Oracle Corporation et al v. SAP AG et al

Filing 1151

Declaration of Tharan Gregory Lanier in Support of 1150 Opposition/Response to Motion,, 1149 Opposition/Response to Motion, Declaration of Tharan Gregory Lanier in Support of Defendants' Oppositions to Oracle's Motions for Leave to File Motions for Reconsideration Regarding (1) Saved Development Costs and (2) Up-Sell and Cross-Sell Projections, and Motion for Clarification filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Related document(s) 1150 , 1149 ) (Froyd, Jane) (Filed on 5/1/2012)

EXHIBIT 11

Page 1

NOREEN SALINAS, et. al., Plaintiff(s), v. CITY OF SAN JOSE, et. al.,
Defendant(s).
NO. 5:09-cv-04410 EJD
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA, SAN JOSE DIVISION
2011 U.S. Dist. LEXIS 94354

August 23, 2011, Decided
August 23, 2011, Filed
PRIOR HISTORY: Salinas v. City of San Jose, 2011
U.S. Dist. LEXIS 46773 (N.D. Cal., May 2, 2011)
COUNSEL: [*1] For Noreen Salinas, Carlos Salinas,
Loretta Salinas, Ana Olivia Salinas, Plaintiffs: Dale
Kristopher Galipo, LEAD ATTORNEY, Attorney At
Law, Woodland Hills, CA.
For City of San Jose, Defendant: Michael J. Dodson,
LEAD ATTORNEY, Clifford S. Greenberg, Office of the
City Attorney, City of San Jose, San Jose, CA.
For Chief Robert Davis, Officer Roderick Smith, Officer
Barry Chikayasu, Officer Michael McLaren, Sgt. Jason
Woodall, Defendants: Michael J. Dodson, LEAD
ATTORNEY, Office of the City Attorney, City of San
Jose, San Jose, CA.
For Taser International, Inc., Defendant: Mildred
Katherine O'Linn, LEAD ATTORNEY, Manning &
Kass, Ellrod, Ramirez Trester, Los Angeles, CA; Holly L
Gibeaut, Taser International Inc., Scottsdale, AZ.
JUDGES: EDWARD J. DAVILA, United States District
Judge.
OPINION BY: EDWARD J. DAVILA
OPINION

ORDER DENYING DEFENDANT'S MOTION FOR
LEAVE
TO
FILE
MOTION
FOR
RECONSIDERATION
[Docket Item No. 68]
I. INTRODUCTION
On May 25, 2007, officers from the San Jose Police
Department ("SJPD") arrived at the scene of a reported
disturbance on North First Street. There they encountered
Steven Salinas ("Salinas"), against whom an officer
utilized a Taser Electronic Control Device ("ECD").
Salinas died during the [*2] incident. Plaintiffs then filed
this consolidated action against the City of San Jose, the
San Jose Police Chief, Taser International, Inc. ("Taser"),
and the individual police officers involved. As to Taser,
Plaintiffs claims rest on an underlying theory of product
liability: that Taser allegedly failed to warn that repeated
applications of an ECD could cause serious injury or
death.
On December 17, 2010, Taser filed a Motion for
Summary Judgment on four grounds: (1) that Taser
expressly and repeatedly warned of the potential risks
associated with multiple and continuous ECD
applications; (2) that the SJPD observed these warnings

