Kowalski v. Hawaii International Seafood, Inc. et al
Filing
216
ORDER DENYING DEFENDANT ANOVA FOOD, LLC's MOTION FOR RECONSIDERATION (ECF No. 112 ) AND DENYING DEFENDANT CLEARSMOKE TECHNOLOGIES, LTD.'S MOTION FOR RECONSIDERATION (ECF No. 113 ) AND DENYING DEFENDANT ANOVA FOOD, INC.'S MOTION FOR RECONSIDERATION (ECF No. 115 ) AND DENYING DEFENDANTS REQUEST FOR AN INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. § 1292(b). Signed by JUDGE HELEN GILLMOR on 7/31/2013. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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)
)
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Plaintiffs,
)
)
vs.
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Anova Food, LLC; Anova Food,
)
Inc.; Clearsmoke Technologies, )
Ltd.; DOES 1-10,
)
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Defendants.
)
Civ. No. 11-00795 HG-RLP
William R. Kowalski; Hawaii
International Seafood, Inc.,
ORDER DENYING DEFENDANT ANOVA FOOD, LLC’s MOTION FOR
RECONSIDERATION (ECF No. 112)
AND
DENYING DEFENDANT CLEARSMOKE TECHNOLOGIES, LTD.’S MOTION FOR
RECONSIDERATION (ECF No. 113)
AND
DENYING DEFENDANT ANOVA FOOD, INC.’S MOTION FOR RECONSIDERATION
(ECF No. 115)
AND
DENYING DEFENDANTS’ REQUEST FOR AN INTERLOCUTORY APPEAL PURSUANT
TO 28 U.S.C. § 1292(b)
On January 2, 2012, Plaintiffs William R. Kowalski and
Hawaii International Seafood, Inc. (“Plaintiffs”) filed a fourcount First Amended Complaint asserting claims for (Count 1)
patent infringement in violation of 35 U.S.C. § 271, (Count 2)
unfair competition and/or deceptive trade practices under 15
U.S.C. § 1125(a), (Count 3) unfair methods of competition under
Hawaii Revised Statute (“H.R.S”) § 480-2, and (Count 4) unfair
and deceptive trade practices in violation of H.R.S. § 481A-3.
(ECF No. 6.)
The Plaintiffs allege that Defendants Anova Food,
1
LLC, Anova Food, Inc., and Clearsmoke Technologies, Ltd. have
infringed a patent that covers a process for treating food with
smoke without the food retaining smoke taste or odor, and have
falsely represented that their fish products are processed with a
non-infringing process.
(Id. at ¶ 8, 14.)
On August 10, 2012, the Court denied Defendant Anova Food,
LLC (“Anova LLC”) and Anova Food, Inc.’s (“Anova Inc.”) Motions
to Dismiss for lack of personal jurisdiction.
(ECF No. 103.)
On
the same date, the Court denied Defendant Clearsmoke
Technologies, Ltd.’s (“Clearsmoke”) Motion to Dismiss for lack of
personal jurisdiction.
(ECF No. 104.)
On August 24, 2012, Defendant Anova LLC, filed a Motion for
Reconsideration of the Order Denying the Motion to Dismiss for
lack of personal jurisdiction.
(ECF No. 112.)
The same day,
Defendants Anova Inc. and Clearsmoke filed Motions for
Reconsideration.
(ECF No. 113, ECF No. 115.)
Anova Inc. and
Clearsmoke’s Motions referred the Court to Anova LLC’s Memorandum
in support of its Motion for Reconsideration, maintaining that
their arguments were similar to those of Anova LLC, and they
wished to avoid unnecessary repetition.
Alternatively, the Defendants requested that the Court enter
an interlocutory order pursuant to 28 U.S.C. § 1292(b), if the
Motions for Reconsideration are denied.
The parties requested a number of continuances before the
2
Court ruled on the Motions for Reconsideration.
There is now no
impediment to the Court ruling.
The Motions for Reconsideration (ECF No. 112, ECF No. 113,
ECF No. 115.) are DENIED.
The request for an interlocutory order
pursuant to 28 U.S.C. § 1292(b) is DENIED.
PROCEDURAL HISTORY
The Orders that Defendants wish to have reconsidered, issued
on August 10, 2012, provide a detailed procedural history.
The
following procedural history is relevant to the three Motions for
Reconsideration before the Court.
On December 3, 2011, Plaintiffs William R. Kowalski
(“Kowalski”) and Hawaii International Seafood, Inc.
(“Plaintiffs”) filed a Complaint. (ECF No. 1.)
On January 2, 2012, the Plaintiffs filed a First Amended
Complaint. (ECF No. 6.)
On March 19, 2012, Defendant Anova LLC filed a Motion to
Dismiss. (ECF No. 15.)
On the same date, Defendant Anova Inc.
filed a Motion to Dismiss. (ECF No. 16.)
On April 5, 2012, Defendant Clearsmoke filed a Motion to
Vacate Entry of Default, Quash Service, and Dismiss First Amended
Complaint. (ECF No. 29.)
On August 10, 2012, the Court denied all of the Defendants’
Motions to Dismiss for lack of personal jurisdiction
3
(“Jurisdictional Orders”).
(ECF No. 103, ECF No. 104.)
On August 16, 2012, Plaintiffs filed an Affidavit of Service
on Douglas Brinsmade (“Brinsmade”), former President of Anova,
Inc.
(ECF No. 106.)
Brinsmade was served with a subpoena to
produce documents, information, or objects, or to permit
inspection of premises.
(Id.)
The Affidavit of Service stated
that Brinsmade was served with the subpoena on July 28, 2012.
On August 24, 2012, Defendants Anova LLC filed a Motion for
Reconsideration of the Order Denying the Motion to Dismiss for
lack of personal jurisdiction (“Anova LLC’s Motion for
Reconsideration”).
(ECF No. 112.)
A declaration of Brinsmade
was attached as an exhibit in support of the Motion.
(ECF No.
112-2.)
That same day, Defendants Anova Inc. and Clearsmoke filed
Motions for Reconsideration of the Orders denying the Motions to
Dismiss for lack of personal jurisdiction.
115.)
(ECF No. 113, ECF No.
To avoid unnecessary repetition, Anova Inc. and
Clearsmoke’s Motions incorporated by reference the arguments put
forth in Anova LLC’s Motion, as their arguments on the errors of
law and fact were similar to those of Anova LLC.
