IceMOS Technology Corporation v. Omron Corporation

Filing 526

ORDER re: Minute Order Doc. 525: IT IS ORDERED that Defendant's Motion to Continue the Trial to November 30, 2020 (Doc. 497 ) is DENIED. The 6/29/2020 trial date is confirmed. IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to File a Surreply (Doc. 510 ) is DENIED as moot. See the attached order for additional information. Signed by Senior Judge James A. Teilborg on 6/24/2020. (RMW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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IceMOS Technology Corporation,
Plaintiff,

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ORDER

v.

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No. CV-17-02575-PHX-JAT

Omron Corporation,

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Defendant.

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Pending before the Court is Defendant Omron Corporation’s Motion to Continue

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the Trial to November 30, 2020. (Doc. 497). Plaintiff IceMOS Technology Corporation

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has responded in opposition, (Doc. 508), and Defendant has replied, (Doc. 509). Plaintiff

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seeks leave to file a sur-reply, which has been lodged with the Court. (Doc. 510;

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Doc. 511). The Court now rules.

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I.

BACKGROUND

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This case is set for trial to begin on June 29, 2020. (Doc. 470; Doc. 480). The trial

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was originally set for April 6, 2020, but the Court vacated that start date in light of the

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COVID-19 pandemic. (Doc. 463). At that time, the Court sought proposed start dates for

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the trial from the parties. (Id.). Plaintiff suggested June 29 or July 27, 2020, while

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Defendant indicated August 24 or September 21, 2020. (Doc. 469). Defendant now seeks

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to continue the trial to November 30, 2020. (Doc. 497).1

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Alternatively, Defendant asks that the Court convert this trial from a jury trial into a
bench trial. (Doc. 497 at 15–16). Plaintiff did not consent to that request, (Doc. 508;
Doc. 509 at 5–6), and thus, it is denied. See Fed. R. Civ. P. 39(a).

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II.

LEGAL STANDARD

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There are four factors a court must evaluate in deciding a motion to continue:

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“(1) the ‘diligence’ of the party seeking the continuance; (2) whether granting the

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continuance would serve any useful purpose; (3) the extent to which granting the

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continuance would have inconvenienced the court and the opposing party; and (4) the

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potential prejudice.” State Farm Fire & Cas. Co. v. Willison, 833 F. Supp. 2d 1200, 1211

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(D. Haw. 2011) (citing United States v. Flynt, 756 F.2d 1352, 1358–59 (9th Cir.),

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amended on other grounds, 764 F.2d 675 (9th Cir. 1985); United States v. Kloehn, 620

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F.3d 1122, 1127–28 (9th Cir. 2010)). Although the factors must be taken together in

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deciding a motion to continue, “in order to succeed[,] the [movant] must show some

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prejudice resulting from the court’s denial” of the motion to continue. Armant v.

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Marquez, 772 F.2d 552, 556–57 (9th Cir. 1985) (citation omitted); see also Martel v.

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County of Los Angeles, 56 F.3d 993, 995 (9th Cir. 1995) (en banc) (“[A] showing of

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prejudice is necessary to obtain reversals of decisions on continuance motions in both

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civil and criminal contexts.”). “[T]he focus of [the] prejudice inquiry is the extent to

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which the aggrieved party’s right to present” its case may be affected. Kloehn, 620 F.3d

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at 1128 (internal quotation marks and citation omitted); see also Martel, 56 F.3d at 995.

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(“Prejudice is measured in terms of the outcome of the trial . . . .”).

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III.

ANALYSIS

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Defendant articulates three broad arguments for continuing the trial. First, it raises

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health risks due to COVID-19 to all involved in the trial. (Doc. 497 at 2). Second,

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Defendant asserts that trial will burden its business operations in Japan as many of its

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witnesses are its employees and those witnesses will be required to quarantine before and

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after trial for several weeks. (Id. at 2–3). Finally, Defendant contends its counsel “will not

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be able to competently represent [it] if most of its team members are not allowed in the

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courtroom during trial.” (Doc. 497 at 2–3). The Court will now evaluate each factor of

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the Ninth Circuit’s test in turn.

