XY, LLC v. Trans Ova Genetics, LC
Filing
315
ORDER denying 288 Motion for Reconsideration. Trans Ovas Amended Motion to Reconsider Ruling on Counterclaim Defendants Motion for Summary Judgment on Antitrust Counterclaims and Request for Oral Argument is DENIED. by Judge William J. Martinez on 09/23/2015.(cthom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-0876-WJM-NYW
XY, LLC,
Plaintiff / Counterclaim Defendant,
v.
TRANS OVA GENETICS, LC,
Defendant / Counterclaim Plaintiff / Third-Party Plaintiff,
v.
INGURAN, LLC,
Third-Party Defendant.
ORDER DENYING MOTION TO RECONSIDER
On March 26, 2015, this Court granted summary judgment in favor of
Counterclaim Defendant XY, LLC (“XY”) and Third-Party Defendant Inguran, LLC
(“Inguran”), holding that Counterclaim Plaintiff and Third-Party Plaintiff Trans Ova
Genetics, LC (“Trans Ova”) was barred by the statute of limitations from asserting its
claims under the Sherman Act, 15 U.S.C. § 2. (ECF No. 284 (the “Order”).) Before the
Court is Trans Ova’s Amended Motion to Reconsider Ruling on Counterclaim
Defendants’ Motion for Summary Judgment on Antitrust Counterclaims and Request for
Oral Argument (“Motion”). (ECF No. 288.) For the reasons stated below, the Motion is
denied.
I. DISCUSSION
District courts have broad discretion to reconsider their interlocutory rulings
before the entry of judgment. See Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th
Cir. 2011). Thus, a court can alter its interlocutory orders even where the more
stringent requirements applicable to a motion to alter or amend a final judgment under
Federal Rule of Civil Procedure 59(e), or a motion for relief from judgment brought
pursuant to Rule 60(b), are not satisfied. See Laird v. Stilwill, 982 F. Supp. 1345,
1353–54 (N.D. Iowa 1997).
“Notwithstanding the district court’s broad discretion to alter its interlocutory
orders, the motion to reconsider ‘is not at the disposal of parties who want to rehash old
arguments.’” Nat’l Bus. Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F. Supp. 2d
1250, 1256 (D. Colo. 2000) (quoting Young v. Murphy, 161 F.R.D. 61, 62 (N.D. Ill.
1995)). “Rather, as a practical matter, to succeed in a motion to reconsider, a party
must set forth facts or law of a strongly convincing nature to induce the court to reverse
its prior decision.” Id. Even under this lower standard, “[a] motion to reconsider should
be denied unless it clearly demonstrates manifest error of law or fact or presents newly
discovered evidence.” Id. Such motions “are inappropriate vehicles to reargue an
issue previously addressed by the court when the motion merely advances new
arguments, or supporting facts which were available at the time of the original motion.”
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). T hus, “[i]t is not
appropriate to revisit issues already addressed or advance arguments that could have
been raised in prior briefing.” Id.
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Trans Ova’s Motion claims that the Court’s Order was erroneous because the
Court misconstrued its arguments and evidence, particularly the deposition testimony of
its damages expert, Dr. David DeRamus, in holding that Trans Ova’s antitrust claims
were barred by the four-year statute of limitations. (ECF No. 288.)
In the Order, the Court evaluated Trans Ova’s argument that its claims were
timely under the “continuing conspiracy” exception to the statute of limitations, which
restarts the limitations period when a plaintiff is injured anew by a defendant’s
independent overt act furthering a conspiracy that began before the limitations period.
Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1088 (10th Cir. 2006).
“[F]or an act to trigger the exception: 1) It must be a new and independent act that is
not merely a reaffirmation of a previous act; and 2) it must inflict new and accumulating
injury on the plaintiff.” Id. (internal quotation marks omitted). Trans Ova’s brief in
opposition to XY and Inguran’s Motion for Summary Judgment focused on identifying
independent and distinct acts occurring within the limitations period, and argued that Dr.
DeRamus’s testimony supported a finding that such acts “together have the effect of
harming competition over time and through the present.” (ECF No. 247 at 15.) The
Court noted that Trans Ova had identified numerous acts that could be construed as
“new and independent,” but concluded that the continuing conspiracy exception did not
apply because Trans Ova had failed to identify “new and accumulating injury” flowing
from such acts. (ECF No. 284 at 5–6 (“Instead, Trans Ova refers generally to its injury
resulting from Counterclaim Defendants’ exclusion of Trans Ova from the technology
and sex-sorting markets.”).)