On September 12, 2012, Plaintiffs filed an Opposition to the
Motions for Reconsideration.
(ECF. No. 118.)
On October 4, 2012, the Court approved a “Stipulation and
Order Regarding Extensions.”
(ECF No. 120.)
4
To facilitate
possible settlement, the Court granted the parties’ request to
stay all proceedings until October 17, 2012.
On October 22, 2012, the Court approved a “Second
Stipulation and Order Regarding Extensions.”
(ECF No. 122.)
To
facilitate possible settlement, the Court granted the parties’
request to stay proceedings until November 16, 2012.
Defendants
agreed not to petition for any reexamination of Plaintiff
Kowalski’s patents before December 1, 2012.
The deadline for
Defendants’ Reply Memorandums were extended to December 1, 2012.
The deadline for Brinsmade to respond to the subpoena was
extended to December 1, 2012.
On November 21, 2012, Defendants Anova LLC, Anova Inc., and
Clearsmoke filed Reply Memorandums.
(ECF No. 123, ECF No. 124,
ECF No. 125.)
On November 29, 2012, the Court approved a “Third
Stipulation and Order Regarding Extensions.”
(ECF No. 127.)
To
facilitate possible settlement, the Court granted the parties’
request to stay proceedings until January 2, 2013.
Once again,
Defendants agreed not to petition for any reexamination of
Plaintiff Kowalski’s patents before January 2, 2013.
The
deadline for Brinsmade to respond to the subpoena was extended to
January 9, 2013.
On February 20, 2013, the Court approved a “Fourth
Stipulation and Order Regarding Extensions.”
5
(ECF No. 143.)
To
facilitate possible settlement, the Court granted the parties’
request to defer ruling on the Motions for Reconsideration until
at least five court days after the parties’ March 25, 2013
settlement conference before the Magistrate Judge.
In addition
to other discovery stipulations, the deadline for Brinsmade to
respond to the subpoena was extended to April 8, 2013.
On February 22, 2013, in light of the six month delay in
ruling on the Motions for Reconsideration at the parties’ request
pending settlement discussions, the Court set a hearing on the
Motions for Reconsideration for April 1, 2013.
On March 25, 2013, a settlement conference was held before
the Magistrate Judge.
(ECF No. 148.)
No settlement was reached.
On March 29, 2013, the Court approved a “Fifth Stipulation
and Order Regarding Extensions.”
(ECF No. 149).
To help
facilitate ongoing settlement efforts, the Court agreed to grant
the parties’ request to continue the hearing on the Motions for
Reconsideration to May 1, 2013.
In addition to other discovery
stipulations, the deadline for Brinsmade to respond to the
subpoena was extended to five court days after May 1, 2013.
On April 30, 2013, after a settlement was not reached, the
Court vacated the May 1, 2013 hearing.
On May 3, 2013, Defendant Anova LLC filed a Motion to Stay.
(ECF No. 152.)
Anova Inc. joined in the Motion.
On June 14, 2013, the Magistrate Judge denied the Motion to
6
Stay, without prejudice.
(ECF No. 178.)
Pursuant to Local Rule 7.2(d), the Court elected to decide
the Motions for Reconsideration without a hearing.
STANDARD OF REVIEW
I.
Motion for Reconsideration
Federal Rule of Civil Procedure 60(b) provides for relief
from judgments or orders:
On motion and just terms, the court may relieve a party
or its legal representative from a final judgment, order,
or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new
trial under 59(b); (3) fraud . . . misrepresentation, or
misconduct by an opposing party; (4) the judgment is
void; (5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that has
been reversed or otherwise vacated; or applying it
prospectively is no longer equitable; or (6) any other
reason that justifies relief.
Fed. R. Civ. P. 60(b).
Such relief is within the discretion of the district court
and will not be reversed absent abuse of discretion.
Plotkin v.
Pacific Tel. & Tel. Co., 688 F.2d 1291, 1292 (9th Cir. 1982).
A
motion for reconsideration, according to District of Hawaii Local
Rule 60.1, must be filed not more than fourteen (14) days after
the court's written order is filed
In Mustafa v. Clark County School District, 157 F.3d 1169,
1178-79 (9th Cir. 1998), the Ninth Circuit Court of Appeals held
7
that a motion for reconsideration is justified on any of three
grounds: (1) an intervening change in controlling law; (2) the
discovery of new evidence not previously available; and (3) the
need to correct clear or manifest error in law or fact in order
to prevent manifest injustice.1
A successful motion for reconsideration must accomplish two
goals.
First, the motion must demonstrate some reason why the
court should reconsider its prior decision. Second, the motion
must set forth facts or law that are strongly convincing to
induce the court to reverse its prior decision. See Na Mamo
O'Aha'Ino v. Galiher, 60 F. Supp. 2d 1058, 1059 (D. Haw. 1999)
(citations omitted).
II.
Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b)
Generally, an appellate court should not review a district
court ruling until after entry of a final judgment.
Coopers &
Lybrand v. Livesay, 437 U.S. 463, 474, 98 S.Ct. 2454, 2460, 57
L.Ed.2d 351 (1978).
the general rule.
28 U.S.C. § 1292(b) provides an exception to
Section 1292(b) states:
When a district judge, in making in a civil action an
order not otherwise appealable under this section, shall
1
Local Rule 60.1 provides that motions for
reconsideration of interlocutory orders may be brought only upon
the following grounds:
(a)
(b)
(c)
Discovery of new material facts not previously
available;
Intervening change in law;
Manifest error of law or fact.
8
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. The Court of Appeals . . . may
thereupon . . .permit an appeal . . . if application is
made to it within ten days after the entry of the order.
. . .
28 U.S.C. § 1292(b).
A district court must determine whether the
following certification requirements for an interlocutory appeal
have been met:
(1) that there be a controlling question of law,
(2) that there be substantial grounds for difference of opinion,
and (3) that an immediate appeal may materially advance the
ultimate termination of the litigation.
In re Cement Antitrust
Litig. (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1981) aff'd
459 U.S. 1190, 103 S. Ct. 1173 (1983).
A question of law is
“controlling” if the resolution of the issue on appeal could
materially affect the outcome of the litigation in the district
court.
