FEUERSTEIN, District Judge.
On August 19, 2013, plaintiff Ferring B.V. ("plaintiff" or "Ferring") commenced this action against defendant Fera Pharmaceuticals, LLC ("defendant" or "Fera"), alleging trademark infringement and unfair competition under the Lanham Act, 15 U.S.C. § 1051 et seq. and the common law. [Docket Entry No. 1 ("Complaint")]. In its answer, Fera asserted four counterclaims [Docket Entry No. 15 ("Answer and Counterclaims")],
Rule 54(b) of the Federal Rules of Civil Procedure provides, in relevant part, that "any order or other decision . . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). In this district, motions for reconsideration are governed by Local Civil Rule 6.3 ("Local Rule 6.3"), which provides, in relevant part, that a "notice of motion for reconsideration or reargument of a court order determining a motion shall be served within fourteen (14) days after the entry of the court's determination of the original motion . . . . [and] with . . . a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." Local Rule 6.3. The requirements of Local Rule 6.3 are "narrowly construed and strictly applied" (Chepilko v. Cigna Life Ins. Co. of N.Y., 952 F.Supp.2d 629, 631 (S.D.N.Y. 2013), aff'd, 590 F. App'x 98 (2d Cir. 2015) (quotations and citations omitted); see also U.S. v. Yudong Zhu, 41 F.Supp.3d 341, 342 (S.D.N.Y. 2013)), "so as to avoid duplicative rulings on previously considered issues, and to prevent Rule 6.3 from being used to advance different theories not previously argued or as a substitute for appealing a final judgment." Anwar v. Fairfield Greenwich Ltd., 950 F.Supp.2d 633, 638 (S.D.N.Y. 2013). "Federal Rule of Civil Procedure 54(b) and Local Rule 6.3 . . . enable a district court to revise a non-final order in certain circumstances. The Second Circuit has `limited district courts' reconsideration of earlier decisions,' holding that `those decisions may not usually be changed unless there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent a manifest injustice.'" Malibu Media, LLC v. Doe, No. 15-civ-1862, 2015 WL 4271825, at *1 (S.D.N.Y. July 14, 2015) (citing In re Fannie Mae 2008 ERISA Litig., No. 09-civ-1350, 2014 WL 1577769, at *3 (S.D.N.Y. Apr. 21, 2014) (quoting Official Comm. of the Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003))). "[W]here litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Goodman v. AssetMark, Inc., 53 F.Supp.3d 583, 585-86 (E.D.N.Y. 2014) (internal quotations and citation omitted)).
"The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012), as amended (July 13, 2012), cert. denied, ___ U.S. ___, 133 S.Ct. 1805, 185 L.Ed.2d 812 (2013) (accord). "The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (internal quotation marks and citation omitted); see also Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013). Generally, reconsideration will not be granted where the moving party: (1) seeks to introduce additional facts not in the record on the original motion (see Rafter v. Liddle, 288 F. App'x 768, 769 (2d Cir. 2008) (motions for reconsideration "are not vehicles for taking a second bite at the apple . . . and [the court] [should] not consider facts not in the record to be facts that [it] overlooked.'") (internal quotations and citation omitted); Redd v. New York State Div. of Parole, 923 F.Supp.2d 393, 396 (E.D.N.Y. 2013) (on a motion for reconsideration, the moving party must "demonstrate that any available factual matters . . . were presented to the court on the underlying motion" and such motions are "not intended as . . . a chance for a party to take a second bite at the apple.") (internal quotations and citations omitted)); (2) advances new arguments or issues that could have been raised on the original motion (see Analytical Surveys, 684 F.3d at 52 (holding that reconsideration "is not a vehicle for . . . presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a `second bite at the apple [.]'") (quotations and citation omitted); Redd, 923 F.Supp.2d at 396 ("A motion for reconsideration is not intended as a vehicle for a party dissatisfied with the Court's ruling to advance new theories that the movant failed to advance in connection with the underlying motion. . . .") (quotations and citations omitted)); or (3) "seeks solely to relitigate an issue already decided" (Shrader, 70 F.3d at 257; see also Analytical Surveys, 684 F.3d at 52 (holding that reconsideration "is not a vehicle for relitigating old issues. . .") (quotations and citation omitted)). It is within the sound discretion of the district court whether or not to grant a motion for reconsideration. See Callari v. Blackman Plumbing Supply, Inc., 988 F.Supp.2d 261, 287 (E.D.N.Y. 2013).
