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Dennis Pierce, Inc. v. Pierce

United States District Court, S.D. Mississippi, Eastern Division

September 12, 2017

DENNIS PIERCE, INC., et al. PLAINTIFFS
v.
LETITIA PIERCE, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT, UNITED STATES DISTRICT JUDGE.

         For the reasons below, the Court grants in part and denies in part Defendant's Motion for Reconsideration [58].

         I. Background

         This is a copyright/trademark case. Plaintiffs Dennis Pierce, Inc. (“DPI”) and Piercon, Inc. have used a particular logo for over two decades - a green block “P” with the shape of a house as the cutout in the “P.” Defendant Letitia Pierce created the logo. Plaintiffs are construction companies in the Hattiesburg, Mississippi area, and Defendant's brother, Dennis Pierce, owns Plaintiffs.

         Defendant was employed by Plaintiffs in the mid-nineties. She had a variety of duties, but she encouraged her brother to incorporate a logo into the business's branding. Defendant eventually left her employment with Plaintiffs. The parties dispute when Defendant created the logo, and they dispute the degree of Dennis Pierce's participation in its creation. Regardless, Plaintiffs used the logo for over twenty years without any trouble. During this time period, the logo was also used in Dennis Pierce's real estate business, Pierce Realty, Inc.

         In January 2015, Dennis Pierce transferred ownership of Pierce Realty to his brother, Darian Pierce. Darian Pierce continued to use the logo after the transfer of ownership. In July 2015, Plaintiffs filed an application with the United States Patent and Trademark Office (“USPTO”) to trademark the logo. In April 2016, Plaintiffs received their USPTO registration of the logo and sent a cease-and-desist letter to Pierce Realty. When Defendant found out that Dennis Pierce had registered the logo with the USPTO, she sent her own cease-and-desist letter to Plaintiffs and demanded that they cancel the trademark registration. She later filed her own application for copyright registration with the United States Copyright Office.

         Plaintiffs filed this declaratory judgment action. They seek a declaratory judgment that they are the rightful owners of the logo, that they are the rightful owners of a valid trademark registration, and that they did not infringe upon any trademark rights of Defendant. Defendant filed a counterclaim for copyright infringement.

         Plaintiffs filed a Motion for Summary Judgment [1], which the Court granted in part and denied in part. Specifically, the Court denied the motion as to Plaintiffs' request for a declaratory judgment that they own a valid trademark registration for the disputed logo, but the Court granted the motion as to Defendants' request for a declaratory judgment that they have not infringed Defendant's trademark rights and as to Defendant's counterclaim for copyright infringement. Defendant filed a Motion for Reconsideration [58], which the Court now addresses.

         II. Standard of Review

         “A motion asking the court to reconsider a prior ruling is evaluated either as a motion . . . under Rule 59(e) or . . . under Rule 60(b). The rule under which the motion is considered is based on when the motion is filed. If the motion is filed within twenty-eight days after the entry of judgment, the motion is treated as though it was filed under Rule 59, and if it was filed outside of that time, it is analyzed under Rule 60.” Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 n.2 (5th Cir. 2012). Defendant's Motion for Reconsideration [58] was filed within twenty-eight days of the entry of the Court's Memorandum Opinion and Order [57], and Rule 59 applies.

         “A Rule 59(e) motion calls into question the correctness of a judgment.” Templet v. Hydrochem Inc., 367 F.3d 473, 478 (5th Cir. 2004). There are three grounds for altering or amending a judgment under Rule 59(e): “(1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice.” Williamson Pounders Architects, P.C., 681 F.Supp.2d 766, 767 (N.D. Miss. 2008). Rule 59(e) motions are “not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment, ” Templet, 367 F.3d at 478, and they “should not be used to . . . re-urge matters that have already been advanced by a party.” Nationalist Movement v. Town of Jena, 321 F. App'x 359, 364 (5th Cir. 2009). It is “an extraordinary remedy that should be used sparingly.” Id. Before filing a Rule 59(e) motion, parties “should evaluate whether what may seem to be a clear error of law is in fact simply a point of disagreement” with the Court. Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D.Miss. 1990).

         III. Discussion

         A. Payment of Copyright Filing Fee

         First, Defendant argues that the Court erred in holding that the record contains no evidence that she paid the filing fee to accompany her application for copyright registration. Defendant is correct. The record contains an e-mail receipt from Pay.gov demonstrating that Defendant's attorney remitted the $35.00 filing fee. See Exhibit I at ...


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