UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PALETERIA LA MIC HOACANA, INC. et al. , : : Plaintiffs & Counter-Defendant s, : Civil Action No.: 11-1623 ( RC) : v. : Re Document Nos.: 336, 340, 345, : 346, 350, 351, PRODUCTOS LACTEOS TOCUMBO S.A. : 358 DE C.V., : : Defendant & Counter-Claimant. :
MEMORANDUM OPINION G RANTING P LAINTIFFS ’ M OTION TO S UBSTITUTE AND J OIN S UCCESSOR IN I NTEREST ; D ENYING P LAINTIFFS ’ M OTION TO A MEND THE J UDGMENT ; D ENYING D EFENDANT ’ S M OTION FOR N EW T RIAL ; D ENYING D EFENDANT ’ S M OTION TO A MEND F INDINGS AND TO A MEND THE J UDGMENT ; G RANTING P LAINTIFFS ’ O PPOSITION AND O BJECTIONS TO D EFENDANT ’ S B ILL OF C OSTS , C ONSTRUED AS A M OTION ; G RANTING IN P ART AND D ENYING IN P ART D EFENDANT ’ S

M OTION FOR L EAVE TO F ILE S URREPLY ; D ENYING D EFENDANT ’ S R EQUEST FOR H EARING
I. INTRODUCTION This case arises from the long -running dispute between Plaintif fs/Counter-Defendants Paleteria La Michoacana, Inc. a nd Paleteria La Michoacana (Sub) , Inc. (collectively, “PLM”) 1
and Defendant/Counter-Claimant Productos Lacteos Tocumbo S.A. D e C.V. (“PROLACTO”). Specifically, this litigation con cerns the parties’ rights to u se various registered and unregistered trademarks when selling frozen c onfections in the United States

.

1 For the reasons explained below , the Court will grant PLM’s mo tion to substitute an additional PLM-related entity as the sole Plaintiff in this act ion and join that same entity as an additional Counter-Defendant. See infra Part III. The Court’s refere nces to “PLM” refer to all PLM entities, collectively. The C ourt will refer to specific P LM entities where the distinction is relevant.2 After resolving a number of pre liminary issues, the Court condu cted a bench trial over the course of thirteen days beginning on September 14, 2015 and ending on October 1, 2015. On May 27, 2016, the Court issued extensive Findings of Facts and Conclusions of Law resolving the remaining issues in the case. After trial, the parties fil ed a number of post-trial motions. For the reasons explained more f ully below, the Court will gran t PLM’s motion to substitute another PLM-related entity as the sole Plaintiff in this action and join that same entity as an additional Counter-Defendant. The Court will also deny e ach parties’ request to amend the findings and judgment and deny PROLACTO’s motion for a new tria l. Finally, upon consideration of PROLACTO’s bill of costs and PLM’s opposition, the Court will order both parties to bear their own costs.

II. FACTUAL AND PROCED URAL BACKGROUND The Court’s previous Findings of Fact and Conclusions of Law se t for the factual and procedural history of t his case in detail. See generally Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. DE C.V . ( PLM VI ), 188 F. Supp. 3d 22 (D.D.C. 2016). 2 The Court assumes the parties’ familiarity with the background set forth in its earlier opinion. Nevertheless, the Court will brie fly summarize the facts and pr ocedural posture of this case, as described in the Court’s previous opinion. See id. For clarity, the Court will address the facts relevant to the pending post-tria l motions in the context of ea ch of the specific motions.

2 Where the Court cites prior re ported dispositions in this matt er, those citations use chronological numbering for ease of reference. These numbers d o not correspond to the similar references found in the Court’s Findings of Fact and Conclusion s of Law, which included citations to a different set of prior dispositions. See PLM VI, 188 F. Supp. 3d at 30 (referring to prior dispositions in this case as PLM I , PLM II, and PLM III ).3 A. Brief Factual Overview PLM and PROLACTO are in the busi ness of manufacturing and selli ng “paletas” and other frozen treats. Paletas a re a style of ice cream bars and popsicles originating in Mexico that are traditionally made from fruit, spices, and nuts. PROLACTO is a Mexican company that the Andrade Malfavon family founded in 1992. The Andrade Malfavon family cont inues to own PROLACTO. The com pany traces its history to Tocumbo, a city in the Mexica n state of Michoacán, in the 1940s , which is the purported origin of the paleta and the shops, known as “paleterias,” that make a nd sell them. 3 PROLACTO primarily does business in the U nited States through licensing agreements with various members of the Andrade Malfavon fam ily who own and operate individual p aleterias in certain markets, namely, Florida, Texas, Northern C alifornia, and North Carolina . Until relatively recently, PROLACTO did not directly own any pa leterias in the United Stat es or otherwise directly sell its products to any consumers in the United States. PLM traces its history to at least as early as 1991, when two b rothers, Mexican immigrants Ignacio Gutierrez and Ruben Gutierrez, began selling paletas out of pushcarts in Northern California using the na me “La Michoacana.” That name literally means “the woman from the state of Michoacán” i n Spanish. The partnership disso lved in 1999, and Ignacio Gutierrez operated the business as a sole proprietorship for se veral years before incorporating in California. PLM’s business has gr own significantly since its be ginnings as a pushcart operation in Northern California. PLM cu rrently manufactures its product s in a factory in Modesto,

3 Michoacán one of the thirty-one s tates that, along with the Fe deral District, comprise the thirty-two Feder al Entities of Mexic o. It is located along the coast in western Mexico. Michoacán is home to a sizeable population of Purépecha people, whose women’s traditional folkloric dress commonly consis ts of hair braids on each side, a white blouse, a pink skirt, and sandals. The “Indian Girl” designs at issue in this matter ref lect that tradi tional dress.4 California and distributes its products throughout various part s of the United States. PLM distributes its products to large- scale retailers such as Costc o, Wal-Mart, and Walgreens, as well as Hispanic grocery stores suc h as El Super and Vallarta and a variety of other retail outlets. Both PLM and PROLACTO use a vari ety of trademarks when selling their products in the United States. This litigation concerns the dispute betwee n PLM and PROLACTO over the right to use those marks. The pa rties sharply dispute, among m any other things, which of them first used those marks in the U nited States, and each party acc uses the other of engaging in bad faith in a variety of different ways. B. Brief Procedural History The procedural history of this matter spans roughly a decade. The Court briefly restates that history here. See also PLM VI, 188 F. Supp. 3d at 28 (setting forth pr ocedural history). 1. TTAB Proceedings This dispute began in earnest i n 2007 when PROLACTO filed a pet ition with the Trademark Trial and Appeal Board (“TTAB”), a body of the United States Patent and Trademark Office (“USPTO”), to cancel PLM’s U.S. Registration No. 3,210,3 04 for the mark titled “LA INDITA MICHOACANA.” See Pet. Cancellation, TTAB Dkt. 1. 4 On May 20, 2011, the TTAB granted PROLACTO’s petition for cancellation of PLM’s LA INDITA MICHOACANA mark, concluding that PROLACTO had e stablished priority of use and li kelihood of confusion with respect to several of its a sserted, unregistered marks. See generally Productos Lacteos Tocumbo S.A. De C.V. v. Paleteria La Michoacana, Inc. , 98 U.S.P.Q.2d 1921 (T.T.A.B. 2011). The TTAB denied PLM’s motion for reconsideration on July 13, 2011. See TTAB Dkt. 115.

4 Pursuant to 15 U.S.C. § 1071(b)(3), the Court admitted the rec ord of the underlying proceeding before the TTAB in thi s case at the joint request of the parties. See Min. Order (Nov. 18, 2013); Joint Status Report at 3–5, ECF No. 98.5 2. The Present Action PLM brought this action pursuant to the Lanham Act, 15 U.S.C. § 1071(b), on September 8, 2011. See Compl., ECF No. 1. The operative Complaint is now the Second Amended Complaint, which was filed on June 11, 2012. 5 See 2d Am. Compl., ECF No. 40. PLM’s Second Amended Complaint alle ges four causes of action: C ount I seeks reversal of the TTAB’s decision to cancel the re gistration of PLM’s LA INDITA M ICHOACANA mark and denial of PROLACTO’s cancellation petition; Count II seeks a de claration that there is no likelihood of confusion between PLM ’s LA INDITA MICHOACANA mark and various marks asserted by PROLACTO on the basis of their common usage of the word “MICHOACANA”; Count III alleges that PROLACTO’s use of its Indian Girl mark i nfringes three of PLM’s registered marks under 15 U.S.C. § 1114, including its LA INDITA MICHOACANA mark; and Count IV seeks to cancel PROLAC TO’s registration of certain mar ks containing the name “LA FLOR DE MICHOACAN” if a likelihood of confusion is found be tween those marks and PLM’s marks. See 2d Am. Compl. ¶¶ 42–61. PROLACTO, in turn, filed seven c ounterclaims. Specifically, Co unterclaim Count I alleges that PLM infringed PROLACT O’s registered LA FLOR DE MIC HOACAN and design

5 Earlier in the litig ation, the Court deni ed PROLACTO’s motion for a temporary restraining order to p revent PLM from infringing on PROLACTO’s trademarks during a convention for ice cream di stributors and vendors. See Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. de C.V. ( PLM I ), 901 F. Supp. 2d 54 (D.D.C. 2012). The Court also denied PROLACTO’s motion to s trike PLM’s defenses to PROLA CTO’s counterclaims. See Paleteria La Michoacana v. Productos Lacteos ( PLM II ), 905 F. Supp. 2d 189 (D.D.C. 2012). In a later opinion, the Court denied PROLACTO’s motion seeking a protective order requiring that the deposition of its corporate designees take p lace in or near Mexico City. See Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. de C.V. ( PLM III ), 292 F.R.D. 19, 21 (D.D.C. 2013).6 mark under 15 U.S.C. § 1114(1); 6 Counterclaim Count II alleges trademark infringement, unfair competition, passing off, false a dvertising, false association, and false designati on in violation of 15 U.S.C. § 1125(a); Counterclaim Count III alleges trademark i nfringement of the District of Columbia’s common law; Countercl aim Count IV alleges trademark dilution under 15 U.S.C. § 1125(c); and Counterclaim Counts V, VI, and VII seek cancella tion of two of PLM’s registered marks due to fraud and abandonment. See Ans. 2d Am. Compl. & C ountercls. ¶¶ 39–87, ECF No. 41. The parties filed cross-motions f or summary judgment after the close of discovery and the Court granted in part a nd denied in part both motions. See generally Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De C.V. ( PLM IV ), 69 F. Supp. 3d 175 (D.D.C. 2014). The Court then gr anted in part and denied in pa rt PLM’s motion to revise that Memorandum Opinion and Order, see Mem. & Order, ECF No. 174, and denied PROLACTO’s motion for reconsideration, see Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo
S.A. De C.V. ( PLM V ), 79 F. Supp. 3d 60 (D.D.C. 2015). The Court issued a First R evised Order on February 3, 2015. See First Revised Order, ECF No. 175. The Court’s Findings of Fact and C onclusions of law set forth i n detail which claims and counterclaims survive d summary judgment. See PLM VI, 188 F. Supp. 3d at 30. In brief, the Court denied summary judgment to both parties on Count I of PLM ’s Second Amended Complaint and neither party s ought summary judgment on Counts I I, III, and IV. Id. Turning to PROLACTO’s counterclaims, the Cour t granted summary judgment infavor of PLM on Counterclaim Counts I, III, IV, V, VI, and VII. Id. at 30–31. With regard to the claims under

6 The relevant mark is PROLAC TO’s U.S. Registration No. 3,249,11 3. See PLM IV , 69 F. Supp. 3d at 196–97 (discussing C ounterclaim I and the inc luding an image of the relevant marks).7 trademark infringement, false designation of origin, passing of f, and unfair competition in Counterclaim Count II, the Court entered partial judgment in fa vor of PLM limiting this claim to the Houston, Texas market and de nied summary judgment to both p arties as to whether PROLACTO has established secondary meaning for its marks. Id. at 30. The Court also resolved a number of issues rela ted to the false advertising cl aims found in Counter claim Count II, but left others to be r esolved at trial. Id. at 30–31. After the Court narrowed the issues through summary judgment, t he case proceeded to trial. The bench trial took pl ace over thirteen days between S eptember 14, 2015 and October 1, 2015. After considering the parties proposed findings of fact and conclusions of law, as well as other motions filed during or after the trial, the Court issued its extensive Findings of Fact and Conclusions of Law. See generally PLM VI, 188 F. Supp. 3d 22. In brief, the Court entered judgment in favor of PROLACTO as to Count I of PLM’s Second Ame nded Complaint and entered judgment in favor of PLM as to Counts II and III. The Court dismissed Count VI as moot. Finally, the Court entered j udgment in favor of PLM as t o PROLACTO’s Counterclaim Count II. 3. Motions Pending Before the Court After the trial, but shortly befo re the Court issued its Findin gs of Fact and Conclusions of Law, PLM filed a motion to substitute a PLM-related entity as t he sole Plaintiff and to add that entity as an additional Counter-D efendant because of the transf er of the marks at issue in this

