Evolutionary Intelligence, LLC v. Sprint Nextel Corporation et al

Filing 270

ORDER DENYING REQUEST FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 267 , 269 by Judge Phyllis J. Hamilton. (pjhlc2S, COURT STAFF) (Filed on 5/9/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EVOLUTIONARY INTELLIGENCE, LLC,

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Plaintiff,

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v.

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SPRINT NEXTEL CORPORATION, et
al.,

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United States District Court
Northern District of California

Case No. 13-cv-04513-PJH
ORDER DENYING REQUEST FOR
LEAVE TO FILE MOTION FOR
RECONSIDERATION

Defendants.

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Re: Dkt. No. 267, 269

On April 11, 2019, the court denied plaintiff's motion to vacate judgment under

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Federal Rule of Civil Procedure 60(b)(6). Dkt. 266 (the “April 11th Order”).1 On May 6,

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2019, pursuant to Local Rule 7-9, plaintiff filed a motion requesting leave to file a motion

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for reconsideration of the April 11th Order and attached the proposed motion for

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reconsideration, brought pursuant to Federal Rule of Civil Procedure 59(e). Having read

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plaintiff’s papers and carefully considered plaintiff’s arguments and the relevant legal

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authority, the court hereby DENIES the motion for leave to file a motion for

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reconsideration.

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A.

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Plaintiff’s Motion Is Procedurally and Jurisdictionally Improper
“The Federal Rules of Civil Procedure do not expressly recognize a motion for

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reconsideration.” Arnett Facial Reconstruction Courses, Inc. v. Patterson Dental Supply,

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Inc., No. CV 11-06929 CBM (EX), 2013 WL 12246259, at *2 (C.D. Cal. Apr. 8, 2013).

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The Northern District’s Local Rules, however, provide for such a motion under L.R. 7-9,

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which is itself promulgated under Federal Rule of Civil Procedure 54(b). See L.R. 7-9.

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As relevant here, Rule 54(b) provides that: “[A]ny order or other decision, however

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This order assumes the parties’ familiarity with the court’s April 11th Order.

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designated, that adjudicates fewer than all claims or the rights and liabilities of fewer than

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all the parties . . . may be revised at any time before the entry of a judgment[.]" Fed. R.

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Civ. P. 54(b) (emphasis added). That is, as relevant here, after the court has entered

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judgment, Rule 54 no longer provides a basis for seeking reconsideration of a prior

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decision or order. Local Rule 7-9 reflects that limitation: “Before the entry of judgment . . .

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, any party may . . . request[ ] . . . leave to file a motion for reconsideration of any

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interlocutory order[.]”
Here, no party disputes that final judgment has already been entered. Indeed, the

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order plaintiff seeks this court to reconsider denied plaintiff’s request to vacate that very

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judgment. Accordingly, by its own terms, L.R. 7-9 does not provide plaintiff an avenue to

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United States District Court
Northern District of California

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file its present motion.2
After judgment has been entered, a motion for reconsideration is typically “brought

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as a motion to alter or amend a judgment under Federal Rule of Civil Procedure 59(e) [ ]

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or a motion for relief from judgments or orders under Federal Rule of Civil Procedure

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60(b)[.]” Arnett Facial, No. CV 11-06929 CBM (EX), 2013 WL 12246259, at *2 (C.D. Cal.

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Apr. 8, 2013). Here, plaintiff’s proposed motion for reconsideration is premised on Rule

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59(e). See Dkt. 269-1 at 1. But, just as plaintiff’s motion pursuant to L.R. 7-9 is

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procedurally improper, plaintiff’s proposed motion for reconsideration pursuant to 59(e) is

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jurisdictionally improper. Rule 59(e) provides that “[a] motion to alter or amend a

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judgment must be filed no later than 28 days after the entry of judgment.” Because “[t]he

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time period for filing a Rule 59(e) motion is jurisdictional,” Amerson v. Kindredcare, Inc.,

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606 F. App'x 371, 372 (9th Cir. 2015), “district court[s] ha[ve] no discretion to consider a

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late rule 59(e) motion,” Carter v. United States, 973 F.2d 1479, 1488 (9th Cir. 1992). See

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also Fed. R. Civ. P. 6(b)(2) (“A court must not extend the time to act under Rules . . .

