Tiwari v. NBC Universal, Inc.

Filing 118

ORDER by Judge Edward M. Chen Denying 113 Plaintiff's Motion for Leave to File a Motion for Reconsideration and Granting Plaintiff's Alternative Motion for Clarification. (emcsec, COURT STAFF) (Filed on 11/23/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANURAG TIWARI,

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Plaintiff,
v.

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For the Northern District of California

United States District Court

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NBC UNIVERSAL, INC.,

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Defendant.
___________________________________/

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No. C-08-3988 EMC
ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO FILE A
MOTION FOR RECONSIDERATION
AND GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR
CLARIFICATION
(Docket No. 113)

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Previously, the Court issued an order in which it, inter alia, granted in part and denied in part

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Defendant NBC Universal, Inc.’s motion to strike. Plaintiff Anurag Tiwari has now filed a motion

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for leave to file a motion for reconsideration or, in the alternative, for clarification of that order.

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Having considered the papers submitted, the Court hereby DENIES Mr. Tiwari’s motion for leave

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to file a motion for reconsideration but GRANTS his alternative motion for clarification.

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The Court addresses first the motion for leave to file a motion for reconsideration. To obtain

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leave to file a motion for reconsideration, a party must show that one of the requirements of Civil

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Local Rule 7-9(b) has been met. Here, Mr. Tiwari invokes the last requirement – i.e., “[a] manifest

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failure by the Court to consider material facts or dispositive legal arguments which were presented

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to the Court before such interlocutory order.” Civ. L.R. 7-9(b)(3). The problem for Mr. Tiwari is

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that he has not demonstrated that his legal argument (based on Verizon Delaware, Inc. v. Covad

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Communications Co., 377 F.3d 1081 (9th Cir. 2004)) was presented to the Court before entry of its

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order. Indeed, his opposition to the motion to strike does not cite Verizon nor make an argument

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comparable to the one presented here.

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As for the alternative motion for relief, Mr. Tiwari asks that the Court clarify whether it

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intended to give him an opportunity to amend. Although not entirely clear from his papers, it

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appears that the amendment Mr. Tiwari seeks is a repleading of his third amended complaint, except

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that he would omit the claim for defamation and supporting factual allegations. Mr. Tiwari does not

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appear to be asking for an opportunity to plead a new claim for defamation based on new factual

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allegations – implicitly acknowledging the futility of repleading the defamation claim based on the

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October 2010 epilogue.
Construing the motion for relief as such, the Court grants the motion to the extent that it now

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For the Northern District of California

United States District Court

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clarifies that it did not intend to give Mr. Tiwari an opportunity to amend the complaint to omit the

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defamation claim. But to the extent Mr. Tiwari argues that he should have been given an

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opportunity to amend in that fashion, the Court disagrees. The authority Mr. Tiwari cites is

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materially distinguishable. In Verizon, for example, the district court allowed the plaintiff to file an

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amended complaint before ruling on the defendant’s motion to strike the original complaint. See id.

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at 1092. Similarly, in Echostar Satellite, LLC v. ViewTech, Inc., No. 07-cv-1273 W (AJB), 2009

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U.S. Dist. LEXIS 50487 (S.D. Cal. May 27, 2009), the plaintiff had filed a motion to strike, but,

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before the court could rule on that motion, the parties filed a joint motion for an order granting the

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defendant leave to file an amended counterclaim that would no longer include the challenged claims.

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The joint motion was granted, thus mooting out the plaintiff’s motion to strike. See id. at *4. In

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short, in both Verizon and Echostar, there was effectively no ruling on the merits of the motion to

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strike; rather, the motion to strike was rendered moot because of an amended complaint or

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counterclaim.

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In the instant case, Mr. Tiwari never sought to amend his defamation claim prior to the

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Court’s ruling on NBC’s motion to strike. Nor did he ever seek to withdraw the defamation claim

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prior to the Court’s ruling on the motion to strike. Accordingly, even if the Court were to permit

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Mr. Tiwari to file an amended complaint which would omit the defamation claim, that would not

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automatically free Mr. Tiwari of any potential liability for attorney’s fees and costs pursuant to

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California Code of Civil Procedure § 425.16(c).

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For the foregoing reasons, the motion to reconsider is denied but the alternative motion for
clarification is granted to the extent stated above.
This order disposes of Docket No. 113.

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IT IS SO ORDERED.

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Dated: November 23, 2011
_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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