case. See generally Pls.’ Mot. Sub. & Join Successor in Interest (“PLM Mot. Sub.”), ECF No. 336. After the Court issued its Findings of Fact and Conclusio ns of Law, PLM filed a motion to alter or amend the Court’s judgm ent on Complaint Count I that a ffirmed the cancellation of PLM’s U.S. Registration No. 3,210,304. See generally Pls.’ Mot. Amend J. (“PLM’s Mot.8 Amend”), ECF No. 340. After br iefing on that motion, PROLACTO filed a motion seeking leave to file a surreply to addr ess issues raised in PLM’s repl y brief. See Def.’s Mot. Leave File Surreply or, in the Alternative, M ot. Strike (“PROLACTO’s Mot. Surreply”), ECF No. 351. PROLACTO filed a motion for a ne w trial based on the discovery of PLM’s registration and ownership of the domain name “laflordemichoacan.com,” see generally Def.’s Mot. New Trial (“PROLACTO’s Mot. New Trial” ), ECF No. 345, and a motion to ame nd the Court’s findings and legal conclusions with regar d to the incontestability of PL M’s Indian Girl Design marks, see generally Def.’s Mot. Amend Findings & Ame nd J. (“PROLACTO’s Mot. Amend” ), ECF No. 346. PROLACTO also filed a bill of costs, see generally PROLACTO’s Bill of Costs, ECF No. 343, which PLM objected to, see generally Pls.’ Opp’n & Objs. Def.’ s Bill of Costs (“PLM’s Opp’n Bill of Costs”), ECF No. 350. After the close of briefing on its motion for a new trial and i ts motion to amend, PROLACTO requested a hearing t o address the pending motions. See Def.’s Req. Hr’g, ECF No. 358. PROLACTO argues that “oral argument may assist the Co urt in evaluating PROLACTO’s” motions. Def.’s Re q. Hr’g ¶ 9. PLM responds that it “do[es] not believe that a hearing is necessary.” See Pls.’ Resp. Def.’s Req. Hr’g a t 1–2, ECF No. 359. Nevertheless , PLM requests that the Court als o hear oral argument on PLM’s mo tion to amend if it decides to grant a hearing. See Pls.’ Resp. Def.’s Req. Hr’g a t 1–2. The allowance of oral arg ument is “within the discretion of the Court.” See LCvR 7(f). The Court finds t hat there is no need for oral argument on the motions. The parties have briefed the pen ding motions extensively and the written arguments provide a suffi cient basis for the Court to r ule. The Court therefore denies PROLACTO’s request for a hearing.9 III. PLM’S MOTION TO SUBSTITUTE PARTIES The Court first turns to PLM’s motion pursuant to Federal Rule of Civil Procedure 25(c) to substitute PLM Operations, LLC (“PLM Operations”) as the sol e Plaintiff and to join that entity as an additional Counter-Defendant. See generally PLM Mot. Sub. PROLACTO opposes the motion to substitute and join PLM Operations. See generally Def.’s Opp’n Pls.’ Mot. Sub. & Join Successor in Interest (“PROLACTO’s Opp’n Mot. Sub.”), ECF No. 341. For the reasons set forth below, the Court will grant PLM’s motion, substitute PLM Operations as the sole Plaintiff, and join the same en tity as an additional Counter-De fendant. A. Legal Standard Federal Rule of Civil Procedure 25(c) provides that, “[i]f an i nterest is transferred, the action may be continued by or again st the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the o riginal party.” Fed. R. Civ. P. 25(c). The decision to grant or deny a R ule 25(c) motion is a matter w ithin the district court’s discretion. See Burka v. Aetna Life Ins. Co. , 87 F.3d 478, 482 (D.C. Cir. 1996); see also Bauer v. Commerce Union Bank , 859 F.2d 438, 441 (6th Cir. 1988) (“[O]rd ers [granting Rule 2 5(c) substitution] are reviewed onl y for abuse of discretion.”), cert. denied , 489 U.S. 1079 (1989); Prop-Jets, Inc. v. Chandler , 575 F.2d 1322, 1324 (10th Cir. 1978) (“Substitution of a succ essor in interest or its joinder as an additional party under Rule 25 (c) is generally within the sound discretion of the trial court.”). The primary basis for deciding th e motion is whether substituti on would “facilitate the conduct of the litigation.” Comm’ns Imp. Exp., S.A. v. Republic of Congo , 118 F. Supp. 3d 220, 231 (D.D.C. 2015) (quoting Citibank v. Grupo Cupey, Inc., 382 F.3d 29, 32 (1st Cir. 2004)); see also 7C Charles Wright & Arthur Miller, Federal Practice & Procedure § 1958 (3d ed. 2016)10 (noting the trial court’s disc retion). This focus on “consider ations of convenience and economy . . . prevails because Rule 25(c) has no bearing on the substantive relationship between the parties.” Comm’ns Imp. Exp. , 118 F. Supp. 3d at 231. Regardless of t he transfer in intere st and subsequent substitution, “[t]he merits of the case . . . ar e still determined vis-à-vis the originally named parties.” Minn. Mining & Mfg. Co. v. Eco Chem, Inc. , 757 F.2d 1256, 1263 (Fed. Cir. 1985); see also In re Covington Grain Co., Inc. , 638 F.2d 1362, 1364 (5th Cir. 1981) (“Rule 25(c) is not designed to cr eate new relationships among parties to a suit but is designed to allow the action to continue unaba ted when an interest in the l awsuit changes hands.”). Rule 25(c) places no time limit on a party seeking substitution or joinder. See Fed. R. Civ. P. 25(c); see also Luxliner P.L. Ex p., Co. v. RDI/Luxliner, Inc. , 13 F.3d 69, 71 (3d Cir. 1993); 7C Charles Wright & Arthur Miller, Federal Practice & Procedure § 1958 (3d ed. 2016) (“Since Rule 25(c) is wholly permissive there is no time limit on movin g to substitute under its provisions.”). B. Analysis Pursuant to Federal Rule of Civ il Procedure 25(c), PLM has move d to substitute PLM Operations as the sole Plaintiff and to join that entity as an additional Counter-Defendant. See generally PLM Mot. Sub. PLM argues that PLM (Sub) transferred the marks at issue in this case to PLM Operations on April 1, 2016. PLM Mot. Sub at 2. Thus, PLM argues, PLM Operations became the real party in interest and the Court should substitu te PLM Operations as the sole Plaintiff. PLM Mot. Sub at 2. To avoid any prejudice to PROLA CTO, PLM states that PLM Operations volunteers to join the case as an additional Counter -Defendant. PLM Mot. Sub at 2. PROLACTO opposes the motion to s ubstitute and join PLM Operatio ns. See generally PROLACTO’s Opp’n Mot. Sub. PROLA CTO argues that a purported su ccessor in interest must11 show, not only a valid transfer of i nterest, but also “that the successor will be liable for any wrongs of its predecessor.” PROLACTO’s Opp’n Mot. Sub at 1. PROLACTO argues that PLM has not shown that “PLM Operatio ns has acquired the liabilities of PLM (Sub).” PROLACTO’s Opp’n Mot. Sub at 2. PROLACTO states that the Court should permit limited dis covery on the purported transfer of t he relevant marks and hold an evidentiar y hearing. PROLACTO’s Opp’n Mot. Sub at 2. In the alternative, PROLACTO argues that the Court should deny the motion. PROLACTO’s Opp’n Mot. Sub at 2

. 1. The Transfer of the Relevant Marks Before trial, PLM filed a mo tion pursuant to Rule 15 of the Fed eral Rules of Civil Procedure seeking leave to corr ect the caption in this case. S pecifically, PLM requested leave to correct the case caption to repla ce “Paleteria La Michoacana, L LC” as a Plaintiff and CounterDefendant with “Paleteria La Mic hoacana (Sub), Inc.” in order t o reflect a change in its corporate form. See Pls.’ Mot. Leave Correct Case Caption, ECF No. 210. The Court granted that motion on March 31, 2016. See Mem. & Order, ECF No. 333. The following day, PLM (Sub) sold “ substantially all of its ass ets” to PLM Operations, which is a limited liability com pany organized under the laws o f the state of Delaware. See PLM Mot. Sub. at 3; see also PLM Mot. Sub., Decl. of Robert J. Spigner (“Spigner Decl.”) ¶¶ 2–3, ECF No. 336-1; Spigner Decl., Ex. A (providing the State of Del aware Certificate of Formation and a copy of the Delaware Secretary of State’s website listing relevant details of PLM Operations). PLM has provided th e Bill of Sale, General Assign ment and Conveyance, which sets forth the details of the transaction. See Spigner Decl., Ex. B. The transferred assets included the marks at issue in this case, including U.S. Regist ration Numbers 2,905,172, 2,968,652, and 3 ,210,304. See Spigner Decl. ¶ 3; see also Spigner Decl., Ex. B, schd. 1, annex D.12 Also on April 1, 2016, PLM (Sub) and PLM Operations executed a Trademark Assignment Agreement memorializing the transfer of the marks. See Spigner Decl. ¶ 4; see also Spigner Decl., Ex. C (Trademark Assignment Agreement). PLM has recorded that agreement with the USPTO. See Spigner Decl. ¶ 4. According to the terms of the agreement, PL M (Sub) assigned and transferred to PLM Operations “all of Assignor’s r ight, title and interest in and to the Trademarks, together with a ll goodwill associated with said Trademarks, and the right to sue and recover for, and the right t o profits or damages due or acc rued, arising out of or in connection with any and all past, pr esent or future infringemen ts or dilution of or damage to the Trademarks or the associate d goodwill.” Spigner Ex. C at 20. 7 PLM has also provided copies of entries on the USPTO’s website tha t reflect PLM Operations as t he listed owner of the relevant marks. See Spigner Decl. ¶ 5; see also Spigner Decl., Ex. D. As PLM correctly states, federal registration of a trademark is prima facie evidence that the registrant is the prop er owner of that trademark. See 15 U.S.C. § 1057(b) (“A certificate of registration of a mark . . . shall be prima facie evidence . . . of the owner’s ownership of the mark.”); see also id. § 1057(d) (noting that a certificate of reg istration may be iss ued to the assignee of the application, “butthe assignment must first be recorded in the [USPTO]”). PROLACTO has not presented any ev idence undermining the Spigner affidavit or the documentary evidence put fort h by PLM. In fact, PROLACTO appea rs to acknowledge that PLM “may have shown that certain of the relevant interests have been transferred.” PROLACTO’s Opp’n Mot. Sub. at 10. I n light of the extensive do cumentary evidence of a

7 Because Exhibit C does not include separate pagination, the Co urt will refer to the page numbers created by the Court’s Electronic Case Filing system.13 transfer and the prima facie valid ity of the regis tration in th e name of PLM Operations, the Court finds that PLM (Sub) transferred the marks at issue in this cas e to PLM Operations. 2. PROLACTO’s Reliance on the Doc trine of Successor Liability Instead of focusing on the transfer of assets , including the relevant marks, PROLACTO argues that PLM has “not provide d any, much less sufficient, ev idence that PLM Operations has acquired the liabilities of PLM (Sub).” PROLACTO’s O pp’n Mot. Sub. at 2 (emphasis adde d);
see also PROLACTO’s Opp’n Mot. Sub. at 1 (“[T]he Court must determine that the successor will be liable for any wrongs of its predecessor.”). PROLACTO urges the Court to rely on the doctrine of successor liability t o determine whether PLM (Sub) has transferred a valid interest to PLM Operations for the purpos es of Rule 25. PROLACTO’s Opp’n M ot. Sub. at 7. Successor liability is an excep tion to the general rule that “a successor corporation is not liable for the wrongs of its predecessor.” Material Supply Int’l, Inc. v. Sunmatch Indus. Co., Ltd. , 62 F. Supp. 2d 13, 23 (D.D.C. 1999). 8 Under the four traditional exceptions, a successor corporatio n will be liable where: “(1) there is an e xpress or implied agreement to assume the liabilities; (2) the transaction amounts to a consolid ation or merger; (3) the succe ssor entity is a mere continuation or reincarnation of the predecessor entity; or (4) the transact ion was fraudulent, not made in good faith, or made without sufficient consideration.” Id. (quoting Bingham v. Goldberg, Marchesano , 637 A.2d 81, 89–90 (D.C. 1994)). PROLACTO’s reliance on successor liability is misplaced. Rule 25(c) asks simply whether an “interest is tran sferred.” Fed. R. Civ. P. 25(c). PROLACTO’s confusion appears to

8 PROLACTO argues that Delaware law should govern the analysis o f successor liability, but states that “the substantiv e law is essentially the same in the District of Columbia and Delaware.” PROLACTO’s Opp’n Mot. Sub. at 8 n.5. Because the C ourt finds that the doctrine of successor liability is not re levant to this case, there is n o need to decide with state law applies.14 arise from cases where a party seeks to use Rule 25(c) to force an unwilling entity into the litigation. For instance, PROLACTO cites Select Creations, Inc. v. Paliafito America, Inc. , 852 F. Supp. 740 (E.D. Wis. 1994) and Panther Pumps & Equipment Co. v. Hydrocraft, Inc. , 566 F.2d 8 (7th Cir. 1977) for the princi ple that the court must co nsider the substantive law of successor liability before approving a substitution. See PROLACTO’s Opp’n Mot. Sub. at 7. In both cases, however, the court co nsidered successor liability only because a party was attempting to bring an unwilling successor before the court. See Select Creations , 852 F. Supp. at 766 (granting a motion to substitute unwilling non-parties); Panther Pumps , 566 F.2d at 28 (approving substitution of unwilling party). This case does not fit that patt ern. Instead, PLM Operations i s volunteering to join the case, both as the sole Plainti ff and as an additional Counter-D efendant. See PLM Mot. Sub. at 6. This distinction is longstanding. For instance, in McComb v. Row River Lumber Co. , which PROLACTO cites in its brief, the Ninth Circuit refused to bring an unwilling defendant into the case. 177 F.2d 129, 130 (9th Cir. 1949). The court explained that it had allowed substitutions “in cases where the plaintiff belo w has transferred his interes t in the subject matter of the action,” but that, “where substi tution is sought in this court for a defendant below . . . we have declined to allow a substitution.” Id. This distinction, found in other ca ses, reflects the due proces s concerns raised by forcing a party to step into the shoes of another against their will, p erhaps even after a court has entered a judgment. See, e.g. , Luxliner P.L. Exp., Co. v. RDI/Luxliner, Inc. , 13 F.3d 69, 72 (3d Cir. 1993) (considering third party’s due process interests); Panther Pumps , 566 F.2d at 24 (same). Those fairness concerns are not at issu e in a case like this, where aplaintiff has transferred an interest in the case and voluntarily seeks substitution. See, e.g. , Burka v. Aetna Life Ins. Co. , 87 F.3d 478,15 480 (D.C. Cir. 1996) (making no men tion of successor liability or due process where all parties agreed that a third party shoul d be a party to the suit). Because PLM Operations seeks to join this action voluntarily, the Court’s analysis must focus on whe ther “an interest is transferred,” Fed. R. Civ. P. 25(c), not whether t hat interest comes with lia bilities attached. 3. Substitution and Joinder Will Facilitate Litigation The proper criteria for decidi ng a motion under Rule 25(c) is w hether substitution would “facilitate the conduct of the litigation.” 9 Comm’ns Imp. Exp., S.A. v. Republic of Congo , 118 F. Supp. 3d 220, 231 (D.D.C. 2015) (quoting Citibank v. Grupo Cupey, Inc., 382 F.3d 29, 32 (1st Cir. 2004)); see also 7C Charles Wright & Arthur Miller, Federal Practice & Procedure § 1958 (3d ed. 2016) (“An order of joinde r is merely a discretionary d etermination by the trial court that the transferee’s presence would f acilitate the conduct of the l itigation.”). Any substitution or joinder under Rule 25(c) does not change the substance of the l itigation, but simply allows the case to go forward when an i nterest changes hands. 10 See In re Covington Grain Co., Inc. , 638 F.2d 1362, 1364 (5th Cir. 1981). The Court finds that substitu tion is appropriate here.