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Trans Ova now contends that the Court “misapprehended” Dr. DeRamus’s
deposition testimony, “disregarded” Trans Ova’s arguments regarding the finality of the
Termination Letter, and committed clear error in concluding that Trans Ova had failed to
establish that the continuing conspiracy exception applied. (ECF No. 288.) Trans
Ova’s arguments disclose that it has misapprehended the Court’s Order, and has
disregarded the required analysis under Tenth Circuit and Supreme Court caselaw.
Trans Ova argues that the Court ignored its allegations that the Termination
Letter was not a final act completely destroying Trans Ova’s ability to compete in the
relevant markets, and instead was the first in a series of acts “that resulted in XY and
Inguran’s ability to cement their monopolies.” (ECF No. 288 at 5.) In discussing the
issue of finality, Trans Ova refers to Kaw Valley Electric Cooperative Co., Inc. v.
Kansas Electric Power Cooperative, Inc., 872 F.2d 931, 934 (10th Cir. 1989). Kaw
Valley evaluated an antitrust conspiracy claim involving the defendant’s alleged refusal
to deal with the plaintiff. The Tenth Circuit considered similar cases from the Ninth
Circuit which evaluated whether the initial refusal to deal was a final act that
permanently excluded the plaintiff from the market, and concluded that because the
evidence indicated that defendant’s decision not to deal was final, no subsequent act
operated to restart the statute of limitations. Id. at 933–35. In contrast, the Tenth
Circuit’s subsequent decision in Champagne Metals involved a refusal to deal in which
the defendant’s decision required further action, namely to pressure third parties to join
in excluding the plaintiff, which caused it to be denied access to each of these third
parties’ business. 458 F.3d at 1089. As such, the Champagne Metals court held that
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the antitrust claims were not time barred because of the continuing conspiracy
exception. Id.
Trans Ova’s focus on the finality issue ignores the explicit requirement, reiterated
in each of these authorities, that the alleged subsequent independent acts be shown to
“inflict new and accumulating injury on the plaintiff.” Id. at 1088. This requirement,
stated somewhat differently in the Supreme Court caselaw from which it arises, allows a
plaintiff to recover for new injuries resulting from subsequent acts that are not time
barred. See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338
(1971) (“[E]ach time a plaintiff is injured by an act of the defendants a cause of action
accrues to him to recover the damages caused by that act and . . . , as to those
damages, the statute of limitations runs from the commission of the act.”). The Court’s
Order did not discuss Trans Ova’s finality argument because it assumed that the
Termination Letter was not a final act that permanently excluded it from the market, but
nevertheless found that Trans Ova did not meet the threshold requirement to show that
any subsequent acts caused new injuries. (See ECF No. 284 at 6.) Indeed, Trans
Ova’s response in opposition to summary judgment did not discuss the issue at all,
relying solely on its evidence of a lack of finality. (See ECF No. 248.) It was Trans
Ova’s burden, in opposing summary judgment, to present evidence that the continuing
conspiracy exception applied, see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986),
and the Court concluded that Trans Ova’s failure to address the new injury prong of the
analysis fell short of meeting that burden. (ECF No. 284 at 7.)
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In the instant Motion, Trans Ova now argues that it suffered “two categories of
new and accumulating injury” resulting from XY’s and Inguran’s post-Termination Letter
acts. (ECF No. 288 at 11.) The Court will not permit Trans Ova to supplement its
response in opposition to summary judgment in the guise of a motion for
reconsideration, when such arguments should have been included in its prior briefing.
See Servants of Paraclete, 204 F.3d at 1012. Trans Ova failed to identify a genuine
issue of material fact as to the new injury prong of the continuing conspiracy exception,
and it may not have a second bite at the apple merely because the Court ruled against
it.1
Trans Ova next argues that the Court committed clear error because it
misapprehended Dr. DeRamus’s deposition testimony by reading it out of context.
(ECF No. 288 at 7–11.) Trans Ova insists that, correctly read, Dr. DeRamus’s
testimony supports its argument that it was injured by exclusion from two separate
markets (the technology and sorting markets), damages from each of which would be
roughly the same, but that the Court misapprehended Dr. DeRamus’s statements to
mean that the same damages would result under an antitrust theory or a breach of
contract theory. (Id. at 8–9.) Trans Ova also argues that, if Dr. DeRamus’s testimony
was ambiguous, the Court erroneously resolved that ambiguity in favor of XY and
Inguran rather than Trans Ova. (Id. at 11.)
