P.I.C. International Inc. et al v. MiFlex 2 Spa et al

Filing 22

ORDER on Plaintiffs' Motion for Reconsideration [Doc. No. 21 ]. Signed by Judge Cathy Ann Bencivengo on 9/20/2017. (jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
P.I.C. INTERNATIONAL INC., a
California corporation d/b/a H2Odyssey
and LI CHUNG PLASTICS INDUSTRY
CO., a Taiwan corporation,

Case No.: 3:17-cv-0556-CAB-WVG
ORDER ON PLAINTIFFS’ MOTION
FOR RECONSIDERATION
[Doc. No. 21.]

Plaintiffs,

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v.

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MIFLEX 2 SPA, an Italy corporation and
MAURO MAZZO, an individual,

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Defendants.

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This matter comes before the Court on Plaintiffs’ Motion for Reconsideration of the

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Court’s September 7, 2017 Order pursuant to Federal Rules of Civil Procedure 59(e) and

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60(b). [Doc. No. 21]. The Court has determined that it does not need Defendant’s response

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in opposition in order to decide the motion. Further, the Court finds the motion suitable

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for determination on the papers submitted and without oral arguments in accordance with

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Civil Local Rule 7.1(d)(1).

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On August 8, 2017, Defendant Mazzo sought dismissal of the lawsuit for lack of

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personal jurisdiction and lack of subject-matter jurisdiction pursuant to Federal Rules of

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Civil Procedure 12(b)(1) and 12(b)(2). Additionally, Defendant Mazzo moved the Court

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for an award of $6,135.00 in attorneys’ fees, pursuant to 28 U.S.C. § 1927. In the interim

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between Defendant Mazzo’s filing of the motion to dismiss and Plaintiffs’ response in
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opposition’s due date, this Court granted Defendant MiFlex 2 S.P.A’s motion to dismiss

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for lack of personal jurisdiction. [Doc. No. 17.] Plaintiffs did not oppose Mazzo’s motion

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to dismiss. On September 5, 2017, Defendant Mazzo filed his reply, noting Plaintiffs’

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failure to oppose the motion1 and requesting the Court grant his motion to dismiss and for

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monetary sanctions in full. [Doc. No. 18.] Plaintiffs filed nothing in response, choosing

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instead to wait until September 13, 2017 to file the current motion.

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After finding Defendant Mazzo not subject to the personal jurisdiction of this Court,

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the undersigned awarded fees related to the costs of filing the motion to dismiss. [Doc.

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No. 19.] The Court awarded the fees because there was no evidence before the Court that

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Plaintiffs’ refusal to dismiss Defendant Mazzo from the case was not done in bad faith for

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the purpose of harassing him. [Id. at 5.]2 Further, the Court found that, upon receipt of the

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Confirmatory Assignment on July 21, 2017, Plaintiffs were on notice that Mazzo was not

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a proper defendant in this action yet refused to dismiss him. [Id.]

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Plaintiffs now move the Court to reconsider its award of attorney’s fees in the

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amount of $6,135. Plaintiffs claim that their failure to file an opposition was because their

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counsel “erroneously calculated a due date for its opposition based not on the hearing date

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per this Court’s Local Rules and Chamber Rules, but on the Federal Rules of Civil

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Procedure and thus incorrectly thought the due date for its opposition was September 7,

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2017, instead of August 29, 2017,” and that the error was the result of excusable neglect.

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[Doc. No. 21-1 at 2.] Plaintiffs further assert that following the Court’s granting of

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Defendant MiFlex’s motion to dismiss, they intend to file a Notice of Voluntary Dismissal

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by September 7th but “the Court issued the present order just before Plaintiffs could file

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their dismissal that same day.” [Id.]