Id.
A party's strong disagreement with the Court's
ruling is not sufficient for there to be a “substantial ground
for difference”; the proponent of an appeal must make some
greater showing.
Mateo v. M/S KISO, 805 F. Supp. 792, 800 (N.D.
Cal. 1992).
Section 1292(b) is used only in exceptional circumstances in
which allowing an interlocutory appeal would avoid protracted and
expensive litigation.
In re Cement Antitrust Litig., 673 at
1026; see also Leong v. Hilton Hotels Corp., 689 F. Supp. 1572,
9
1574 (D. Haw. 1988)
(“The overriding consideration in the
determination of the appropriateness of interlocutory appeal
under this provision is simply whether such an appeal would be
helpful in light of the nature of the issue and the status of the
litigation.”)
ANALYSIS
I.
Motions for Reconsideration
Reconsideration of interlocutory orders may only be brought
upon the following grounds: (1) discovery of new material facts
not previously available, (2) intervening change in law, (3)
manifest error of law or fact.
Local Rule 60.1.
When alleging a
manifest error of law, a defendant must show that the Court
“committed clear error or that the initial decision was
manifestly unjust.”
Reliance Ins. Co. v. Doctors Co., 299 F.
Supp. 2d 1131, 1154 (D. Haw. 2003) aff'd 132 F. App'x 730 (9th
Cir. 2005)(quoting School Dist. No. 1J, Multnomah County, Or. v.
ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
A defendant
fails to meet his burden to establish a manifest error of law by
merely repeating the same arguments already raised.
Nat'l Union
Fire Ins. Co. of Pittsburgh, Pa. v. Am. Eurocopter Corp., Civ.
No. 09-00136 DAE-LEK, 2009 WL 3424969, at *2 (D. Haw. Oct. 26,
2009) (citing Backlund v. Barnhard, 778 F.2d 1386, 1388 (9th Cir.
1985) (affirming district court's denial of motion for
10
reconsideration because it presented no arguments not already
raised); San Luis & Delta–Mendota Water Auth. v. U.S. Dep't
Interior, 624 F.Supp.2d. 1197 (E.D. Cal. 2009)).
Defendants’ Motions for Reconsideration are largely based on
claims that the Court committed manifest errors of law.
Defendants also seek reconsideration of the Court’s minimum
contacts analysis of direct sales to Hawaii based on their
submission of new evidence to demonstrate an alleged error of
fact.
Defendants primarily rely on arguments previously made in
their Motion to Dismiss filings.
Defendants fail to demonstrate
any manifest error of law or fact, or provide any new evidence
not previously available.
1.
Defendants Anova LLC, Anova Inc., and Clearsmoke’s
claim that the Court erred in applying Federal Circuit
law in ruling on the admissibility of evidence
Defendants claim that the Court should have applied Ninth
Circuit law in ruling on the admissibility of hearsay evidence.
(Anova LLC’s Motion for Reconsideration at 6-7, 26-27, ECF No.
112.)
In patent infringement cases, district courts apply the law
developed by the Federal Circuit Court to determine whether the
exercise of personal jurisdiction is proper “because the
jurisdictional issue is intimately involved with the substance of
the patent laws.” Autogenomics, Inc. v. Oxford Gene Tech, Ltd.,
566 F.3d 1012, 1016 (Fed. Cir. 2009) (internal quotation marks
11
omitted); see also Hildebrand v. Steck Mfg. Company, Inc., 279
F.3d 1351, 1354 (Fed. Cir. 2002).
The application of the law
developed in the Federal Circuit decisions renders the holding in
Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558
(Fed. Cir. 1994) controlling law in the Ninth Circuit. See
Campbell Pet Co. v. Miale, 542 F.3d 879, 889 n.1 (Fed. Cir. 2008)
(appeal from the United States District Court for the Western
District of Washington).
The Beverly Hills Fan court held that
there is no strict rule prohibiting consideration of hearsay for
purposes of personal jurisdiction in patent cases.
Defendants
have not established that the Court’s application of Federal
Circuit law in ruling on the Motions to Dismiss for lack for
personal jurisdiction was a manifest error of law.
2.
Defendants Anova LLC and Anova Inc. claim that
statements by Brinsmade were hearsay and did not have
sufficient “indicia of reliability” to be relied upon
Defendants Anova LLC and Anova Inc. maintain that even if
Federal Circuit law is applied, Plaintiffs’ submission of hearsay
statements by Douglas Brinsmade (“Brinsmade”), former president
of Anova Inc., should not have been considered.
(Anova LLC’s
Motion for Reconsideration at 7-8, 28, ECF No. 112.) Defendants
argue that the Brinsmade remarks, as recounted in Plaintiff
Kowalski’s Declaration, did not have an “indica of reliability”
as required by Beverly Hills Fan.
In Beverly Hills Fan, the plaintiff there submitted a
12
declaration of a private investigator who stated that he had
telephone conversations with unnamed employees at six Virginia
stores, and fifty-two of the accused fans were available for sale
at those stores.
21 F.3d at 1561.
The defendants argued that
this evidence could not be considered because it was based on
hearsay and therefore inadmissible.
Id. at 1562.
The Federal
Circuit Court of Appeals rejected defendants argument and held
that a rule barring consideration of hearsay “would be
particularly inappropriate under the circumstances of this case
since the evidence bears circumstantial indicia of reliability so
that it very well could be admissible at trial notwithstanding
its hearsay nature.”
Id.
The appellate court further explained
that it declined to adopt a rule banning consideration of hearsay
because the defendants did not property challenge the evidence,
even though they were provided with the opportunity to do so.
Id.
Defendants were deemed “to have was to have acquiesced in
the trustworthiness of the evidence.”
Id.
Defendants previously objected to the Kowalski Declaration
as hearsay and unreliable.
The defendants argued that
Brinsmade’s statements were unreliable because he was terminated
from his position at Anova and now works as a competitor.
Defendants did not attempt to independently subpoena Brinsmade to
challenge the Kowalski Declaration.
The Court’s Jurisdictional
Order rejected Defendants’ argument that the Brinsmade statements
13
were unreliable.
(Order Denying Anova LLC and Anova Inc.’s
Motions to Dismiss at 30, ECF No. 103.)
