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Ho v. Taflove

April 9, 2010


The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge


Plaintiffs Seng-Tiong Ho ("Ho") and Yingyan Huang ("Huang") filed an action for copyright infringement, false designation of origin, unfair competition, conversion, fraudulent misrepresentation, and trade secret misappropriation based on the use of their scientific works in several publications authored by defendants Allen Taflove ("Taflove") and Shih-Hui Chang ("Chang"). Defendants filed for summary judgment on all claims and on January 15, 2010, I granted their motion. Twenty-eight days later, plaintiffs filed the pending "motion to reconsider" the grant of summary judgment on two of the six original claims - copyright infringement (Count I) and conversion (Count IV). For the following reasons, plaintiffs' motion is denied.

I. There is technically no "motion to reconsider" under the Federal Rules of Civil Procedure ("FRCP"); however, there are motions to amend or alter judgment under FRCP 59(e) and motions for relief from judgment under FRCP 60(b).*fn1 Whether a motion for reconsideration should be analyzed under FRCP 59(e) or 60(b) depends on the substance of the motion, not on the timing or label affixed to it. Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008)(citations omitted). The pending motion is labeled a FRCP 60(b) motion, but seeks to alter my decision to grant summary judgment in favor of defendants on plaintiffs' conversion and copyright infringement claims. It is therefore properly considered under FRCP 59(e). See Obriecht, 517 F.3d at 494.

Altering or amending a judgment pursuant to FRCP 59(e) is permissible only when there is newly discovered evidence or where there has been a manifest error of law or fact. Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006)(citations omitted). A manifest error is a "wholesale disregard, misapplication, or failure to recognize controlling precedent." Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation omitted). Submitted with their twenty-page motion to reconsider, plaintiffs include four large volumes of exhibits, all of which were available to them on summary judgment. See Caisse Nationale de Credit Agricole v. CBI Indus. Inc., 90 F.3d 1264, 1269-70 ("A party seeking to defeat a motion for summary judgment is required to 'wheel out all its artillery to defeat it.'")(citations omitted). "Belated factual or legal attacks are viewed with great suspicion...[and r]econsideration is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion." Id. Plaintiffs contend that the grant of summary judgment on Counts I and IV was based on manifest errors of fact and law. I review plaintiffs' arguments in light of what was presented by both parties at summary judgment.


First, with respect to conversion of physical property, defendants argued that plaintiffs could not prove their conversion claim because they flatly admitted defendants did not take any of their physical property. (Defs.' SJ Mem. 11.) They also argued that plaintiffs had no claim for conversion of intangibles because Illinois law does not recognize conversion of ideas where there is no deprivation of the subject property. Id. This argument was supported by citation to FMC Corp. v. Capital Cities/ABC Inc., 915 F.3d 300 (7th Cir. 1990) and In re Thebus, 483 N.E.2d 1258 (Ill. 1985), and the following evidence taken from plaintiffs' own depositions:

Q: Are you aware of Allen Taflove or Gilbert Chang physically taking any of your property, such as physically removing your notebook or physically removing your documents, your papers?

A: Not that I'm aware of.

(SOF ¶ 55; Huang Dep., SOF Ex. D at 210:12-16.)

Q: Professor Ho, to your knowledge, has Gilbert Chang or Allen Taflove taken anything of yours, such as physically removed your notebook, something like that?

A: ...your not talking about intellectual property; your talking about physically removing something?

Q: Physically removing something, like your notebook or your actual pieces of paper.

A: No. (SOF ¶ 55; Ho Dep, SOF Ex. E at 471:20-472:5.)

In response to defendants' summary judgment motion, plaintiffs argued that while defendants did not "steal" physical originals and copies of their works, plaintiffs gave them copies of Huang's thesis and figures, and copies and an original of "Ho's notebooks." (SJ Resp. 12.) The cited evidence indicated that Chang was given copies of Huang's thesis and figures, but did not mention whether or not ...

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