1
Trans Ova’s Motion contains a footnote suggesting that the brevity of the Order
indicates the Court gave short shrift to Trans Ova’s arguments, considering the dollar value and
potential economic impact of its antitrust claims. (ECF No. 288 at 1 n.1.) As Trans Ova’s
counsel is surely aware, judicial resources are not allocated in proportion to the value of the
claims alleged. The Court’s Order sufficiently analyzed Trans Ova’s arguments to identify its
failure to support them. No more was required.
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Even assuming the Court took Dr. DeRamus’s testimony out of context, Trans
Ova appears to have misunderstood the Court’s purpose in citing this evidence in its
Order.2 The Order did not rely on Dr. DeRamus’s testimony as evidence that no new
injury had been inflicted, but rather stated that the testimony did not provide any
support for Trans Ova’s arguments. (ECF No. 284 at 6.) Nor did the Court find Dr.
DeRamus’s testimony ambiguous or have cause to otherwise interpret it. Instead, the
Court held that “Dr. DeRamus’s report does not assist Trans Ova in identifying any
particular post-Termination Letter damage as a ‘new and accumulating’ injury resulting
from the subsequent acts it identifies in its Response . . . .” (Id.) The instant Motion
does not change that analysis.
Trans Ova’s Reply in support of the Motion further argues that XY and Inguran,
as well as the Court, have erroneously conflated injury with damages, and thus
misinterpreted Dr. DeRamus’s testimony as presenting evidence obviating a continuing
injury. (ECF No. 291 at 6–7.) Again, Trans Ova misunderstands the Court’s citation of
Dr. DeRamus’s testimony as “reliance” on it as a “factual basis” proving a lack of new
injury (id. at 6, 10), when the Order explicitly stated only that Dr. DeRamus’s testimony
2
For example, Trans Ova asserts that the Court’s “resistance” to finding any evidence
of new and accumulating injury was “based on” a misinterpretation of Dr. DeRamus’s testimony
(ECF No. 291 at 6), when the Court merely found that Dr. DeRamus’s testimony did not provide
support for such injury (ECF No. 284 at 6). Trans Ova has also misread the Court’s
assumption arguendo that new and independent acts had been established, taking the Court’s
Order as a definitive finding, when the Court made no such finding. (Compare ECF No. 284 at
6 (“Even assuming that these alleged actions constitute ‘new and independent act[s] that [are]
not merely a reaffirmation of a previous act,’ however, Trans Ova must also show that these
acts resulted in ‘new and accumulating injury’ . . . .”) with ECF No. 291 at 3 (“The Court agreed
that new anticompetitive acts directed at Trans Ova did occur in the limitations period, but could
not find resulting injuries from those acts . . . .”).) Furthermore, Trans Ova mischaracterizes the
Court’s finding as to new and accumulating injury; it was not that the Court “could not find”
resulting injuries, but that Trans Ova failed to point to any such injuries in its brief. (Id. at 6–7.)
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did not help Trans Ova to identify any new injury tied to any post-Termination Letter act.
(ECF No. 284 at 6.) It was Trans Ova’s failure to provide argument and cite evidence
as to both prongs of the continuing conspiracy inquiry, not the Court’s alleged
misapprehension of Dr. DeRamus’s testimony, that led to the Court’s conclusion that
summary judgment was appropriate. Trans Ova’s belated assertion that “reams of
admissible evidence” support a finding of new injury (ECF No. 291 at 10) does not cure
its failure to present such evidence in its prior briefing. See Servants of Paraclete, 204
F.3d at 1012; see also Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004)
(“[O]n a motion for summary judgment, ‘it is the responding party’s burden to ensure
that the factual dispute is portrayed with particularity, without depending on the trial
court to conduct its own search of the record.’”); Mitchell v. City of Moore, 218 F.3d
1190, 1199 (10th Cir. 2000) (the Court is “not obligated to comb the record in order to
make [the plaintiff’s] arguments for [it]”).
Finally, the title of the Motion requests oral argument (ECF No. 288 at 1), but the
Motion’s content fails to identify any reason for the Court to depart from its usual course
to decide the Motion on the papers. The parties’ briefing on the Motion was thorough
and obviates the necessity for any further argument. The Court therefore denies the
request for oral argument.
II. CONCLUSION
For the reasons set forth above, Trans Ova’s Amended Motion to Reconsider
Ruling on Counterclaim Defendants’ Motion for Summary Judgment on Antitrust
Counterclaims and Request for Oral Argument (ECF No. 288) is DENIED.
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Dated this 23rd day of September, 2015.
BY THE COURT:
William J. Martínez
United States District Judge
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