Similar to the Beverly
Hills Fan defendants, Anova LLC, Anova Inc., and Clearsmoke
failed to take the steps, such as subpoenaing Brinsmade, to
sufficiently challenge the Brinsmade hearsay evidence when
provided with the opportunity to do so.
F.3d at 1562.
Beverly Hills Fan, 21
Defendants cannot merely repeat the same arguments
previously raised in a motion for reconsideration.
2009 WL 3424969, at *2.
Nat'l Union,
Defendants have provided any legal basis
to demonstrate that the Court committed a manifest error of law.
The hearsay evidence from Brinsmade was properly considered by
the Court in its Jurisdictional Orders.2
3.
Defendants Anova LLC and Anova Inc., in their Motions
for Reconsideration, submit a declaration from Douglas
Brinsmade to support the claim that the Court made an
error of fact in relying on a hearsay statement of
Brinsmade
Defendants Anova LLC and Anova Inc. argue that the Court
erred in relying on hearsay statements by Douglas Brinsmade to
determine whether the companies had minimum contacts with Hawaii.
The hearsay statements were provided to the Court in Plaintiff
Kowalski’s declaration dated April 21, 2012.
Kowalski recounted
that in an April 21, 2012 telephone call, “Brinsmade told me that
he was ‘pretty sure’ Anova sold Clearsmoke brand fish to the
2
Brinsmade’s statements could also be considered an
admission or a statement against interest by Defendants Anova LLC
and Anova Inc. Fed. R. Evid. 801(d)(2); 804(b)(3).
14
Foodland supermarket chain in Hawaii, and that he recalled there
were direct sales to Foodland as well as sales through
distributor Southland.”
(4/21/12 Declaration of William R.
Kowalski at ¶ 3, ECF No. 40-1.)
Defendants now rely on a newly provided declaration by
Brinsmade, dated August 24, 2012, fourteen days after the Court
found personal jurisdiction over the Defendants.
The Brinsmade
declaration was submitted as an attachment to Anova LLC’s Motion
for Reconsideration.
(Declaration of Douglas Brinsmade
(“Brinsmade Decl.”), ECF No 112-2.)
Brinsmade’s declaration
states “I do not recall making the statements that [Kowalski]
claims I made in that phone call.”
No. 112-2.)
(Brinsmade Decl. At ¶ 5, ECF
Brinsmade also states “I do not have any personal
recollection of Anova Inc. or Anova LLC making any sales directly
to Foodland.
Southland.”
Furthermore I am not aware of any distributor named
(Id.)
Anova LLC claims it was unable to present this evidence
earlier because it was unable to obtain a declaration from
Brinsmade until August 24, 2012.
(Anova LLC’s Motion for
Reconsideration at 8-9, ECF No. 112.)
Prior to August 24, 2012,
Defendants maintain that Brinsmade “refused to make himself
available to either party to give declarations . . . given the
pending settlement negotiations with Anova LLC that were not then
finalized.”
(Id. at 10.)
15
In their May 21, 2012 filing, Plaintiffs argued that the
Brinsmade hearsay statements should be allowed.
Plaintiffs
acknowledged that when asked to sign a declaration, Brinsmade
said he needed to ask his attorney.
(ECF No. 60 at 9 n.3.)
Plaintiffs also noted that “[i]f necessary, a subpoenaed
deposition of Mr. Brinsmade under oath is likely to force him to
more formally state what he told Mr. Kowalski.”
(Id.)
If the parties have not conducted discovery, the plaintiff
“need only make a prima facie showing” that the defendant is
subject to personal jurisdiction.
(internal citations omitted).
Autogenomics, 566 F.3d at 1017
The district court must “accept
the uncontroverted allegations in the plaintiff’s complaint as
true and resolve any factual conflicts in the affidavits in the
plaintiff’s favor.”
Elecs. for Imaging, Inc. v. Coyle, 340 F.3d
1344, 1349 (Fed. Cir. 2003).
To support a motion for reconsideration based upon newly
discovered evidence, the movant is obliged to show not only that
the evidence was newly discovered or unknown, but also that it
could not with reasonable diligence have discovered and produced
such evidence at the hearing.
Frederick S. Wyle Prof'l Corp. v.
Texaco, Inc., 764 F.2d 604, 609 (9th Cir. 1985); see also Nat'l
Union, 2009 WL 3424969, at *4.
Defendants have not shown that
they could not have, with reasonable diligence, such as through
the service of a subpoena, presented testimony from Brinsmade
16
before the Court ruled on the Motions to Dismiss.
not now rely on a new declaration by Brinsmade.
Defendants may
See Kona
Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th
Cir. 2000).
Even if the Brinsmade declaration was admissible as new
evidence, Brinsmade’s testimony does not justify reconsideration
of the Court’s Jurisdictional Orders as he does not directly
controvert the statements Kowalski claims Brinsmade previously
made.
See Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d
1124, 1129 (9th Cir. 2010)(Defendant’s conclusory denial did not
rebut Plaintiff’s allegations).
Brinsmade does not say he never
made the statements to Kowalski.
Brinsmade states that he cannot
recall making the statements Kowalski claims he made.
Decl. at ¶ 5.)
(Brinsmade
Brinsmade’s lack of recollection of the alleged
conduct does not, of course, prove that it did not occur.
The
Court’s reliance on Kowalski’s declaration was not a manifest
error of fact because Brinsmade did not specifically deny that
the conversation with Kowalski occurred, and the Court must view
the facts in the light most favorable to Plaintiffs.
Jayhawk
Capital Mgmt., LLC v. LSB Indus., Inc., No. 08-2561-EFM, 2009 WL
3766371, at *18 (D. Kan. Nov. 10, 2009)(court must take
plaintiff’s allegations as true when the defendant stated he did
not recall the alleged conversations, but defendant did not deny
that the conversations occurred).
17
Further, Kowalski stated that Brinsmade was pretty sure
Anova sold Clearsmoke brand fish to the Foodland supermarket
chain in Hawaii, and that Anova made direct sales to Foodland.
(Kowalski Declaration at ¶ 3, ECF No. 40-1.)
The Court’s August
10, 2012 Order held that the Brinsmade hearsay, viewed in the
light most favorable to the Plaintiffs, reflected that “Anova has
offered and in some cases may have made direct sales of its
products to Hawaii customers.”
