The Cookie Department, Inc. v. The Hershey Company

Opinion

1 2 3 6 7 THE COOKIE DEPARTMENT, INC., Case No. 20-cv-09324-KAW

8 Plaintiff, ORDER REGARDING DEFENDANT'S 9 v. MOTION FOR RECONSIDERATION OR TO RENEW PARTIAL SUMMARY 10 THE HERSHEY COMPANY, et al., JUDGMENT MOTION 11 Defendants. Re: Dkt. No. 137

12 13 On September 29, 2022, Defendants filed an administrative motion for reconsideration of 14 the Court’s summary judgment order or, in the alternative, leave to renew their motion for 15 summary judgment or file a second motion for summary judgment. (Dkt. No. 137.) On October 16 2, 2022, Plaintiff filed an opposition. (Dkt. No. 143.) 17 The Court finds that leave to file a second motion for summary judgment on the narrow 18 issue of the invalidity of Plaintiff’s trademark application is warranted.1 While Plaintiff argues 19 that a second motion for summary judgment is not warranted because there is no expanded factual 20 record, an expanded factual record is not the only grounds for a second motion for summary 21 judgment. (Dkt. No. 143 at 4.) Rather, in Hoffman v. Tonnemacher, the Ninth Circuit explained 22 that Rule 56 “does not limit the number of motions that may be filed,” and that “the possibility of 23 summary judgment remains on the table even after a district court has denied a summary judgment 24 motion because that order is subject to reconsideration by the court at any time.” 593 F.3d 908, 25 1 To the extent Plaintiff complains that Defendants’ motion is improper because it is an 26 administrative motion, the Court’s Case Management and Pretrial Order for Jury Trial states that leave to file more than one summary judgment motion “may be obtained by filing a motion for 27 administrative relief pursuant to Civ. L. R. 7-11 . . . .” (Dkt. No. 28 at 1-2.) As the Court does not 1 911 (9th Cir. 2010). While the Ninth Circuit noted that successive motions for summary judgment 2 || are “particularly appropriate on an expanded factual record,” it did not state that an expanded 3 factual record was required. Jd. Rather, it acknowledged that a second motion for summary 4 || judgment may be permissible when “it fosters the ‘just, speedy, and inexpensive’ resolution of 5 suits.” Jd. (quoting Fed. R. Civ. P. 1.). Here, the Court noted that there appeared to be sufficient 6 || evidence to support cancellation based on fraud, but did not grant Defendants’ motion for 7 summary judgment due to a pleading issue that was only raised by Plaintiff at the hearing on 8 || Defendants’ motion for summary judgment. (Dkt. No. 111 at 7.) Thus, it would appear 9 appropriate to allow a second motion for summary judgment now that Defendants have amended 10 || their affirmative defense. Moreover, a second motion for summary judgment will permit Plaintiff 11 to provide additional evidence, including the exhibits that the Court previously struck as improper. 12 || (See Dkt. Nos. 105, 106.) 13 Accordingly, the Court GRANTS Defendants leave to file a motion for summary judgment 14 || on the narrow issue of fraud based on Plaintiff claiming uses of the TOUGH COOKIE mark that it 3 15 was not used for. Defendants shall file their motion for summary judgment by Friday, October 7, a 16 || 2022; the motion shall be no more than fifteen pages. Chambers copies must be received by 3 17 Tuesday, October 11, 2022, and must be tabbed and provided in binder(s). Plaintiff shall file its 18 opposition by Friday, October 14, 2022; the opposition shall be no more than fifteen pages. 19 Chambers copies must be received by Tuesday, October 18, 2022, and must be tabbed and 20 || provided in binder(s). No reply is permitted. The motion for summary judgment will be heard at 21 the October 26, 2022 pretrial conference. The parties are highly encouraged to be judicious 22 || regarding which exhibits they believe are necessary for adjudicating the motion. 24 Dated: October 4, 2022 .

26 United States Magistrate Judge 27 28