San Diego County Credit Union v. Citizens Equity First Credit Union
Filing
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ORDER Denying Defendant's Ex Parte 261 Motion for Leave to File a Second Dispositive Motion. Signed by Judge Gonzalo P. Curiel on 11/10/20. (dlg)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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SAN DIEGO COUNTY CREDIT
UNION,
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ORDER DENYING DEFENDANT’S
EX PARTE MOTION FOR LEAVE
TO FILE SECOND DISPOSITIVE
MOTION
Plaintiff,
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Case No.: 18cv967-GPC(RBB)
v.
CITIZENS EQUITY FIRST CREDIT
UNION,
[Dkt. No. 261.]
Defendant.
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Defendant filed an ex parte motion for leave to file a second dispositive motion on
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the remaining third and fourth causes of action in the second amended complaint arguing
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that the Court’s orders on summary judgment were dispositive of these claims. (Dkt. No.
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261.) Plaintiff filed an opposition agreeing to dismiss the third cause of action but not the
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fourth cause of action. (Dkt. No. 264.)
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On September 29, 2020, the Court issued rulings on Defendant’s motion for
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summary judgment as well as Plaintiff’s motion for summary judgment. (Dkt. Nos. 256,
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259.) Because CEFCU did not move for summary judgment on the third and fourth
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claims in the second amended complaint, they remain, (Dkt. No. 139, SAC). Since
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18cv967-GPC(RBB)
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Plaintiff has agreed to dismiss the third cause of action, the Court considers Defendant’s
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ex parte request on the fourth case of action.
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The fourth cause of action seeks declaratory judgment of invalidity of CEFCU’s
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common law mark “NOT A BANK. BETTER”, challenging its exclusive use to use its
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common law mark because multiple other credit unions were using similar or identical
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taglines, CEFCU has not continuously used its common law mark in commerce as a
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stand-alone mark separate from CEFCU, CEFCU was not the first credit union to use the
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tagline in connection with credit union services, and the tagline is descriptive and not
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protectable. (Dkt. No. 139, SAC ¶¶ 97-104.)
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At this time, the deadline for dispositive motions has passed, (Dkt. No. 68 at 3),
and a pre-trial conference is set on January 15, 2021. (Dkt. No. 260.)
Once a scheduling order has been filed pursuant to Rule 16, the “schedule may be
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modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4).
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“Rule 16(b)'s ‘good cause’ standard primarily considers the diligence of the party seeking
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the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.
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1992). If the moving party fails to demonstrate diligence, “the inquiry should end.” Id.
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The Ninth Circuit has held that “district courts have discretion to permit successive
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motions for summary judgment,” and that doing so may “foster[ ] the ‘just, speedy, and
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inexpensive’ resolution of suits.” Hoffman v. Tonnemacher, 593 F.3d 908, 911 (9th Cir.
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2010) (citations omitted). Due to the potential for abuse, district courts retain discretion
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to “weed out frivolous or simply repetitive motions.” Id. (citation omitted). “[A]
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successive motion for summary judgment is particularly appropriate on an expanded
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factual record.” Id. (citing Fernandez v. Bankers Nat'l Life Ins. Co., 906 F.2d 559, 569
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(11th Cir. 1990) (“Two motions for summary judgment may be ruled upon in the same
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case, particularly when discovery has been extended for good reason . . . .”);
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Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 251 (D.C. Cir.
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1987) (“A subsequent motion for summary judgment based on an expanded record is
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always permissible.”); Kovacevich v. Kent State Univ., 224 F.3d 806, 835 (6th Cir. 2000)
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18cv967-GPC(RBB)
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(“District courts may in their discretion permit renewed or successive motions for
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summary judgment, particularly when the moving party has expanded the factual record
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on which summary judgment is sought.”)). However, successive summary judgment
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motions are disfavored. See Allstate Fin. Corp. v. Zimmerman, 296 F.2d 797, 799 (5th
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Cir. 1961) (federal courts “do not approve in general the piecemeal consideration of
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successive motions for summary judgment because parties ought to be held to the
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requirement that they present their strongest case for summary judgment when the matter
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is first raised”).
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Here, Defendant fails to demonstrate good cause for the filing of a second motion
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for summary judgment. Because discovery has been closed, it does not appear the
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motion CEFCU seeks to file is based on new evidence or an expanded record. CEFCU
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does not explain why it did not or was unable to seek the Court’s ruling on the fourth
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claim in its initial summary judgment motion. Instead, Defendant presents arguments
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why the fourth claim should be dismissed. (Dkt. No. 261-1 at 3-4.1) Therefore, absent a
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showing of good cause, the Court DENIES CEFCU’s ex parte motion to file a second
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dispositive motion. See Peasley v Spearman, Case No. 15-CV-01769-LHK, 2017 WL
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5451709, at *3 (N.D. Cal. Nov. 14, 2017) (denying defendants’ successive motion for
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summary judgment because they failed to demonstrate good cause).
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IT IS SO ORDERED.
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Dated: November 10, 2020
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Page numbers are based on the CM/ECF pagination.
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