(Order Denying Anova LLC and
Anova Inc.’s Motions to Dismiss at 30, ECF No. 103.)
Brinsmade’s
declaration specifies that he does not have any recollection of
Anova Inc. or Anova LLC making any sales directly to Foodland.
(Brinsmade Declaration at ¶ 5, ECF No. 112-2.)
Brinsmade’s
declaration does not provide a definitive answer as to whether
Anova made offers to Foodland or another Hawaii supermarket
chain.
The Court will not reconsider its Jurisdictional Orders
based on the Brinsmade declaration.
See New Hampshire Ins. Co.
v. Martech USA, Inc., 993 F.2d 1195, 1201 (5th Cir.
1993)(affirming district court’s refusal to reopen the case
because new testimony did not prove loss occurred during
insurance coverage policy period and affidavits attesting to
evidence Defendant’s employees might produce if they opted to
cooperate were mere speculation).
Additionally, the Court has already established specific
jurisdiction over the Defendants based on their soliciting sales
18
to Hawaii companies.
Brinsmade’s declaration does not change the
Court’s Jurisdictional Order.
4.
Anova LLC’s claim that any statements made by Brinsmade
were limited to Anova, Inc., not Anova LLC
Anova LLC argues that the Court made an error of fact by
applying the Brinsmade hearsay to Anova LLC.
Anova LLC maintains
that none of the Brinsmade hearsay can be attributed to Anova LLC
because Brinsmade was the president of Anova Inc., and Brinsmade
ceased being president around the same time Anova LLC was formed.
(Anova LLC’s Motion for Reconsideration at 30, ECF No. 112.)
Anova LLC raised this argument in its Reply Memorandum in
Support of its Motion to Dismiss.
(ECF No. 47.)
Plaintiffs
responded by arguing that the overlap between Anova Inc. and
Anova LLC’s operational periods indicate that Brinsmade may have
been involved in both companies’ operations.
(Opposition to
Motions for Reconsideration at 5, ECF No. 118.)
Brinsmade’s
statements to Kowalski referred to “Anova” and did not
differentiate between Anova LLC and Anova Inc.
Viewing all facts
in favor of the non-moving party, the Plaintiffs, the Court
attributed Brinsmade’s statements to both Defendants.
Anova LLC
cannot merely reiterate the same arguments it previously raised.
Nat'l Union, 2009 WL 3424969, at *2.
Anova LLC also relies on the new Brinsmade Declaration as a
basis for reconsideration of Anova LLC’s minimum contacts with
19
Hawaii.
Anova LLC may not present evidence for the first time
when it could reasonably have been raised earlier in the
litigation.
See Kona Enterprises, 229 F.3d at 890 (9th Cir.
2000); Nat’l Union, 2009 WL 3424969, at *4.
Reconsideration of the Court’s August 10, 2012 Order is not
warranted.
5.
Defendants Anova LLC and Anova Inc.’s claim that the
Gary Ishimoto declaration was hearsay and did not have
sufficient “indicia of reliability”
Defendants Anova LLC and Anova Inc. claim that the Gary
Ishimoto declaration was hearsay and improperly considered.
Defendants previously objected to Ishimoto’s declaration as
hearsay.
In addressing the Defendant’s objection, the Court held
“Ishimoto’s statements do not constitute hearsay; his references
to Anova sales solicitations and to price sheets are not offered
for the truth of what such statements assert, but merely to show
their affect on him as a listener.” (Order Denying Anova LLC and
Anova Inc.’s Motions to Dismiss at 25, ECF No. 103.)
Defendants
cannot repeat the same arguments previously raised in a motion
for reconsideration.
Nat'l Union, 2009 WL 3424969, at *2.
Defendants have provided any legal basis to demonstrate that the
Court committed a manifest error of law.
6.
Defendants Anova LLC and Anova Inc. claim
Court erroneously relied on solicitations
Ishimoto because those communications did
the level of an “offer of sale” under the
that the
to Gary
not rise to
law
Defendants Anova LLC and Anova Inc. argue that the Order
20
finding jurisdiction incorrectly presumes that an “offer to sell”
was made based on the assertions of Gary Ishimoto (“Ishimoto”),
the President of Diamond Head Seafood Wholesale, Inc., a Hawaii
corporation located in Honolulu. (Anova LLC’s Motion for
Reconsideration at 34, ECF No. 112.)
Defendants claim that
Ishimoto’s testimony that Anova sent price sheets to Diamond Head
Seafood, Inc., without submitting the actual price sheet into
evidence, is not sufficient to show a definite offer to sell.
Defendants claims that an “offer to sell” must be shown by an
objective standard and therefore Plaintiffs must produce the
actual price quote sheets, rather than rely on Ishimoto’s
subjective testimony.
Defendants’ arguments regarding the solicitations to
Ishimoto were previously raised in its Motion to Dismiss filings.
As the Court already held, Ishimoto’s statements are relevant to
Defendants’ alleged commercial contact with Hawaii.
Ishimoto’s
declaration stated that Anova inquired if Diamond Head Seafood
was interested in buying Clearsmoke frozen fish and included
price quote sheets.
Plaintiffs offered Ishimoto’s statements to
provide evidence that Defendants consciously targeted Hawaii by
making offers to sell Clearsmoke fish and providing price
quotations to Diamond Head Seafood. (Memorandum in Support of
Plaintiffs’ Motion for Consideration of New Information at 2, ECF
No. 57-1.)
Ishimoto’s references to Anova sales solicitations
21
and to price sheets were admissible to show their affect on
Ishimoto as a listener.
L.A. News Serv. v. CBS Broad., Inc., 305
F.3d 924, 935, amended by 313 F.3d 1093 (9th Cir. 2002). Viewing
the evidence in the light most favorable to the Plaintiffs,
Ishimoto’s Declaration evidences that Anova solicited sales to
his company.
Autogenomics, 566 F.3d at 1017.
Defendants’
disagreement with the Court’s Jurisdictional Order is an
insufficient basis for reconsideration.
Nat'l Union, 2009 WL
3424969, at *1.
Defendants “offer to sell” argument goes to the merits of
whether Kowalski’s patents were infringed.
As Defendants point
out, in order to make an “offer to sell,” “a defendant must
communicate a manifestation of willingness to enter into a
bargain, so made as to justify another person in understanding
that his assent to that bargain is invited and will conclude it.”
