Zagg Inc. v. TX Trading, Inc. et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 23-cv-20304-ALTMAN/Reid
ZAGG INC.,
Plaintiff,
v.
DVG TRADE LLC, et al.,
Defendants.
___________________________________/
ORDER DENYING MOTION FOR RECONSIDERATION
One of our Defendants, DVG Trade LLC (“DVG”), has filed a Rule 54(b) Motion for Partial
Reconsideration of our Omnibus Summary Judgment Order (“Omnibus Order”) [ECF No. 348]. See
Motion for Partial Reconsideration (the “Motion”) [ECF No. 357]. Specifically, DVG asks us to
reconsider our decision granting summary judgment for the Plaintiff, ZAGG Inc. (“ZAGG”), on
DVG’s Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) claim. See id. at 1 (“[T]he
Order dismissing DVG’s FDUTPA claim should be reconsidered[.]”); see also Omnibus Order at 30
(“Because DVG hasn’t adduced any evidence to support its FDUTPA counterclaim, no reasonable
jury could return a verdict in its favor. We therefore GRANT ZAGG’s request for summary judgment
on DVG’s FDUTPA counterclaim and DENY as moot DVG’s parallel request for judgment on that
claim.” (cleaned up)). After careful review, we DENY the Motion.
T HE L AW
Federal Rule of Civil Procedure 54(b) provides, in pertinent part, that “any order or other
decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties . . . may be revised at any time before the entry of a judgment adjudicating
all the claims and all the parties’ rights and liabilities.” FED . R. C IV . P. 54(b). While Rule 54(b) doesn’t
Case 1:23-cv-20304-RKA Document 363 Entered on FLSD Docket 03/23/2026 Page 1 of 7

2
specify a standard by which courts must evaluate a motion for reconsideration, the Eleventh Circuit
has suggested that “Rule 54(b) takes after Rule 60(b).” Herman v. Hartford Life & Accident Ins. Co., 508
F. App’x 923, 927 n.1 (11th Cir. 2013) (citing Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 569
(11th Cir. 1990)); see also Maldonado v. Snead, 168 F. App’x 373, 386–87 (11th Cir. 2006) (“Although the
district court reviewed Maldonado’s motion under Rule 54(b) as a motion for reconsideration of a
non-final order rather than under Rule 60(b) as a motion for relief from judgment, we see no reason
to apply a different standard when the party seeks reconsideration of a non-final order than when the
party seeks reconsideration of a final judgment.” (cleaned up)).
“Relief from judgment under Rule 60(b)(6),”—and thus reconsideration under Rule 54(b)—
“is an extraordinary remedy. Consequently, relief under Rule 60(b)(6) requires showing extraordinary
circumstances[.]” Arthur v. Thomas, 739 F.3d 611, 627–28 (11th Cir. 2014) (cleaned up). “Even then,
whether to grant the requested relief is a matter for the district court’s sound discretion.” Id. at 628
(cleaned up). Courts within this Circuit have held that a motion for reconsideration should be granted
only when there is: “(1) an intervening change in controlling law; (2) newly discovered evidence; or (3)
a need to correct clear errors of fact or law or prevent manifest injustice.” Berisha v. Stan, Inc., 461 F.
Supp. 3d 1257, 1259 (S.D. Fla. 2020) (Cooke, J.) (citing Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.
2007)).
A NALYSIS
On January 7, 2026, we granted ZAGG’s request for summary judgment on DVG’s FDUTPA
claim. We did so because we found that, despite DVG’s many “conclusory allegations of illegal
conduct,” the “gravamen of [DVG’s] FDUTPA counterclaim is that ZAGG uses Screenya to sell
products ‘at prices materially different (whether higher or lower) than those offered by Amazon and
other third-party sellers’ in an effort to ‘manipulate Amazon’s pricing algorithms.’” Omnibus Order
at 28 (quoting Defendants’ Response to ZAGG’s Motion for Summary Judgment (“Def. MSJ
Case 1:23-cv-20304-RKA Document 363 Entered on FLSD Docket 03/23/2026 Page 2 of 7