9 Substitution is not mandatory under Rule 25(c). PLM argues th at refusing to substitute PLM Operations would be an abuse of discretion. See Pl.’s Reply Supp. Mot. Sub. (“PLM’s Reply Mot. Sub.”) at 13, ECF N o. 342. PLM’s interpretations of the cases it cites are overbroad. For instance, in ELCA Enterprises, Inc. v. Sisc o Equipment Rental & Sales, Inc. , the Eighth Circuit found an abuse of discreti on where “the d istrict court both refused substitution for the new party, and refused to let the old party continue.” 53 F.3d 186, 191 (8thCir. 1995) (emphasis added). Another case cited by PLM states that substitution sho uld “be freely granted,” but the case is discussing Rule 25(a)(1), which governs substitution fo llowing the death of a party. See Natale v. Country Ford Ltd. , 287 F.R.D. 135, 137 (E.D.N.Y. 2012). C ourts in this circuit consistently hold that the district court has broad discretion when considering a motion under Rule 25(c). See, e.g. , Burka v. Aetna Life Ins. Co. , 87 F.3d 478, 482 (D.C. Cir. 1996) (reviewing substitution under Rule 25(c) f or abuse of discretion after cit ing cases from other circuits); Comm’ns Imp. Exp., S.A. v. Republic of Congo , 118 F. Supp. 3d 220, 231 (D.D.C. 2015) (“Rule 25(c) is wholly permissive . . . .”); see also 7C Charles Wright & Arthur Miller, Federal Practice & Procedure § 1958 (3d ed. 2016) (“Rule 25(c) i s wholly permissive . . . . ”). 10 PLM seeks to rely on the “real part y in interest” requirement found in Rule 17(a)(1). That is not the proper test f or a motion under Rule 25(c). In fact, Rule 25(c) “expressly permits16 The relevant marks are undoubtedly at the core of this long-run ning litigation. For example, Count I of PLM’s Second Amended Complaint seeks revers al of the TTAB decision cancelling one of the transferred marks. See 2d Am. Compl. ¶¶ 42–48. Si milarly, Counts II and III seek a declaratory judgment of noninfringement and injuncti ve relief to stop ongoing infringement, respectively, relat ed to the transferred marks. See 2d Am. Compl. ¶¶ 49–51, 52–56. The Court has found that uncontested evidence shows tha t PLM (Sub) transferred the relevant marks to PLM Operations. See supra Part. III.B.1. Although the rights of PLM Operations, if substituted, are the same as the original Plaint iffs, it now owns the relevant marks and has the sole interest in the outcome of this litigation. See Crown Point Partners LLC v. Crown Point Plan Comm’n , 275 F.R.D. 279, 282 (N.D. Ind. 2011) (“F irst Financial, as a creditor and transferee in interest to t he property, has a protectable i nterest in the outcome of this litigation and should be substi tuted, although its rights do no t exceed those of Lauth and CPP in this litigation.”). Therefore, t he Court finds that substituti ng the owner of the relevant marks as the sole Plaintiff will bestfacilitate any ongoing litigation. PLM also volunteered to join PLM Operations as an additional Co unter-Defendant to address any possible prejudice to PROLACTO. See PLM Mot. Sub. at 2. Following PROLACTO’s opposition to PLM’s mo tion for substitution, PLM “wi thdr[ew] that portion of its Motion seeking to add PLM Operations as an additional counter-d efendant,” but nevertheless

“ does not object if the Court joins PLM operations as an additional counter-defe ndant.” Pl.’s Reply Supp. Mot. Sub. (“PLM’s Reply Mot. Sub.”) at 15

– 16, ECF No. 342 (emphasis added). Rule 25(c) permits the Court to substitute or join a party. See Fed. R. Civ. P. 25(c). In order to

parties to continue in an acti on, even if they do not remain th e real party in inte rest, as long as the cause of action itself survives the transf er to the new party.” ELCA Enters. , 53 F.3d at 191.17 avoid any possibility of prejudice , the Court will therefore ex ercise its discretion to join PLM Operations as an additional Count er-Defendant, as well as subst ituting it as the sol e Plaintiff. 4. PROLACTO’s Request for D iscovery and a Hearing Finally, the Court turns to PRO LACTO’s request for discovery an d a formal hearing on PLM’s motion to substitute PLM O perations. PROLACTO argues tha t “[l]imited discovery may better enable the Court to make an informed determination of wh ether PLM (Sub) has made a valid transfer of interest to PLM Operations and to avoid an in equitable outcome to PROLACTO.” PROLACTO’s Opp’n Mot. Sub. at 11. PRO LACTO also requests a hea ring on this issue. PROLACTO’s Opp’n Mot. Sub. at 11 First, the Court has found that the uncontested evidence is suf ficient to show that PLM (Sub) transferred the relevant t rademarks to PLM Operations. See supra Part III.B.1. Second, the Court’s decision to join PLM Operations as an additional Co unter-Defendant ensures that the substitution will avoid inequitable outcomes for PROLACTO. See supra Part III.B.3. Finally, the Court notes that there i s no requirement to grant limited d iscovery or a hearing in this context. The Seventh Circuitrecently noted t hat there is no r ule “that an evidentiary hearing is mandatory to resolve ever y Rule 25(c) substitution.” Sullivan v. Running Waters Irrigation, Inc. , 739 F.3d 354, 359 (7th Cir. 2014). In f act, courts that have r equired an evidentiary hearing often point to the due process con cerns raised by hailing an unwillin g party into the ac tion, particularly where substitution effectively imposes liability. See Luxliner P.L. Exp. , 13 F.3d at 72. That is not the case here, and the Court therefore denies PROLACTO’s re quest for limited discovery and a hearing.18 IV. THE PARTIES’ MOTIONS TO A MEND THE FINDINGS AND JUDGMENT Following the bench trial, post-tr ial briefing, and the Court’s release of its Findings of Fact and Conclusions of Law, both parties have filed motions to amend the Court’s judgment. Each of the motions raises legal arguments for the first time i n this litigation. Therefore, the Court will deny both motions. A. Legal Standards 1. Federal Rule of Civil Procedure 52(b) Pursuant to Federal Rule of Civ il Procedure 52(b), a party may file a motion requesting that the Court “amend its findings—or make additional findings— and . . . amend the judgment accordingly.” Fed. R. Civ. P 52(b). This Rule “permits the tr ial court to correct manifest errors of law or fact, make additional findings or take other action t hat is in the interests of justice.” Ashraf-Hassan v. Embassy of France , 185 F. Supp. 3d 94, 108 (D.D.C. 2016) (quoting Bigwood v. Def. Intelligence Agency , 770 F. Supp. 2d 315, 318 n.2 (D.D.C. 2011)). The decision to amend findings or the judgment is committed “to the sound discr etion of the trial judge.” See Material Supply Int’l, In c. v. Sunmatch Indus. Co. , No. 94-1184, 1997 WL 243223, at *2 (D.D.C. May 7, 1997); see also Ashraf-Hassan , 185 F. Supp. 3d at 108. And aparty bringing a Rule 52(b) motion “bears a heavy burden.” Ashraf-Hassan , 185 F. Supp. 3d at 108 (quoting Material Supply Int’l , 1997 WL 243223, at *2). A motion under Rule 52(b) “is not an avenue for relitigating is sues upon which the moving party did not prevail at trial.” Material Supply Int’l , 1997 WL 243223, at *2. Instead, a movant “who failed to prove his [or her] stronge st case is not entitled to a second opportunity to litigate a point, to present evid ence that was available but no t previously offered, or to advance new theories by moving to amend aparticular finding of fact or conclusion of law.” Salazar v.19 District of Columbia , 685 F. Supp. 2d 72, 75 (D.D.C. 2010) (quoting 9C Charles Wrig ht & Arthur Miller, Federal Practice & Procedure § 2582 (3d ed. 2009)); see also Diocese of Winona
v. Interstate Fire & Cas. Co. , 89 F.3d 1386, 1397 (8th Cir. 1996) (fi nding that a party coul d not use a 52(b) motion to raise an a rgument that could have been ra ised prior to the entry of a judgment); Fontenot v. Mesa Petroleum Co. , 791 F.2d 1207, 1219 (5th Cir. 1986) (explaining that a Rule 52(b) motion should not be employed “to advance newtheories”). 2. Federal Rule of Civil Procedure 59(e) Federal Rule of Civil Procedure 59(e) permits a party to file “ [a] motion to alter or amend a judgment” within “28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). “Reconsideration of a judgment af ter its entry is an extraordin ary remedy which should be used sparingly,” Mohammadi v. Islamic Republic of Iran , 782 F.3d 9, 17 (D.C. Cir. 2015) (quoting 11 Charles Wright & Arthur Miller, Federal Practice & Procedure § 2810.1 (3d ed. 2012)), and the moving party bears the burden of e stablishing “extraordinary ci rcumstances” warranting relief from judgment , Niedermeier v. Office of Baucus , 153 F. Supp. 2d 23, 28 (D.D.C. 2001). Ultimately, “[a] Rule 59(e) mo tion is discretionary and need no t be granted unless the district court finds that ther e is an intervening change of con trolling law, the availability of new evidence, or the need to correct a clear error or prevent manif est injustice.” Ciralsky v. CIA , 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone v. Firestone , 76 F.3d 1205, 1208 (D.C. Cir. 1996)). “New evidence” is evidence that “was not previously av ailable,” not simply evidence that a party had not previously presented. See Messina v. Krakower , 439 F.3d 755, 759 (D.C. Cir. 2006). And in the R ule 59(e) context, “clear error” is “a very exacting standard,” Bond v. U.S. Dep’t of Justice , 286 F.R.D. 16, 22 (D.D.C. 2012) (quoting Lightfoot v. District of Columbia , 355 F. Supp. 2d 414, 422 (D.D.C. 2005)), tantamount to a requ irement that the20 judgment be “dead wrong,” Lardner v. FBI , 875 F. Supp. 2d 49, 53 (D.D.C. 2012) (quoting Parts & Elec. Motors, Inc. v. Sterling Elec., Inc. , 866 F.2d 228, 233 (7th Cir. 1988)). “Manifest injustice,” on the other hand, r equires a demonstration not onl y of “clear and certain prejudice to the moving party, but also a resu lt that is fundamentally unfai r in light of governing law.” Slate v. Am. Broad. Cos., Inc. , 12 F. Supp. 3d 30, 35–36 (D.D.C. 2013). Crucially, Rule 59(e) does not perm it a dissatisfied party “to relitigate old matters, or to raise arguments or present evide nce that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker , 554 U.S. 471, 485 n.5 (2008) (quoting 11 Charles Wright & Arthur Miller, Federal Practice & Procedure § 2810.1 (2d ed. 1995)). The rationale f or this rule is that “Rule 59(e) motions are aimed a t reconsideratio n, not initial c onsideration.” GSS Grp. Ltd v. Nat’l Port Auth. , 680 F.3d 805, 812 (D.C. Cir. 2012) (quoting District of Columbia v. Doe , 611 F.3d 888, 896 (D.C. Cir. 2010)). “It is well settled that an i ssue presented for the first time in a motion pursuant to Federal Rule of Civil Procedure 59(e) genera lly is not timely raised.” Doe , 611 F.3d at 896 (quoting Holland v. Big River Minerals Corp. , 181 F.3d 5 97, 605 (4th Cir. 1999));
see also Patton Boggs LLP v. Chevron Corp. , 683 F.3d 397, 403 (D.C. Cir. 2012) (“Rule 59(e) is not a vehicle to present a new le gal theory that was available prior to judgment . . . .”). “The strictness with which such moti ons are viewed is justified by t he need to protect both the integrity of the adversarial process in w hich parties are expected to bri ng all arguments before the court, and the ability of the parties and others to rely on the finali ty of judgments.” U.S. Commodity Futures Trading Comm’n v. McGraw–Hill Cos. , 403 F. Supp. 2d 34, 36 (D.D.C. 2005). B. PLM’s Motion to Amend the Judgment PLM has moved to amend the judgme nt, arguing that PLM’s U.S. Re gistration No. 3,210,304 for LA INDITA MICHOACANA should not be cancelled. See generally PLM’s Mot.21 Amend. Specifically, PLM refers to the Court’s finding that PL M owns two prior incontestable registered marks incorporati ng an Indian Girl design and argues that “a registered mark cannot be cancelled if the registrant , PLM, has prior us e of a mark th at is likely to cause confusion with the mark asserted by the challenger, PROLACTO.” 11 PLM’s Mot. Amend at 4. In its reply, PLM clarifies that it believes PROLACTO does not have standing to challenge the LA INDITA MICHOACANA mark because “PROLACTO cannot show that it would be damaged where . . . the registrant, PLM, has one or mor e valid registrations for si milar marks on similar goods that were in existence before PRO LACTO sought cancellation.” See Pls.’ Reply Supp. Mot. Amend J. (“PLM’s Reply Supp. Mot. Ame nd”) at 1, ECF No. 349. PROLACT O raises a number of responses, including arguments tha t PLM has not established the extraordinary circumstances that are necessary to amend a j udgment, that PLM’s understandin g of the law is flawed, and that PLM’s prior marks are not incontestable. See id. at 3–14. The Court first turn s to PROLACTO’s moti on seeking leave to f ile a surreply. See generally PROLACTO’s Mot. Surreply; see also Def.’s Surreply or, in the Alternative, Mot. Strike (“PROLACTO’s Surreply” ), ECF No. 351-1. For the reasons stated below, the Court will grant the motion in part and de ny it in part. The Court will c onsider PROLACTO’s surreply only on the question of standing. Upon consideration of the pa rties’ arguments, the Court will

11 The purportedly incontestable m arks are U.S. Registration No. 2,905,172 for the “Indian Girl with Paleta” desi gn and U.S. Registration No. 2,96 8,652 for the “Indian Girl with Cone” design. See PLM’s Mot. Amend at 2; see also PLM VI , 188 F. Supp. 3d 22, 48 (D.D.C. 2016). PROLACTO argues that the m arks are not incontestable. See Def.’s Opp’n Pls.’ Mot. Amend Judgment (“PROLACTO’s Opp’n Mot. Amend.”) at 9–14, ECF No . 344; see also PROLACTO’s Mot. Amend at 5–9. T he Court does not reach that is sue for the purposes of deciding PLM’s motion to amend. Butthe Court does address thi s issue in the context of PROLACTO’s motion to amend. See infra Part IV.C.22 deny PLM’s motion to amend the judg ment because a party cannot raise new theories for the first time in a motion to amend a judgment. 1. PROLACTO’s Motion for L eave to File a Surreply PROLACTO argues that it should be permitted to file a surreply because PLM impermissibly introduced facts a nd arguments related to two new arguments in its reply. See PROLACTO’s Mot. Surreply at 4, 6 –7. After setting forth the st andard for granting leave to file a surreply, the Court will a ddress the issues in turn. Under the Local Rules of this Court, at most three briefs shoul d be associated with a motion: “(i) the movant’s openi ng memorandum; (ii) the non-mova nt’s opposition; and (iii) the movant’s reply.” Banner Health v. Sebelius , 905 F. Supp. 2d 174, 187 (D.D.C. 2012) (citing LCvR 7). However, the non-movantmay seek leave to file a surr eply when deprived of the opportunity to contest matters rai sed for the first time in the movant’s reply. See Ben–Kotel v. Howard Univ. , 319 F.3d 532, 536 (D.C. Cir. 2003). The determination as to whether to grant or deny leave is entrusted to the di scretion of the district court , see Akers v. Beal Bank , 760 F. Supp. 2d 1, 2 (D.D.C. 2011), but surreplies are generally disfavored, see Kifafi v. Hilton Hotels Retirement Plan , 736 F. Supp. 2d 64, 69 (D.D.C. 2010). The court’s discretionis guided by “whether the movant’s reply in f act raises arguments or issues for the first time; whether the nonmovant’s proposed surreply wou ld be helpful to the resolutio n of the pending motion; and whether the movant would be undulyprejudiced were leave to be granted.” Glass v. Lahood , 786 F. Supp. 2d 189, 231 (D.D.C. 2011), aff’d , No. 11-5144, 2011 WL 6759550 (D.C. Cir. Dec. 8, 2011).23 First, PROLACTO argues that, “[f]or the first time in its Reply , PLM introduced facts and exhibits related to a blog post by Professor Rebecca Tushne t.” 12 PROLACTO’s Mot. Surreply at 6. In its reply in s upport of the motion to amend, PLM argues that the blog post’s analysis “supports granting PLM’s Motion to amend the judgment on Count I of the Complaint in favor of PLM.” PLM’s Rep ly Supp. Mot. Amend at 8. PROLACTO argues that a surreply is particularly warranted “in res ponse to newly-in troduced factual material.” PROLACTO’s Mot. Surreply at 7. The Court notes that a growing number of legal scholars are tur ning to blogs and other online media to publish their wo rk and to consider important le gal questions. See, e.g. , Eugene Volokh, Who are we? , Volokh Conspiracy (Jan. 16, 2014), h ttps://www.washingtonpost .com/ news/volokh-conspiracy/who-are-we / (listing law professors who write for the Volokh Conspiracy); About Us , RegBlog, http://www.regblog.org/ab out-us/ (last visited Mar. 30, 2017) (“ RegBlog features work contributed by staff members, scholars, judges, attorneys, and others interested in regulatory developm ents.”). PLM makes clear that it “does not seek to admit the blog into the evidentiary reco rd, or seek to admit any testimony from Professor Tushnet, whether as a lay or expert witness.” Pl. ’s Opp’n Def.’s Mot. Leave Fil e Surreply or, in the Alternative, Mot. Strike at 4 (“PLM’s Opp’ n Mot. Surreply”), ECF No. 355. T herefore, the Court will treat the reference to the blog post th e same way it would treat a ci tation to a law review article. The blog post is not new factual materi al. Instead, the reference to the blog post simply supports