MEMC Elec. Materials, Inc. v. Mitsubishi Materials Silicon Corp.,
420 F.3d 1369, 1376 (Fed. Cir. 2005) (review of district court’s
grant of summary judgment to competitor on patent infringement
claims).
The merits of the case are not properly before the
Court at this juncture.
7.
Anova LLC’s claim that contacts with Ishimoto cannot be
attributed to Anova LLC because they pre-dated the
formation of Anova LLC
Anova LLC argues that any contacts with Ishimoto
can only be attributed to Anova Inc. because the alleged
22
solicitation occurred before Anova LLC came to existence in mid2010.
Ishimoto stated that “[f]rom time to time over the years
(more than a few times in total), Anova food contacted me . . .
.”
(Declaration of Gary Ishimoto at ¶ 3, ECF No. 57-3.)
Plaintiffs’ First Amended Complaint alleges that “each Defendant
was the agent, servant, partner, joint venture, employee,
principal, independent contractor, and/or surety of each other
Defendant and . . . were acting within the time, scope, and
course of said employment or agency, and/or with knowledge,
permission, and consent of all other said Defendants.”
Amended Complaint ¶ 4.)
(First
The Court’s Jurisdictional Order stated
that evidence that does not specify a particular Defendant or
simply refers to “Anova,” will be applied to both Anova LLC and
Anova Inc.
(Order Denying Anova LLC and Anova Inc.’s Motion to
Dismiss at 11-12, ECF No. 103.)
Ishimoto’s comments did not
specify a definite time period. Evidence must be viewed in the
light most favorable to Plaintiffs. Anova LLC has not provided a
legal basis for finding the Court erred in attributing Ishimoto’s
testimony regarding “Anova” to Anova LLC.
Once again, Anova
LLC’s attempt to re-argue their position does not justify
reconsideration of the Court’s Orders finding jurisdiction.
Nat'l Union, 2009 WL 3424969, at *2.
8.
Defendants’ Anova LLC, Anova Inc., and Clearsmoke claim
the Court erred in considering emails between Charles
Umamoto and Representatives from Anova LLC, Anova Inc.,
and Clearsmoke in its jurisdictional analysis
23
Defendants argue that email correspondence between Charles
Umamoto, CEO, of Hilo Fish Co. and Tropic Fish Hawaii, LLC, and
Anova/Clearsmoke representatives cannot establish specific
jurisdiction.
In 2011 and 2012, Umamoto and his Purchasing
Manager at Hilo Fish Co., Sabrina Vaughn, corresponded with
Anova/Clearsmoke representatives Blane Olson and Hender Moran.3
Defendants maintain that even if Defendants solicited Hilo Fish
Co. for purchase of their products, there would have been no
patent or trademark infringement because of a settlement
agreement between Hilo Fish Co. and Plaintiff Kowalski.
Defendants reason that the solicitation does not constitute
purposeful availment because Kowalski would be barred from
bringing patent infringement and false advertising causes of
action against the Anova tuna by the settlement agreement that
exists between Umamoto of Hilo Fish Co. and Tropic Fish Hawaii,
LLC, and the Plaintiffs.
The evidence that Anova LLC, Anova Inc., and Clearsmoke
communicated sales solicitations to Hilo Fish Co. and Tropic Fish
Hawaii, LLC, has already been considered and ruled on by the
3
The Court’s August 10, 2012 Jurisdictional Orders
relied on copies of the communications between Defendants’
employees and Umamoto of Hilo Fish Co and Tropic Fish Hawaii,
LLC. Emails from Syarif Nugroho of Anova were also considered.
The email correspondence between Umamoto and Olson discuss a
potential fish purchase by Umamoto from Anova/Clearsmoke. Olson
states that he will send Umamoto samples of their products.
24
Court.
Disagreement with the Court’s Jurisdictional Orders does
not justify reconsideration.
Nat'l Union, 2009 WL 3424969, at
*1.
In their Motions for Reconsideration, Defendants do not cite
any caselaw to support their proposition that the court erred in
considering the solicitations for the purposes of determining
personal jurisdiction.
The Court’s determination of jurisdiction
is not a ruling on the merits of the action.
The scope of a
settlement agreement in place between the patent holder and a
potential buyer is a matter for later interpretation.
Defendants’ reliance on Markham v. Westview Instruments, Inc.,
517 U.S. 370 (1996), is misplaced.
The United States Supreme
Court ruling in Markham deals with the underlying merits of the
alleged patent infringement claims.
There was no personal
jurisdiction analysis in Markham nor did the facts include a
settlement agreement with the patent holder.
When considering a motion to dismiss for lack of personal
jurisdiction, the district court must view the “pleadings and
affidavits in the light most favorable to [the plaintiffs]” and
“resolve any factual conflicts in the affidavits in the
plaintiff’s favor.”
Autogenomics, 566 F.3d at 1017.
Plaintiffs
point out that the fish offered to Hilo Fish Co. may not have
been covered by the settlement agreement because the agreement
did not cover all smoked fish.
(Opposition to the Motions for
25
Reconsideration at 11, ECF No. 118.)
Additionally, even if the
settlement agreement between Kowalski and Hilo Fish Co. covered
the Anova fish solicitations regarding the patent infringement
claims, Defendants contacts with Hilo Fish Co. would still be
analyzed to determine Defendants’ minimum contacts regarding
Plaintiffs’ Lanham Act false representation claim.
(First
Amended Complaint at ¶ 14) (Plaintiffs base their Lanham Act
claim on allegations that Defendants have falsely represented
that their fish is not processed in a manner covered by
Kowalski’s patent).
The Court concluded in its Jurisdictional Orders that there
is sufficient evidence that Defendants Anova LLC, Anova Inc., and
Clearsmoke directly contacted and solicited Hawaii seafood
companies.
The evidence supports the Court’s jurisdiction over
Plaintiffs’ claims that Anova has purposefully directed its
business activities to Hawaii.
Defendants have not provided any
legal basis for a finding of a clear or manifest error in law.
See Mustafa, 157 F.3d at 1178-79.
The Court’s August 10, 2012
Orders regarding jurisdiction over Defendants Anova LLC, Anova
Inc., and Clearsmoke stands.
9.
