Ameranth, Inc. v. Domino's Pizza, LLC et al

Filing 165

ORDER Denying 142 Ameranth's Motion for Reconsideration, Or in the Alternative, Request for Certification of Interlocutory Appeal. Signed by Chief District Judge Dana M. Sabraw on 5/10/2021. (mme)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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AMERANTH, INC.,

Case No.: 12cv0733 DMS (WVG)
Plaintiff,

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v.

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ORDER DENYING AMERANTH’S
MOTION FOR
RECONSIDERATION, OR IN THE
ALTERNATIVE, REQUEST FOR
CERTIFICATION OF
INTERLOCUTORY APPEAL

DOMINO'S PIZZA, INC. and
DOMINO'S PIZZA, LLC

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Defendants.

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This case comes before the Court on Ameranth’s motion for reconsideration or, in

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the alternative, for certification for interlocutory appeal, of this Court’s February 5, 2021

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Order Granting in Part Defendants’ Second Renewed Motion to Declare This Case

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Exceptional and Award Attorneys Fees and Non-Taxable Costs. Defendants filed an

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opposition to the motion, and Plaintiff filed a reply.

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“Reconsideration is appropriate if the district court (1) is presented with newly

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discovered evidence, (2) committed clear error or the initial decision was manifestly unjust,

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or (3) if there is an intervening change in controlling law.” School Dist. No. 1J, Multnomah

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County, Oregon v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Ameranth argues

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reconsideration is warranted here “to correct multiple manifest errors of law and fact upon
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12cv0733 DMS (WVG)

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which the Order is based in order to prevent serious injustice,” (Mem. of P. & A. in Supp.

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of Mot. at 1), which the Court construes as a “clear error” argument.

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To prevail on this argument, Ameranth must show there is a “definite and firm

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conviction that a mistake has been committed[.]” Latman v. Burdette, 366 F.3d 774, 781

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(9th Cir. 2004) (citing In re Banks, 263 F.3d 862, 869 (9th Cir. 2001)). Ameranth identifies

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numerous instances of alleged “clear error” in the Court’s Order, from the Court’s analysis

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of the Pizza Hut settlement and the Menusoft vacatur to whether Ameranth reassessed its

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case after the Federal Circuit’s decision in Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229,

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1245 (Fed. Cir. 2016). The Court has reviewed and considered each of those arguments,

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but disagrees with Ameranth that there was any “clear error” in the Court’s Order.

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Accordingly, the Court denies Ameranth’s motion for reconsideration.

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Next, Ameranth moves the Court, in conclusory fashion, to certify the Order for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b). This section states:
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order involves
a controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation, he shall so state
in writing in such order.

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28 U.S.C. § 1292(b). “Both the legislative history of Section 1292(b) and the case law

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emphasize that . . . courts should only grant interlocutory appeals under rare

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circumstances.” Fujitsu Ltd. v. Tellabs, Inc., 539 Fed. App'x 1005, 1006 (Fed. Cir. 2013).

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Here, Ameranth identifies three “critical legal questions” for the Federal Circuit, on which

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the Court’s conclusions are allegedly “in tension with other legal authority[,]” and argues

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the Federal Circuit’s resolution of these questions “will advance [the] ultimate

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determination of this action.” (Mem. of P. & A. in Supp. of Mot. at 24-25.) However, the

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Court disagrees with these arguments. In particular, the Court disagrees with Ameranth’s

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assertion that interlocutory review of the exceptional case ruling will “materially advance

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the ultimate termination” of this litigation.

On the contrary, this case is effectively

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12cv0733 DMS (WVG)

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concluded, save for the Court’s determination of the amount of fees to be awarded. Under

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these circumstances, the requirements for interlocutory appeal are not met. Accordingly,

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the Court denies Ameranth’s motion for certification of the Order for interlocutory review.

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IT IS SO ORDERED.
Dated: May 10, 2021

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