Whitewater West Industries, LTD. v. Pacific Surf Designs, Inc. et al

RESPONSE in Opposition re Ex Parte MOTION for Leave to File Second Motion for Summary Judgment

S.D. Cal.November 5, 2018

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BUCHALTER A P R O F E S S I O N A L C O R P O R A T I O N I R V I N E PLAINTIFF’S OPPOSITION TO EX PARTE MOTION FOR LEAVE TO FILE SECOND MSJ Case No. 3:17-cv-01118-BEN-BLM BN 34492891v3 BUCHALTER A Professional Corporation J. Rick Taché (SBN: 195100) Roger L. Scott (SBN: 247165) Erikson C. Squier (SBN: 275274) 18400 Von Karman Avenue, Suite 800 Irvine, CA 92612-0514 Telephone: 949.760.1121 Facsimile: 949.720.0182 Email: rtache@buchalter.com rscott@buchalter.com ecsquier@buchalter.com Attorneys for Plaintiff Whitewater West Industries, Ltd. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA WHITEWATER WEST INDUSTRIES, LTD., a Canadian corporation, Plaintiff, vs. PACIFIC SURF DESIGNS, INC., a Delaware corporation, and FLOW SERVICES, INC., a California corporation, Defendants. Case No. 3:17-cv-01118-BEN-BLM PLAINTIFF’S OPPOSITION TO DEFENDANTS’ EX PARTE MOTION FOR LEAVE TO FILE SECOND MOTION FOR SUMMARY JUDGMENT Case 3:17-cv-01118-BEN-BLM Document 209 Filed 11/05/18 PageID.8683 Page 1 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BUCHALTER A P R O F E S S I O N A L C O R P O R A T I O N I R V I N E 1 PLAINTIFF’S OPPOSITION TO EX PARTE MOTION FOR LEAVE TO FILE SECOND MSJ Case No. 3:17-cv-01118-BEN-BLM BN 34492891v3 I. INTRODUCTION Defendants flagrant and repeated violations of this Court’s rules, basic professional courtesy, and the principles of judicial economy must stop.1 Defendants request to file a second motion for summary judgment is in direct disregard of this Court’s long-standing chambers rule limiting each party to one motion for summary judgment, of which Defendants counsel were well aware. Defendants counsel have been practicing before this Court in this litigation for over three years since the filing of the Flowrider Action2 in 2015. Defendants filed a motion for summary judgment in that action. Flowrider Action ECF No. 208. After this case was filed in 2017, Defendants filed another motion for summary judgment and expressly noted that, despite a lack of discovery, they had what they believed to be “more than sufficient” evidence to support summary judgment. ECF 91-1 at 6 n.3. Defendants cannot credibly claim that they filed not one, but two, summary judgment motions before this Court, but were unaware of this Court’s procedures governing summary judgment.3 Coincidentally, Defendants counsel developed their collective amnesia regarding this Court’s procedures just days after this Court denied the only summary judgment motion to which Defendants are entitled. The Court denied Defendants’ summary judgment motion on September 27, 2018. ECF No. 181. Suddenly, on October 3, 2018, Defendants demanded that Whitewater agree to a two-week extension of the pretrial motion deadline in this action to allow Defendants time to file a second motion for summary judgment. Scott Decl., Ex. 1. 1 This is now the fourth ex parte application Defendants have filed without providing any notice to Whitewater. See ECF Nos. 55, 121, 183. This time, Defendants do not even pretend to follow the Court’s rules, failing to provide any declaration explaining why their ex parte application is proper. 2 The “Flowrider Action” refers to Flowrider Surf, Ltd., et al v. Pacific Surf Designs, Inc., No. 15-cv-01879 BEN BLM. 3 Notably, although required to support their application, Defendants deliberately omit any declaration of counsel supporting their purported ignorance. This is because any such declaration would be false. Case 3:17-cv-01118-BEN-BLM Document 209 Filed 11/05/18 PageID.8684 Page 2 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BUCHALTER A P R O F E S S I O N A L C O R P O R A T I O N I R V I N E 2 PLAINTIFF’S OPPOSITION TO EX PARTE MOTION FOR LEAVE TO FILE SECOND MSJ Case No. 3:17-cv-01118-BEN-BLM BN 34492891v3 Defendants conveniently omit that Whitewater immediately reminded Defendants of this Court’s rule permitting only one