Pursuant to the Order, Fera's third counterclaim did not adequately plead a claim for cancellation of plaintiff's incontestable trademark registrations because "`failure to use' is not a valid ground for cancellation of an incontestable trademark under any provision of the Lanham Act." Order, at 8. Fera argues that reconsideration is proper because "the Court has, inter alia, overlooked the full range of Fera's pleadings as set forth in its Answer and Counterclaims and overlooked the import of the holdings in Eurostar Inc. v. Euro Star Reitmoden, 34 U.S.P.Q.2d 1266, 1995 WL 231387 (T.T.A.B. 1994) ("Eurostar") as applied to the pleadings herein." [Docket Entry No. 101-1 ("Def. Mem."), at 1].
Fera first argues that its Third Counterclaim adequately pled a claim for cancellation of Ferring's incontestable registrations because it pled non-use and because "non-use is a fact which provides the basis for relief under the Court's equitable powers." Id., at 4. For the first time on reconsideration, Fera argues that, despite failing to cite to 15 U.S.C. § 1115(b)(9) or mention any equitable grounds for relief in its counterclaims, its use of the term "inter alia" and citations to other sections of 15 U.S.C., and its incorporation by reference of prior allegations in its Answer and Counterclaims, including its affirmative defenses alleging that "Plaintiff's claims are barred, in whole or in part, by laches and by estoppel" and that "equity prohibits enforcement of plaintiff's marks against use of the Fera marks" (Answer and Counterclaims ¶¶ 66-69), adequately pleads a claim for cancellation of plaintiff's incontestable registrations on equitable grounds pursuant to 15 U.S.C. § 1115(b)(9). Fera's argument must be denied not only because its attempt now, upon motion for reconsideration, to scour its Answer and Counterclaims for references to equitable principles "advances new arguments or issues that could have been raised on the original motion" (Analytical Surveys, 684 F.3d at 52), but also because Fera has still not established that its "allegations of several equitable principles" (Def. Mem., at 6) elsewhere in its pleadings provide a basis for cancellation of plaintiff's incontestable trademarks "based on plaintiff's failure to use [the trademark registrations] in the marketplace. . ." Answer and Counterclaims ¶ 117. As this Court has previously observed, "the Supreme Court has found that this `power of the courts to cancel registrations and to otherwise rectify the register,' § 37, 15 U.S.C. § 1119, must be subject to the specific provisions concerning incontestability.'" Order, at 4 (citing Park `N Fly v. Dollar Park and Fly, 469 U.S. 189, 203, 105 S.Ct. 658, 666, 83 L. Ed. 2d 582 (1985)).
Fera also argues that the Court "has misapplied Eurostar which is clearly applicable to Fera's Third Counterclaim" [Docket Entry No. 103 ("Def. Reply"), at 5], because "a claim for cancellation
While Fera requests reconsideration of the denial of leave to amend (see Def. Mem., at 8), it has not pointed to any "controlling decisions or data that the court overlooked" (Shrader, 70 F.3d at 257) in denying leave to amend due to Fera's failure to explain what allegations it would have added or amended to cure the deficits in its Counterclaims (Order, at 9; see also TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (a party "need not be given leave to amend if it fails to specify either to the district court or to the court of appeals how amendment would cure the pleading deficiencies in its complaint")) and therefore, the Court adheres to its original decision denying leave to amend.
For the foregoing reasons, Defendant's Motion for Reconsideration is granted, but upon reconsideration, the Court adheres to its original decision.