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59(b), (d), and (e)[.]”). Here, judgment was entered over three years prior to plaintiff filing

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its proposed Rule 59(e) motion. Accordingly, even if this court were inclined to grant

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Indeed, plaintiff implicitly recognized that conclusion by filing its Rule 60(b) motion
without attempting to comply with L.R. 7-9.
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plaintiff’s Rule 59(e) motion—and the court is not so inclined—the court lacks jurisdiction

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to do so. See Amerson, 606 F. App’x at 372.

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Lastly, plaintiff’s citation to Thomas v. Cty. of Sonoma, No. 17-CV-00245-LB, 2017

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WL 2500886, at *2 (N.D. Cal. June 9, 2017), is unpersuasive. There, the court construed

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a pro se plaintiff’s post-judgment motion as a request for reconsideration pursuant to L.R.

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7-9 and Rule 59(e). Id. Critically, and assuming the propriety of applying L.R. 7-9, the

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Thomas court did not lack jurisdiction to consider the Rule 59(e) motion because Rule

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59(e)’s 28-day period had not yet expired. Id. at *1. Nor is the court persuaded by

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plaintiff’s argument that its Rule 59(e) motion is timely because no judgment will ever
enter following the court’s April 11th Order. Plaintiff cites no authority suggesting that the

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United States District Court
Northern District of California

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Rule 59(e) jurisdictional clock restarts after the court decides a post-judgment motion.3

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B.

Assuming plaintiff’s motion was procedurally proper under L.R. 7-9 and

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Plaintiff’s Motion Fails Under L.R. 7-9 and Rule 59(e)

jurisdictionally proper under Rule 59(e), it would also fails on the merits.
Before a party may file a motion for reconsideration, the party must first obtain

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leave of the court. L.R. 7-9(a). To do so, the moving party must show reasonable

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diligence in bringing the motion and, as relevant here, “[a] manifest failure by the Court to

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consider material facts or dispositive legal arguments which were [previously] presented

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to the Court[.]” L.R. 7-9(b). In addition, a motion for leave to file a motion for

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reconsideration may not “repeat any oral or written argument made by the applying party

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in support of or in opposition to” the order the party seeks reconsideration of. L.R. 7-9(c).
Here, despite arguing that the court failed to consider dispositive legal arguments,

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plaintiff appears to concede that the court considered the relevant law. Specifically,

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plaintiff contends that by “misapprehending” or “misunderstanding” three controlling

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points of law, the court manifestly failed to consider plaintiff’s dispositive legal arguments.

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Indeed, under plaintiff’s argument, because no judgment will ever enter after the court’s
April 11th Order, see Fed. R. Civ. P. 58(a)(6), plaintiff’s rule 59(e) motion could never be
untimely.
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That argument necessarily asks the court to reconsider legal arguments it considered,

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but ultimately rejected. Accordingly, plaintiff’s motion for leave fails L.R. 7-9(c).

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Plaintiff argues that L.R. 7-9(c) does not apply because a party may relitigate

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previously raised arguments when the court has committed “clear” or “manifest” error.

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See Dkt. 269-1 at 3 (citing Kinney v. Clark, 2016 WL 3401765, at *1 (N.D. Cal. 2016)).

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To the extent that exception applies, it flows from Rule 59(e). See McDowell v. Calderon,

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197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (“There are four basic grounds upon which a

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Rule 59(e) motion may be granted. First, . . . to correct manifest errors of law[.]”

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(emphasis omitted)); Dixon v. Wallowa Cnty., 336 F.3d 1013, 1022 (9th Cir. 2003) (“Rule
59(e) amendments are appropriate if the district court . . . committed clear error[.]”);

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United States District Court
Northern District of California

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Kinney, 2016 WL 3401765, at *1 (discussing Rules 59(e) & 60(b), and citing McDowell

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and Dixon). As explained above, this court lacks jurisdiction to entertain a Rule 59(e)

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motion, regardless of any supposed error in the court’s prior decision.