Page 2
2011 U.S. Dist. LEXIS 94354, *2

and adopted an appropriate ECD use policy; (3) that the
officer who used the ECD against Salinas was are of the
SJPD policy; and (4) that Plainitff's medical causation
evidence was insufficient to establish general or specific
causation. See Docket Item No. 43. This court's
predecessor (Judge Richard Seeborg) denied Taser's
motion in a written order filed May 2, 2011 (the "Order").
See Docket Item No. 62. After this case was reassigned to
this court on June 2, 2010, Taser filed the instant Motion
for Leave to File a Motion for Reconsideration of the
Order. [*3] See Docket Item No. 68. Taser argues
reconsideration is necessary due to the court's "manifest
failure" to consider certain dispositive arguments. The
court has reviewed this matter in its entirety. For the
reasons explained below, the motion will be denied. 1
1 This disposition is not intended for publication
in the official reports.
II. LEGAL STANDARD
Taser brings this motion pursuant to Federal Rule of
Civil Procedure 54(b) and Civil Local Rule 7-9. These
rules work in tandem. Rule 54(b) provides the general
authority for the court to revise interlocutory orders.
"[A]ny order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be
revised at any time before the entry of an judgment
adjudicating all the claims and all the parties' rights and
liabilities." Fed. R. Civ. P. 54(b). Local Rule 7-9 provides
the mechanism by which such a revision can be obtained.
The first step of that process - and the step that is relevant
here - requires a party seeking reconsideration of a prior
order to obtain permission to make such a request. Rule
7-9(a) [*4] therefore states:
Before the entry of a judgment
adjudicating all of the claims and the
rights and liabilities of all the parties in the
case, any party may make a motion before
a Judge requesting that the Judge grant the
party leave to file a motion for
reconsideration of any interlocutory order
made by that Judge on any ground set
forth in Civil L.R. 7-9(b). No party may
notice a motion for reconsideration
without first obtaining leave of Court to
file the motion.

In requesting leave of court, the moving party must
at the very least do two things. First, the party must make
a specific showing supporting one of the following bases:
(1) At the time of the filing the motion
for leave, a material difference in fact or
law exists from that which was presented
to the Court before entry of the
interlocutory
order
for
which
reconsideration is sought. The party also
must show that in the exercise of
reasonable diligence the party applying for
reconsideration did not know such fact or
law at the time of the interlocutory order;
or
(2) The emergence of new material facts
or a change of law occurring after the time
of such order; or
(3) A manifest failure by the Court to
consider material facts or [*5] dispositive
legal arguments which were presented to
the Court before such interlocutory order.
Civ. L.R. 7-9(b).

Second, the party must accomplish the appropriate
showing without repeating any oral or written argument
previously made with respect to the interlocutory order
that the party now seeks to have reconsidered. Civ. L.R.
7-9(c). Doing so subjects that party to the possibility of
sanctions. Id.
III. DISCUSSION
Taser's argument in support of the Motion is
comprised of three separate but related contentions. First,
Taser collectively asserts that reconsideration is
warranted because the court failed to hold Plaintiffs to the
"Rule 56(e)" standards, accepted Plaintiffs' theory of
medical causation without requiring the production of
supporting evidence, and basically ignored certain legal
authority cited by Taser in its motion for summary
judgment. Second, Taser believes the court did not
sufficiently consider an argument that Plaintiffs' medical
evidence falls short of what will be required at trial.
Third, Taser argues the court neglected to address SJPD's
use-of-force policy.
Despite Taser's efforts to show otherwise, the court

Page 3
2011 U.S. Dist. LEXIS 94354, *5

disagrees that any of the instant contentions require [*6]
reconsideration primarily because the Motion suffers
from one fatal characteristic: it violates the express
prohibition contained in subsection (c) of Rule 7-9. As
stated above, Taser was obligated under this District's
rule to present a basis for reconsideration without
repeating any of the arguments it made in the first
instance. The court is cognizant that this task presents
somewhat of a challenge when the cited basis for relief is
the court's failure to consider arguments previously made,
and some latitude has been allowed for that reason. But
as they are now presented, all of Taser's current
arguments are either exactly the same or are some
iteration of the arguments made in the summary judgment
motion. For instance, although Taser clearly laid out the
Rule 56(e) standard and described its perceived effect on
Plaintiffs' ability or inability to show medical causation in
the summary judgment motion (see Taser's Mtn. For
Summ. Judgment, Docket Item No. 43, at pp. 4, 12-16),
Taser makes the same argument once again albeit in a
more direct and expanded form. But the court was
obviously aware of the applicable standard because Rule
56(e) is cited in the Order. See Order at p. 4. Moreover,
[*7] the court must have read and considered Taser's
position on medical causation because it commented on
one of the cases relied on by Taser, In re Hanford
Nuclear Reservation Litigation, 292 F. 3d 1124 (9th Cir.
2002). See id. at p. 13. In short, there is no indication the
court failed to consider the medical causation argument.
It simply disagreed with Taser's position.
The same is true with regard to Taser's additional
contentions. The court must have considered Taser's
claim that Plaintiffs' medical evidence lacks a connection
between the application of ECD devices and cardiac
arrest. Again, Taser made this exact argument previously
and, much like the argument discussed above, the court
just did not find it convincing. Indeed, the court pointed
out an important distinction between Plaintiffs' theory of
liability and the warnings Taser relied on in the summary
judgment motion. The court wrote:
Plaintiffs' theory in this action, however,
is that Taser's products are not as safe and
free from the potential of causing or
contributing to death as it would have law
enforcement
and
the
public
believe....[T]hey believe that Taser has
created a false sense of security that leads
law enforcement [*8] to resort to using its

