Erickson Productions Inc et al v. Kraig R Kast

Filing 459

Order by Chief Magistrate Judge Donna M. Ryu denying 453 Motion for Leave to File a Motion for Reconsideration re: Venue. Signed on 6/30/2023.(dmrlc1, COURT STAFF) (Filed on 6/30/2023)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ERICKSON PRODUCTIONS INC, et al.,
Plaintiffs,

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v.

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KRAIG RUDINGER KAST, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 13-cv-05472-DMR
ORDER DENYING MOTION FOR
LEAVE TO FILE MOTION FOR
RECONSIDERATION
Re: Dkt. No. 453

In April 2023, the Ninth Circuit reversed this court’s February 2021 judgment awarding

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Plaintiffs Erickson Productions, Inc. and Jim Erickson $450,000 in statutory damages for

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Defendant Kraig Kast’s willful copyright infringement and remanded the case for a jury trial on

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the issues of willfulness and statutory damages. Erickson Prods., Inc. v. Kast, No. 21-15459, 2023

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WL 2783243, at *2 (9th Cir. Apr. 5, 2023). Following remand, Kast, who is representing himself,

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filed a motion to reassign the case to the San Francisco courthouse.1 The court construed Kast’s

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motion as a motion to transfer the action from the Oakland Division to the San Francisco Division

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of this district pursuant to Civil Local Rule 3-2(h) and 28 U.S.C. § 1404(b) and denied the motion

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on May 19, 2023. [Docket No. 452 (Order Denying Transfer).]

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Kast now moves pursuant to Civil Local Rules 72-2, 7-9, and 3-2 for relief from the

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undersigned’s Order Denying Transfer and/or reconsideration of that order and again requests

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transfer to the San Francisco Division. [Docket No. 453.] Plaintiffs oppose the motion. [Docket

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No. 454.] The motion is suitable for resolution without a hearing. Civ. L.R. 7-1(b). For the

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following reasons, the motion is denied.

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Kast also moved to withdraw his consent to magistrate judge jurisdiction. Chief Judge Richard
Seeborg denied that motion on April 26, 2023. [Docket No. 450.]

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I.

DISCUSSION
The court construes Kast’s filing as a motion for leave to file a motion for reconsideration

of the court’s Order Denying Transfer under Civil Local Rule 7-9, which provides that a party

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may seek leave to file a motion for reconsideration of an interlocutory order at any time before
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judgment. Civ. L.R. 7-9(a).2 A motion for reconsideration may be made on one of three grounds:

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(1) a material difference in fact or law exists from that which was presented to the court, which, in
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the exercise of reasonable diligence, the party applying for reconsideration did not know at the
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time of the order for which reconsideration is sought; (2) the emergence of new material facts or a
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change of law; or (3) a manifest failure by the court to consider material facts or dispositive legal
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arguments presented before such order. Civ. L.R. 7-9(b)(1)-(3). Reconsideration of a prior ruling
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is an “extraordinary remedy, to be used sparingly.” Kona Enters., Inc. v. Estate of Bishop, 229

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United States District Court
Northern District of California

F.3d 877, 890 (9th Cir. 2000). The moving party may not reargue any written or oral argument
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previously asserted to the court. Civ. L.R. 7-9(c). “Once a reconsideration motion is filed,
reconsideration is appropriate ‘if the district court (1) is presented with newly discovered

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evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) there is an
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intervening change in controlling law.’” Cnty. of Santa Clara v. Trump, 267 F. Supp. 3d 1201,
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1207-08 (N.D. Cal. 2017) (quoting Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5
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F.3d 1255, 1263 (9th Cir. 1993)).
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Kast moved to transfer the action from the Oakland Division to the San Francisco Division
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of this district, asserting that the San Francisco courthouse is closer to his home and is more
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accessible to him via public transportation. Kast, who did not state where he lives, argued that a
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trial in Oakland would be a “hardship” for him because it would be time consuming, expensive,
and cause difficulties with his preparation for trial. Noting the existence of “numerous public