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In any event, the court is satisfied that it did not commit a “clear” or “manifest”

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error, or fail to consider dispositive legal arguments, as plaintiff is required to show under

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Rule 59(e) and L.R. 7-9, respectively. Plaintiff’s motion for reconsideration makes

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essentially three arguments:

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(1) The court misunderstood that under Rule 60(b)(6) and Phelps v. Alameida, 569

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F.3d 1120 (9th Cir. 2009), it could have granted plaintiff’s motion despite the

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Federal Circuit affirming Judge Whyte’s 2015 Order dismissing the action with

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prejudice under 35 U.S.C. § 101.

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(2) Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018) and Aatrix Software,

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Inc. v. Green Shades Software, Inc., 882 F.3d 1121 (Fed. Cir. 2018), provided

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a definitive answer to a legal issue that was unsettled at the time the Federal

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Circuit affirmed Judge Whyte’s 2015 Order. That, according to plaintiff, is

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sufficient under Phelps to constitute an “intervening change in law” and,

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therefore, an en banc decision was not necessary.

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(3) Though Berkheimer stated “[n]othing in [its] decision . . . cast[s] doubt on the
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propriety of [past] cases” resolving the § 101 issue on motions to dismiss, and

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despite the en banc plurality describing Berkheimer/Aatrix as standing for an

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“unremarkable proposition,” Berkheimer, 881 F.3d at 1368; Berkheimer v. HP

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Inc., 890 F.3d 1369, 1370-1373 (Fed. Cir. 2018), those statements were dicta

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that fail to alter the (purported) fact that Berkheimer altered the § 101 analysis.
Each of those arguments fail because they depend on the same unfounded

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assumption: that the Berkheimer/Aatrix panel decisions were somehow more “correct” or

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binding than the Federal Circuit’s pre-Berkheimer/Aatrix panel decisions. Indeed, plaintiff

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sums up its argument as “prior to Berkheimer, the factual inquiry under § 101 was

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optional; after Berkheimer, it is necessary.” Dkt. 269-1 at 7. That assertion shows

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United States District Court
Northern District of California

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exactly how plaintiff’s argument exalts the Berkheimer/Aatrix decisions over the Federal

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Circuit’s other panel decisions—a proposition that plaintiff provides no authority for. As

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discussed in the court’s prior order, and as plaintiff concedes, Berkheimer/Aatrix “could

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not have overruled the Federal Circuit’s prior § 101 jurisprudence . . . because in the

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Federal Circuit only an en banc decision may overrule prior precedent.” April 11th Order

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at 4. Accordingly, assuming Berkheimer/Aatrix espoused a legal principle contrary to or

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different from the Federal Circuit’s prior § 101 jurisprudence—an assumption that seems

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questionable at best considering Berkheimer and the en banc plurality’s description of

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Berkheimer/Aatrix—Berkheimer/Aatrix merely contributed to the purported “unsettled”

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nature of the Federal Circuit’s § 101 jurisprudence. That is, Berkheimer/Aatrix no more

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“require” district courts to undertake a § 101 factual inquiry, than any other Federal Circuit

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panel decision makes that same inquiry “optional.” It is for that reason that the April 11th

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Order found that a qualifying intervening change of law had not occurred.

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Lastly, plaintiff contends that granting it leave to file its motion for reconsideration

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“would prevent the ‘manifest injustice’ that EI has lost its two patents without having its

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factual evidence considered” as part of the § 101 inquiry. Dkt. 269-1 at 8; see Allstate

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Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (A Rule 59(e) motion may be

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granted “to prevent manifest injustice[.]”). That argument begs the question by assuming
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that Judge Whyte’s 2015 Order and the Federal Circuit’s subsequent affirmance were

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incorrect under present § 101 law, and that this court April 11th Order was erroneous.

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Plaintiff’s motion for reconsideration cannot succeed based on the assumption that the

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court will reverse itself by embracing arguments it has already rejected.
CONCLUSION

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For the foregoing reasons, the court DENIES plaintiff’s request for leave to file a

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motion for reconsideration. The motion is procedurally and jurisdictionally improper, and

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the court is satisfied that it neither failed to consider plaintiff’s dispositive legal arguments

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nor committed a clear or manifest error of law.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: May 9, 2019
___________________________________
PHYLLIS J. HAMILTON
United States District Judge

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