12 Professor Tushnet teaches at Georgetown University Law Center. See PLM’s Reply Supp. Mot. Amend at 8 n.6.24 arguments originally raised in the motion, and there is no need for PROLACTO to have another chance to respond. 13 See Glass , 786 F. Supp. 2d at 231. Second, PROLACTO argues that PLM r aised arguments related to st anding for the first time in its reply brief. See PROLACTO’s Mot. Surreply at 7. In response, PLM asserts that i ts original motion briefed the question of standing. See PLM’s Opp’n Mot. Surreply at 5. PLM argues that it “cited t o a number of cases on the issue of stan ding in its motion to amend the judgment, and . . . devoted almost half of its motion to argue that PROLACTO’s cancellation claim should be dismissed for lac k of standing.” PLM’s Opp’n M ot. Surreply at 5. PLM’s characterization is misleading. I n fact, while PLM’s motion to amend argues that “PROLACTO cannot meet its burden of proof to cancel its registration,” th e motion never mentions the term “standing.” See PLM’s Mot. Amend at 5. In contras t, nearly five of the eleven pages of argument in PLM’s reply focus specifically on the question of s tanding. See PLM’s Reply Supp. Mot. Amend 2–6. The Court finds tha t the standing argument is “truly new,” United States v. Baroid Corp. , 346 F. Supp. 2d 138, 143 (D.D.C. 2004), and that PROLACTO’s “ proposed surreply would be helpful to the resolution of the pending moti on,” Glass , 786 F. Supp. 2d at 231. Therefore, the Court will gr ant PROLACTO’s motion in part and consider the surreply to the extent it addresses the issue of standing. 2. The Morehouse Defense The thrust of the litigation rel ated to Count I has turned on t wo crucial issues. First, the parties dispute the relative prio rity of PLM’s LA INDITA MICHOA CANA mark and

13 Furthermore, the Court does not rely on the blog post in reach ing a decision, so there is no need to consider PROLACTO’s additional briefing. See United States v. All Assets Held at Bank Julius Baer & Co. , 772 F. Supp. 2d 191, 205 (D.D.C. 2011) (“[S]ince the Court do es not rely upon any of the arguments of t he United States to which UT ICo wishes to respond by filing a surreply, UTICo’s motion for l eave to file a surreply will al so be denied.”).25 PROLACTO’s unregistered Indian Girl mark. The Court decided th at PROLACTO had the better side of that argument, f inding that “PROLACTO has demons trated that it us ed its Indian Girl mark before PLM used its LA INDITA MICHOACANA mark.” PLM VI, 188 F. Supp. 3d 22, 101 (D.D.C. 2016). The parties al so dispute whether the ta cking doctrine applies and therefore the prior ity date of PLM’s LA I NDITA MICHOACANA mark can be advanced to the date that PLM first used any Indian Girl mark. Again, PROLACT O prevailed after the Court found that, “particularly without any evidence of consumers’ pe rceptions, the Court cannot find that PLM’s LA INDITA MICHOACANA mark meets the ‘exceedingly str ict’ standard for tacking.” Id. at 60 (quoting Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp. , 174 F.3d 1036, 1048 (9th Cir. 1999)). The ultimate result is that PRO LACTO’s unregistered Indian Girl design is confusingly similar to, and thus infringes, PLM ’s earlier, registered Indian Girl marks, see id. at 107, but, because tacking does not apply, PRO LACTO’s mark has priority ov er LA INDITA MICHOACANA and the registration of LA INDITA MICHOACANA must be cancelled. Id. at 101. The Court’s Findings of Fact and Conclusions of Law noted : In its proposed findings of fact and conclusions of law, PLM ar gues that “even without applying the tacking doctr ine,” it has priority of use for an Indian Girl design, citing its Indian Girl with Paleta mark. Pls.’ Br. at 85 ¶ 90; see also id. at 59 ¶ 19 (“PLM has priority in both the Indian Girl Design and i n ‘Michoacana.’ Thefore [sic], the registrati on for LA INDITA MICHOACANA + Desi gn should not be cancelled and PLM should prev ail on its First Claim for Relief.”). The Court has indeed found that PLM us ed its Indian Girl with Palet a and Indian Girl with Cone marks before PROLACTO used its Indian Girl mark in th e United States, and the Court considers those findings with respect to the infringement claims in this action. With respe ct to [Count I], however, PLM does not provide the Court with any legal basis to deny PROLACTO’s cancellation petition on the basis of PLM’s earlier use of other marks in the absence of tacking—even if PLM’s earlier marks are confusingl y similar to PROLACTO’s asserted mark. Instead, PLM offers only the conc lusive statements quoted above without any citations or further explana tion. In the absence of any substantive legal argument,26 the Court cannot find grounds on its own to consider PLM’s earl ier use of other marks outside the context of the tacking doctrine. Id. at 100 n.54 (first alteration in orig inal). PLM is now attempt ing to provide the legal basis to deny PROLACTO’s cancellation petition that it failed to raise b efore. In its motion to amend the judgmen t, PLM asserts that the Court“correctly recited” the legal standard when it found tha t “a mark cannot be registered if another owner has prior use of a mark or trade name that is likel y to cause confusion with the a sserted mark.” PLM’s Mot. Amend at 4 (quoting PLM VI , 188 F. Supp. 3d at 99). In the next sentence, PLM reformulat es the standard to state that “a registered mark cannot be cancelled if the registrant . . . has prior use of a mark that is likely to cause confusion with the mark asser ted by the challenger.” PLM’s Mot. Amend at 4

. PLM seems to assert that its v ersion of the rule is a direct a nd accurate translation of the proper cancel lation standard the Court artic ulated. That is not correct. Instead, as PLM’s citations and subsequentreply make clear, PLM is rely ing on an equitable defense known as the “ Morehouse defense” or the “prior registration” defense.” 14
Under the Morehouse defense, the party seeking can cellation of a mark cannot be damaged if the registrant alrea dy “owns an exis ting registratio n for the same or substantially identically mark for the same or substantially identical goods. ” 3 J. Thomas McCarthy, McCarthy on Trademarks & Unfair Competition (“McCarthy on Tradema rks”) § 20:38 (4th ed. 2016). The Morehouse defense “is related to the equita ble defenses of laches or acqu iescence.” Coach/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC , 110 U.S.P.Q.2d 1458, 2014 WL 1390528, at *13 (T.T.A.B. 2014). Summa rizing the rule, the Fed eral Circuit has explained that “[t]he prior registration or Morehouse defense is an equitable defens e, to the effect that if the

14 The Morehouse defense is named for Morehouse Manufacturing Corp. v. J. Strickland & Co. , 407 F.2d 881 (C.C.P.A. 1969).27 opposer can not be further injure d because there already exists an injurious registration, the opposer can not object to an additi onal registrat ion that does not add to the injury.” O-M Bread, Inc. v. U.S. Olympic Comm. , 65 F.3d 933, 938 (Fed. Cir. 1995). The defense is available in both cancellation and opposition proceedings. See McCarthy on Trademarks §§ 20:38, 20:78. PLM has now raised the Morehouse defense in its motion to amend the judgment. See PLM’s Mot. Amend at 5; see also PLM’s Reply Supp. Mot. Amend at 3. 3. Waiver The question before the Court is whether PLM can rely on the Morehouse defense at this stage of the litigation. As th e Court has explained, Rule 59 d oes not permit a dissatisfied party “to raise arguments . . . that coul d have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker , 554 U.S. 471, 485 n.5 (2008) (quoting 11 Charles Wright & Art hur Miller, Federal Practice & Procedure § 2810.1 (2d ed. 1995)). Furthermore, “[i]t is well settled that an issue presented for the first time in a motion pursuant to Federal Rule of Civil Procedure 59(e) generally is no t timely raised.” District of Columbia v. Doe , 611 F.3d 888, 896 (D.C. Cir. 2010) (quoting Holland v. Big River Minerals Corp. , 181 F.3d 597, 605 (4th Cir. 1999)). The strictness of this rule is not ar bitrary. The rule “is justifi ed by the need to protect both the integrity of the adversarial proc ess in which parties are expec ted to bring all arguments before the court, and the ability of the parties and others to rely onthe finality of judgments.” U.S. Commodity Futures Trading Comm’n v. McGraw–Hill Cos. , 403 F. Supp. 2d 34, 36 (D.D.C. 2005). PLM makes two arguments on this point. First, PLM argues that PROLACTO lacks standing to challenge PLM’s re gistration and th at standing argu ments are not waivable. See PLM’s Reply Supp. Mot. Amend at 2–6. Second, PLM argues that i t has “pleaded and argued28 standing since incepti on.” PLM’s Reply Supp. Mot. Amend at 6 n .5. The Court will address these arguments in turn. a. PLM Conflates Constituti onal Standing and Statutory Stand ing Under the Lanham Act PLM’s standing argument relies on the Morehouse defense. PLM begins with the correct proposition that a “party must have standing to challenge a tra demark registration.” PLM’s Reply Supp. Mot. Amen d at 2 (citing Nobelle.com, LLC v. Qwest Commc’ns Int’l, Inc ., 66 U.S.P.Q.2d 1300, 1303 (T.T.A.B. 2003 )). The Lanham Act provide s that “petition to cancel a registration of a m ark . . . may . . . be filed . . . by any pe rson who believes that he is or will be damaged . . . by the registration of the mark.” 15 15 U.S.C. § 1064 (emphasis added). Next, PLM incorporates the Morehouse defense, which states that “the opposer cannot be damaged . . . by the issuance to the applicant of a second reg istration where ap plicant already has an existing registration of the same mark for the same goods.” Morehouse Mfg. Corp. v. J. Strickland &
Co. , 407 F.2d 881, 884 (C.C.P.A. 1969) (em phasis added). Up to th is point, PLM’s argument is that PROLACTO cannot be damaged by the registration of the LA I NDITA MICHOACANA mark, and thus PROLACTO lacks standing. See PLM’s Reply Supp. Mot. Amend at 2–5. Next, PLM argues that this argum ent cannot be waived, because “ standing is not subject to waiver.” PLM’s Reply Supp. Mot. Amend at 5. As courts of limited j urisdiction, federal courts are “under an independent obligation to examine their ow n jurisdiction, and standing ‘is perhaps the most important of [ the jurisdictional] doctrines.’” United States v. Hays , 515 U.S. 737, 742 (1995) (alteration in or iginal) (quoting FW/PBS, Inc. v. Dallas , 493 U.S. 215, 230–231 (1990)). Furthermore, as PLM correctly points out, because sta nding is a jurisdictional

15 The Lanham Act’s threshold for standing is the same in a conte xt of a petition to cancel or an opposition to a registration. See Lipton Indus., Inc. v. Ralston Purina Co. , 670 F.2d 1024, 1028–29 (C.C.P.A. 1982); McCarthy on Trademarks § 20:46.29 requirement, it “remains open to rev iew at all stages of litiga tion.” PLM’s Reply Supp. Mot. Amend at 6 (quoting Nat’l Org. for Women v. Scheidler , 510 U.S. 249 (1994)). Thus, PLM concludes that—even at this late stage of the li tigation—it canraise the Morehouse defense through the trapdoor of standing. The problem with PLM’s clever ar gument is that it incorrectly c onflates the constitutional “case or controversy” requirement with the standing requirement found in the Lanham Act. Article III of the United States Constitution requires the plai ntiff to make out a “case or controversy” in order to have st anding to sue in federal court. See Warth v. Seldin , 422 U.S. 490, 498 (1975). PLM relies on this c onstitutional form of standing when it argues that a court must consider standing arguments at al l stages of the litigation and those arguments cannot be waived.
See PLM’s Reply Supp. Mot. Amend at 5–6. But the standing requirem ents to proceed before an administrative agency are not the same. See Ritchie v. Simpson , 170 F.3d 1092, 1094 (Fed. Cir. 1999); Guantanamera Cigar Co. v. Corporacion Habanos, S.A. , 729 F. Supp. 2d 246, 251 (D.D.C. 2010). Statutory law, not t he “case or controversy” re quirement, determines the standing requirements for ma tters brought before an agency. See Ritchie , 170 F.3d at 1095 (collecting cases). A federal c ourt must always be alert to co nstitutional standing problems because they implicate the court’s jurisdiction. See Hays , 515 U.S. at 742. But PLM has presented no authority that the Lanham Act’s statutory standing requirement implicates similar jurisdictional concerns. At any rate, the Court finds tha t PROLACTO has standing under the generous standard of the Lanham Act. The relevan t provision grants standing to a ny party that “be lieves that he would be damaged by the registr ation of a mark.” 15 U.S.C. § 1 063. The party must only show a “real interest” in the proceedings and a “reasonable basis” f or his belief of damage. See30 Ritchie , 170 F.3d at 1095. The requirement for standing is “fairly ea sy to satisfy in the vast majority of cases.” McCarthy o n Trademarks § 20:46. The TTAB had no doubt that PROLACTO had standing. See Productos Lacteos Tocumbo S.A. De C.V. v. Paleteria La Michoacana, Inc. , 98 U.S.P.Q.2d 1921, 2011 WL 2161071, at *8–9 (T.T.A.B. 2011). This Court agrees. For the purposes of evaluati ng standing under the Lanham Act, a“real interest” is a “direct and personal stake in t he outcome of the” opposition or cancellation. Ritchie , 170 F.3d at 1095. A party must also have a “reasonable basis in fact” for its belief in damages, although a purely subjective beli ef is insufficient. Id. at 1098 (quoting Universal Oil Prods., Co. v. Rexall Drug & Chem. Co. , 463 F.2d 1122 (C.C.P.A. 1972)). I n light of the competing, c onfusing marks at issue and the fact that PLM and PROLACTO are direct competit ors, PROLACTO has a “direct and personal stake” in t he outcome of the cancellation and a “reasonable basis in fact” that it could be damaged. 16 Cf. Guantanamera Cigar Co. , 729 F. Supp. 2d at 252 (“Given the

16 PLM is correct that one of th e TTAB decisions it relies on see ms to conflate standing and the Morehouse defense. See Place for Vision, Inc. v. Pearle Vision Ctr., Inc. , 218 U.S.P.Q. 1022, 1983 WL 51990, at *1 (T.T.A.B. 1983) (“An opposer cannot suffer damage, within the meaning of Section 13 of the Trad emark Act, by the issuance of a registration if the applicant for such registration already owns an unchallenged registration of that mark for the same goods.” (citing Morehouse Mfg. Corp. v. J. Strickland & Co. , 407 F.2d 881 (C.C.P.A. 1969)). Notably, the Place for Vision decision does not use th e term “standing.” Recent decisions, b efore both federal courts and the TTAB, consistently evaluate the Morehouse defense as an affirmative defense, not an obstacle to standing. See, e.g. , O-M Bread , 65 F.3d at 938 (“The prior registration or Morehouse defense is an equitable defense . . . .”); Tillamook Country Smoker, Inc. v. Tillamook Cty. Creamery Ass’n. , 333 F. Supp. 2d 975, 986 (D. Or. 2004) (“[T]he priorregistration or Morehouse doctrine has been described as ‘an equitable defense in the nat ure of laches or acquiescence.’” (quot ing McCarthy on Trademarks § 20:38)), aff’d 465 F.3d 1102 (9th Cir. 2006). A recent TTAB decision considering consolidated op position proceedings, for instance, noted that, “[i]n none of the proceedings has standin g been contested,” and then separately considered t he application of the Morehouse defense to one of the oppositions. See Mag Instrument, Inc. v. Brinkmann Corp. , 96 U.S.P.Q.2d 1701, 2010 WL 3253200, at *7–8 (T.T.A.B. 2010); see also Blackhorse v. Pro Football, Inc. , 98 U.S.P.Q.2d 1633, 2011 WL 1886402, at *6 (T.T.A.B. 2011) (“Lack of standing is not an aff irmative defense. Standing is an element of petitioners’ claim.”).31 global economy, it seems fairly ob vious that Habanos’ mark is m ore valuable if no one owns the GUANTANAMERA mark in the U.S., e ven if Habanos does not.”). Furthermore, to the extent const itutional standin g is relevant here, the analysis turns on
PLM’s standing, not PROLACTO’s. The Supr eme Court has made clear tha t the plaintiff bears the burden of establishing standing. See DaimlerChrysler Corporation v. Cuno , 547 U.S. 332, 342 n.3 (2006). The constitutional standing analysis considers whether the plaintiff has experienced an injury that is f airly traceable to the defendant and redressable by the court. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61 (1992). Furthermore, the plaintiff must demonstrate standing for each separate claim. See Monsanto Co. v. Geertson Seed Farms , 561 U.S. 139, 153 (2010). As the Plaint iff in this action, PLM, no t PROLACTO, brought Count I seeking reversal of the TTAB decision. See 2d Am. Compl. ¶¶ 42–48. Therefore, any constitutional standing inquiry w ould examine PLM, not PROLACTO

