Resorts Intern. v. Greate Bay Hotel and Casino

• Citation: 830 F. Supp. 826
• Decision Date: 01 September 1992
• Docket Number: Civ. A. No. 90-3057.
• Parties: RESORTS INTERNATIONAL, INC., a Delaware Corp., Resorts International Hotel, Inc., a New Jersey Corp., Resorts International (Bahamas) 1984 Limited, a Bahamas Corp., Plaintiffs, v. GREATE BAY HOTEL AND CASINO, INC., t/a "Sands Hotel Casino and Country Club", a New Jersey Corp., Defendant.
• Court: U.S. District Court — District of New Jersey

830 F. Supp. 826

RESORTS INTERNATIONAL, INC., a Delaware Corp., Resorts International Hotel, Inc., a New Jersey Corp., Resorts International (Bahamas) 1984 Limited, a Bahamas Corp., Plaintiffs, v. GREATE BAY HOTEL AND CASINO, INC., t/a "Sands Hotel Casino and Country Club", a New Jersey Corp., Defendant.

Civ. A. No. 90-3057.

United States District Court, D. New Jersey.

September 1, 1992.

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Clark E. Alpert, Roseland, NJ, for plaintiffs.

Roberto Rivera-Soto, Greate Bay Hotel and Casino, Inc., Harry Jay Levin, Silver, Levin & Claus, P.C., Atlantic City, NJ, for defendant.

OPINION

GERRY, Chief Judge.

The parties are presently before the court upon motion of defendant Greate Bay Hotel and Casino ("the Sands") for reconsideration of our opinion and order of March 25, 1992, 1992 WL 64518. In that opinion, we granted the motion of plaintiff Resorts for summary judgment on liability, and denied defendant's motion for summary judgment on damages. The motion for reconsideration is confined to that portion of the opinion which granted summary judgment on liability. For the reasons expressed herein, the motion for reconsideration will be granted, and the portion of our opinion which granted summary judgment for Resorts will be vacated.

BACKGROUND

This case involves a dispute over the use of the name "Paradise Isle" to describe a high-roller slot lounge in the Sands hotel and casino in Atlantic City, New Jersey. Plaintiff Resorts claims that the Sands' use of "Paradise Isle" infringes on Resorts own mark, "Paradise Island," which it uses to describe an island in the Bahamas on which is located its own and other hotel and casino resort complexes, and related services. In January 1991, after a two-day hearing during which testimony was taken, this court granted Resorts' motion for a preliminary injunction. The Sands was enjoined from use of the term "Paradise Isle" and was ordered to destroy all advertising materials and signs which employed that term. The Sands has complied with the terms of that preliminary injunction.

At the close of the preliminary injunction hearing, the court instructed the parties to consider whether that hearing should be consolidated with a trial on the merits pursuant to Fed.R.Civ.P. 65(a)(2). After having reviewed the transcripts of the hearing, both Resorts and the Sands agreed that consolidation would be fair and appropriate, and requested the court to so consolidate. However, after granting the preliminary injunction, we denied the motions to consolidate because of suspicions that more evidence on liability might be forthcoming.

Subsequently, Resorts moved for summary judgment on liability, and the Sands cross-moved for summary judgment on damages. The Sands declined to present any substantive arguments opposing Resorts' summary judgment motion, instead countering with its motion on damages. The Sands also did not present to the court any proofs on the liability summary judgment motion, instead choosing to rely entirely and without specification on the entire body of evidence presented at the preliminary injunction stage.

On March 25, 1992, this court granted the motion by Resorts for summary judgment on liability, and denied the Sands' cross-motion for summary judgment on damages. In granting summary judgment in favor of Resorts on liability, we relied on our findings regarding liability made in the preliminary injunction opinion, as the Sands had not set forth any additional evidence to defend against summary judgment. This motion for reconsideration followed. The Sands argues that, in light of Third Circuit law, our incorporation of findings made on a preliminary injunction was in error.

DISCUSSION

I. Judicial Estoppel

Before treating with the issues raised on this motion for reconsideration which directly touch upon our March 25, 1992 opinion, we first address the Sands' judicial estoppel argument, which it raises in its reply brief on this motion, and in which it argues that plaintiff's complaint should be dismissed in its entirety.¹

The doctrine of judicial estoppel — sometimes referred to as the doctrine of preclusion against inconsistent positions — is a discretionary doctrine which precludes a party from asserting a legal or factual position in a legal proceeding that contradicts or is inconsistent with a position asserted by the same party in any other proceeding. See, e.g. Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3d Cir.), cert. denied, 488 U.S. 967, 109 S.Ct. 495, 102 L.Ed.2d 532 (1988); Scarano v. Central R. Co., 203 F.2d 510, 512-13 (3d Cir.1953). A concern for fairness, and for the integrity of the courts, is at the source of this doctrine:

A plaintiff who has obtained relief from an adversary by asserting and offering proof to support one position may not be heard later in the same court to contradict himself in an effort to establish against the same adversary a second claim inconsistent with his earlier contention. Such use of inconsistent positions would most flagrantly exemplify that playing "fast and loose with the courts" which has been emphasized as an evil the courts should not tolerate. And this is more than affront to judicial dignity. For intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.

