VidAngel LLC v. Clearplay, Inc.

Filing 43

ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 42 (Illston, Susan) (Filed on 3/6/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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VIDANGEL LLC,

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United States District Court
For the Northern District of California

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No. C 13-5989 SI

Plaintiff,

ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO FILE
MOTION FOR RECONSIDERATION

v.
CLEARPLAY INC., and DOES 1-10,

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Defendants.

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On March 4, 2014, the Court issued an Order Granting Defendant’s Motion to Transfer Venue

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and Transferring Action to the District of Utah. On March 5, 2014, plaintiff filed a motion for leave to

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file a motion for reconsideration of that order. Plaintiff asserts that reconsideration is warranted because

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“numerous key facts have only recently come into existence that, due to their timing, were not available

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to the Court when it issued its ruling transferring this action.” Docket No. 42 at 1. These facts include

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VidAngel’s reincorporation as a Delaware limited liability corporation on February 7, 2014; VidAngel

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entering into a lease for an office in Palo Alto, California on February 26, 2014; “recently” engaging

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numerous employees in the Northern District; and changing VidAngel’s terms of use to require disputes

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with its customers to be arbitrated and litigated in Silicon Valley.

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Civil Local Rule 7-9 governs motions for leave to file a motion for reconsideration. That rule
provides,
(b) Form and Content of Motion for Leave. A motion for leave to file a motion for
reconsideration must be made in accordance with the requirements of Civil L.R. 7-9.
The moving party must specifically show reasonable diligence in bringing the
motion, and one of the following:

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(1) That at the time of the motion for leave, a material difference in fact or
law exists from that which was presented to the Court before entry of the

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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

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(2) The emergence of new material facts or a change of law occurring after
the time of such order; or

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(3) A manifest failure by the Court to consider material facts or dispositive
legal arguments which were presented to the Court before such interlocutory order.

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Civil Local Rule 7-9(b).
The Court finds that plaintiff has not shown that any of the requirements of Civil Local Rule 7-

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9(b) are met.1 Plaintiff’s opposition to the motion to transfer was filed on February 21, 2014. That

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opposition made no mention of VidAngel’s reincorporation, nor did plaintiff inform the Court that

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United States District Court
For the Northern District of California

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VidAngel had imminent plans to relocate to Palo Alto. Instead, plaintiff’s CEO filed a declaration on

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February 21, 2014, stating, inter alia, “While it is still early in VidAngel’s business cycle, VidAngel’s

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long-term business plans are to work closely with video content providers (which are mainly based in

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Los Angeles, California) in conjunction with technology partners (which are mainly based in Silicon

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Valley in the Northern District). According to VidAngel’s post-seed funding plans and for strategic

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reasons unrelated to this lawsuit, I am currently working with legal and accounting professionals about

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moving the company out of Utah.” Harmon Decl. ¶ 10 (Docket No. 26-1). VidAngel’s motion for

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leave to file a motion for reconsideration does not explain why Mr. Harmon’s February 21, 2014

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declaration did not mention the reincorporation or why that declaration only stated in vague terms that

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he was working with professionals about “moving the company out of Utah.”

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VidAngel notes that the hearing on the motion to transfer was scheduled for March 14, 2014,

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and VidAngel states that it had planned to file a surreply on March 6, 2014 informing the Court of the

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new developments, but that the Court “beat VidAngel to the punch” by ruling on the motion to transfer

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on March 4, 2014. Docket No. 42 at 1. However, as VidAngel is aware, on February 21, 2014,

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ClearPlay filed a motion for a temporary restraining order and preliminary injunction. On February 26,

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2014, in the course of briefing the TRO motion, ClearPlay filed a Supplement to the TRO motion

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Although VidAngel does not identify which provision of Civil Local Rule 7-9(b) it contends
applies, presumably VidAngel invokes subsection (1) because the new developments occurred prior to
the date the Court’s March 4, 2014 order was issued.
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requesting that the Court rule on the fully briefed transfer motion before considering the TRO motion.

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Docket No. 32. Thus, VidAngel was aware as of February 26, 2014, that due to the pending TRO

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motion, there was a reasonable possibility that the Court would rule on the fully briefed transfer motion

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prior to the March 14, 2014 hearing date.2 In any event, VidAngel has not explained why it did not

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inform the Court of its reincorporation and plans to relocate in its February 21, 2014 opposition to the

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motion to transfer, or at the latest on or around February 26, 2014 when VidAngel signed the lease.
VidAngel has not shown, as is required by Civil Local Rule 7-9(b)(1) that “a material difference

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in fact . . . exists from that which was presented to the Court” of which VidAngel was then unaware, as

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is required by the Rule: “The party also must show that in the exercise of reasonable diligence the party

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United States District Court
For the Northern District of California

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applying for reconsideration did not know such fact or law at the time of the interlocutory order.” The

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facts now cited to the Court, of which VidAngel was aware at all times, were not presented to the Court

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in any of the numerous briefs filed by VidAngel. VidAngel did not act with reasonable diligence prior

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to the Court’s March 3, 2014 transfer order to supplement the factual record regarding the transfer

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motion.

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This order resolves Docket No. 42.

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IT IS SO ORDERED.

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Dated: March 6, 2014
SUSAN ILLSTON
United States District Judge

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VidAngel’s opposition to the TRO motion, which was filed on February 26, 2014, also makes
no mention of VidAngel’s reincorporation or relocation.
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