. 17 Thus, the Court concludes that the Morehouse defense does not implicate constitutional standing in this case. Therefore , the Court rejects PLM’s argu ment that the Morehouse defense cannot be waived because it rais es standing concerns. To the c ontrary, a party’s litigation conduct can generally waive affirm ative defenses, including equ itable defenses. See Jones v. D.C. Dep’t of Corr. , 429 F.3d 276, 280 (D.C. Cir. 2005) (“We c onclude the district court erred in

17 Because PLM is the Plaintiff, the Court does not need to addre ss the complicated question of whether statutory s tanding in an administrative pro ceeding necessarily gives the party constitutional standing to a ppeal the outcome of that pro ceeding in federal court. See 13B Charles Wright & Arthur Miller, Federal Practice & Procedure § 3531.13 (3d ed. 2016) (asserting that “there are strong reasons to extend . . . admin istrative standing into standing for judicial review,” but noting that “many cases adhere to the vie w that recognition of standing to appear in agency proceedings does not of itself establish Artic le III standing to seek judicial review”). Cf. Fund Democracy, LLC v. SEC , 278 F.3d 21, 27 (D.C. Cir. 2002) (“Because agencies are not constrained by A rticle III, they may permit pe rsons to intervene in the agency proceedings who would not have sta nding to seek judicial review of the agency action.”).32 granting summary judgment based on the Faragher–Ellerth defense in a case in which the defense had not been raise d in the pleadings.”); Dole v. Williams Enterprises, Inc. , 876 F.2d 186, 189 (D.C. Cir. 1989) (footnote omitt ed) (“[O]ur understanding o f affirmative defenses, buttressed by years of experi ence under Rule 8(c) . . . , is th at these defenses place the burden on the party raising them to affi rmatively plead the claim . . . . ”); Ruffin v. New Destination , 800 F. Supp. 2d 262, 268 (D.D.C. 2011) (“Defenda nts did not raise this affirmative defense in their answer, and therefor e it is waived.”); see also Fed. R. Civ. P. 8(c) (re quiring the pleading of affirmative defenses). For PLM to rely on the Morehouse defense at this late stage in the litigation, it must demonstrate th at it has preserved the issue by raising the argument at the proper time. b. PLM has not Preserved an Argument Relying on the Morehouse Defense PLM argues that it “never waive d any argument as to standing; r ather, PLM has pleaded and argued standing since incep tion.” PLM’s Reply Supp. Mot. A mend at 6 n.5. This again misstates the argument that is su bject to waiver. As the Court has previously explained, PLM is now seeking to rely on the Morehouse defense, an equitable defens e, not standing, which is an element of a petitioner’s claim that guarantees that the party has a minimum, threshold interest in cancelling or opposing a registration. See supra Part IV.B.2–3.a. Thus, the Court will review the extensive record in this litigation, as well as consider in stances where PLM claims it “pleaded and argued” standing, to d etermine whether PLM raised the Morehouse defense at those times. The parties’ briefs related to a motion in limine contain the m ost significant discussion of the Morehouse defense in this litigation. Befor e trial, PROLACTO filed a mot ion to prevent PLM from raising tacking arguments. See Def.’s Mot. In Limine & Supp. Mem. Exclude Any33 “Tacking” Arguments (“PROLACT O’s Tacking MIL”), ECF No. 185. P ROLACTO’s motion incorrectly conflated tracking with the Morehouse defense. PROLACTO’s Tacking MIL at 7. In response, PLM more accurately laid out the parameters of the Morehouse defense, as well as its differences from tacking. See Pls.’ Opp’n Def.’s Mot. In Li mine Exclude Any “Tacking” Arguments (“PLM’s Opp’n Tack ing MIL”) at 5, ECF No. 192. At that time, PLM als o argued that the “ Morehouse defense is entirely irrelevant to PROLACTO’s counterclaims and therefore, PLM did not have any ob ligation to plead it in its Answer in this district court action.” PLM’s Opp’n Tacking MIL at 6. However, PLM also argued that it did raise the Morehouse defense at the TTAB and contended that the TTAB reached the wrong result when it determined that PLM had not pl eaded the defense. See PLM’s Opp’n Tacking MIL at 6; see also Productos Lacteos Tocumbo , 98 U.S.P.Q.2d 1921, 2011 WL 2161071, at *5 (finding that PLM did not plead the Morehouse defense). In support of that conclusion, PLM points to its Answer in the TTAB proceedings, w hich states that “[PLM] alleges [PROLACTO] is not lik ely to be damaged by Registrant’s mark, and therefore, lacks standing to cancel the registrat ion of the same.” PLM’s Opp’n Tacking MIL, Ex. A at 5, ECF No. 192-1. The Court is not convinced that th is discussion preserves PLM’s ability to rely on the
Morehouse defense. First, PLM explicitlyargued that it “had no obligati on or opportunity to plead the Morehouse ‘prior registration’ in this di strict court action.” PLM’s Opp ’n Tacking MIL at 5. Second, the Court notes that the Answer PLM filed inthe TTAB action contains a general defense that does not ref erence PLM’s prior registratio n of its two Indian Girl marks or the Morehouse defense in general. Third, the discussion appears in the conte xt of PLM’s opposition to one of PROLACTO’s motions in limine. PLM had man y opportunities to raise this34 issue in its motion for summar y judgment, at trial, or in its p ost-trial briefing. But PLM never raised the issue in any developed way. For instance, PLM contends that it preserved this argument by r aising it in one of the footnotes in its pos t-trial brief. See PLM’s Reply Supp. Mot. Amend at 6 n.5. The relevant portion of that footnote states: After receiving the Office Acti on [refusing registration of its Indian Girl design], PROLACTO did not oppose or otherwis e seek to prevent registrati on of PLM’s then-pending application for LA INDITA MICHOACANA and Design, o r seek to cancel PLM’s two registered marks. This fact weighs in favor of concluding that PROLACTO acquiesced to the reg istration of PLM’s “LA INDITA MICHOACANA + Design” mark, and also de monstrates PROLACTO’s del ay in asserting its rights such that PROLACTO’s claims should be barr ed under the doctrine of laches, as explained further below. See Pl.’s [Proposed] Findings of Fact and Conclusions of Law (“PLM’ s Post-Trial Brief”) ¶ 112 n.39, ECF No. 309. The footnote menti ons acquiescence and PLM’ s two registered marks, but it provides no citation to authorit y or structured legal argument. The footnote appears in a section of the brief dedicated to the separate issue of estoppel. See PLM’s Post-Trial Brief ¶¶ 111–26. In fact, PLM’s proposed findings of fact and conclusions of lawtotal more than 120 pages, but PLM can only point to a single, uns upported sentence in a footn ote. 18 That reference is not sufficient to preserve the ri ght to raise this issue. The D.C. Circuit has made cle ar that “[i]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do coun sel’s work.” New York Rehab. Care Mgmt., LLC v. NLRB , 506 F.3d 1070, 1076 (D.C. Cir. 2007); see also Armstrong v.

18 PLM also points to another foot note in its post-trial brief, see PLM’s Reply Supp. Mot. Amend at 6 n.5, but the Court fails to understand how that footnote raises the Morehouse defense, even if generously construed, see PLM’s Post-Trial Brief a t ¶ 148 & n.46. Instead, the relevant paragraph discusses laches, see id. , which is a distinct equitable defense, see McCarthy on Trademarks § 20:74. The cases c ited in the paragraph that c ontains the footnote all specifically address the doctrine of laches. See PLM’s Post-Trial Brief at ¶ 148.35 Geithner , 608 F.3d 854, 858 n.** (D.C. Cir. 2010) (a court is not requi red to “address an argument raised only cursorily i n a footnote.”). Another courtin this district ref used to consider an argument on reconsideration, whe re the party originally “ges tured at the issue in a twosentence footnote” and “made no attempt to explain how [the rel evant] standard applie[d] in [that] case.” GSS Grp. Ltd. v. Nat’l Port Auth. , No. 09-1322, 2011 WL 13121428, at *5 (D.D.C. Aug. 10, 2011). In a similar vein, the D.C. Cir cuit upheld a decision denying amotion for reconsideration on the question of duress where the party “mention[ed] duress o nly in passing and le[ft] any possible duress ‘argument’ entirely undeveloped.” See Keyes v. District of Columbia , 372 F.3d 434, 437, 439 (D.C. Cir. 2004) (alterations in original). Othe r circuits have reached similar conclusions. See, e.g. , Muskrat v. Deer Creek Pub. Sch. , 715 F.3d 775, 790–91 (10th Cir. 2013) (finding that “the district court correctly conc luded that the Muskrats had never raised a Fourth Amendment argument before their post-summary judgment Rule 59(e ) motion” where they included only a “single referen ce to the Fourth Amendment”); Lekas v. Briley , 405 F.3d 602, 614 n.8 (7th Cir. 2005) (“These statements alone—made without any reference to relevant legal authority, and strewn about in hi s brief in the context of defe nding other, well-articulated claims—do not suffice to mount a legal argument . . . .”); see also United States v. Dunkel , 927 F.2d 955, 956 (7th Cir. 1991) (explai ning in a different contex t that “[j]udges are not like pigs, hunting for truffles buried in brie fs”). The Court finds that this footnote fails to preserve the issue of the Morehouse defense because it alludes t o the issue only opaquely—if at all —and it does not provide any legal argument or authority. The remainder of PLM’s purporte d instances of preserving the Morehouse defense are also unavailing. First, PLM argues that its Answer to PROLACTO ’s Counterclaims “pleaded36 lack of standing or likelihood of damage.” PLM’s Reply Supp. M ot. Amend at 6 n.5. The defense simply states that PRO LACTO “has not been damaged in an y amount, manner, or at all by reason of any act alleged againstPLM.” Pls.’ Answer to Cro ss-Action & Counterclaims (“PLM’s Answer”) at 15, ECF N o. 42. The general language in th at affirmative defense does not specifically refer to the Morehouse defense, and without subsequentargument, fails to preserve the issue after the Court has issued a judgment. Second, PLM argues that it als o pleaded laches and acquiescence in its Answer. See PLM’s Reply Supp. Mot. Amend at 6 n.5 (citing PLM’s Answer at 1 5). It is true that the
Morehouse defense is “an equitable defens e in the nature of laches or acq uiescence.” Tillamook Country Smoker, Inc. v. Tillamook Cty. Creamery Ass’n. , 333 F. Supp. 2d 975, 986 (D. Or. 2004) (quoting McCarthy on Trademarks § 20:38), aff’d 465 F.3d 1102 (9th Cir. 2006). But simply referring to the defenses of lach es and acquiesce is not the same as raising the Morehouse defense. Although these doctrines are surely re lated, they are not identical. PLM’s briefing, in fact, specifically addresses lach es and acquiescence, without r aising the Morehouse defense. See, e.g. , Pls.’ Mot. Partial Summ. J . at 37, ECF No. 114 (arguing that PROLACTO should not be awarded monetary relief because of the doctrines of acquiesc e and laches); Pls.’ Opp’n to Def.’s Mot. Summ. J. at 42, ECF No. 120 (arguing that laches ba rs all of PROLACTO’s claims). The Court finds that those refe rences to equitable doctrines ge nerally do not preserve an argument under the Morehouse defense. The Court has reviewed the insta nces where PLM argues it previo usly raised the
Morehouse defense. The Court finds that P LM has not previously raised th is argument, and therefore cannot raise it here for the fir st time on reconsider ation. See District of Columbia v.
Doe , 611 F.3d 888, 896 (D.C. Cir. 2010). Enforcing this rule “pro tect[s] both the integrity of the37 adversarial process in which pa rties are expect ed to bring all arguments before the court, and the ability of the parties and othe rs to rely on the finality of ju dgments.” U.S. Commodity Futures Trading Comm’n v. McGraw–Hill Cos. , 403 F. Supp. 2d 34, 36 (D.D.C. 2005). This result also accords with the fact that amendment of a judgment under Rule 5 9(e) is an “extraordinary remedy which should be used sparingly.” Mohammadi v. Islamic Republic of Iran , 782 F.3d 9, 17 (D.C. Cir. 2015) (quoting 11 7C Cha rles Wright & Arthur Mill er, Federal Practice & Procedure § 2810.1 (3d ed. 2012)). In light of t his standard, the Courtdenies PLM’s motion to amend the judgment because PLM has not preserved any argument b ased on the Morehouse defense. 19
C. PROLACTO’s Motion to Amend Fi ndings and to Amend the Judgme nt PROLACTO has also moved to amend t he Court’s findings and to am end the judgment. See generally PROLACTO’s Mot. Amend. PROLACT O argues that the Court should a mend its finding that two of PLM’s Indian Gir l marks are incontestable, which in turn requires amendment of the Court’s judgment on Count III. Specifically, PROLACTO argues that “Count III should be dismissed and the permanent injunction vacated.” PROLACTO’s Mot. Amend at 3. In response, PLM contends that PR OLACTO waived the argument by failing to raise it at the proper time, that PROLACTO’s inc ontestability argument is incor rect, and that PROLACTO’s argument is irrelevant because the marks in question are presum ptively valid, even if they are not incontestable. See Pls.’ Opp’n Def.’s Mot. Amend F indings & Amend the Judgment (“P LM’s Opp’n Mot. Amend”) at 1–2, ECF No. 353. For the reasons explai ned below, the Court will