3
Response”) [ECF No. 329] at 34). And we determined that “DVG [hadn’t] introduced even a scintilla
of evidence that ZAGG engages in price manipulation in this way or that it otherwise deceives
consumers.” Omnibus Order at 28.
DVG now attacks our decision on three grounds. First, DVG claims that we “overlooked facts
supporting DVG’s argument that [the] Plaintiffs are engaged in unlawful price manipulation[.]”
Motion at 2. Second, DVG argues that we failed to consider its theory that ZAGG’s suit against DVG
is “sham litigation” designed to prevent third-party sellers from competing with ZAGG and Amazon.
Id. at 8. Third, DVG contends that we didn’t address its theory that ZAGG violated FDUTPA by
misusing Amazon’s “variation relationship” function. Id. at 10. We’ll address each argument in turn.
I. 	DVG Failed to Adduce Evidence of Price Manipulation
DVG’s first argument is that we “overlooked facts supporting DVG’s argument that [the]
Plaintiffs are engaged in unlawful price manipulation” Motion at 2. But, contrary to this assertion, we
fully considered DVG’s price-manipulation argument (including all the evidence DVG claims we
“overlooked”) and made two key findings: First, we found that the Amazon screenshots DVG relied
on—its only direct evidence of “price manipulation”1—failed to “evince any form of manipulation”
and actually showed “that Screenya can charge a higher price for a ZAGG product without affecting
the price Amazon or other third-party sellers charge.” Omnibus Order at 29 (emphasis removed); see
1 DVG blames us for its failure to submit compelling direct evidence. See Motion at 7 n.2 (“With
respect to additional direct evidence of [the] Plaintiffs’ price manipulation, DVG notes that it was
denied from pursuing such discovery. DVG served a subpoena on Market Performance Group, LLC[.]
. . . [T]he Court granted [the] Plaintiffs’ motion to quash that subpoena on the grounds that such
information was purportedly not relevant.”). Two problems with this. First, DVG never raised this
argument in its summary-judgment briefing and is thus precluded from relying on it now. Second, DVG
hasn’t identified any authority for the proposition that we can’t enter summary judgment against a
party merely because its discovery efforts failed or were deemed improper. We found that “no
reasonable jury could return a verdict in favor of” DVG based on the evidence it was able to muster
for its FDUTPA claim. Lima v. Fla. Dep’t of Child. & Fams., 627 F. App’x 782, 785–86 (11th Cir. 2015)
(cleaned up). DVG’s displeasure with our previous discovery rulings doesn’t change any of that.
Case 1:23-cv-20304-RKA Document 363 Entered on FLSD Docket 03/23/2026 Page 3 of 7

4
also Response at 7 (“[The record doesn’t] contain any of the basic economic evidence that would be
necessary to support a theory of price manipulation. DVG presented no evidence defining the relevant
market, no analysis of market power, no economic evidence explaining how the alleged conduct could
influence prices in that market, and no expert testimony analyzing how pricing would operate absent
the alleged conduct.”).2 Second, we found that DVG’s other “evidence” only supported a claim that
“ZAGG is deceiving Amazon, not consumers,” and that the “the only proper plaintiff (if any) for an
alleged violation of Amazon’s policies would be Amazon on a breach of contract theory.” Omnibus
Order at 30 (cleaned up).
In short, DVG’s disagreement with our Omnibus Order doesn’t present “extraordinary
circumstances” that warrant reconsideration. Arthur, 739 F.3d at 628; see also Eitzen Chem. (USA) LLC
v. Carib Petroleum, 2012 WL 13042681, at *1 (S.D. Fla. Jan. 5, 2012) (Seitz, J.) (“A motion to reconsider
[ ] is not a second chance for the losing party to make its strongest case or to dress up arguments that
previously failed.” (cleaned up)). We therefore DENY this part of DVG’s Motion.
II. 	DVG Hasn’t Shown that ZAGG Engages in “Sham Litigation”
DVG next says we overlooked its contention that ZAGG engages in “sham litigation” and
other tactics to target third-party sellers who divert customers from ZAGG and Amazon. See Motion
at 9 (“DVG has also produced ample evidence that [the] Plaintiffs specifically targeted third-party
2 DVG’s Motion is rife with conjecture. See Motion at 5 (“Amazon matched Mac N’ Cheese’s lower
price so it could list itself in the ‘Buy Box’, but would have picked a higher sales price based on Screenya’s
higher sales price if Mac N’ Cheese was not selling the product at the market price.” (emphasis added));
ibid. (“[W]hen a third-party seller lists a Zagg Product at a price lower than the price at which Amazon
is selling the Zagg Product, Amazon’s algorithms may lower the retail price to match the third-party
seller.” (quoting Expert Report of Rachel Greer [ECF No. 311-1]) (emphasis added)); id. at 6 (“Why
else would [the] Plaintiffs go through such efforts [to deceive Amazon], if not for the exact reason
that Amazon bans such practice—price manipulation?”); id. at 7 (“These paragraphs also cite to
testimony from Mr. Longmore—Zagg’s Director of Ecommerce—acknowledging that Amazon’s
algorithms are affected by the prices at which 3P sellers are selling.”). But speculation isn’t a substitute
for actual evidence, which is why DVG’s price-manipulation argument failed (and continues to fail).
Case 1:23-cv-20304-RKA Document 363 Entered on FLSD Docket 03/23/2026 Page 4 of 7