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Local Rule 7.1 (f)(3) provides that “if an opposing party fails to file the papers required by Civ. Local
Rule 7.1.e.2. that failure may constitute a consent to the granting of the motion.”
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Page cites refer to the CM/ECF assigned page designations at the top of the docketed document
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Rule 60 provides for extraordinary relief and may be invoked only upon a showing

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of “exceptional circumstances.” Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044

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(9th Cir. 1994). The Rule identifies six permissible grounds for relief from a final

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judgment, order, or proceeding, namely: “(1) mistake, inadvertence, surprise, or excusable

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neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been

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discovered in time to move for a new trial under Rule 59(b); (3) fraud by the adverse party;

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(4) the judgment is void; (5) the judgment has been satisfied; (6) and other reason justifying

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relief.” Fed. R. Civ. P. 60(b). Local Rule 7.1(i)(1) provides that that party seeking

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reconsideration must set forth “what new or different facts and circumstances are claimed

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to exist which did not exist, or were not shown, upon such prior application.”

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In their motion, Plaintiffs present the Court with additional facts and circumstances

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for its consideration. Plaintiffs assert that when they commencing this lawsuit they had a

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reasonable belief that Mazzo had standing to sue for patent infringement.

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Plaintiffs point to their May 5, 2017 offer to dismiss with prejudice Mazzo from this case,

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if he agreed that absolute intervening rights applied to the ‘722 patent. Plaintiffs assert that

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the necessity of filing the motion to dismiss could have been avoided if Defendant Mazzo

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had simply agreed to their request. Plaintiffs also claim that following the Court’s August

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18, 2017, order dismissing MiFlex from this lawsuit, “Plaintiffs intended to dismiss its

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claims against Mazzo and communicated such to Mazzo’s counsel on August 23rd,” and

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after Mazzo refused to join the motion, they intended to file their own Notice of Voluntary

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Dismissal, rather than an response in opposition to the pending motion to dismiss, on

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September 7, 2017. [Doc. No. 21-1 at 6.] Finally, Plaintiffs argue that they should not be

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sanctioned for their counsel’s mistake in calculating the due date because “the

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circumstances of this error were obviously within counsel’s control, but the resulting

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inaction amounts only to an omission caused by excusable negligence.” [Id.] Plaintiffs

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posit that their counsel miscalculated the due date “by overlooking the local rules and

Further,

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chambers rules, that trumped ordinary federal civil procedure.3 Plaintiffs goofed, big

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time.” [Id. at 7.]

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None of the reasons propounded by Plaintiffs provide permissible grounds for relief

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under Rule 60 and overlook the fact that the Court did not award the fees simply because

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Plaintiffs’ counsel failed to oppose the motion. The Court awarded fees because it was

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clearly evident that Defendant Mazzo was not subject to this Court’s jurisdiction and he

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should never have been hauled into court here. Further, even assuming that Plaintiffs did

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indeed have a good faith belief that Mazzo had standing to sue for patent infringement,

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upon receipt of the Confirmatory Assignment on July 21, 2017, Plaintiffs should have

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chosen to voluntary dismiss him from the case – they choose not to do so which

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necessitated his filing of the motion to dismiss on August 8, 2017. Neither the May 5,

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2017, nor the August 23, 2017, offers to dismiss Defendant Mazzo from this lawsuit,

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excuse Plaintiffs’ decision to file suit against him in a District that had no jurisdiction over

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him, or their subsequent refusal to dismiss him. Furthermore, Plaintiffs attempt to use

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Defendant Mazzo’s refusal to stipulate to a dismissal as grounds for their failure is belied

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by Rule 41 of the Federal Rules of Civil Procedure which provides that prior to an opposing

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filing an answer or motion for summary judgment a Plaintiff can unilaterally move for a

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voluntary dismissal. See Fed. R. Civ. P. 41(a)(1)(A).

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For the foregoing reasons, the Motion for Reconsideration of the Court’s September

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7, 2017 Order [Doc. No. 21] is DENIED and the September 7, 2017 Order remains in

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effect.

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It is SO ORDERED.

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Dated: September 20, 2017

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Noticeably absent from Plaintiffs’ motion is a citation to the Federal Rule of Civil Procedure upon which
their counsel relied. The Court is unaware of any rule that suggests the filing date for a response in
opposition is two days before a noticed hearing date.
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