summary judgment motion. Id. Thus, at a minimum, Defendants have been aware of the Court’s rule for a month, but failed to take any action until the last minute. Defendants should not be permitted to waste this Court’s time and resources making a second summary judgment motion simply because their first one was denied. Indeed, Magistrate Judge Major recently chastised Defendants for exactly this sort of dilatory conduct when Defendants attempted to file a second sanctions motion after their first was rejected, stating, “Having gambled and lost, Defendants are not entitled to return to Court and seek new sanctions . . . [p]ermitting such a procedure would result in an incredible wasted of litigation and judicial resources as a party could repeatedly litigate the same motion, seeking new or different remedies every time. ECF No. 174 at 2:11-17. This Court should not permit Defendants to continue to ignore this Court’s rules and wasting its resources. Thus, the Court should deny Defendants’ ex parte application. II. STATEMENT OF FACTS On May 10, 2017, Defendants filed a motion for summary judgment before this Court in the prior litigation regarding the ’589 Patent. Flowrider Surf, Ltd., et al v. Pacific Surf Designs, Inc., No. 15-cv-01879 BEN BLM, ECF No. 208. On February 16, 2018, Defendants filed a motion for summary judgment in this action. ECF No. 91. On September 27, 2018, the Court denied Defendants’ motion for summary judgment. ECF No. 181. On October 3, 2018, Defendants demanded that Whitewater agree to a two- week extension of the pretrial motion deadline in this action. Scott Decl., Ex. 1 at 6-7. Seeking to understand the basis for Defendants’ request, Whitewater inquired what motions Defendants intended to file that could not be completed under the existing cut-off, noted that Defendants had already filed a motion for summary Case 3:17-cv-01118-BEN-BLM Document 209 Filed 11/05/18 PageID.8685 Page 3 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BUCHALTER A P R O F E S S I O N A L C O R P O R A T I O N I R V I N E 3 PLAINTIFF’S OPPOSITION TO EX PARTE MOTION FOR LEAVE TO FILE SECOND MSJ Case No. 3:17-cv-01118-BEN-BLM BN 34492891v3 judgment, and reminded Defendants that this Court permitted only one motion for summary judgment per party. Id. at 4. In response, Defendants revealed their intent to file a second motion for summary judgment, and pretended not to know about this Court’s rules. Id. at 3. On October 5, 2018, Whitewater instructed Defendants that, if they had questions about the Court’s rules, they should contact chambers. Id. at 1. Whitewater also reminded Defendants that Defendants’ former lead counsel was a long-standing practitioner before this Court who had made an informed strategic decision to file an early motion for summary judgment in this matter despite this Court’s rule. At 12:05 a.m. on November 2, 2018, Defendants filed their ex parte application. Scott Decl., Ex. 2 (application filed at 12:05 a.m. November 2, 2018, but deemed filed as of November 1, 2018.). Defendants provided no notice to Whitewater of their intent to seek ex parte relief. Scott Decl. ¶4. III. ARGUMENT A. Defendants Are Not Entitled To Ex Parte Relief A party seeking relief on an ex parte basis must contain a declaration that the moving party informed the opposing party of its intent to seek ex parte relief. Local Rule 83.3(g)(2). Once again, Defendants fail to meet this most common sense requirement. Not only did Defendants fail to provide Whitewater notice of this ex parte, but they failed to provide any declaration whatsoever in support of their application. Defendants’ application should be denied on this basis alone. An ex parte application must show why the moving party should be allowed to “go to the head of the line in front of all other litigants and receive special treatment.” Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). “First, the evidence must show that the moving party’s cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures.” Id. “Second, it must be established that the moving Case 3:17-cv-01118-BEN-BLM Document 209 Filed 11/05/18 PageID.8686 Page 4 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BUCHALTER A P R O F E S S I O N A L C O R P O R A T I O N I R V I N E 4 PLAINTIFF’S OPPOSITION TO EX PARTE MOTION FOR LEAVE TO FILE SECOND MSJ Case No. 3:17-cv-01118-BEN-BLM BN 34492891v3 party is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect.” Id. Defendants’ ex parte motion fails on all counts. Defendants fail to make any argument that they would be irreparably harmed by hearing their motion for leave to file a second summary judgment motion on a regularly noticed motion. Thus, Defendants fail to demonstrate even minimal prejudice if the underlying motion is heard according to regular noticed motion procedures. Moreover, Defendants are entirely responsible for the supposed exigency of both their motion for leave, and the instant ex parte application. Defendants counsel are well aware of this Court’s rules regarding summary judgment, having litigated regarding this very patent for over three years and filing two prior summary judgment motions. At a minimum, Defendants were obligated to seek relief nearly five weeks ago when Whitewater reminded them of the Court’s rule. Deuss v. Siso, No. 14-00710-YGR(JSC), 2014 U.S. Dist. LEXIS 121464 (N.D. Cal. Aug. 29, 2014) (“An objectively reasonable attorney who had honestly not been aware of [the rule] would at that point have inquired into the rule.”); Cleopatra Records, Inc. v. Inspired Studios, Inc., No. 15-00915JAKAGRX, 2015 U.S. Dist. LEXIS 181034, at *3 (C.D. Cal. Oct. 8, 2015) (because plaintiff’s counsel had informed defendants of the applicable rule, “the contention that the defense counsel was unaware of the applicable rules…is not compelling.”). Instead, Defendants’ waited until the last minute to seek relief. Defendants cannot ignore information provided by Whitewater in order to create an “emergency” for this Court to resolve. Thus, the Court should deny Defendants request for ex parte relief. Case 3:17-cv-01118-BEN-BLM Document 209 Filed 11/05/18 PageID.8687 Page 5 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BUCHALTER A P R O F E S S I O N A L C O R P O R A T I O N I R V I N E 5 PLAINTIFF’S OPPOSITION TO EX PARTE MOTION FOR LEAVE TO FILE SECOND MSJ Case No. 3:17-cv-01118-BEN-BLM BN 34492891v3 B. Defendants Are Not Entitled To File A Second Motion For Summary Judgment 1. Defendants were aware of this Court’s one-summary judgment rule, but chose to file an early summary judgment motion “Federal Rule of Civil Procedure 56 does not provide a party with the opportunity to file a separate motion for summary judgment for each argument a party desires to present.” IP Innovation LLC v. Vizio, Inc., 08-CV-0393, 2010 U.S. Dist. LEXIS 65981, 2010 WL 2696110, at * 1 (N.D. Ill. July 1, 2010). The purpose of limiting parties to one motion for summary judgment each is “to manage the limited resources of the Court’s time and attention.” Bernstein v. Virgin Am., Inc., No. 15-02277-JST, 2017 U.S. Dist. LEXIS 218349, at *1 (N.D. Cal. Dec. 29, 2017). “When the Court must spend more time on one case, the inevitable cost is having less time to spend on another. Limiting the parties’ ability to seek the same relief successively is one way of ensuring that the Court can devote adequate attention to each of the matters before it.” Id. (quoting Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (“District courts have limited resources (especially time)[.]”)). Defendants request to file a second motion for summary judgment is in direct disregard of this Court’s long-standing chambers rule limiting each party to one motion for summary judgment, of which Defendants counsel were well aware. Defendants counsel have been practicing before this Court in this litigation for over three years since the filing of the Flowrider Action4 in 2015. Defendants filed a motion for summary judgment in that action. Flowrider Action ECF No. 208. After this case was filed in 2017, Defendants filed another motion for summary judgment and expressly noted that, despite a lack of discovery, they had what they 4 The “Flowrider Action” refers to Flowrider Surf, Ltd., et al v. Pacific Surf Designs, Inc., No. 