United States District Court, S.D. Florida
ARMEN A. TEMURIAN and VISTA TECHNOLOGIES, LLC, Plaintiffs,
PHILLIP A. PICCOLO, JR., KEVIN DALTON JOHNSON, PAUL MORRIS, JOSEPH REID, and TRAVELADA, LLC, Defendants.
ORDER ON MOTION FOR PARTIAL RECONSIDERATION
BLOOM, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Plaintiffs Armen A.
Temurian and Vista Technologies, LLC's (together,
“Plaintiffs”) Motion for Partial Reconsideration
of the Court's Order Granting Defendants' Motion to
Dismiss, ECF No.  (the “Motion”). The Court
has carefully considered the Motion, all opposing and
supporting submissions, the record in this case and the
applicable law, and is otherwise fully advised. For the
reasons set forth below, the Motion is denied.
motion for reconsideration requests that the Court grant
“an extraordinary remedy to be employed
sparingly.” Burger King Corp. v. Ashland Equities,
Inc., 181 F.Supp.2d 1366, 1370 (S.D. Fla. 2002). A party
may not use a motion for reconsideration to “relitigate
old matters, raise argument or present evidence that could
have been raised prior to the entry of judgment.”
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957
(11th Cir. 2009) (quoting Michael Linet, Inc. v. Village
of Wellington, Fla., 408 F.3d 757, 763 (11th Cir.
2005)). “This prohibition includes new arguments that
were ‘previously available, but not
pressed.'” Id. (quoting Stone v.
Wall, 135 F.3d 1438, 1442 (11th Cir. 1998) (per
this framework, however, a court may grant reconsideration
when there is (1) an intervening change in controlling law,
(2) the availability of new evidence, or (3) the need to
correct clear error or prevent manifest injustice. Hood
v. Perdue, 300 Fed.Appx. 699, 700 (11th Cir. 2008).
Thus, a motion to reconsider is “appropriate where, for
example, the Court has patently misunderstood a party, or has
made a decision outside the adversarial issues presented to
the Court by the parties, or has made an error not of
reasoning but of apprehension.” Kapila v. Grant
Thornton, LLP, No. 14-61194-CIV, 2017 WL 3638199, at *1
(S.D. Fla. Aug. 23, 2017) (quoting Z.K. Marine Inc.,
808 F.Supp. at 1563 (internal quotation marks omitted). A
motion for reconsideration “is not an opportunity for
the moving party . . . to instruct the court on how the court
‘could have done it better' the first time.”
Hood, 300 Fed.Appx. at 700 (citation omitted).
Motion, Plaintiffs request that the Court reconsider its
dismissal with prejudice of the fraud claims (Counts 6-8) and
trademark infringement and unfair competition claims (Counts
11-13) on the basis that the Court improperly determined that
the fraud allegations were insufficient as a matter of law
without granting leave to amend, the Court misapprehended or
overlooked factual allegations with respect to its analysis
concerning the application of the independent tort doctrine,
and the Court improperly dismissed with prejudice the
trademark and unfair competition claims on the basis that
Defendants were co-owners of the trademarks according to the
parties' contract because, as Plaintiffs contend for the
first time in the Motion, the contract is ambiguous. Upon
review, Plaintiffs' Motion is not well-taken because it
amounts to no more than disagreement with the Court's
reasoning and ultimate conclusions. See Z.K. Marine Inc.
v. M/V Archigetis, 808 F.Supp. 1561, 1563 (S.D. Fla.
1992) (“It is an improper use of the motion to
reconsider to ask the Court to rethink what the Court already
though through-rightly or wrongly.”) (citation and
alterations omitted); see also See Roggio v. United
States, 2013 WL 11320226, at *1 (S.D. Fla. July 30,
2013) (“[W]hen there is mere disagreement with a prior
order, reconsideration is a waste of judicial time and
resources and should not be granted.”) (internal
citation and quotations omitted).
extent that Plaintiffs contend that it was error for the
Court not to grant leave to amend, the Court again disagrees.
Plaintiffs already amended once as a matter of course and did
not properly request leave to amend subsequently. “A
district court is not required to grant a plaintiff leave to
amend his complaint sua sponte when the plaintiff,
who is represented by counsel, never filed a motion to amend
nor requested leave to amend before the district
court.” Wagner v. Daewoo Indus. Am. Corp., 314
F.3d 541, 542 (11th Cir. 2002). In addition, “[w]here a
request for leave to file an amended complaint simply is
imbedded within an opposition memorandum, the issue has not
been raised properly.” Cita Tr. Co. AG v. Fifth
Third Bank, 879 F.3d 1151, 1157 (11th Cir. 2018)
(quoting Rosenberg v. Gould, 554 F.3d 962, 967 (11th
Plaintiffs' Motion, ECF No. , is
 Defendants argue that Plaintiffs'
Motion should be denied outright for failure to comply with
the conferral requirement in Local Rule 7.1(a)(3). Plaintiffs
concede that they failed to confer prior to filing the
Motion, but contend that their failure was based upon a good
faith belief that it was not required because it would have
been futile, there was no prejudice to Defendants, and the
effect of such a denial “could constitute a denial with
prejudice of claims without meeting the standard for
dismissal.” See ECF No. . While the Court
certainly understands Plaintiffs' position, the Local
Rules do not contain a “good faith” exception,
and a motion for reconsideration-which in this ...