INTERACTIVE GIFT EXPRESS, INC.,
Plaintiff,

V.

COMPUSERVE INC., et al.,
Defendants.

95 Civ. 6871 (BSJ)

BARBARA S. JONES
UNITED STATES DISTRICT JUDGE

MEMORANDUM ORDER

On May 15, 1998, the Court issued a 41-page Opinion and Order ("Opinion"), familiarity with which is assumed, construing the claims of U.S. Patent No. 4,528,643. Plaintiff, now known as E-Data and now represented by different counsel, now moves for reconsideration pursuant to Local Civil Rule 6.3, contending that the Court (1) overlooked certain language appearing in the patent that firmly supports plaintiff's claim construction,1 and (2) overlooked or did not properly apply controlling principles of claim construction. Alternatively, plaintiff requests the Court to afford it a Markman hearing on the issues presented in its motion for reconsideration.

The decision to grant or deny a motion for reconsideration or reargument under Local Civil Rule 6.3 rests with the sound discretion of the district court. See Mul1en v. Sevona No. 95 Civ. 5838, 1998 WL 148426, at *1 (S.D.N.Y. Mar. 27, 1998). Under Rule 6.3, a party seeking reconsideration or reargument "must demonstrate that the court overlooked controlling authority or factual matters that might reasonably be expected to alter the conclusion reached by the court." Id. (internal quotation marks and citation omitted). "Parties may not advance any new facts, issues or arguments not previously presented to the court." Id. "Rule 6.3 is to be applied strictly in order to dissuade repetitive arguments on issues that have already been considered fully by the court." Id. (internal quotation marks and citations omitted). Accordingly, a party moving pursuant to Rule 6.3 "may properly point out only controlling factual or legal matters which it had previously raised in the underlying motion, but which were not considered by the Court." Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 170 F.R.D. 111, 113-14 (S.D.N.Y. 1997).

Here, plaintiff has failed to satisfy the standard for reconsideration pursuant to Ru1e 6.3. First, the Court fully considered and rejected plaintiff’s contentions that a consumer's home can constitute "a point of sale location," and that the patent claims cover the real-time delivery of information. Second, plaintiff has not demonstrated, as it is required to do pursuant to Rule 6.3, that it previously raised principles of claim construction that were overlooked by the Court. Accordingly, plaintiff’s motion for reconsideration pursuant to Rule 6.3 is denied.2

Plaintiff’s request for a Markman hearing is also denied. The Court previously indicated in its Opinion that no Markman hearing was needed in this case and it continues to remain of this view.

SO ORDERED:

BARBARA S. JONES
UNITED STATES DISTRICT JUDGE

Dated: New York, New York
November 30, 1998

1. In particular, plaintiff claims the Court erred in concluding that (1) the term "point of sale location" does not encompass a consumer’s home and (2) the patent claims do not cover the real-time delivery of information.

2. Although plaintiff’s motion is styled as a motion for reconsideration pursuant to Local Civil Rule 6.3, plaintiff, in its reply memorandum of law, contends without explanation that it is also entitled to relief from final judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. The Court therefore treats plaintiff’s motion as one brought pursuant to both Rule 6.3 and Rule 60(b). Relief under Rule 60(b) is available only where the movant has demonstrated "extraordinary circumstances" or "extreme hardship." PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 897 (2d Cir.), cert. denied 464 U.S. 936 (1983); see also Bye v. United States, No. 94 Civ. 5067, 1998 WL 635546, at *2 (S.D.N.Y. Sept. 16, 1998). Nowhere in its motion papers does plaintiff indicate that it has satisfied either of these requirements. Accordingly, plaintiff’s motion for relief from judgment pursuant to Rule 60(b) is denied.