Results ByIQ, LLC v. Fanning et al

Filing 92

Order by Hon. Samuel Conti denying 86 Motion for Reconsideration re 82 Order on Motion for Summary Judgment, Order on Motion to Continue.(sclc1, COURT STAFF) (Filed on 5/15/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RESULTS BYIQ LLC,

For the Northern District of California

United States District Court

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Plaintiff,

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v.

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NETCAPITAL.COM LLC, NETWIRE INC.,
NETMOVIES INC., and DOES 1-20,
inclusive,
Defendants.

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) Case No. C 11-0550-SC
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) ORDER DENYING MOTION FOR
) RECONSIDERATION
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This case arises out of a consulting agreement between the

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above-captioned defendants and non-party ByIQ LLC ("ByIQ").

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Plaintiff Results ByIQ LLC ("Results ByIQ") alleges that Defendants

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failed to pay bills issued in connection with services ByIQ

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rendered pursuant to the consulting agreement.

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previously moved for summary judgment on the ground that Results

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ByIQ lacked standing to enforce an agreement to which it was not a

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party.

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finding that there existed a triable issue of fact as to whether

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ByIQ assigned its rights under the consulting agreement to Results

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ByIQ.

Defendants

On May 7, 2013, the Court denied Defendants' motion,

ECF No. 82 ("SJ Order").

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Defendants now move for reconsideration of the Summary

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Judgment Order pursuant to Federal Rule of Civil Procedure 59(e).

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ECF No. 86 ("Mot.").

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59(e) allows a court to alter or amend a judgment and, in this

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case, the Court has yet to enter one.

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allow a party to move for reconsideration, but only after the party

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has obtained leave of the Court.

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motion for reconsideration has yet to be filed here.

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The Motion is procedurally improper.

Rule

Civil Local Rule 7-9 does

A motion for leave to file a

In any event, the substantive arguments advanced in

United States District Court

For the Northern District of California

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Defendants' Motion are unavailing.

Defendants contend that the

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express terms of the consulting agreement prevented ByIQ from

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assigning its rights.

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of the agreement, which provides:

Defendants specifically point to section 6

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This Agreement and the services contemplated hereunder
are specific to [ByIQ] and [ByIQ] shall not have the
right or ability to assign any obligations under this
Agreement without the written consent of NetCapital.
Any attempt to do so shall be void.

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Mot. at 2 (citing ECF No. 87-1).

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assigning its "obligations" to perform services under the

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consulting agreement.

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would also prevent ByIQ from assigning its right to payment for

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services rendered pursuant to the agreement.

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This language bars ByIQ from

However, it is not clear why the language

Even if this argument were persuasive, it was not raised in

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Defendants' summary judgment motion or in their reply in support of

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that motion.

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reconsideration must show the emergence of new material facts or a

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change of law or, alternatively, a "manifest failure by the Court

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to consider material facts or dispositive legal arguments which

Under Civil Local Rule 7-9(b), a party moving for

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were presented to the Court."

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reconsideration should not be granted unless the court "is

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presented with newly discovered evidence, committed clear error, or

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if there is an intervening changing in the controlling law."

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Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).

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Here, Defendants do not point to new facts or a change in the law.

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Further, the Court did not previously consider the assignment

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provision because neither party raised the issue at summary

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judgment.

United States District Court

For the Northern District of California

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Likewise, a Rule 59(e) motion for

For these reasons, Defendants' motion for reconsideration is
DENIED.

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IT IS SO ORDERED.

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Dated:

May 15, 2013
UNITED STATES DISTRICT JUDGE

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