15-cv-01879 BEN BLM. Case 3:17-cv-01118-BEN-BLM Document 209 Filed 11/05/18 PageID.8688 Page 6 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BUCHALTER A P R O F E S S I O N A L C O R P O R A T I O N I R V I N E 6 PLAINTIFF’S OPPOSITION TO EX PARTE MOTION FOR LEAVE TO FILE SECOND MSJ Case No. 3:17-cv-01118-BEN-BLM BN 34492891v3 believed to be “more than sufficient” evidence to support summary judgment. ECF 91-1 at 6 n.3. Defendants cannot credibly claim that they filed not one, but two, summary judgment motions before this Court, but were unaware of this Court’s procedures governing summary judgment.5 Further, Defendants have failed to demonstrate good cause as to why the Court should deviate from its common sense rule. Defendants’ arguments that it learned new information in discovery or now has an “expanded factual record” beyond that available when it made the calculated decision to file its first motion for summary judgment fail. Bernstein at *2 (denying leave to file second summary judgment motion where “it was [defendant’s] choice to file its earlier summary judgment motion before discovery was complete” and “the timing of [defendant’s] motion was totally in [defendant’s] hands, whatever limitations went along with that timing were of [defendant’s] own making”). Thus, the Court should deny Defendants’ request for leave to file a second summary judgment motion. 2. Defendants’ request for a second summary judgment motion violates this District’s page limits for motions Local Rule 7.1(h) limits any motion to 25 pages in length. L.R 7.1(h). This limitation is reinforced in the Court’s Case Management Order. ECF No. 82 ¶10. Defendants are not permitted to end-run the Court’s rules by styling their effort as a “second” motion for summary judgment. See United States v. Sierra Pac. Indus., No. CIV S-09-2445 KJM-EFB, 2012 U.S. Dist. LEXIS 6929, at *9 (E.D. Cal. Jan. 19, 2012) (“The court cannot help but conclude that SPI's and Howell's filing of multiple [summary judgment] briefs circumvents the court's orders.”); DeSena v. Beekley Corp., 09-CV-0352, 2010 U.S. Dist. LEXIS 25320, 2010 WL 1049873, at * 1 (D. Me. March 17, 2010) (“Although, as the plaintiffs maintain, they may well 5 Notably, although required to support their application, Defendants deliberately omit any declaration of counsel supporting their purported ignorance. This is because any such declaration would be false. Case 3:17-cv-01118-BEN-BLM Document 209 Filed 11/05/18 PageID.8689 Page 7 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BUCHALTER A P R O F E S S I O N A L C O R P O R A T I O N I R V I N E 7 PLAINTIFF’S OPPOSITION TO EX PARTE MOTION FOR LEAVE TO FILE SECOND MSJ Case No. 3:17-cv-01118-BEN-BLM BN 34492891v3 have intended in filing six separate summary judgment motions to present segregable issues in an efficient manner rather than to skirt the page limitation of Local Rule 7(e), their approach violates the spirit, if not the substance, of that rule.”); BPI Energy, Inc. v. IEC (Montgomery), LLC, 07-CV-0186, 2009 WL 3518154, at *1 (S.D. Ill. Oct. 28, 2009) (“Local Rule 7.1(d) allows a twenty double-spaced typewritten page limit for all briefs. Although a literal reading of the local rule does not specifically prohibit a party from filing more than one summary judgment motion, the rule also does not lend itself to the interpretation that a party may file one supporting brief per issue raised at the summary judgment stage of the proceedings.”); Walburn v. City of Naples, Fla., 04-CV-0194, 2005 WL 2322002, at * 1, n.3 (M.D. Fla. Sept. 22, 2005) (“This Court agrees with Plaintiff's statement in his response to Defendant's dual motions for summary judgment that the unusual bifurcated approach to summary judgment is confusing, and it manages to sidestep Rule 3.01(c) of the Local Rules of this District, which would limit a single memorandum to a length of twenty pages.” (internal quotation marks omitted)); Paper, Allied Indus., Chem. and Energy Workers, 03-CV-0225, 2004 U.S. Dist. LEXIS 10181, 2004 WL 1484995, at *5, n.9 (D. Me. June 4, 2004) (“I also observe that by filing two motions instead