products under circumstances that do not
call for immediate use of force at all, or at
least not force that carries any substantial
risk of causing death....The warnings on
which Taser bases this motion, however,
are not directed to preventing or reducing
the risks that plaintiffs contend
exist....[T]he overall message is that Taser
devices are not responsible for such
deaths, and that an officer's priority should
be to exert control over subjects and place
them as necessary in the care of medical
professionals as quickly as possible. As
such, it cannot be concluded as a matter of
law that Taser adequately warns against
the particular risks plaintiffs contend it
products pose.
See id. at pp. 11-12 (emphasis added).
Taser ignores the distinction cited above in this
Motion, which explicitly finds Taser's argument
misplaced. Taser also ignores a similar distinction
pointed out by the court in response to the claim based on
the SJPD use-of-force policy. 2
2 Regarding the use-of-force policy, the court
determined that "[w]hile there is evidence that
Officer Chikayasu was aware that Taser devices
have been alleged to cause death in some
instances and that he believed that [*9] to be true,
it would be unduly speculative to conclude, as a
matter of law, that he and the other officers on the
scene would have taken the same actions had
Taser not consistently marketed its products as
non-lethal, but instead warned explicitly that they
can cause or contribute to death in some
circumstances." See Order at p. 13, fn. 1.
In sum, it is clear the court considered all of the
evidence and arguments presented by both sides to this
case in ruling on Taser's prior motion for summary
judgment. After doing so, the court simply could not find
that Taser's arguments prevailed as a matter of law. There
is no indication the court "manifestly" failed to consider
anything that could prove dispositive. Taser seems to take
issue with the fact the court did not address every point or
every case cited by Taser. But this does not equate to a
failure to consider dispositive arguments, especially when
the Order appears complete on its face. Taser may also

Page 4
2011 U.S. Dist. LEXIS 94354, *9

believe a trier of fact could come to a different conclusion
based on the arguments it presented, but such a belief
does not warrant reconsideration. See Burke v. County of
Alameda, 2008 WL 786862, 2008 U.S. Dist. LEXIS
119739, at *4-5 (N.D. Cal. Mar. 20, 2008) [*10] ("[T]he
fact that, in plaintiffs' opinion, a trier of fact might have
come to a different conclusion than the Court is not
grounds for reconsideration."); see also Nidec Corp. v.
Victor Co. of Japan, Ltd., 2007 WL 4108092, 2007 U.S.
Dist. LEXIS 86414, *11-12 (N.D. Cal. Nov. 16, 2007)
("[A] court can consider the 'material facts or dispositive
legal arguments' advanced by the parties but still commit
'clear error' in reaching its conclusions after considering
those facts and arguments."). This Motion appears to be
an attempt to raise before a new judge arguments that
were found unconvincing by the judge who issued the
subject interlocutory order. That is certainly not the
reason the reconsideration mechanism exists. See
Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir. 1995)
("It is not the purpose of allowing motions for
reconsideration to enable a party to complete presenting
his case after the court has ruled against him. Were such a
procedure to be countenanced, some lawsuits really might
never end, rather than just seeming endless.").

Accordingly, Taser's motion will be denied.
IV. ORDER
Based on the foregoing, Taser's Motion for Leave to
File a Motion for Reconsideration of the [*11] Order
filed on May 2, 2011, is DENIED.
Since it appears this case is in a position to be set for
trial, the court schedules a Pretrial Conference for
October 14, 2011, at 11:00 a.m. in Courtroom 1, 5th
Floor, at the United States Courthouse located on 280 S.
1st Street, San Jose, California. The parties shall file a
joint Pretrial Conference Statement on or before
September 30, 2011.
IT IS SO ORDERED.
Dated: August 23, 2011
/s/ Edward J. Davila
EDWARD J. DAVILA
United States District Judge