Defendants’ Anova LLC, Anova Inc., and Clearsmoke’s
claim that the Court erred in not allowing them to
submit additional briefing on the Umamoto emails and
Hilo Fish Co. settlement agreement
Defendants take issue with the Court's July 18, 2012 Minute
26
Order addressing the numerous filings by both parties that were
outside of the parameters set forth in the April 2, 2012 briefing
schedule.
Defendants argue that the July 18, 2012 Order allowed
Plaintiffs to get the "last word" before the Court ruled on the
Motions to Dismiss.
3, ECF No. 112.)
(Anova LLC's Motion for Reconsideration at
Defendants present no legal authority to
support their proposition that the Court's July 18, 2012 Order is
a proper basis for reconsideration.
The Court's July 18, 2012 Order stated it would consider
both Defendants' and Plaintiffs' positions on the Umamoto email
correspondence and the Hilo Fish Co. settlement agreement, and
barred any additional filings relating to the Motions to Dismiss.
Defendants' arguments regarding jurisdiction, the Umamoto emails,
the settlement agreement, and other exhibits were all presented
to the Court at length in Defendants’ Sur-Reply. (ECF No. 84.)
In the July 18, 2012 Minute Order, the Court stated it would
consider Defendant Anova Food, LLC's Sur-Reply (ECF No. 84).
(ECF No. 87.)
Defendants' position regarding the Hilo Fish Co. settlement
agreement was clear in its Sur-Reply filing and did not require
additional briefing.
Although Defendants' claim that the July
18, 2012 Order resulted in the Court's erroneous adoption of
Plaintiff's position on the settlement agreement, Defendants'
disagreement with a previous order is an insufficient basis for
27
reconsideration.
10.
Nat'l Union, 2009 WL 3424969, at *1.
Clearsmoke’s claim that the emails to Umamoto cannot be
attributed to it as Clearsmoke was defunct at the time
In its five-page Motion for Reconsideration, Clearsmoke
raises an additional argument that is not contained in Anova
LLC’s Motion for Reconsideration.
(ECF No. 113.)
Clearsmoke
claims the purported offer for the sale of fish to Umamoto at
Hilo Fish Co. and Tropic Fish Hawaii, LLC cannot be attributed to
Clearsmoke as it was defunct at the time the emails were sent.
According to Clearsmoke, the purported offer for sale and Blane
Olson’s unilateral personal use of an old email address could not
be construed to revive the company’s business. (Clearsmoke’s
Motion for Reconsideration at 2-3, ECF No. 113.)
Clearsmoke
raised the same argument in a filing in support of its original
Motion to Dismiss.
(See Clearsmoke’s Response to Plaintiffs’ New
Supplement Information Supporting Plaintiffs’ Opposition to
Clearsmoke’s Motion to Dismiss, filed on May 25, 2012, ECF No.
67.)
In the August 10, 2012 Order denying Clearsmoke’s motion to
dismiss, the Court considered the following evidence relating to
Olson’s relationship with Clearsmoke: (1) Olson’s email address
ending with “@clearsmoke.com,” (2) Olson’s declaration in which
he stated he has done work for “both Clearsmoke and Anova
marketing programs,” and (3) a trial transcript from another
lawsuit where Anova Inc.’s attorney stated that Olson served both
28
Clearsmoke and Anova Inc.
The Court held that when the evidence
was viewed as a whole and in the light most favorable to the
Plaintiffs, it shows that Clearsmoke has purposefully directed
commercial activities at the State of Hawaii.
(Order Denying
Clearsmoke’s Motion to Dismiss at 19-20, ECF No 104.)
Clearsmoke cannot merely repeat the same arguments it has
already raised in a motion for reconsideration.
2009 WL 3424969, at *2.
Nat'l Union,
Clearsmoke has not demonstrated that the
Court committed a manifest error of law in relying on Olson’s
email communications to determine whether Clearsmoke had minimum
contacts with Hawaii.
11.
Anova Inc. claims that the emails to Umamoto cannot be
attributed to it because Anova Inc. was not conducting
meaningful business at the time of the emails
In its five-page Motion for Reconsideration, Anova Inc.
raises an additional argument.
(ECF No. 115.)
Anova Inc. claims
it was not conducting meaningful business at the time of the
email communications.
at 2.)
(Anova Inc.’s Motion for Reconsideration
The Court addressed the same argument in its August 10,
2012 Order denying Anova Inc.’s motion to dismiss, and found that
Hender Moran’s job title and email address associated Anova, Inc.
with the offer of sale of fish to Umamoto.
(Order Denying Anova,
LLC and Anova, Inc.’s Motions to Dismiss at 27-28, ECF No. 103.)
Anova Inc.’s repetition of the same argument does not meet
its burden in a motion for reconsideration.
29
Nat'l Union, 2009 WL
3424969, at *2.
Anova Inc. has not provided the Court with any
legal basis to find manifest error of law in relying on Moran’s
email communications to determine Anova Inc.’s minimum contacts
with Hawaii.
12.
Defendants Anova LLC, Anova Inc., and Clearsmoke’s
claim that the Court improperly applied Beverly Hills
Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558 (Fed.
Cir. 1994)
Defendants argue that the Court improperly applied Beverly
Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558 (Fed. Cir.
1994).
Defendants argue that the stream of commerce theory
requires a defendant manufacturer use an established distributor
to ship the infringing product into the forum.
(Anova LLC’s
Motion for Reconsideration at 20, ECF No. 112.)
Defendants
further argue that the absence of an established distributor only
satisfies Justice Brennan’s holding in Asahi Metal Co., Ltd. v.
Superior Court of California, 480 U.S. 102 (1987), but does not
meet Justice O’Connor requirement of “something more” in addition
to placing a product into the stream of commerce.
Defendants’
previously argued that the O’Connor opinion from Asahi should
control in its Reply Memorandum in Support of the Motion to
Dismiss.
(ECF No. 47.)
In Beverly Hills Fan, the Federal Circuit Court of Appeals
ruled that the Eastern District of Virginia had personal
jurisdiction over a Taiwanese manufacturer and a New Jersey
distributor.
The court held that an established distribution
30
channel existed based on the Plaintiff’s allegations that the
defendant manufacturer and distributor purposefully shipped and
sold, through intermediaries, the accused product to Virginia
customers.
Id. at 1563.