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Defendant’s Diligence

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a.

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This factor favors denial of Defendant’s Motion (Doc. 497). As Plaintiff points

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out, the diligence inquiry relates to whether the movant was diligent in its efforts to ready

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its case prior to the date set for trial. Gross, 424 F. Supp. 3d at 802–03; see also Flynt,

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756 F.2d at 1359 (“First, we consider the extent of appellant’s diligence in his efforts to

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ready his defense prior to the date set for hearing.”). For example, in United States v.

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Gross, defendant sought a continuance because he asserted he was “hampered by the

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volume of data . . . and the many errors in data formatting” provided by the government.

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See 424 F. Supp. 3d at 803. The court there recognized “that document review in th[e]

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case [was] an enormous task” due to “the quality of the [g]overnment’s” document

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production, but because defendant was not proactive about seeking assistance from the

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government, the court found that defendant had not been diligent. See id. at 806.

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Here, Defendant makes a similar argument to the defendant in Gross. Essentially

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Defendant contends that its case will be prejudiced because of various complications due

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to the COVID-19 pandemic. (Doc. 497 at 2–3). Yet, many of Defendant’s complaints

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relate to the availability of defense counsel or various witnesses. (Doc. 497). Defendant

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could have been proactive in seeking to ensure it could present its case without certain

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members of its legal team, and all parties have the responsibility of guarding against the

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unfortunate possibility that a witness will become unavailable at trial for whatever

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reason. (See Doc. 480 at 2 n.1). The same is true of Defendant’s concerns about health

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risks to members of its legal team or its witnesses; it was Defendant’s responsibility to

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ensure it had a “plan B.” (See Doc. 513 at 45–46). Further, Defendant’s complaints about

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the effects on its business and its concerns about the health risks to others that are not its

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witnesses or members of its legal team are not related to Defendant’s ability to present its

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case, and thus, are not relevant to the Motion (Doc. 497). See Kloehn, 620 F.3d at 1128;

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Martel, 56 F.3d at 995. Defendant has not shown diligence.

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b.

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As noted, Defendant asks the Court to continue the trial to November 30, 2020.

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(Doc. 497). But, Defendant does not explain why the issues related to the COVID-19

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pandemic will be any different on November 30, 2020, as compared to June 29, 2020.

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Defendant has not shown that a continuance would be useful.

Usefulness of Continuance

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c.

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The Court does not give much weight to this factor. While Plaintiff articulates

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various forms of inconvenience, (Doc. 508 at 7), and though the Court has many pending

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matters such that granting the continuance would inconvenience the Court, there is not

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significant enough inconvenience to stop the Court from granting a continuance should

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the other factors, taken together, weigh in favor of a continuance. See Gross, 424

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F. Supp. 3d at 806–07.

Inconvenience

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d.

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As noted above, “the focus of [the] prejudice inquiry is the extent to which the

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aggrieved party’s right to present” its case may be affected. Kloehn, 620 F.3d at 1128

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(internal quotation marks and citation omitted); see Martel, 56 F.3d at 995. Defendant

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appears to articulate four forms of prejudice: (1) health risks due to COVID-19,

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(2) substantial hardship on Defendant’s ability to present its case due to travel-related

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issues (which arise from the COVID-19 pandemic), (3) the Court’s COVID-19 protocols

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will restrict the amount of team members in the courtroom, and (4) the risk of mistrial

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from the June 29, 2020 trial date. (Doc. 497 at 6–14). The Court discusses each asserted

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form of prejudice.

Prejudice

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First, as to Defendant’s concerns about the health risks due to COVID-19,

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(Doc. 497 at 6–10), the Court is aware of them, and this District has implemented safety

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precautions to mitigate those risks. See Gen. Order No. 20-26 (D. Ariz. May 28, 2020).

