Neal v. Polycom, Inc. et al

Filing 77

ORDER by Judge Samuel Conti denying 73 motion for leave to file motion for reconsideration. (sclc2, COURT STAFF) (Filed on 4/16/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court

For the Northern District of California

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)
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MARK NATHANSON, individually and )
on behalf of all others
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similarly situated,
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Plaintiff,
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v.
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POLYCOM, INC., ANDREW M. MILLER, )
MICHAEL R. KOUREY, and ERIC F. )
BROWN,
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Defendants.
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)

Case No. 13-3476 SC
ORDER DENYING MOTION FOR LEAVE
TO FILE MOTION FOR
RECONSIDERATION

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Now before the Court is Defendants Michael Kourey and Eric

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Brown's, two former CFOs of Defendant Polycom, motion for leave to

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file a motion for reconsideration of the Court's order, ECF No. 72

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("Order"), denying Kourey and Brown's motion to dismiss claims

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under Section 20(a) of the Securities Exchange Act of 1934.

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34; ECF No. 73 ("Mot.").

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("Opp'n").

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motion is ripe for disposition.

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set forth below the motion is DENIED.

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Plaintiff filed a response.

Id. at

ECF No. 75

The Court finds no hearing is necessary, and thus the
Civ. L.R. 7-9(d).

For the reasons

Kourey and Brown argue that the Court's decision not to
dismiss Plaintiffs' Section 20(a) claims against them was erroneous

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because to impose Section 20(a) liability, "plaintiff must show

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that a primary violation was committed and that the defendant

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'directly or indirectly' controlled the violator."

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Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1161 (9th Cir.

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1996).

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adequately pleaded was against Polycom's former CEO, Andrew Miller,

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and not Polycom, Kourey, or Brown, and the complaint contains no

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allegations that Kourey or Brown controlled Miller, Kourey and

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Brown conclude the Court's failure to dismiss the Section 20(a)

United States District Court

For the Northern District of California

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Paracor Fin.

Because the only primary violation the Court found

claims against them was erroneous.
However, that argument -- because Kourey and Brown did not

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control Miller, they cannot be held liable under Section 20(a) for

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his acts -- was first raised in Kourey and Brown's reply brief.

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Compare ECF No. 51 ("MTD") at 21 n.17 (arguing only that "[t]he

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absence of a claim under Section 10(b) precludes a claim under

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Section 20(a) . . . .") (citations omitted), with, ECF No. 59

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("Reply") at 14-15 (making the same argument now raised in the

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motion for leave to file motion for reconsideration).

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courts (including the Ninth Circuit) have concluded, "[i]t is

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inappropriate to consider arguments raised for the first time in a

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reply brief."

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Dairy, 435 F. Supp. 2d 1078, 1089 (E.D. Cal. 2006); see also United

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States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006) (declining to

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consider an issue first raised on reply because "'arguments not

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raised by a party in its opening brief are deemed waived.'")

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(quoting Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999));

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Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 n.5 (9th Cir. 2003)

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("[W]e decline to consider new issues raised for the first time in

As numerous

Ass'n of Irritated Residents v. C & R Vanderham

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a reply brief."); Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996)

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("Issues raised for the first time in the reply brief are

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waived.").

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fail[ed]" to consider this argument, because it would have been

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inappropriate to consider in the first place.

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As a result, the Court cannot have "manifest[ly]

Civ. L.R. 7-3(b)(3).

Accordingly, Kourey and Brown's motion for leave to file a

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motion for reconsideration is DENIED.

Defendants should instead

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raise these issues in their motion to dismiss Plaintiff's first

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amended complaint.

United States District Court

For the Northern District of California

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IT IS SO ORDERED.

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Dated: April 16, 2015

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UNITED STATES DISTRICT JUDGE

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