19 Because the Court finds that PLM has waived any argument based on the Morehouse defense, the Court does not reac h the merits of that argument.38 deny PROLACTO’s motion because it has waived the incontestabili ty argument by failing to raise it in a timely manner. 1. The Court’s Findings and Judgment The Court addressed the incont estability of two of PLM’s IndianGirl marks in its findings of facts. See PLM VI, 188 F. Supp. 3d 22, 48 (D.D.C. 2016). The Court found that: PLM, Inc., which owned the marks as the successor to Ignacio Gu tierrez’s sole proprietorship, filed applications to register both the Indian Girl with Paleta and Indian Girl with Cone marks on November 19, 2003. The USPTO is sued Registration No. 2,905,172 for the Ind ian Girl with Paleta on N ovember 23, 2004 and issued Registration No. 2,968,652 f or the Indian Girl with Cone on July 12, 2005. See Pls.’ Exs. 35 and 36. Both registrations became “incontestabl e” pursuant to 15 U.S.C. § 1065 on December 12, 2014 upon PLM’s fi ling of Section 15 affidavits with the USPTO. Id. In its consideration of PLM’s C ount III, the Court concluded th at “PLM’s registrations for its Indian Girl with Paleta and Indian Girl with Cone have become incontestable pursuant to § 1065,” and rejected “PROLACTO’s va rious arguments contesting the validity of the marks and PLM’s ownership of them.” Id. at 105. In a footnote, the Court also noted that PROLACTO had not “attempt[ed] to belatedly a ssert or cite any of the enumera ted defenses to incontestability in its proposed findings of fact a nd conclusions of law, though it ‘disputes’ the in contestability of PLM’s marks without provi ding any explanation.” Id. at 105 n.58. Ultimately, the Court held that “P ROLACTO’s use of PLM’s regist ered, incontestable trademarks constitutes infringement under 15 U.S.C. § 1114(1)(a )” and the Court “enter[ed] judgment on Count III for PLM accordingly.” Id. at 107. Now, PROLACTO moves to amend the Court’s findings and judgment on this issue. See generally PROLACTO’s Mot. Amend.39 2. PROLACTO’s Incontestability Argument PROLACTO’s argument turns on the validity of PLM’s Section 15 a ffidavits. Section 15 of the Lanham Act sets forth the conditions that allow a regist ered mark to become “incontestable” after it has been in continuous us e for five consecutive years. See 15 U.S.C. § 1065. A mark can only become incontestable if: “( 1) there has been no final deci sion adverse to the owner’s claim of ownership of such mark for such goods or services, or to the owner’s right to re gister the same or to keep the same on the regis ter; and (2) there is no procee ding involving said rights pending in the United States Patent and T rademark Office or in a court and not finally disposed of.” Id. § 1065(1)–(2). A Section 15 affidav it filed with the USPTO must state that the mark meets these requirements, among others. See § 1065(3); 37 C.F.R. § 2.167. PROLACTO argues that PLM “could not meet that standard when it filed the two Section 15 affidavits on November 21, 2014.” PROLACTO’s Mot. Amend. at 6. Each of the affidavits, which PLM’s counsel in this lit igation filed with the USPTO, st ates: There has been no final decision a dverse to the owner’s claim o f ownership of such mark for such goods/services , or to the owner’s right to r egister the same or to keep the same on the register; and there is no proceeding involving said rights pending and not disposed of either i n the United States Patent and Trademark Office or in a court. PROLACTO’s Mot. Amend, Decl. of Stephen L. Anderson (“1st Ander son Decl.”), Exs. A & C. PROLACTO notes that PLM filed the affidavits on the same day th at the parties participated in a teleconference in this case. See PROLACTO’s Mot. Amend at 8 (citing Min. Entry (Nov. 21, 2014)). PROLACTO argues that the affidavits were “knowingly fa lse” because the “validity and ownership of PLM’s asserted Indian Girl Design registrations we re still pending.” PROLACTO’s Mot. Amend at 8

. In this action, PROLACTO sought t he cancellation of the two Ind ian Girl registrations because of fraud and abandonment. See Ans. 2d Am. Compl. & Countercls. ¶¶ 64–87 (setting40 forth Counterclaim Counts V-V II). The Court’s ruling on the pa rties’ cross-motions for partial summary judgment ruled in favor of PLM on those Counterclaims. See PLM IV , 69 F. Supp. 3d 175, 223–27 (D.D.C. 2014). PROLACTO co rrectly notes that the C ourt subsequently stated that the summary judgment ruling was an interlocutory order. See Mem. & Order at 3, ECF No. 174;
see also Fed. R. Civ. P. 54(b) (“[A]ny or der or other decision . . . tha t adjudicates fewer than all the claims . . . does not end the a ction as to any of the clai ms or parties and may be revised at any time before the entry of a judgment adjudicating all the cl aims . . . .”). Thus, PROLACTO concludes that—contrary to bot h Section 15 and PLM’s affidavits —the validity of PLM’s Indian Girl designs was still the subject of a pending proceeding. 20
PROLACTO also addresses the No tices of Acknowledgement of the declarations issued by the USPTO, which state that “[ t]he affidavit of incontestabi lity filed in conne ction with the registration identified below meet s the requirements of Section15 of the Trademark Act, 15 U.S.C. § 1065. The affidavit is acknowledged.” See 1st Anderson Decl., Exs. B & D. The acknowledgment process requires ve rification that the affidavit contains all of the necessary information. See 37 C.F.R. § 2.167(i). When USPTO acknowledges a Section 15 aff idavit, it does not “accept” it, but inste ad the “function . . . is the mi nisterial one of receiving said affidavits and noti ng their receipt.” Arman’s Systems, Inc. v. Armand’s Subway, Inc. , 215 U.S.P.Q. 1048, 1982 WL 54195, at *2 n.2 (T.T.A.B. 1982). The T rademark Manual of Examining Procedure states that “[t]he question of whether the registration is incontestable arises

20 PLM argues “that at the time PL M filed the affidavits of incon testability, there was no pending counterclaim challenging P LM’s Indian Girl With Pale ta and Indian Girl With Cone registrations because this Court had entered summary judgment o n those claims in PLM’s favor.” PLM’s Opp’n Mot. Amendat 11. For the reasons explain ed below, the Court does not reach the merits of the parties’ arguments on this point.41 and is determined by a court if t here is a proceeding involving the mark.” Trademark Manual of Examining Procedure § 1605 (Jan. 2017 ed.), https://tme p.uspto.gov/RDMS/TMEP/curren t#/ current/TMEP-1600d1e1463.html. After raising these issues, PRO LACTO argues that the Court shou ld amend its findings to remove any reference to the incon testability of PLM’s Indian Gi rl registrations. See PROLACTO’s Mot. Amend at 9. PROLAC TO also makes a related argu ment that “no evidence regarding the purported incontesta bility of the Indian Girl Des igns was timely or properly introduced into evidence into thi s case.” PROLACTO’s Mot. Amen d at 5. In light of its suggested factual amendment, PRO LACTO asserts that the Court mu st also amend its judgment to dismiss Count III and vacate the permanent injunction. PROL ACTO’s Mot. Amend at 14. 3. Waiver The question before the Court is whether PROLACTO can rely on i ts incontestability argument at this stage of the litigation. A Rule 52(b) motion to amend factual findings does not provide a “second opportunity . . . to advance new theories by moving to amend a particular finding of fact or conclusion of law.” Salazar v. District of Columbia , 685 F. Supp. 2d 72, 75 (D.D.C. 2010) (quoting 9C Charl es Wright & Arthur Miller, Federal Practice & Procedure § 2582 (3d ed. 2009)); see also Diocese of Winona v. Interstate Fire & Cas. Co. , 89 F.3d 1386, 1397 (8th Cir. 1996) (finding that a party could not use a 52(b ) motion to raise an argument that could have been raised prior to the entry of a judgment); Fontenot v. Mesa Petroleum Co. , 791 F.2d 1207, 1219 (5th Cir. 1986) (explaining that a Rule 52(b) m otion should not be employed “to advance new theories”). Similarly, as the Court noted in the context of PLM’s motion to amend, a Rule 59(e) motion to amend a judgment is not a n escape hatch “to raise arg uments . . . that could have been42 raised prior to the e ntry of judgment.” Exxon Shipping Co. v. Baker , 554 U.S. 471, 485 n.5 (2008) (quoting 11 Charles Wri ght & Arthur Miller, Federal Practice & Procedure § 2810.1 (2d ed. 1995)). And, “[i]t is well settl ed that an issue presented for the first time in a motion pursuant to Federal Rule of Civil Procedure 59(e) generally is not timely raised.” District of Columbia v. Doe , 611 F.3d 888, 896 (D.C. Cir. 2010) (quoting Holland v. Big River Minerals Corp. , 181 F.3d 597, 605 (4th Cir. 1999)). In f act, several courts have noted that th e standard for a 52(b) motion is nearly identi cal to the standard under Rule 5 9(e). See, e.g. , Covertech Fabricating, Inc. v. TVM Bldg. Prod., Inc. , No. 13-0150, 2015 WL 6743948, at *2 (W.D. Pa. Nov. 4, 2015); Kline v. Archuleta , 309 F.R.D. 91, 93 (D.D.C. 2015), aff’d sub nom. Kline v. Cobert , No. 15-5248, 2016 WL 1272945 (D.C. Cir. Feb. 10, 2016); Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc. , 762 F. Supp. 2d 710, 717 n.4 (D. Del. 2011), vacated on other grounds , 711 F.3d 1348 (Fed. Cir. 2013); FINOVA Capital Corp. v. Richard A. Arledge,
Inc. , 2007 WL 1965335, at *2 (D. Ariz. July 2, 2007). PROLACTO has certainly had many oppor tunities to raise the inco ntestability issue. PLM filed the Section 15 affi davits on November 21, 2014 and th e USPTO issued acknowledgments on December 12, 2014. See 1st Anderson Decl., Exs. A

– D. Since those dates, the relevant documents have been publicly available on the USPTO website. Furthermore, PLM repeatedly raised the inc ontestability of the marks. First , PLM indicated in the parties’ joint pretrial statement that it s Indian Girl with Cone design registration was incontestable. 21 See Parties’ Joint Pretrial Statement at 14, ECF No. 182.

21 The Court notes that the chart i n the pretrial statement indic ates that PLM’s Indian Girl with Cone mark is incontestabl e, but, confusingly, it does not include the same information for PLM’s Indian Girl with Paleta mark. See Parties’ Joint Pretrial Statement at 14, ECF No. 182.43 Second, PLM’s proposed findings of fact and conclusions of law also make multiple references to incontestability. T he very first page of PLM’s p ost-trial brief states that LA INDITA MICHOACANA “was the thir d U.S. Trademark Registration th at PLM obtained: the USPTO issued the first two sev eral years before, which have sin ce become incontestable.” PLM’s Post-Trial Brief at 1. A table depicts both of the purpo rtedly incontestable marks, as well as the date that USPTO acknowle dged the Section 15 affidavits. PLM’s Post-Trial Brief at 1. Later in the same brief, PLM aga in includes a chart depicting the two marks and labeling them “[i]ncontestable as of 12/12/2014.” PLM’s Post-Trial Brief ¶ 1 55. The next paragraph states in full: “PLM (Sub), Inc. is the current owner and registrant of P LM’s three registered marks shown above, two of which, namely Reg. Nos. 2,905,172, and 2,968,652, became incontestable on December 12, 2014.” PLM’s Post-Tr ial Brief ¶ 156. PROLACTO’s reply brief states that it “does not dispute” the conclusions of either paragraph 155 or 156. See Def.’s Reply & Opp’n Pls.’ [Proposed] Findings of Fact& Conclusions of Law (“PROLAC TO’s Post-Trial Reply”) ¶¶ 155

– 56, ECF No. 315 (emphasis added). PLM’s post trial brief also inc ludes legal argument on the effe ct of the purportedly incontestable registered marks. See PLM’s Post-Trial Brief ¶¶ 167–71. In the midst of several paragraphs of argument, PLM asse rts that “[b]oth of these Indian Girl Design marks are conclusively presumed to be dist inctive, and thus, cannot be ch allenged as being merely descriptive or lacking secondary meaning.” PLM’s Post-Trial Br ief ¶ 169. PROLACTO responds simply that it “disputes Plaintiff’s Conclusion Nos. 1 67–170” and “Conclusion Nos. 171–172.” PROLACTO’s Post-Trial Reply ¶¶ 167

– 68. That threadbare asse rtion certainly did not raise the incontestability argument that PROLACTO brings fo rward now. In fact, PROLACTO does not point to anywhere in this drawn-out litigatio n where it challenged the44 incontestability of PLM’s Indi an Girl marks on the grounds it r elies on now. A search of PROLACTO’s post-trial briefing r eveals a lone paragraph that us es the terms “incontestable” or “incontestability,” a nd that paragraph addr esses the incontesta bility of one of PROLACTO’s own marks. See Def.’s Proposed Findings of Fact and Conclusions of Law ¶ 19, E CF No. 311. In response to PLM’s waiver argum ent, PROLACTO cites only Rule 52(a)(5) and a single D.C. Circuit decision, In re Sealed Case , 552 F.3d 841, 850 (D.C. Cir. 2009). 22 Rule 52(a)(5) states that a party “ma y later question the sufficienc y of the evidence supporting the findings, whether or not the part y requested findings, objected to them, moved to amend them, or moved for partial findings.” Fed R. Civ. P. 52(a)(5). The pro blem with PROLACTO’s argument is that it is not truly attacking the sufficiency of the evidence. Instead, PROLACTO is making a legal argument about whether PLM met the standards req uired for a Section 15 affidavit. Furthermore, PROLACTO’s argumen t that “no evidence regarding th e purported incontestability of the India n Girl Designs was timely or prope rly introduced i nto evidence” misses the mark. See PROLACTO’s Mot. Amend at 5. The Court made clear that it took “judicial notice throughout [its Findings of Fact and Conclusio ns of Law] of information regarding federal trademark regis trations that is publicly avai lable through the USPTO’s Trademark Status & Document Retrieval Database.” 23 PLM VI, 188 F. Supp. 3d 22, 43 n.13

22 PROLACTO argues that this case stands for the proposition thatRule 52(a)(5) “allows a party to make [a sufficiency of the evidence] challenge as aninitial matter in the appellate court without ever having raised the issue in the trial court.” Def.’s Reply Supp. Mot. Amend Findings & Amend the Judgmentat 4, ECF No. 356. That may be t rue, but it does not follow that PROLACTO can raise its inc ontestability argument on recons ideration despite numerous decisions stating that a moti on under Rule 52(b) or 59(e) is no t an avenue to advancing new theories or arguments f or the first time. 23 PROLACTO takes issues with the Court’s taking judicial notice of these records. See PROLACTO’s Mot. Amend. 5 n.1. PROLACT O also made a slightly mo re developed, but substantially identical argumen t in its opposition to PLM’s mot ion to amend. See PROLACTO’s Opp’n Mot. Amend at 12. PROLACTO relies on two cases from the Fifth Circuit and one from45 (D.D.C. 2016). The public records show that PLM filed a Sectio n 15 incontestability affidavit for each of the Indian Girl marks at issue and that USPTO ackno wledged those affidavits. At this late stage in the litig ation, PROLACTO cannot raise a n ew legal argument attacking the validity of those a ffidavits. Aside from its ref erence to Rule 52(a)(5) and In re Sealed Case , PROLACTO has not put forward a ny other authority confronting the rule that a Rule 52(b) motion is not a “s econd opportunity . . . to advance new theories by moving to amend a particular finding of f act or conclusion of law.” Salazar , 685 F. Supp. 2d at 75 (quoting 9C Charles Wright & Arthur Miller, Federal Practice & Procedure § 2582 (3d ed. 2009)). Nor has PROLACTO explained why its mo tions should avoid the rule that “ an issue presented for the first time in a motion pursuant t o Federal Rule of Civil Proced ure 59(e) generally is not timely raised.” Doe , 611 F.3d at 896 (quoting Holland , 181 F.3d at 605). The Court finds that PROLACTO has waived its argument regarding the purported incontestability of PLM’s two I ndian Girl marks. Therefore, th e Court will deny PROLACTO’s motion. 24

