Adobe Systems Incorporated v. Kornrumpf

Filing 134

ORDER by Judge Claudia Wilken DENYING DEFENDANTS 133 MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION. (ndr, COURT STAFF) (Filed on 12/14/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ADOBE SYSTEMS INCORPORATED,

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United States District Court
For the Northern District of California

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No. C 10-2769 CW

Plaintiff,
v.
HOOPS ENTERPRISE LLC; and ANTHONY
KORNRUMPF,

ORDER DENYING
DEFENDANTS’ MOTION
FOR LEAVE TO FILE
MOTION FOR
RECONSIDERATION
(Docket No. 133)

Defendants.
________________________________/
AND ALL RELATED CLAIMS
________________________________/

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Defendants and Counter-claimants Hoops Enterprise, LLC, and

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Anthony Kornrumpf move for leave to file a motion for

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reconsideration pursuant to Civil Local Rule 7-9(b)(3).

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considered the papers submitted by Defendants, the Court DENIES

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their motion.

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Having

BACKGROUND
On October 11, 2011, Defendants filed an administrative

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motion seeking an extension of the fact discovery deadline.

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that motion, Defendants represented that they sought the extension

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to enforce the execution of subpoenas on certain third-party

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companies for copies of contracts relevant to their first sale

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doctrine affirmative defense and for depositions of individuals at

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some of these companies.

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to notice additional depositions of Adobe employees in relation to

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these contracts, which they were in the process of doing, and to

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In

Defendants also stated that they wanted

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subpoena at least one additional non-party individual for

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deposition.

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thereto, the Court issued an order extending the fact discovery

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deadline for the limited purpose of executing the third-party

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subpoenas already issued.

After considering that motion and Adobe’s opposition

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On November 7, 2011, Defendants Hoops Enterprise LLC and

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Anthony Kornrumpf filed a second administrative motion for an

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order extending the fact discovery deadline, again in order to

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notice and take depositions of Adobe employees.

On December 1,

United States District Court
For the Northern District of California

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2011, after considering the second administrative motion and

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Adobe’s opposition, the Court denied the motion and re-iterated

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that the first order had extended the fact discovery deadline only

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for the execution of subpoenas already served.

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On December 1, 2011, Defendants filed a motion seeking leave

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to file a motion for reconsideration of this Court’s order,

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stating that there had been a manifest failure by the Court to

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consider facts that showed that Plaintiff had caused the delay,

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that Defendants had acted diligently at all times, and that the

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denial of an extension of fact discovery would prejudice

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Defendants by denying them a fair trial on the merits.

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LEGAL STANDARD

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A party may only file a motion for reconsideration of an

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interlocutory order after obtaining leave of the Court.

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Local Rule 7-9(a).

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showings that a party may make to support a motion for leave to

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file a motion for reconsideration, including: “A manifest failure

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by the Court to consider material facts or dispositive legal

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arguments which were presented to the Court before such

Civil

Civil Local Rule 7-9(b) sets forth several

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interlocutory order.”

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leave to file a motion for reconsideration may repeat any oral or

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written argument made by the applying party in support of or in

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opposition to the interlocutory order which the party now seeks to

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have reconsidered.”

“No motion for

Civil Local Rule 7-9(c).

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Civil Local Rule 7-9(b)(3).

DISCUSSION
Defendants have only repeated the written arguments that they

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already made in support of their two administrative motions

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seeking an extension of the fact discovery deadline, which is

United States District Court
For the Northern District of California

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impermissible under Civil Local Rule 7-9(c).

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sufficient for the denial of their motion.

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This alone is

Defendants have also not demonstrated that there has been a

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manifest failure of the Court to consider these arguments.

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Instead, the Court considered Defendants’ arguments when they were

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originally offered and declined to order a broad extension of the

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fact discovery deadline at that time.

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Defendants have not demonstrated that they acted diligently

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to comply with this Court’s scheduling order.

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are correct that some delay occurred while the magistrate judge

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considered Plaintiff’s opposition to their third-party subpoenas

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for documents, Defendants have not proffered any explanation for

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their initial delay in serving these subpoenas.

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While Defendants

Defendants also have not demonstrated that the denial of the

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ability to take depositions of Plaintiff’s employees and agents

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would prejudice them.

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that the depositions are necessary to their preparation of their

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defense and counter-claim; however, in their administrative

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motions and supporting affidavits, they made clear that they

In the instant motion, Defendants state

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believe that the depositions are relevant to the preparation of

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their first sale defense.

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‘owner of a particular copy’ of a copyrighted work to sell or

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dispose of his copy without the copyright owner's authorization.”

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Vernor v. Autodesk, Inc., 621 F.3d 1102, 1107 (9th Cir. 2010)

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(citing 17 U.S.C. § 109(a)).

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possesses a copy of the copyrighted work without owning it, such

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as a licensee.”

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Circuit has held that “a software user is a licensee rather than

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United States District Court
For the Northern District of California

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an owner of a copy where the copyright owner (1) specifies that

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the user is granted a license; (2) significantly restricts the

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user’s ability to transfer the software;

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use restrictions.”

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that the additional depositions are relevant to making this

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determination, which can be done by looking to the contracts

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themselves.

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discovery deadline in order to allow Defendants to obtain these

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documents.

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The first sale doctrine “allows the

It “does not apply to a person who

Id. (citing 17 U.S.C. § 109(d)).

Id. at 1111.

The Ninth

and (3) imposes notable

Defendants have not demonstrated

This Court’s prior order already extended the fact

Accordingly, the Court DENIES Defendants’ motion for leave to
file a motion for reconsideration (Docket No. 133).
IT IS SO ORDERED.

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Dated: 12/14/2011

CLAUDIA WILKEN
United States District Judge

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