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Westcon MFG Inc. v. Rotatheam

United States District Court, D. Maine

December 29, 2017

WESTCON MFG., INC., d/b/a THEAM USA, Plaintiff
v.
RotaTHEAM SAS and SHUMAKER INDUSTRIES, INC., Defendants

          MEMORANDUM DECISION AND ORDER ON PLAINTIFF'S MOTION FOR AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

          John H. Rich, III United States Magistrate Judge.

         Pursuant to Federal Rule of Civil Procedure 52(b), the plaintiff seeks to amend a limited number of findings of fact and a single conclusion of law in my decision on its motion to enforce an October 21, 2015, consent judgment. See Westcon, Mfg., Inc. d/b/a THEAM USA's Rule 52(b) Motion for Amended Findings of Fact and Conclusions of Law (“Motion”) (ECF No. 172) at 1; [Sealed] Findings of Fact and Conclusions of Law on Plaintiff's Motion for Contempt (“Decision”) (ECF No. 171); Consent Judgment (ECF No. 117). I grant the Motion in part and deny it in part in the manner and for the reasons set forth below and simultaneously file herewith my Amended Findings of Fact and Conclusions of Law on Plaintiff's Motion for Contempt.

         I. Applicable Legal Standards

         Federal Rule of Civil Procedure 52(b) provides that, “[o]n a party's motion[, ]” the court “may amend its findings - or make additional findings - and may amend the judgment accordingly.” Fed.R.Civ.P. 52(b). “The primary purpose of Rule 52(b) is to enable the appellate court to obtain a correct understanding of the factual issues determined by the trial court as a basis for the conclusions of law and the judgment entered thereon.” 9C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure (“Wright & Miller”) § 2582, at 352-53 (3d ed. 2008) (footnote omitted).

         “A party who failed to prove his strongest case is not entitled to a second opportunity to litigate a point, to present evidence that was available but not previously offered, or to advance new theories by moving to amend a particular finding of fact or a conclusion of law.” Id. at 353 (footnote omitted). See also, e.g., Nat'l Metal Finishing Co. v. BarclaysAmerican/Commercial, Inc., 899 F.2d 119, 123 (1st Cir. 1990) (motions under Rule 52(b) are “not intended to allow parties to rehash old arguments already considered and rejected by the trial court” but, rather, are intended to “permit the correction of any manifest errors of law or fact that are discovered, upon reconsideration, by the trial court”) (citation omitted); Dash v. Chicago Ins. Co., No. Civ.A 00-11911-DPW, 2004 WL 2337021, at *1 (D. Mass. Oct. 18, 2004) (“A Rule 52(b) motion is meant to correct, clarify, or amplify the findings and is not meant to provide an avenue for relitigating issues on which the moving party did not prevail at trial.”) (citation and internal punctuation omitted).

         II. Discussion

         Finding of Fact No. 7.

         See Motion at 2-3. Granted in the form set forth in the plaintiff's reply brief. The finding as worded contains errors of fact. As the plaintiff notes, the parties “generally agree that [this finding] should be amended to reflect that Jean Garrec formed CPS [Concrete Placement Systems] ¶ 1981 and that Luc Thenaud later become a partner in CPS after its formation, possibly in 1982.” Westcon Mfg., Inc. d/b/a THEAM USA's Reply in Further Support of Its Motion for Amended Findings of Fact and Conclusions of Law (“Reply”) (ECF No. 175) at 2 (citations and footnote omitted); see also Defendants' Response to Plaintiff's Rule 52(b) Motion for Amended Findings of Fact and Conclusions of Law (“Response”) (ECF No. 174) at 2- 3. However, I decline to adopt the defendants' further proposed finding, in the event the court were inclined to grant the requested amendment, that “there was a partnership between CPS and Rene Thenaud, Luc Thenaud and/or Thenaud S.A.” Response at 3. As the plaintiff notes, see Reply at 2, the defendants did not separately move to amend the Decision. Nor, prior to its issuance, did they propose the inclusion of this fact. See Defendants' Proposed Findings of Fact and Conclusions of Law (ECF No. 164) ¶¶ 11-17.[1] Finding of Fact No. 7, accordingly, is amended to state:

In 1981, Jean Garrec formed Concrete Placement Systems (CPS) in the United States. Id. at 229-33, 405-06. After CPS's formation, possibly in 1982, Luc Thenaud, the son of Rene Thenaud, one of the men who developed the mixer-mounted conveyor in France, became a partner in CPS. Id.

         Finding of Fact No. 8.

         See Motion at 3. Granted in part, to the extent that, as the defendants concede, see Response at 3, this finding erroneously states that Rene Thenaud gave CPS (rather than the Garrecs) two conveyors and money, and otherwise denied, to the extent that the plaintiff seeks the removal of the word “THEAM” from the part of the finding stating that Rene Thenaud did so “to bring THEAM conveyors to the United States from France[, ]” Finding of Fact No. 8, Decision at 2 (emphasis added). The plaintiff objects that the conveyors were not branded as THEAM conveyors, see Motion at 3; however, as the defendants point out, see Response at 3, the finding does not so state. In any event, the concern motivating the requested removal of the descriptor “THEAM” - that the finding as worded would permit RotaTHEAM to contest the plaintiff's now incontestable trademark registration for THEAM by claiming to be the senior user of the mark in the United States, see Reply at 3-4, is not well-founded. The defendants reaffirm that, consistent with their representation in the Consent Judgment, they do not seek to challenge the plaintiff's use or ownership of the THEAM trademark. See Defendant's Sur-Reply to Plaintiff's Rule 52(b) Motion for Amended Findings of Fact and Conclusions of Law (“Surreply”) (ECF No. 178) at 1-2. Accordingly, Finding of Fact No. 8 is amended to state:

Rene Thenaud gave Jean Garrec and his wife, Lolly Garrec, two conveyors and money to bring THEAM conveyors to the United States from France. Id. at 229-32.

         Finding of Fact No. 12.

         See Motion at 3-4. Granted in part, in the form set forth in the plaintiff's reply brief, as to the requested clarification of the identity of the sellers of conveyor parts made in France, and otherwise denied, as to the requested deletion of the phrase “THEAM- branded.” On the first point, there is no dispute that Thenaud, S.A., and Theam, S.A., sold conveyor parts made in France to the plaintiff or that both were predecessor companies to RotaTHEAM. See Motion at 3-4; Response at 4-5; Reply at 4-5. On the second point, the citation to the testimony of Lolly Garrec for the proposition that the parts sold were “THEAM-branded” is at most incomplete, rather than manifestly incorrect. Lolly Garrec testified that the plaintiff bought the majority of all of its conveyor parts from Thenaud, S.A., and Theam, S.A., from 1981 to 2000, and then a dwindling number until 2012. See Transcript at 261-63. One could reasonably infer that the imported parts were “THEAM-branded.” Beyond this, as the plaintiff acknowledges, see Motion at 4, the record elsewhere contains direct evidence that this was so, in the form of testimony of RotaTHEAM's president, Jean-Baptiste Mérian, see Transcript at 155-56. The plaintiff contends that this evidence is “unreliable” because Mérian lacked personal knowledge of the operations of Thenaud S.A. or Theam S.A. prior to 2010 or 2011, when he was hired by Theam S.A. Motion at 4. Yet, at hearing, I overruled two objections by the plaintiff to the Mérian testimony on foundation grounds. See Transcript at 153. A Rule 52(b) motion “is not meant to provide an avenue for relitigating ...


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