the Second Circuit, but none of t he cases involves documents pu blicly filed with and maintained by the USPTO. See PROLACTO’s Mot. Amend. 5 n.1 (citing Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc ., 146 F.3d 66, 70–71 (2d Cir. 1998); Colonial Leasing Co. of New England v. Logistics Control Grp. Int’l , 762 F.2d 454, 461 (5th Cir. 1985), on reh’g sub nom. Colonial Leasing of New England, In c. v. Logistics Control Int’l , 770 F.2d 479 (5th Cir. 1985); Fireman’s Fund Ins. Co. v. Wilburn Boat Co. , 259 F.2d 662, 664 (5th Cir. 1958)). The Second Circuit decision in International Star Class Yacht Racing , for instance, involved a district court that “relied on s tatements of fact contained in its 1992 . . . opinion to establish prevailing trademark searc h practices.” 146 F.3d at 70. In tr uth, many courts have applied the standard of Federal Rule of Evi dence 201(b)(2) and determined that it would be appropriate to take judicial notice of publicly-available records maintained b y the USPTO. See, e.g. , Kaempe v. Myers , 367 F.3d 958, 965 (D.C. Cir. 2004); Kos Pharm., Inc. v. Andrx Corp. , 369 F.3d 700, 705 n.5 (3d Cir. 2004); Hoganas AB v. Dresser Indus., Inc. , 9 F.3d 948, 954 n.27 (Fed. Cir. 1993); Standard Havens Prods., Inc. v. Gencor Indus., Inc. , 897 F.2d 511, 514 n.3 (Fed. Cir. 1990); Vitek Sys., Inc. v. Abbott Labs. , 675 F.2d 190, 192 n.4 (8th Cir. 1982).
24 Because the Court finds that PR OLACTO has waived its objection to the incontestability of PLM’s Indian Girl registrations, the Court does not reach th e merits of that argument.46 V. PROLACTO’S MOTION FOR A NEW TRIAL Next, the Court turns to PROLACTO’s motion for a new trial purs uant to Federal Rule of Civil Procedure 59(b). See generally PROLACTO’s Mot. New Trial. PROLACTO argues that PLM’s registration and use of the domain name “laflordemichoacan.com” constitutes “newly discovered evidence of PLM’s ba d faith, unfair competition, and infringement.” PROLACTO’s Mot. New Trial at 2. PLM responds that the Court should not grant a new trial because PROLACTO could have found the evide nce before trial, because PR OLACTO presents the domain name only as impeachment evidence, and because the new e vidence would not change the outcome of this case. See Pls.’ Opp’n Def.’s Mot. for New Trial (“PLM’s Opp’n Mot. New Trial”) at 1–2, ECF No. 354. Because the Court finds that the newly presented evidence would not change the outcome of the cas e, the Court will deny PROLACT O’s motion for a new trial. A. Legal Standard Federal Rule of Civil Procedure 59(a)(2) permits a court, on a motion for a new trial after a nonjury trial, to “open the j udgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and d irect the entry of a new judgment.” Fed. R. Civ. P. 59(a)(2 ). A parties’ motion Under Rule 59(a) to “reopen the trial record to submit additional proof ‘is addressed to [the court’s ] sound discretion.’” AshrafHassan v. Embassy of France , 185 F. Supp. 3d 94, 112 (D.D.C. 2016) (alteration in original ) (quoting Zenith Radio Corp. v. Hazeltine Research, Inc. , 401 U.S. 321, 331 (1971)). The purpose of Rule 59 is not “ relitigating o ld issues . . . or otherwise taking a ‘second bite at the apple.” Ashraf-Hassan , 185 F. Supp. 3d at 112 (quoting Barnes v. Alves , 304 F.R.D. 363, 366–67 (W.D.N.Y. 2015)). Furthermore, “[m]otions for a ne w trial are generally47 disfavored, and should only be granted with great caution.” Ashraf-Hassan , 185 F. Supp. 3d at 113 (quoting Chavez v. City of Albuquerque , 640 F. Supp. 2d 1340, 1343 (D.N.M. 2008)). Rule 59(a)(1)(B) makes clear thata court may grant a new trial , “after a nonjury trial, for any reason for which a rehearing ha s heretofore been granted ina suit in equity in federal court.” Fed. R. Civ. P. 59(a)(1)(B). Among other reasons, a court may grant a new trial following “the discovery of important new evidence.” Ashraf-Hassan , 185 F. Supp. 3d at 112 (quoting Azevedo v. Hous. Auth. of City of Sarasota , 147 F.R.D. 255, 257 (M.D. Fla. 1993)); see also Nyman v.
FDIC , 967 F. Supp. 1562, 1569 (D.D.C. 1997) (“Motions for a new tri al ‘must clearly establish either a manifest error of law or fact or must present newly di scovered evidence.’” (quoting FDIC v. Meyer , 781 F.2d 1260, 1268 (7th Cir. 1986))). To show that newly discovered evide nce requires a new trial, th e moving party must establish that: (1) the newly discovered evidence [is] of facts that existed atthe time of trial or other dispositive proceeding, (2) the [party seeking relief] mu st have been justifiably ignorant of [the ev idence] despite due diligence, ( 3) the evidence must be admissible and of such importa nce that it probably would hav e changed the outcome, and (4) the evidence must not be merely cumulative or impeaching. Lightfoot v. District of Columbia , 555 F. Supp. 2d 61, 68 (D.D.C. 2008) (alterations in original ) (quoting United States v. Int’ l Bhd. of Teamsters , 247 F.3d 370, 392 (2d Cir. 2001)). 25

25 Lightfoot describes the standard under Rul e 60(b) for vacating a judgmentdue to newly discovered evidence. See 555 F. Supp. 2d at 68. But the standa rds for relief under Rule s 60(b) and 59(a) are the same. See Compass Technology, Inc. v. Tseng Laboratories, Inc. , 71 F.3d 1125, 1130 (3d Cir. 1995); see also 11 Charles Wright & Arthur Miller, Federal Practice & Procedure § 2808 (3d ed. 2016).48 B. Analysis 1. The “laflordemichoacan.com” Domain Name The Court has previously found tha t PROLACTO owns two registere d trademarks that include the phrase “La Flor De Michoacan.” PLM VI, 188 F. Supp. 3d 22, 66 (D.D.C. 2016) (identifying U.S. Re g. Nos. 2,830,401 and 3,249,113). PROLACTO filed its application for the first of the two marks (U. S. Registration No. 2,830,401) with t he USPTO on April 18, 2001, and the mark was registered on A pril 6, 2004 and became “incontesta ble” pursuant to 15 U.S.C. § 1065 on July 30, 2009. Id. PROLACTO filed its applicat ion for the second mark (U.S. Registration No. 3,249,113) on Dec ember 8, 2005, and the mark w as registered on June 5, 2007. Id. During the TTAB proceedings that preceded this action, both mar ks that included the words “La Flor De Michoaca n,” were placed on the record. See Productos Lacteos Tocumbo S.A. De C.V. v. Paleteria La Michoacana, Inc. , 98 U.S.P.Q.2d 1921, 2011 WL 2161071, at *2, *8 (T.T.A.B. 2011). On May 20, 2011, the TTAB found that PROLA CTO “has priority of use with respect to . . . the mark[] . . . LA FLOR DE MICHOACAN.” Id. at *11. PROLACTO has produced a commercial report show ing that, less than two months later, Ignacio Gutierrez registered the domain name “laflordemichoacan.com” on behalf of Paleteria La Michoacana, Inc.
See PROLACTO’s Mot. New Trial, Decl. of Stephen Anderson (“2d Ande rson Decl.”) ¶¶ 5–6, ECF No. 345-1; 2d Anderson Decl., Ex. B at 3–4. The same report shows that the domain name was redirecting internet users to “ytupaleta.com,” which is the homepage for PLM’s website.
See 2d Anderson Decl. ¶ 7; 2d Anderson Decl., Ex. B at 43. PROLAC TO has also presented evidence from the Internet Arch ive’s WayBack Machine that appears to show that “laflordemichoacan.com” redirected to “ytupaleta.com” from at l east June 3, 2013 through March 4, 2016. See 2d Anderson Decl. ¶ 8; 2d Anderson Decl., Ex. C.49 PROLACTO states that it became aware of the domain name after r eviewing PLM’s motion to substitute PLM Operations as the sole Plaintiff in th is case. See PROLACTO’s Mot. New Trial at 5–6 (citing PLM Mo t. Sub.). The declaration of Mr . Robert Spigner accompanying PLM’s motion for substitution state d that PLM (Sub) “sold subst antially all of its assets” to PLM Operations, and that th e transaction was me morialized “in the B ill of Sale, General Assignment and Conveyance” attached to M r. Spigner’s declaration. See Spigner Decl. ¶ 3. Schedule 1 to the Bill of Sale, General Assignm ent and Conveyance sets forth the assets being transferred, and Annex D to that list includes va rious domain names including “l aflordemichoacan.com.” See Spigner Decl., Ex. B, schd. 1, annex D. After PROLACTO raised this issue with PLM, PROLACTO states that it found the domain name had been “parked” and that it no longer transferred users to “ytupaleta.com.” See 2d Anderson Decl. ¶ 12. On June 23, 2016, counsel for PLM info rmed PROLACTO that PLM would transfer the domain name to PROLACTO. 26 See 2d Anderson Decl. ¶ 12; see also PLM’s Opp’n Mot. New Trial, Decl. of Lau ra L. Chapman (“Chapman Decl. ”) ¶ 2, ECF No. 354-1; Chapman Decl., Ex. A, ECF No. 354-2. 2. Bad Faith PROLACTO’s core contention is that PLM’s registration of the “l aflordemichoacan.com” domain name is evidence of bad f aith. PROLACTO relies on two c ases from New York to

26 In its opposition to PROLACTO’s motion for a new trial, PLM do es not dispute these basic facts. See PLM’s Opp’n Mot. New Trial at 2–5. PLM’s recitation of the rel evant facts focuses on other issues, such as wh ether PROLACTO investigated the domain name, whether the internet plays a role in PRO LACTO’s advertising, whether PR OLACTO asked PLM to stop using the domain name, and wheth er consumers accessed the domai n name or PLM’s “ytupaleta.com” website. PLM’s Opp’n Mot. New Trial at 2–5. B ecause the Court will deny PROLACTO’s motion for a new tr ial on the basis that the newly d iscovered evidence would not change the outcome of the case, the additional facts put forth by PLM are irrelevant.50 support its argument. First, PROLACTO cites De Beers LV Trademark Ltd. v. DeBeers Diamond Syndicate, Inc. for the principle that an “inquiry into . . . bad faith ‘consid ers whether the defendant adopted its mark w ith the intention of capitalizi ng on the plaintiff’s reputation and goodwill and on any confusion between his and the senior user’s product.” 440 F. Supp. 2d 249, 278 (S.D.N.Y. 2006) (quoting Savin Corp. v. Savin Group , 391 F.3d 439, 60 (2d Cir. 2004)).
De Beers specifically states th at “the choice of Internet domain names” seeking to capitalize on name recognition and goodwill may be evidence of bad faith. Id. Second, PROLACTO cites Aztar Corp. v. NY Entertainment, LLC , for the principle that use of an infringing nam e after the party has notice of a trademark owner’s use of the original mark “evidence[s] bad faith.’” 15 F. Supp. 2d 252, 260 (E.D.N.Y. 1998), aff’d sub nom. Collins v. Aztar Corp. , 210 F.3d 354 (2d Cir. 2000). PROLACTO argues that PLM was we ll aware of PROLACTO’s two marks that included the words “La Flor De Michoacan” because of the TTAB proceeding , but that PLM nevertheless registered the domain name “laflordemichoacan.com” and diverted internet traffic to its own website. See PROLACTO’s Mot. New Trial at 8. P ROLACTO reasons that it would be “difficult to envision a scenari o in which PLM acquired this do main name for any reason other than bad faith.” PROLACTO’ s Mot. New Trial at 8. In response, PLM brie fly argues that the cases PROLACTO relies upon “do not apply,” because the cases co ncerned a junior user, meaning “the party who was second- in-time to use the disputed m ark.” PLM’s Opp’n Mot. New Trial at 11. PLM argues that the Court’s previous consideratio n of this issue means the issue of bad faith is inapplicable and tha t the existence of the domain name “does not change the outcome of the case.” PLM’s Opp’n Mot. New Trial at 11. At this stage of the l itigation, the relevant51 question is not whether the domai n name is evidence of bad faith, but whether the domain name entitles PROLACTO to a new trial under the standards of Federal Rule of Civil Procedure 59(a). 3. The Newly Discovered Eviden ce Cannot be Used for Impeachmen t Purposes PROLACTO appears to argue that PLM’s purported bad faith requir es a new trial because it calls into question testimony presented by PLM. See PROLACTO’s Mot. New Trial at 8. For instance, PROLACTO s uggests that the new evidence “s hines a more discriminating light on the credibility of PLM and the Gutierrez brothers, who se testimony led the Court to believe that the Gutierrez brot hers did not exhibit bad faith.” PROLACTO’s Mot. New Trial at 8. In other words, PROLACTO beli eves that “the Court decided t o view all of the Gutierrez brothers’ actions as innocent and taken in good faith,” but tha t this evidence could cause the Court to reconsider its evaluat ion. PROLACTO’s Mot. New Trial at 9. As PLM correctly points out, a c ourt should not grant a new tri al because of new evidence that is “merely cumulative or impeaching.” Lightfoot v. District of Columbia , 555 F. Supp. 2d 61, 68 (D.D.C. 2008) (quoting United States v. Int’ l Bhd. of Teamsters , 247 F.3d 370, 392 (2d Cir. 2001)); see also Freedom Watch, Inc. v. U.S. Dep’t of State , No. 14-1832, 2016 WL 6155928, at *2 (D.D.C. Oct. 21, 2016) (quoting Lightfoot and using same standard); Shafiiq v. Obama , 951 F. Supp. 2d 13, 17 (D.D.C. 2013) (sa me). PROLACTO does n ot dispute this longstanding rule, arguing inste ad that the cr edibility of witn ess testimony “is not the focus of PROLACTO’s request for a new trial.” See Def.’s Reply to Pls.’ Opp’ n to Def.’s Mot. for New Trial (“PROLACTO Reply Supp. M ot. New Trial”) at 13, ECF No. 35 7. Nevertheless, an element of PROLACTO’s argument for a new trial appears to rely on undermining the testimony of the G utierrez brothers. For insta nce, PROLACTO argues that the domain name “shines a more disc riminating light on the credibil ity of PLM and the Gutierrez52 brothers” and consideration of t he new evidence could cause the court to reconsider its decision to “view all of the Gutierrez br others’ actions as innocent and taken in good faith.” PROLACTO’s Mot. New Trial at 8–9. Using the domain name for th at purpose would fall under the classic definition of impeachment. See Impeachment , Black’s Law Dictionary (10th ed. 2014) (defining impeachment in this context to mean “[t]he act of discrediting a witness”). Newly discovered evidence does not entitle a party to a new tri al when it is merely cumulative or impeaching, and the Court will not grant a new trial for eviden ce of the domain name to be used for that purpose. 4. The Newly Discovered Evidence Would Not Change the Outcome But PROLACTO’s argument is broa der than simply calling into que stion the credibility of particular witnesses. PROLAC TO posits that PLM’s registrati on and use of the domain name “further highlights PLM’s wide -spread pattern of bad faith withrespect to PROLACTO’s marks.” PROLACTO’s Mot. New Tri al at 8. In other words, PROLA CTO believes that the additional evidence would cause the Court to reevaluate its ent ire analysis of the evidence and arguments on the bad faith issue. PROLACTO concludes that the domain name “goes to the issue of bad faith, a core issue in multiple claims in this lit igation, and such a finding of bad faith would alter the outcome in this case.” PROLACTO Reply Supp. Mo t. New Trial at 13. The parties’ arguments both attem pt to parse the Court’s prior decision on the issue of bad faith. PLM argues briefly tha t the Court previously decide d that “the issue of bad faith is ‘entirely inapplicable to PLM’s adoption of its marks’ because PLM is the national senior user of ‘La Michoacana’ and an Indian Gir l, and PROLACTO is the junior user.” PLM’s Opp’n Mot. New Trial at 11 (quoting PLM VI, 188 F. Supp. 3d 22, 88 (D.D.C. 2016)). PROLACTO argues that PLM “has blatantly mischaracterized” the Court’s reasoning , and that the Court “did not53 broadly determine that PLM’s ba d faith could not be considered and impactful in this case.” PROLACTO Reply Supp. Mot. New T rial at 9–10. Thus, the Court w ill begin by restating its prior holding on the bad faith issue. After examining the parties’ ar guments and the relevant case la w in detail, the Court determined that, if it was “t o hold that PLM was not entitled t o any rights in its marks on the basis of bad faith, despite the f act that it was first to use i ts marks in the Unite d States, it would appear that the Court would be the first to do so in the history of American trademark law.”
PLM VI, 188 F. Supp. 3d at 91. The Court noted that it was “dubious of the legal validity” of PROLACTO’s argument. Id. Nevertheless, the court assume d—without deciding—that the theory was valid, and found that PROLACTO failed to show that t he legal theory was applicable to the facts on the record. Id. The Court articulated the nov el theory of bad faith in the following way: [I]f a party adopts a mark in the United States that has been p reviously used in a foreign country and engages in vari ous forms of advertising wit h the intention of benefitting from the foreign us er’s goodwill and reputation by deceiving consumers as to the true origi n of its products—even if the for eign user has never used the mark in commerce in the United States and even if the foreign mark does not meet the requisite level of “ fame” under the famous mark do ctrine—then the party cannot obtain rights to the mark. Id. Based on the evidence on the rec ord, the Court found that the a ssumed theory was inapplicable. Specifically, the Court reached the following co nclusion: The Court has found that although the Gutierrez brothers adopte d the name “La Michoacana” because they had seen the name in Mexico, they did not believe that the term denoted a single sour ce of product in Mexico. The Court has also found that, in the United States, t he name does not, in fact, denote a single source of product. The Court has found that although I gnacio Gutierrez copied PLM’ s Indian Girl mark from similar marks that he had seen in Mexico and adopted it because he thought PLM’s target consumers would recognize the m ark, he did not believe that, in Mexico, the mar k denoted a single source of pr oduct, but, rather, believed that the mark was used i ndiscriminatel y by a variety o f paleterias in Mexico. The Court has also f ound that although Ignacio Gutierr ez adopted the Tocumbo Statement because he had seen similar, if not identical , language on54 packaging in Mexico, he believe d that various, sep arately-owned paleterias in Mexico used the language on the ir product pack aging even thoughit was not literally true as applied to eac h of them. Finally, the Court also found the absence of any credible evidence that a ny of PLM’s advertising statemen ts at issue influenced consumers’ decisions t o purchase or not purchase PLM ’s products or caused consumers to falsely belie ve that PLM’s products were ac tually PROLACTO’s products. Id. The Court now finds that PROLAC TO’s legal theory would be inapp licable, even with the addition of the newly discovere d domain name evidence. Cru cially, PLM did not register the domain name “laflordemichoacan.com” until after the TTAB procee ding that preceded this action. See 2d Anderson Decl. ¶¶ 5–6; 2d A nderson Decl., Ex. B at 3–4. Th e Court’s prior analysis, which was based on compr ehensive findings of fact fol lowing the review of extensive testimony and documentary evidence , turned on the fact that the Gutierrez brothers did not believe that the marks in ques tion denoted any particular sourc e of product in Mex ico at the time they adopted the marks in the United States. See PLM VI, 188 F. Supp. 3d at 91. The registration of the domain name o ccurred long after those decis ions were made and would have no impact on the Court’s factual fi ndings with regard to the Gu tierrez brothers’ earlier knowledge or intentions. Nor can the evidence be used to sugge st that the Gutierrez brothers are generally untrustworthy or unethical. As th e Court has previou sly noted, a new trial should not be granted where the use of ne wly discovered evidence is to imp each or undermine the credibility of a witness. See supra Part V.B.3. Thus, because the Court finds that the newly discovered evidence of the “lafl ordemichoacan.com” domain name would not change the outcome of the case, the Court will deny PROLACTO’s motion for a new trial. 27 See Lightfoot , 555 F. Supp. 2d at 68.

