Personalized User Model LLP v. Google Inc.

Filing 537

MEMORANDUM ORDER re 523 MOTION for Reconsideration filed by Google Inc. is DENIED; 531 MOTION for Leave to File Reply Brief filed by Google Inc. is DENIED; Proposed Pretrial Order due by 2/19/2014; A Jury Trial is set for 3/10/2014 at 09:30 AM in Courtroom 6B; A Pretrial Conference is set for 2/26/2014 at 02:00 PM in Courtroom 6B. Signed by Judge Leonard P. Stark on 10/28/13. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PERSONALIZED USER MODEL, L.L.P.,
Plaintiff,
C.A. No. 09-525-LPS

v.

GOOGLE INC.,
Defendant.

MEMORANDUM ORDER
At Wilmington this 28th day of October, 2013:
IT IS HEREBY ORDERED that:
1.

Defendant Google Inc. ("Google") has moved for reconsideration of the Court's

September 9, 2013 Order (D.I. 522), which denied Google's motion for summary judgment on
its breach of contract counterclaim. (D.I. 523) Google's motion for reconsideration (D.I. 523) is
DENIED.
2.

Pursuant to Local Rule 7.1.5, a motion for reconsideration should be granted only

"sparingly." The decision to grant such a motion lies squarely within the discretion of the
district court. See Dentsply Int'l, Inc. v. Kerr Mfg. Co., 42 F. Supp. 2d 385,419 (D. Del. 1999);
Brambles USA, Inc. v. Blocker, 735 F. Supp. 1239, 1241 (D. Del. 1990). These types ofmotions
are granted only ifthe court has patently misunderstood a party, made a decision outside the
adversarial issues presented by the parties, or made an error not of reasoning but of
apprehension. See Schering Corp. v. Amgen, Inc., 25 F. Supp. 2d 293, 295 (D. Del. 1998);
Brambles, 735 F. Supp. at 1241. "A motion for reconsideration is not properly grounded on a

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request that a court rethink a decision already made." Smith v. Meyers, 2009 WL 5195928, at *1
(D. Del. Dec. 30, 2009); see also Glendon Energy Co. v. Borough ofGlendon, 836 F. Supp.
1109, 1122 (E.D. Pa. 1993). It is not an opportunity to "accomplish repetition of arguments that
were or should have been presented to the court previously." Karr v. Castle, 768 F. Supp. 1087,
1093 (D. Del. 1991). A party may seek reconsideration only if it can show at least one of the
following: (i) there has been an intervening change in controlling law; (ii) the availability of new
evidence not available when the court made its decision; or (iii) there is a need to correct a clear
error of law or fact to prevent manifest injustice. See Max's Seafood Cafe ex ref. LouAnn, Inc. v.

Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). In no instance should reconsideration be granted if
it would not result in amendment of an order. See Schering Corp., 25 F. Supp. 2d at 295.
3.

Google has failed to show that the requirements for reconsideration are met here.

Google contends that the Court committed a "manifest error of law ... regarding whether
contract interpretation is a question of law or a question of fact." (D .I. 523 at 1) In Go ogle's
view, the Court clearly erred in denying Google's motion for summary judgment based on the
conclusion that the meaning of "conception" in the pertinent employment agreement was
ambiguous, as the record is purportedly devoid of conflicting evidence as to this contractual
ambiguity. According to Google, under governing California law, the Court must resolve any
such ambiguity itself, as a matter of law. However, it is also true -as Google acknowledges

(see, e.g., D.I. 523 at 1, 2, 3)- that California law provides that where there is "conflicting
extrinsic evidence" relating to a disputed contractual term, summary judgment is inappropriate.

See, e.g., De Guere v. Univ. City Studios, Inc., 56 Cal. App. 4th 482, 506 (2d Dist. 1997) (".if the
parties present conflicting extrinsic evidence regarding the interpretation of the contract ... , the
credibility issues must be resolved by a jury, if a jury is properly demanded .... .if the question
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of contract interpretation does not tum upon the credibility of conflicting extrinsic evidence, then
the trial court must resolve the issues.") (emphasis added). Plaintiff Personalized User Model,
L.L.P. ("PUM") has pointed to evidence which a reasonable factfinder could view as both
"conflicting" and relevant to the meaning of "conception" in the employment agreement. See,

e.g, D.I. 530 at 4-5 (explaining, with citations to record, that "record is replete with extrinsic
evidence concerning the circumstances surrounding the Employment Agreement"); see also
Parsons v. Bristol Dev. Co., 62 Cal. 2d 861, 865 (Cal. 1965) ("[It is a] judicial function to

interpret a written instrument unless the interpretation turns upon the credibility of extrinsic
evidence .... ") (emphasis added). It follows, then, that summary judgment is not warranted. 1
4.

Google has also moved for leave to file a reply brief in support of its motion for

reconsideration. (D.I. 531) Ordinarily, parties are not permitted to file reply papers in support
of a motion for reargument. See D. Del. LR 7.1.5(a) ("The Court will determine from the motion
and answer whether reargument will be granted."). Although the Court has reviewed Google's
proposed reply brief (D.I. 531 Ex. 1), it does not believe a reply brief is warranted under the
circumstances. Accordingly, Google's motion to file a reply brief (D.I. 531) is DENIED.
5.

The parties have also failed to agree as to what additional proceedings are

required to conclude the liability portion of this case, and on what schedule. After considering
the parties' proposals (see D.I. 529), as well as the Court's schedule, the Court has concluded
that the following procedures and schedule shall govern:
a.

A jury trial will commence on March 10, 2014, at which the parties will

PUM also points out that "Google never previously argued that, under California law, the Court
should determine the meaning of 'conception' as a matter of law based on the purported lack of
conflicting extrinsic evidence." (D.I. 530 at 4)
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be given a maximum of twenty-two (22) hours per side to present their
case, with a final allocation to be addressed at the pretrial conference. The
Court recognizes that this may impose some hardship on Defendant, given
other trial commitments ofGoogle's counsel. (See D.l. 529 at 3)
However, the Court believes that there is adequate time for Google to
prepare its defense; this case has been pending for more than four years;
and the Court's schedule does not permit it to accommodate Google's
request for a trial in May 2014 (the next available date for a trial of this
length would be July or August 2014 ).
b.

PUM's request for a separate bench trial on statute of limitations issues is
denied. To the extent there are factual disputes relating to statute of
limitations, they will be tried at the March 2014 jury trial.

c.

The pretrial conference will be held on February 26, 2014 beginning at
2:00p.m. The proposed final pretrial order is due on February 19, 2014.

d.

Given the ambiguity as to the proper time for filing Daubert motions in
this case, the Court will permit the parties another opportunity to file such
motions. Any Daubert motions must be filed in sufficient time as to
permit all briefing to be completed no later than the date for the
submission of the proposed final pretrial order.

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