Scarano, 203 F.2d at 512-13 (citations omitted). See also C. Wright, A. Miller & E. Cooper, 18 Federal Practice and Procedure, § 4477, at 779 (1981 & Supp.1992) (doctrine aims to "avoid unfair results and unseemliness"). Thus, the doctrine of judicial estoppel "focuses on the relationship between the litigant and the judicial system." Delgrosso v. Spang and Co., 903 F.2d 234, 241 (3d Cir.), cert. denied, 498 U.S. 967, 111 S.Ct. 428, 112 L.Ed.2d 412 (1990).

These are the boundaries of the doctrine on which the Sands now relies. The Sands submits that although Resorts has continually argued there is sufficient cross-marketing between Paradise Island in the Bahamas and Resorts in New Jersey to establish a necessary element of an unfair competition or trademark infringement claim, it has also in various other cases within this district and in the New Jersey state court maintained that there are no minimum contacts between Paradise Island in the Bahamas and the state of New Jersey for purposes of personal jurisdiction. The other cases to which the Sands refers are Schettino v. Paradise Beach In, Ltd., No. 91-1928, 1992 WL 533252 (D.N.J., March 13, 1992); Mitchell v. Britania Beach Hotel and Casino, No. 86-3575 (D.N.J., April 19, 1992); Anderson v. Resorts International, Inc., No. 91-4827 (N.J.Law Div., Mercer County). In Schettino and Mitchell, both personal injury actions involving accidents which occurred at Paradise Island in the Bahamas, the district court dismissed defendant Resorts International (Bahamas) 1984 Ltd. from the actions for lack of personal jurisdiction. In each case, court found that plaintiffs could not satisfy the "minimum contacts" requirement of personal jurisdiction. Even more recently, the New Jersey state court reached the same conclusion when confronted with a motion to dismiss for lack of personal jurisdiction in Anderson. See Anderson v. Resorts International, Inc., No. 91-4827 (N.J.Law Div., Mercer County, July 2, 1992).

The Sands views these two issues, cross-marketing and personal jurisdiction, as equivalent and interchangeable; and asserts that the positions which Resorts has taken as to them are contradictory. The Sands' contends that under the doctrine of judicial estoppel Resorts should not be permitted to advance such contradictory positions. The Sands further argues that the existence of these so-called contradictory positions requires dismissal of this entire action, under the doctrine of judicial estoppel. We disagree.

First, a motion for reconsideration is an improper vehicle for raising this judicial estoppel argument. In the two-year course of this litigation, the Sands has never raised, nor even alluded to, the argument. According to the Sands, it was not aware of these cases, in which the opinions cited were unpublished, until after the filing of the instant motion for reconsideration.² However, it is well established in this district that a motion for reconsideration is an extremely limited procedural vehicle. Local Rule 12 I, which governs such motions, provides that they shall be confined to the "matters or controlling decisions which counsel believes the Court has overlooked." (emphasis added). Courts in this district have consistently interpreted the word "overlooked" as the dominant term in the rule. Only dispositive factual matters and controlling decisions of law which were presented to the court but not considered on the original motion may be the subject of a motion for reconsideration. Pelham v. United States, 661 F.Supp. 1063, 1065 (D.N.J.1987). See also Egloff v. New Jersey Air Nat. Guard, 684 F.Supp. 1275, 1279 (D.N.J.1988); Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F.Supp. 159 (D.N.J.1988).³

The Sands asserts that, in this case, it could not have found the cases it now urges upon us before the summary judgment motion was decided or before the instant motion was filed, because they were not then decided. It encourages us to interpret Rule 12 I as stating a different standard for what will be reviewed on a motion for reconsideration — specifically, whether the facts brought to the court's attention for the first time on a reconsideration motion were known or should have been known to the moving party at the time of the original motion. We reject this suggestion, for two reasons. First, there is no basis for this standard of review either in the text of the rule itself, or in the interpretive case law. Second, as the court advised counsel at oral argument, to adopt this standard would mean keeping the record open forevermore — a...