5
sellers, not because of any valid trademark infringement claim, but because they were driving down
prices on Amazon and taking the ‘buy box’ away from Zagg’s direct customer, Amazon.”). For two
reasons, we’re unpersuaded. First, DVG failed to raise this argument properly in its summary-judgment
briefing. DVG’s summary-judgment briefing included only one conclusory sentence on this point:
“[R]emoving DVG and other sellers,” DVG said at the time, “from the most profitable Amazon
listings—by way of threats, false reports and sham litigation—is anti-competitive, immoral and
unethical[.]” Defendants’ Motion for Summary Judgment (“Def. MSJ”) [ECF No. 317] at 37; see also
Def. MSJ Response at 35 (containing an identical sentence). That’s it. And DVG’s Reply made no
mention of this “sham litigation” theory at all. See generally Defendants’ Reply in Support of MSJ (“Def.
MSJ Reply”) [ECF No. 338]. 3 It’s well-established that “[a] motion for reconsideration cannot be used
to relitigate old matters, raise argument or present evidence that could have been raised prior to the
entry of judgment.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (cleaned up).
DVG chose to focus on what it viewed as its strongest FDUTPA theory—price manipulation—
devoting only one sentence across three briefs to its “sham litigation” claim. It can’t now seek
reconsideration based on a FDUTPA theory it never meaningfully developed or supported with any
authority.
Second, even if DVG had sufficiently raised this issue in its briefing, its “sham litigation” theory
is baseless. DVG tells us that it “intends to prove that each of [the] Plaintiffs’ [legal] theories are
frivolous.” Motion at 9. But we don’t think DVG understands what “frivolous” means. As the
Eleventh Circuit has explained:
In determining whether a suit is frivolous, a district court must focus on the question
whether the case is so lacking in arguable merit as to be groundless or without
3 To the extent DVG argues that ZAGG’s Amazon product reports were an anticompetitive “tactic”
meant to harm DVG, we’ve already found that DVG failed to show that these reports were false. See
Omnibus Order at 21–23. In fact, we specifically determined that, rather than identify any evidence of
falsity, DVG resorted to “grossly mischaracteriz[ing] Longmore’s testimony.” Id. at 22.
Case 1:23-cv-20304-RKA Document 363 Entered on FLSD Docket 03/23/2026 Page 5 of 7

6
foundation rather than whether the claim was ultimately successful. . . . Even if a
plaintiff’s allegations are ultimately legally insufficient to require a trial, that alone is
not enough to render the plaintiff’s cause of action groundless or without foundation.
Beach Blitz Co. v. City of Mia. Beach, Fla., 13 F.4th 1289, 1302 (11th Cir. 2021) (cleaned up); see also Miller
v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (“A claim is frivolous if and only if it ‘lacks an arguable
basis either in law or in fact.’” (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989))).
Given this stringent standard, we reject DVG’s argument that ZAGG’s suit is frivolous—
especially now that we’ve allowed it to survive DVG’s motion for summary judgment. See generally
Omnibus Order (denying DVG’s motion for summary judgment).
We therefore DENY this portion of DVG’s Motion.
III. 	DVG’s “Variation Relationship” Argument Wasn’t Meaningfully Raised
Finally, DVG contends that we failed to consider its argument that “ZAGG has misused
Amazon’s ‘variation’ relationship on Amazon to unlawfully inflate its product ratings.” Motion at 8
(cleaned up). This argument fails for two reasons. First, like its “sham litigation’ theory, DVG didn’t
meaningfully raise this argument at summary judgment. It allocated only one conclusory sentence
across three briefs to this theory of FDUTPA liability. See Def. MSJ at 36 (“Zagg has misused
Amazon’s ‘variation’ relationship on Amazon to unlawfully inflate its product ratings.” (cleaned up));
see also Def. MSJ Response at 34 (containing an identical sentence). DVG never explained how this
alleged conduct violated FDUTPA and only now, after an adverse ruling, improperly seeks to
supplement this claim. Second, contrary to DVG’s claim, we didn’t overlook this argument. We merely
found that DVG’s allegation that ZAGG violated Amazon’s policies couldn’t sustain its FDUTPA
claim. See Omnibus Order at 30 (“DVG’s real complaint, in short, is that ZAGG is deceiving Amazon,
not consumers. But we agree with ZAGG that the only proper plaintiff (if any) for an alleged violation
of Amazon’s policies would be Amazon on a breach of contract theory.” (cleaned up)). We therefore
DENY this part of DVG’s Motion with little difficulty.
Case 1:23-cv-20304-RKA Document 363 Entered on FLSD Docket 03/23/2026 Page 6 of 7

7
For all these reasons, DVG’s Motion for Reconsideration is DENIED.
* * *
DONE AND ORDERED in the Southern District of Florida on March 23, 2026.
ROY K. ALTMAN
UNITED STATES DISTRICT JUDGE
cc: 	counsel of record
Case 1:23-cv-20304-RKA Document 363 Entered on FLSD Docket 03/23/2026 Page 7 of 7