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Local Rule 72-2 does not apply to this motion. That rule provides that “[a]ny objection filed
pursuant to Fed. R. Civ. P. 72(a) and 28 U.S.C. § 636(b)(1)(A) must be made as a ‘Motion for
Relief from Nondispositive Pretrial Order of Magistrate Judge.’” Civ. L.R. 72-2(a). Federal Rule
of Civil Procedure 72(a) and section 636(b)(1)(A) authorize parties to file objections to orders on
nondispositive pretrial matters that have been referred to a magistrate judge to decide. Because
the parties consented to the jurisdiction of a magistrate judge, Rule 72(a) and section 636(b)(1)(A)
do not apply. Instead, the proper way to seek relief from the court’s Order Denying Transfer is
through a motion for leave to file a motion for reconsideration under Local Rule 7-9.
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transportation options close to the Oakland courthouse, as well as the close proximity of the

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courthouses in the two divisions,” the court denied the motion on the ground that Kast “failed to

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show that he or any other party or witness would face any difficulty or hardship if they are

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required to appear for trial or other proceedings in Oakland.” Order Denying Transfer 2; see Civ.

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L.R. 3-2(h) (authorizing transfers to a different division where “the convenience of the parties and

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witnesses and the interests of justice will be served”); 28 U.S.C. § 1404(b) (authorizing

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intradistrict transfers).
Kast states that the purpose of the instant motion is to provide “new material facts” in

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United States District Court
Northern District of California

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support of his motion to transfer. Mot. 2. He states that he “is providing the court with additional

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information about the distance, time, obstacles and hardships that he and his witnesses will

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encounter, if they must travel to the Oakland Courthouse verses [sic] the San Francisco

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Courthouse.” Id. at 3. He again asserts that the “San Francisco Courthouse is closest to [him] and

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his witnesses’ domiciles and offices in San Mateo County,” although he again does not state

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where he lives and does not identify any particular witnesses. Id. 3. Kast contends that he does

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not own a car and relies on public transportation and estimates that moving the trial to San

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Francisco would save him over one hour of travel time each way. Id. He also contends that he has

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health issues which prevent him from walking “any substantial distance” and that unspecified

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witnesses who live in San Mateo, Marin, and Sonoma Counties will find travel to the Oakland

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courthouse “very difficult.” Id. at 3-4. Kast also references unspecified “financial hardship”

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associated with travel to the Oakland courthouse. Id. at 4.

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Notably, Kast did not submit any evidence supporting the factual assertions in his motion.3

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Moreover, none of the facts in Kast’s motion constitute “newly discovered evidence” under Local

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Rule 7-9(b). Kast could have included facts and evidence about the location of his residence,

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health issues, public transportation estimates, and location(s) of the witnesses with his original

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motion but did not. The instant motion is simply a re-hash of Kast’s original argument, this time

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With his reply, Kast submitted what he describes as Google maps images showing distances and
travel times between San Mateo and San Francisco; San Mateo and Oakland; San Rafael to San
Francisco and Oakland; and Petaluma to San Francisco and Oakland. [Docket No. 456-2.]
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with additional (unsupported) facts that Kast could have presented with his original motion to

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transfer but inexplicably did not. Kast cannot use a motion for reconsideration to get a “second

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bite” at something he could and should have put before the court in the first instance. The narrow

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grounds for reconsideration promote fair and efficient use of party and court resources. Given his

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failure to show “[t]he emergence of new material facts . . . occurring after the time of” the Order

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Denying Transfer, Kast’s motion for leave to file a motion for reconsideration is denied. See Civ.

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L.R. 7-9(b)(2).

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II.

For the foregoing reasons, Kast’s motion for leave to file a motion for reconsideration is

R NIA

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UNIT
ED

______________________________________
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Donna
M.
a M. Ry
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JudMagistrate Judge
Chief

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I

ERED

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Dated: June 30, 2023

ORD
T IS SO

NO

United States District Court
Northern District of California

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IT IS SO ORDERED.

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ISTRIC
ES D
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A
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denied.

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CONCLUSION

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D IS T IC T O
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