Venice Baking Company v. Sophast Sales and Marketing LLC et al

Filing 22

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION 16 by Judge Otis D. Wright, II. As detailed above, Plaintiff has not met the requirements for reconsideration or relief. Therefore, the Court DENIES Plaintiff's motion. (lom)

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United States District Court
Central District of California

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VENICE BAKING COMPANY,
Plaintiff,

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v.

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Case No. 2:16-cv-6136-ODW(KS)

SOPHAST SALES AND MARKETING
LLC; and DOES 1–10, inclusive,

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ORDER DENYING PLAINTIFF’S
MOTION FOR
RECONSIDERATION [16]

Defendants.

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I.

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INTRODUCTION

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Plaintiff Venice Baking Company files the pending motion for reconsideration and

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relief from the Court’s September 19, 2016, order granting Defendant Sophast Sales

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and Marketing LLC’s motion to dismiss with prejudice. (ECF Nos. 11, 16.) For the

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following reasons, the Court DENIES Plaintiff’s motion.1

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II.

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FACTUAL BACKGROUND

On May 4, 2016, Plaintiff filed this action in the Superior Court of Los Angeles,

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After considering the papers filed in support of and in opposition to Plaintiff’s motion, the Court
deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal.
L.R. 7-15.

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seeking declaratory relief. (Compl., Not. of Removal, Ex. A, ECF No. 1.) Plaintiff’s

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claims arose out of a contractual dispute between the two parties. (Id.) Defendant

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removed the action to this Court on August 16, 2016. (Id.) Defendant then filed a

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motion to dismiss for lack of personal jurisdiction on August 30, 2016, which was set

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for hearing on October 3, 2016. (ECF No. 9.) Plaintiff’s opposition to the motion

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was due on September 12, 2016, twenty-one days before the hearing. No opposition

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was ever filed. On September 19, 2016, the Court granted Defendant’s motion to

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dismiss as unopposed. (ECF No. 11.) Later that day, Plaintiff filed an ex-parte

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application seeking a continuance to file opposition. (ECF No. 12.) On September

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21, 2016, the Court denied the ex-parte application as procedurally improper because

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a final order had been issued. (ECF No. 17.) On the same day, Plaintiff filed the

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pending motion for reconsideration and relief.2 (Mot., ECF No. 16.)

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In the pending motion, Plaintiff’s counsel explains that the parties were

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engaged in settlement negotiations prior to the September 12, 2016, deadline for filing

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opposition. (Wiseman Decl. ¶¶10-16, ECF No. 16.) Plaintiff’s counsel believed that

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these negotiations would soon lead to a settlement. (Id.) He also believed that filing

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opposition would serve as a potential irritant in these settlement negotiations, making

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it less likely that his client would be able to obtain a settlement.

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Accordingly, Plaintiff’s counsel did not file opposition.

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settlement failed to materialize and the deadline passed. (Id., Ex. G at 1.) Three days

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after the deadline to file opposition, Plaintiff’s counsel asked Defendant’s permission

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to reschedule the October 3, 2016 hearing to a date two weeks later. (Id. ¶17)

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Defendant declined Plaintiff’s request. (Id.)

(Id.)

(Id. ¶14)

Nonetheless, a

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Defendant filed opposition to the pending motion on October 3, 2016. (Opp’n, ECF No. 20.)
Plaintiff filed a reply on October 10, 2016. (Reply, ECF No. 21.)

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III.

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LEGAL STANDARD

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A party may file a motion for reconsideration pursuant to Federal Rule of Civil

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Procedure 59(e) within twenty-eight days of the order that it seeks to amend.

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However, Rule 59(e) is an “extraordinary remedy to be used sparingly” and is rarely

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granted “absent highly unusual circumstances.”

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Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation marks omitted); Marlyn

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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.

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2009).

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Kona Enters., Inc. v. Estate of

Local Rule 7-18 dictates that there are only three grounds on which such a
motion may be granted:

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(1) a material difference in fact or law from that presented to the Court

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before such decision that in the exercise of reasonable diligence could not

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have been known to the party moving for reconsideration at the time of

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such decision, or (2) the emergence of new material facts or a change of

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law occurring after the time of such decision, or (3) a manifest showing

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of a failure to consider material facts presented to the Court before such

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decision.

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Like a motion for reconsideration, a motion for relief from judgment pursuant

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to Federal Rule of Civil Procedure 60(b) is considered a form of “extraordinary relief”

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reserved for “exceptional circumstances.” See Engleson v. Burlington N. R. Co., 972

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F.2d 1038, 1044 (9th Cir. 1992) (quoting Ben Sager Chemicals Int'l, Inc. v. E. Targosz

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& Co., 560 F.2d 805, 809 (7th Cir. 1977)). Motions made pursuant to Federal Rule of

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Procedure 60(b)(1) allow a court to “relieve a party . . . from a final judgment, order,

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or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect.” Fed. R.

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Civ. P. 60(b)(1). When a Rule 60(b)(1) motion is based on neglect, courts weigh four

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factors to determine whether the neglect was excusable: “(1) the danger of prejudice

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to the opposing party; (2) the length of the delay and its potential impact on the

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proceedings; (3) the reason for the delay [or other error, including whether it was

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within the reasonable control of the movant]; and (4) whether the movant acted in

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good faith.” See Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009)

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(quoting Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223 (9th Cir. 2000)); see also

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Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993).

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A party may also seek relief pursuant to Rule 60(b)(6). This catchall provision

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is used “sparingly” when necessary to prevent “manifest injustice.” United States v.

