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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
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`BETEIRO, LLC,
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`v.
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`DRAFTKINGS INC.,
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`Plaintiff,
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`Defendant.
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`No. 1:21-cv-20148
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`ORDER
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`O’HEARN, District Judge.
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`THIS MATTER comes before the Court on the recently-transmitted Order by the U.S.
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`Court of Appeals for the Federal Circuit deactivating the appeal in this matter noticed by Plaintiff
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`Beteiro, LLC (“Plaintiff”) on September 22, 2022, (ECF No. 33); and
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`WHEREAS, in that Order, dated November 1, 2021, the Clerk of the Court of Appeals
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`explained that because Plaintiff had filed “a motion of the type enumerated in Fed. R. App. P.
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`4(a)(4)”—namely, its Motion for Reconsideration, (ECF No. 28)—Plaintiff’s appeal was rendered
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`ineffective; and
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`WHEREAS, on November 2, 2022, before the Order of the Court Appeals had been
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`transmitted, this Court denied that Motion for lack of jurisdiction based on Plaintiff’s previously
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`filed Notice of Appeal, (Order, ECF No. 31); and
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`WHEREAS, in light of the now-noticed action by the Court of Appeals, this Court vacates
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`its November 2, 2022 Order, and now considers Plaintiff’s Motion on its merits; but
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`WHEREAS, on the merits, Plaintiff’s Motion must still be denied; and
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`WHEREAS, under Federal Rule of Civil Procedure 59(e), a court may grant a motion to
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`Case 1:21-cv-20148-CPO-SAK Document 34 Filed 11/04/22 Page 2 of 3 PageID: 463
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`alter or amend a judgment when “(1) an intervening change in the controlling law has occurred,
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`(2) evidence not previously available has become available, or (3) it is necessary to correct a clear
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`error of law or to prevent manifest injustice,” e.g., A.K. Stamping Co., Inc. v. Instrument Specialties
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`Co., Inc., 106 F. Supp. 2d 627, 662 (D.N.J. 2000); and
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`WHEREAS, none of these grounds for reconsideration exist here; and
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`WHEREAS, as to the first, Plaintiff points to the recently-issued opinion of the U.S. Court
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`of Appeals for the Federal Circuit in Cooperative Entertainment, Inc. v. Kollective Technology,
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`Inc., 50 F.4th 127 (Fed. Cir. 2022), to suggest that the law has changed and this Court’s Opinion
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`must be reconsidered; but
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`WHEREAS, as the defendant in a related case rightly argues, (BetMGM, LLC’s Br.,
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`Beteiro, LLC v. BetMGM, LLC, No. 21-20156 (D.N.J. Nov. 22, 2021), ECF No. 33 at 3–6), that
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`case did not change the controlling law applied by the Court here, but rather reversed a judgment
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`of the U.S. District Court for the Northern District of California for its erroneous application of
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`preexisting precedent; and
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`WHEREAS, having already considered and rejected Plaintiff’s arguments under that
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`preexisting precedent, it is not entitled to relief under Rule 59(e) on this basis; and
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`WHEREAS, as to the second, Plaintiff does not suggest that any previously-unavailable
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`evidence has come to light, and therefore is not entitled to relief under Rule 59(e) on that basis;
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`and
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`WHEREAS, as to the third, Plaintiff’s “mere disagreement” with the Court’s decision does
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`not constitute manifest injustice, e.g., Nicolas v. Trs. of Princeton Univ., No. 17-03695, 2019 WL
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`3822161, at *2 (D.N.J. Aug. 15, 2019), and therefore is not entitled to relief under Rule 59(e) on
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`that basis; and
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`2
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`Case 1:21-cv-20148-CPO-SAK Document 34 Filed 11/04/22 Page 3 of 3 PageID: 464
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`WHEREAS, in addition to seeking reconsideration under Rule 59(e), Plaintiff
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`alternatively seeks reconsideration under Federal Rule of Civil Procedure 60(b); but
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`WHEREAS, the bases for reconsideration under that rule—mistake, inadvertence,
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`surprise, or excusable neglect, FED. R. CIV. P. 60(b)(1); newly discovered evidence, FED. R. CIV.
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`P. 60(b)(2); fraud, FED. R. CIV. P. 60(b)(3); void judgment, FED. R. CIV. P. 60(b)(4); or satisfied,
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`released, or discharged judgment, FED. R. CIV. P. 60(b)(5)—are plainly inapplicable here; and
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`WHEREAS, lacking any basis for reconsideration of this Court’s prior Order dismissing
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`its claims for patent infringement, (ECF No. 25), Plaintiff’s Motion for Reconsideration must be
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`denied; and therefore
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`IT IS HEREBY on this 4th day of November , 2022,
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`ORDERED that this Court’s prior Order denying Plaintiff’s Motion for Reconsideration
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`without prejudice, (ECF No. 31), is VACATED; but it is further
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`ORDERED that Plaintiff’s Motion for Reconsideration, (ECF No. 28), is DENIED.
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`CHRISTINE P. O’HEARN
`United States District Judge
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