of one, the Union has also violated, in spirit if not in substance, the 20-page limitation imposed by Local Rule 7.”). Defendants’ request to file a second summary judgment motion plainly violates the spirit, if not the letter, of Local Rule 7.1(h). Thus, the Court should deny Defendants’ request for leave to file a second summary judgment motion for this independent reason. Case 3:17-cv-01118-BEN-BLM Document 209 Filed 11/05/18 PageID.8690 Page 8 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BUCHALTER A P R O F E S S I O N A L C O R P O R A T I O N I R V I N E 8 PLAINTIFF’S OPPOSITION TO EX PARTE MOTION FOR LEAVE TO FILE SECOND MSJ Case No. 3:17-cv-01118-BEN-BLM BN 34492891v3 C. Whitewater Is Not Required To Oppose Defendants Second Summary Judgment Motion Unless And Until The Court Grants Leave Defendants request that the Court deem that its second summary judgment motion be filed as of November 2, 2018. This is improper. To the extent the Court grants Defendants’ request for leave, Defendants’ second motion for summary judgment should be deemed filed once leave is granted. See, Salinas v. City of San Jose, No. 09-4410 RS, 2010 WL 5300920, at *3 (N.D. Cal. Dec. 20, 2010) (“The motion for leave to file it is granted, and it is hereby deemed filed.”); Lennar Mare Island, LLC v. Steadfast Ins. Co., 139 F. Supp. 3d 1141, 1146 (E.D. Cal. 2015) (“Steadfast’s proposed amended counterclaim was deemed filed after the court granted its motion for leave to amend.”); Seiko Epson Corp. v. Coretronic Corp., No. 06-06946 MHP, 2009 U.S. Dist. LEXIS 44064, at *6-7 (N.D. Cal. May 22, 2009) (“Often, the movant’s motion for leave does not on its face state an adequate reason for the court to grant leave. Where, on the other hand, a motion for leave is granted, the non-movant receives an opportunity to oppose the merits of movant’s [underlying] motion.”). To hold otherwise would unfairly prejudice Whitewater. Whitewater would be required to expend substantial resources opposing Defendants’ summary judgment motion only to have the Court rightly deny Defendants’ leave to file that motion. Thus, in the event the Court grants Defendants leave to file a second motion for summary judgment, that motion should be deemed filed when the Court grants leave, and a hearing should be set on that motion 28 days after the Court grants leave with a regular briefing schedule pursuant to this Court’s Local Rules. L.R. 7.1(e) (28 day rule with opposition due 14 days prior to hearing). Case 3:17-cv-01118-BEN-BLM Document 209 Filed 11/05/18 PageID.8691 Page 9 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BUCHALTER A P R O F E S S I O N A L C O R P O R A T I O N I R V I N E 9 PLAINTIFF’S OPPOSITION TO EX PARTE MOTION FOR LEAVE TO FILE SECOND MSJ Case No. 3:17-cv-01118-BEN-BLM BN 34492891v3 IV. CONCLUSION For the foregoing reasons, the Court should deny Defendants’ ex parte application and leave to file a second summary judgment motion. Should the Court grant Defendants’ request, a 28 day hearing and briefing schedule should be set from the day leave is granted. DATED: November 5, 2018 BUCHALTER A Professional Corporation By: /s/ Roger L. Scott________________ J. Rick Taché Roger L. Scott Erikson C. Squier Attorneys for Plaintiff Whitewater West Industries, Ltd. Case 3:17-cv-01118-BEN-BLM Document 209 Filed 11/05/18 PageID.8692 Page 10 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BUCHALTER A P R O F E S S I O N A L C O R P O R A T I O N I R V I N E 10 PLAINTIFF’S OPPOSITION TO EX PARTE MOTION FOR LEAVE TO FILE SECOND MSJ Case No. 3:17-cv-01118-BEN-BLM BN 34492891v3 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served on November 5, 2018, to all counsel of record who are deemed to have consented to electronic service via the Court’s CM/ECF system per Civil Local Rule 5.4. Any counsel of record who have not consented to electronic service through the Court’s CM/ECF system will be served by electronic mail, first class mail, facsimile and/or overnight delivery. /s/ Roger L. Scott________________ Roger L. Scott Case 3:17-cv-01118-BEN-BLM Document 209 Filed 11/05/18 PageID.8693 Page 11 of 11