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“Jury trials are the bedrock of our justice system, expressly provided for in the

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Constitution and in the Sixth and Seventh Amendments. When each court determines that

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the time is right, the judiciary must reconstitute jury trials during the COVID-19

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pandemic.” COVID-19 Judicial Task Force, Conducting Jury Trials and Convening

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Grand

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https://www.uscourts.gov/sites/default/files/combined_jury_trial_post_covid_doc_

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6.10.20.pdf. This District has determined that the time is right to begin jury trials in

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Phoenix in order to effectuate the Constitution’s guarantee to jury trials. See Gen. Order

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No. 20-26. In any event, Defendant has not shown that the health risks to anyone in the

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courtroom will adversely affect its ability to present its case.

Juries

During

the

Pandemic

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(2020),

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Second, Defendant argues there will be substantial hardship on Defendant due to

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the impact on Defendant’s counsel and its witnesses as a result of travel restrictions

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related to the COVID-19 pandemic. (Doc. 497 at 10–13). Again, it is important to note

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that prejudice must be in the form of an adverse effect on Defendant’s ability to present

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its case. See Kloehn, 620 F.3d at 1128; Martel, 56 F.3d at 995. To the extent any impact

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on travel restrictions on counsel or Defendant’s witnesses affects Defendant’s ability to

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present its case, such prejudice would be prejudice Defendant itself fomented. While the

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Court recognizes that these times are extraordinary, a party should always be prepared for

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the potential that either members of its legal team or a witness will not be available for

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trial. If Defendant failed to formulate a “plan B” for either scenario, any prejudicial effect

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is the result of Defendant’s inaction, not the Court’s set trial date. (See Doc. 513 at 45–

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46); see also Gross, 424 F. Supp. 3d at 807 (finding no prejudice as any effect on

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movant’s case was due to movant’s lack of diligence). Hardship from any COVID-19-

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related travel restrictions does not constitute prejudice for purposes of deciding

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Defendant’s Motion (Doc. 497).

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Third, Defendant asserts it will be prejudiced by this District’s COVID-19

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protocols, which were formulated to reduce the risk of transmission of COVID-19 by

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those in the courtroom. See Gen. Order No. 20-26, at 4–5. Boiled down, Defendant’s

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complaint is that neither party “will be able to proceed with their full trial teams as

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planned.” (Doc. 497 at 13). It is not apparent how this District’s courtroom protocols will

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affect Defendant’s ability to present its case such that it will be prejudiced. These

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protocols were developed to promote safety while also allowing parties to present their

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case to the jury. See Gen. Order No. 20-26, at 1. This case is not so unique that this

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District’s COVID-19 protocols will unduly hamper Defendant’s ability to present its

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case.

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Finally, Defendant contends the risk for mistrial creates prejudice. (Doc. 497 at

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13–14). Defendant does not explain why mistrial prejudices it beyond the annoyance of

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having to redo trial at a later date. The Court recognizes that some inconvenience could

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result from a mistrial, but a mistrial will not affect Defendant’s ability to present its case.

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Additionally, it is not clear that on November 30, 2020 that the risk from COVID-19 will

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be any different. The Court will not prolong trial indefinitely, and it is not apparent that

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going to trial now is any more problematic than doing so on November 30, 2020—

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Defendant’s preferred start date. (Doc. 497). Defendant has not shown prejudice in the

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form of any effect on its ability to present its case due to the risk of mistrial.

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In short, Defendant has not shown that the ability to present its case will be

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affected by denying its requested continuance. Thus, prejudice has not been shown.

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IV.

CONCLUSION

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After weighing the required factors, the Court finds that a continuance is

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inappropriate here. Defendant has not shown prejudice nor has it shown it acted diligent

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in its efforts to be ready to present its case at trial. Indeed, failure to show prejudice alone

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warrants denial of the Motion (Doc. 497). Armant, 772 F.2d at 556–57. Given this

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conclusion, it is unnecessary to review Plaintiff’s lodged sur-reply to the Motion

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(Doc. 497), and thus Plaintiff’s Motion for Leave to File a Sur-reply (Doc. 510) will be

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denied as moot.

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Based on the foregoing,

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IT IS ORDERED that Defendant’s Motion to Continue the Trial to November 30,

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2020 (Doc. 497) is DENIED. The June 29, 2020 trial date is confirmed.

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File a Surreply (Doc. 510) is DENIED as moot.
Dated this 24th day of June, 2020.

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