United States District Court, S.D. Mississippi, Eastern Division
DENNIS PIERCE, INC., et al. PLAINTIFFS
LETITIA PIERCE, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
STARRETT, UNITED STATES DISTRICT JUDGE.
reasons below, the Court grants in part and denies in
part Defendant's Motion for Reconsideration
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,
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.
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.
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.
filed a Motion for Summary Judgment , 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 , which the Court now addresses.
Standard of Review
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  was filed
within twenty-eight days of the entry of the Court's
Memorandum Opinion and Order , and Rule 59 applies.
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).
Payment of Copyright Filing Fee
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 ...