27 Because the Court finds that ev idence of the domain name would not change the outcome of the case, the Court n eed not address the parties arg uments regarding whether55 VI. PROLACTO’S BILL OF COSTS Finally, the Court turns to the bill of cos ts that PROLACTO fil ed on June 17, 2016. See generally PROLACTO’s Bill of Costs. PLM pr esents several reasons why the Court should deny PROLACTO’s request for costs. 28 See generally PLM’s Opp’n Bill of Costs. Because of the mixed nature of the judgment in this case, the Court will e xercise its discretion to require each party to bear its own costs. A. Legal Standard Federal Rule of Civil Procedur e 54 governs the allocation of co sts in federal court. See Fed. R. Civ. P. 54(d)(1). Under Rule 54(d), “[u]nless a federa l statute, these rules, or a court order provides otherwise, costs —other than attorney’s fees—shou ld be allowed to the prevailing party.” Id. The Lanham Act explicitly contemplates an award of costs. See 15 U.S.C. § 1117(a). A prevailing party is “one who ha s been awarded some relief by a court.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res. , 532 U.S. 598, 603 (2001). The D.C. Circuit has articulated a three-part test for determining prevailing-party status: “(1) there must be a ‘court-ordered change in the legal relationship’ of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial pr onouncement must be accompanied by judicial relief.” District of Columbia v. Straus , 590 F.3d 898, 901 (D.C. Cir. 2010) (quoting

PROLACTO was “justifiably ignor ant of [the evidence] despite du e diligence.” Lightfoot , 555 F. Supp. 2d at 68 (alteration i n original) (quoting United States v. Int’l Bhd. of Teamsters , 247 F.3d 370, 392 (2d Cir. 2001)). Nor does the Court reach PLM’s alternative arguments that evidence of the domain name would not change the outcome becaus e PROLACTO has not sought injunctive relief and the “ issue of monetary damages was adjudicated on summary judgment in favor of PLM.” PLM’s Opp’n Mot. New Trial at 12. 28 Under Federal Rule of Civil Proc edure 54(d)(1), the “clerk may tax costs on 14 days’ notice.” Fed. R. Civ. P. 54(d)(1 ). A party may file a motion to review the clerk’s action. Id. The Court will construe PLM’s opposition and objections to PROL ACTO’s bill of costs as a motion under that rule.56 Thomas v. Nat’l Sci. Found. , 330 F.3d 486, 492–93 (D.C. Cir. 2003)). A party need not pre vail on every claim to be the prevaili ng party for the purposes of a llocating costs. A party who is only partially successful can be deemed the prevailing party. See 10 Charles Wright & Arthur Miller, Federal Practice & Procedure § 2667 (3d ed. 2016). In fact, the pr evailing party is “one who succeeds ‘on any significant issue in litigation which achieves some of the benefits [they] sought in bringing suit.’” Stanley v. Proctor , 591 F. Supp. 2d 12, 14–15 (D.D.C. 2008) (emphasis added) (alteration in original) (quoting Hensley v. Eckerhart , 461 U.S. 424, 433 (1983)); see also Texas State Teachers Ass’n v. Garland Independent School Dist. , 489 U.S. 782, 791–92 (1989); Lopez v. District of Columbia , 383 F. Supp. 2d 18, 22 (D.D.C. 2005). Rule 54 imposes a presumption in f avor of awarding costs to the prevailing party. See Moore v. Nat’l Ass’n of Sec. Dealers, Inc. , 762 F.2d 1093, 1107–08 (D.C. Cir. 1985). The D.C. Circuit has held that a distri ct court must articulate a good r eason for deviating from that general rule. See Baez v. U.S. Dep’t of Justice , 684 F.2d 999, 1004 (D.C. Cir. 1982) (en banc) (per curiam). Nevertheless, the apportionment of costs is in the di scretion of the district court, and the “award of costs to the prevai ling party is not automatic.” Moore , 762 F.2d at 1107; see also C & E Servs., Inc. v. Ashland Inc. , 601 F. Supp. 2d 262, 279 (D.D.C. 2009) (noting discretion). B. Analysis PROLACTO filed its bi ll of costs on June 17, 2016. See PROLACTO’s Bill of Costs at 1. PROLACTO seeks a total of $75,177.02 in costs. See PROLACTO’s Bill of Costs at 1. Among other categories of purporte d costs, PROLACTO seeks $32,2 25.23 for transcript fees, $29,352.02 in witness fees, and $7,000 i n interpreters’ fees. PROLACTO’s Bill of Costs at 1. PROLACTO states that, because of “the intertwined nature of the counts and counterclaims,” it is submitting all costs that it incurred, but that it “recogniz es there is likely to be an57 apportionment based on the Court’ s findings on the claims at is sue.” PROLACTO’s Bill of Costs at 3. PLM raises a number of arguments in response. See generally PLM’s Opp’n Bill of Costs. PLM argues that PROLACTO’ s bill of costs is premature, that PLM—not PROLACTO—is the prevailing party, that PROLACTO is not entitled to the specific costs it seeks, and that the Court shoul d exercise its discretion to deny any costs to PROLACTO. See generally PLM’s Opp’n Bill of Costs. Because of the mixed nature of the judgment in this case, the Court will exercise its di scretion to require each party to bear its own costs. In short, both PROLACTO and PLM a rgue that they are the prevail ing party in this litigation. Both arguments have merit. PROLACTO argues that i t “has prevailed on the central issue in this litigation.” Def. ’s Reply to Pls.’ Opp’n & Objec tions to Bill of Costs (“PROLACTO’s Reply Supp. Bill of Costs”) at 7, ECF No. 352. Sp ecifically, PROLACTO states that PLM brought this suit for the sole purpose of overt urning the TTAB’s cancellation of PLM’s trademark, but the Court a ffirmed the TTAB decision. See PROLACTO’s Reply Supp. Bill of Costs at 7; see also PLM VI, 188 F. Supp. 3d 22, 101 (D.D.C. 2016); Order ¶ 1, ECF No. 338 (entering judgment in favor of PROLACTO on Count I). Certa inly, a district court may exercise its discretion to awar d costs to a defendant that “los [es] on a counterclaim, [but] succeeds in warding off a predominant claim.” Ira Green, Inc. v. Military Sales & Serv. Co. , 775 F.3d 12, 28 (1st Cir. 2014); see also Sci. Holding Co. v. Plessey Inc. , 510 F.2d 15, 28 (2d Cir. 1974) (Friendly, C.J.) (“District courts have held that a defen dant who successfully fends off a large claim may be awarded costs despite failure to prevail on a counterclaim.”). On the other hand, PLM argues that it prevailed on “every issue on summary judgment on which a claim for relief was completely adjud icated” and tha t, following tri al, “judgment has been entered in favor of PLM on e very remaining count” except f or Count I of the Complaint.58 See PLM’s Opp’n Bill of Costs at 1–2. PLM also correctly notes tha t the Court granted permanent injunctive relief enjo ining PROLACTO from using the I ndian Girl design in Northern California and Houston, Texas. See PLM’s Opp’n Bill of Costs at 2; see also PLM VI , 188 F. Supp. 3d at 120 (“[T]he Court will li mit the geographic scope o f its injunction to the specific markets in which it has found inf ringement: Northern California. . . and the Houston, Texas area . . . .”); Order at 2–3. The Court has no doubt that the permanent injunction is a form of judicial relief in PLM’s favor t hat alters the legal relationsh ip between the parties. See District of Columbia v. Straus , 590 F.3d 898, 901 (D.C. Cir. 2010) (sett ing forth the three-p art test to determine the prev ailing party). The mixed nature of the judgment in this case ra ises a problem for the Court in determining the prevailing party. Both parties have at least s ome claim that they are the winner. Faced with similar facts, other c ourts in this district have ta ken a Solomonic approach and exercised their discretion to order that each party should bear its own costs. See Bell Helicopter Textron Inc. v. Airbus Helicopters , No. 10-0789, 2015 WL 1395894, at *2 (D.D.C. Mar. 25, 2015) (“[T]he mixed nature of t he judgment here provides ground s for requiring each party to bear its own costs.”); C & E Servs. , 601 F. Supp. 2d at 280 (declining to d etermine a prevailing party or award costs because the parties were “nearly in equipo ise”). One of those decisions noted tha t the D.C. Circuit does not app ear to have considered this practice. See Bell Helicopter , 2015 WL 1395894, at *2. But several other circuits have approved of the idea that a distri ct court may decline to award costs where the parties each prevailed on different elements of a mixed judgment. See, e.g. , Barber v. T.D. Williamson, Inc. , 254 F.3d 1223, 1234–35 (10th Cir. 2001) (collecting cases where courts declined to award costs because neither side prevailed o r because both sides prevailed) ; Ruiz v. A.B. Chance Co. , 23459 F.3d 654, 670 (Fed. Cir. 2000) (affirm ing a decision not to awa rd costs where one side “prevailed on the patent invalid ity issue, but [the other] prev ailed on all of the other issues, including the non-patent issues”); Testa v. Village of Mundelein , 89 F.3d 443, 447 (7th Cir. 1996) (“Considering the mixed outco me of the civil rights and m alicious prosecution claims, the decision requiring each party to bear its own costs is within t hat discretion.”); Amarel v. Connell , 102 F.3d 1494, 1523 (9th Cir. 1996) (“In the event of a mixed j udgment . . . it is within the discretion of a district court t o require each party to bear it s own costs.”); see also 10 Charles Wright & Arthur Miller, Federal Practice & Procedure § 2668 (3d ed. 2016) (not ing that the denial of costs to both sides “h as been considered appropriate when neither side entirely prevailed or when both sides preva iled”). In light of the mixe d judgment, the Court will deny costs to both parties. PLM and PROLACTO will bear their own co sts in this litigation. 29

VII. CONCLUSION For the foregoing reasons, PLM’s Motion to Substitute and Join Successor in Interest (ECF No. 336) is GRANTED ; PLM’s Motion to Amend the Judgment (ECF No. 340) is
DENIED ; PROLACTO’s Motion for a N ew Trial (ECF No. 345) is DENIED ; PROLACTO’s Motion to Amend Findings and to A mend the Judgment (ECF No. 346 ) is DENIED ; PLM’s Opposition and Objections to PROLA CTO’s Bill of Costs (ECF No. 350), construed as a motion

29 In its response to PROLACTO’s bill of costs, PLM argues that i t has the right to file its own bill of costs “w ithin 21 days after the Court rules on all of the post-trial motions currently pending.” PLM’s Opp’n Bill of C osts at 2 n.3. PROLACTO argues that its bill of costs was timely, but that any bill of cos ts filed by PLM would be untime ly. See PROLACTO’s Reply Supp. Bill of Costs at 8–10. The Court does not need to addres s this timeliness question. Both parties have had a sufficient opportunity to argue that they ar e the prevailing party in this litigation. See PLM’s Opp’n Bill of Costs at 1–2 ; PROLACTO’s Reply Supp. Bill o f Costs at 6–8. Because the Court has dete rmined that it will exercise its discretion to require each party to bear its own costs based on the mixed judgment, there is no need to consider PLM’s potential bill of costs or the arguments r aised in connection to the spec ific costs claimed by PROLACTO.60 under Federal Rule of Civil Procedure 54(d)(1), is GRANTED ; PROLACTO’s Motion for Leave to File Surreply (ECF No. 351) is GRANTED IN PART and DENIED IN PART ; and PROLACTO’s Request for Hearing (ECF No. 358) is DENIED . An order consistent with this Memorandum Opinion is separate ly and contemporaneously issued.

Dated: March 30, 2017 RUDOLPH CONTRERAS United States District Judge