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Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). To satisfy this

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“lofty standard” the movant must prove that it suffered (1) an injury (2) and that

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circumstances beyond its control prevented timely action to protect its interests. Id.;

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see also Reese v. Sprint Nextel Corp., No. 2:13-CV-03811-ODW, 2014 WL 3724055,

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at *1 (C.D. Cal. July 24, 2014).

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IV.

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DISCUSSION

A. Reconsideration

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Plaintiff asks the Court to amend its final order dismissing this case with

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prejudice to instead dismiss this case without prejudice. (Memorandum 14, ECF No.

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16.) However, the Court finds that Plaintiff has not satisfied any of the three grounds

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outlined in Local Rule 7-18 to warrant such an amendment. Plaintiff neither cites a

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material fact or law that could not have been reasonably known at the time of the

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order’s issuance nor a material new fact or change in law that occurred after the

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order’s issuance.

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Additionally, Plaintiff’s motion fails to describe material facts presented before

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the order’s issuance that the Court failed to consider. Due to the unopposed nature of

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Plaintiff’s motion to dismiss, few facts were necessary to rule in Defendant’s favor.

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First, the Court found that Plaintiff filed a motion to dismiss on August 30, 2016

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alleging that this Court lacked personal jurisdiction over it. (Order 2, ECF No. 11.)

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Second, the Court found that a hearing was set for October 3, 2016 on the motion.

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(Id.) Third, the Court found that opposition to the motion was due on September 12,

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2016, twenty-one days before the hearing. (Id.) Finally, the Court found that no

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opposition was filed by the deadline. (Id.) Based on these facts, all of which were

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expressly included in the September 19, 2016 order, the Court granted Defendant’s

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motion to dismiss for lack of opposition. (Id. at 3.) Having failed to satisfy any of the

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requirements outlined in Local Rule 7-18, the Court denies Plaintiff’s request to

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reconsider and amend the prior order.

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B. Relief

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Plaintiff alleges eligibility for relief pursuant to Rule 60(b)(1) on the grounds of

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excusable neglect and surprise. (Memorandum 2.) In applying the Pioneer four-

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factor test to determine whether the neglect was excusable, the Court finds that there

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is little likelihood of prejudice to Defendant, that the length of the delay was modest (a

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matter of days), and that there is no evidence Plaintiff acted in bad faith. Thus, the

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Court finds these three factors weigh in Plaintiff’s favor.

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However, the Court finds that the third factor weighs heavily against Plaintiff.

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With full knowledge of the deadline to file opposition and of the settlement

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negotiations’ progress, Plaintiff’s counsel made the decision not to file opposition or a

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motion for an extension of the opposition deadline. (Wiseman Decl. ¶¶10-14.) This

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decision on the part of Plaintiff’s counsel was not only deliberate but also purposeful;

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Plaintiff’s counsel believed that by not filing opposition it would increase the

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likelihood of a settlement for his client. (Wiseman Decl. ¶14.) This was a risk

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Plaintiff’s counsel took at his own peril; there is no evidence that the parties ever

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finalized an agreement to extend the deadline for filing an opposition or to push back

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the hearing date.

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agreement was never formalized with the Court.

Even if there was an agreement between the parties, such an

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It is also worth noting that Plaintiff’s situation differs markedly from others

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where courts have found excusable neglect. In one line of cases finding excusable

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neglect, attorneys were prevented from timely filing by calendaring mistakes. Pincay

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v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004); Pioneer Inv. Servs. Co., 507 U.S. at

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399; In re Hawaiian Airlines, Inc., No. CV. 08-00405 DAE-BMK, 2011 WL

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1483923, at *8 (D. Haw. Apr. 18, 2011). In another line of cases finding excusable

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neglect, attorneys were effectively prevented from timely filing by personal or family

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emergencies. See Lemoge v. United States, 587 F.3d at 1197 (attorney suffered injury

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during proceedings that required multiple surgeries, skin grafts, and extensive

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therapy); see also Bateman v. U.S. Postal Serv., 231 F.3d at 1222 (family emergency

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requiring attorney’s presence in Nigeria). The implication in these two lines of cases

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is that, but for the calendaring mistake or emergency preventing it, these attorneys

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would have timely filed. By contrast, Plaintiff’s counsel was not prevented from

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timely filing: he chose not to file opposition to avoid disrupting the settlement

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process. Balancing the four Pioneer factors, the Court finds that the neglect of

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Plaintiff’s counsel was not excusable.

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The Court also finds that Plaintiff is not entitled to relief on the basis of

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surprise. Plaintiff’s counsel insinuates that Defendant bated him into not timely filing

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opposition by making it appear that settlement was imminent. (Wiseman Decl. ¶¶19-

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21.) While the Court cannot entirely discount the possibility that such a scheme

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existed, it is not in receipt of sufficient evidence to substantiate that claim. Having

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ruled out both excusable neglect and surprise, the Court finds no basis on which to

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grant Plaintiff Rule 60(b)(1) relief.

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Finally, Plaintiff seeks relief pursuant to Rule 60(b)(6). However, as discussed

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at length, Plaintiff’s decision not to file timely opposition was within its control. See

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Alpine Land & Reservoir Co., 984 F.2d at 1049 (requiring circumstances to be outside

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of movant’s control for Rule 60(b)(6) relief). As a result, the Court finds that Plaintiff

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is not entitled to Rule 60(b)(6) relief.

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V.

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CONCLUSION

As detailed above, Plaintiff has not met the requirements for reconsideration or
relief. Therefore, the Court DENIES Plaintiff’s motion.

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IT IS SO ORDERED.

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October 11, 2016

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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