In finding that an “established distribution channel”
existed, the court held:
When viewed in the light of the allegations and the
uncontroverted assertions in the affidavits, plaintiff
has stated all of the necessary ingredients for an
exercise of jurisdiction consonant with due process:
defendants, acting in consort, placed the accused fan in
the stream of commerce, they knew the likely destination
of the products, and their conduct and connections with
the forum state were such that they should reasonably
have anticipated being brought into court there.
Id. at 1566.
Defendants argue that “acting in consort” requires
that a manufacturer use an established distributor to ship the
infringing product into the forum in order to assert personal
jurisdiction over the manufacturer.
holding of Beverly Hills Fan.
Defendants overstate the
The Beverly Hills Fan court did
not mention any requirement of an established distributor
relationship, it only emphasized an established distribution
chain.
The court held that the defendant manufacturer and
distributor’s commercial relationship with the retailer was
“ongoing, and obviously intentional.”
It is undisputed that at least fifty-two [Manufacturer]
fans were present in Virginia bearing [Distributor’s]
warranty, reflecting an ongoing relationship with the
Virginia retailer and customers.
From these ongoing
relationships, it can be presumed that the distribution
channel formed by defendants and [retailer] was
31
intentionally established, and that defendants knew, or
reasonably could have foreseen, that a termination point
of the channel was Virginia.
Id. at 1564 (citation omitted).
In addressing the “stream of commerce” theory, the Beverly
Hills Fan court discussed the United States Supreme Court’s
decision in Asahi Metal Co., Ltd. v. Superior Court of
California, 480 U.S. 102 (1987). In Asahi, the Supreme Court
addressed the application of the stream of commerce theory,
specifically, what is required to establish personal jurisdiction
over a defendant when its products enter the forum through a
stream of commerce.
The Supreme Court split in its decision.
Four justices joined the opinion of Justice Brennan, which held
placing a product into the stream of commerce is sufficient to
establish personal jurisdiction.
Asahi, 480 U.S. at 117.
Four
justices supported the opinion of Justice O’Connor, which held
that an exercise of personal jurisdiction requires more than the
mere act of placing a product in the stream of commerce.
112.
Id. at
Justice O’Connor stated that in addition to placing the
product in the stream of commerce, a defendant must take an
action “purposefully directed toward the forum State.”
Id.
In Beverly Hills Fan, the Federal Circuit Court of Appeals
declined to join either Justice Brennan or Justice O’Connor’s
Asahi opinion, and held that “under either version of the stream
of commerce theory, plaintiff made the required jurisdictional
32
showing.”
Beverly Hills Fan, 21 F.3d at 1566.
The court held
that the plaintiff had stated all of the necessary ingredients
for an exercise of due process:
[D]efendants, acting in consort, placed the accused
[product] in the stream of commerce, they knew the likely
destination of the products, and their conduct and
connections with the forum state were such that they
should reasonably have anticipated being brought into
court there.
Id.
The Court’s August 10, 2012 Orders held that the ongoing
relationship between the Defendants and forum state retailers
evidenced an established distribution channel.
There is no
dispute that thousands of packages of Anova fish are sold at
Hawaii Sam’s Club supermarkets.
It is also undisputed that the
fish is sold in packaging that clearly displays the “Clearsmoke”
trademark.
Although the Defendants argue that they did not
control the third-parties who distributed its products in Hawaii,
there is no requirement that a company have strict control over
its distribution channels in order for it to be subject to
personal jurisdiction in the locations where its products are
sold.
See Beverly Hills Fan, 21 F.3d 1558.
A review of Beverly Hills Fan does not require a different
result from the Court’s August 10, 2012 Orders.
Based on the
evidence before the Court, it can be presumed that the
distribution channel that resulted in the sale of Defendants’
products at Sam’s Club, Outback Steakhouse restaurants, and
33
Ruth’s Chris Steakhouse restaurants was intentionally
established, and that the Defendants knew, or reasonably could
have foreseen that the products would be sold in Hawaii.
1564.
Id. at
The resulting presence of the product in the District of
Hawaii would be known to the Defendants, just as it was evident
to the infringers in Beverly Hills Fan that the product was being
sold in Virginia.
There is nothing in Beverly Hills Fan to
indicate a manifest error of law to warrant the Court’s
reconsideration of its August 10, 2012 Orders.
II.
Request for an Interlocutory Order Under 28 U.S.C. 1292(b)
28 U.S.C. § 1292(b) 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. The Court of Appeals . . . may
thereupon . . .permit an appeal . . . if application is
made to it within ten days after the entry of the order.
. . .
28 U.S.C. § 1292(b).
Defendants argue that an interlocutory order is appropriate
“as the harm done to Anova LLC through the Court’s jurisdictional
decision, if erroneous as Anova LLC contends, will be irreparable
by the conclusion of trial when a normal appeal may be perfected,
having already been required to litigate in a forum where Anova
34
LLC does not believe it is subject to the Court’s jurisdiction.”
(Anova LLC’s Motion for Reconsideration at 38, ECF No. 112.)
Defendants argue that the Jurisdictional Orders involve the
following controlling questions of law for which there are
substantial grounds for difference of opinion: (a) the stream of
commerce standard of Beverly Hills Fan; (b) the criteria for
determining whether an authorized distributorship exists; (c) the
objective standard to determine an offer of sale; and (d) whether
inadmissible evidence may be received on a motion to dismiss when
no indicia of reliability exist.
(Anova Food LLC’s Reply in
Support of Motion for Reconsideration at 19, ECF No. 123.)
Defendants have failed to identify a controlling question of
law as to which there is a substantial ground an interlocutory
appeal.
Defendants merely challenge the factual basis for the
finding of personal jurisdiction or raise issues that go to the
underlying merits of the case.
Thomas Weisel Partners LLC v. BNP
Paribas, No. C 07-06198 MHP, 2009 WL 55946, at *3 (N.D. Cal. Jan.
7, 2009).
Defendants’ arguments regarding Beverly Hills Fan and
the admissibility of evidence challenge the Court’s application
of well-settled law to the facts of this case.
Defendants’
argument regarding the offer of sale goes to the merits of the
case.
Defendants fail to show that any question of law addressed
in the Jurisdictional Orders raised an unsettled issue, issue of
first impression, or any other question of law upon which an
35
interlocutory appeal may be based.
A party's strong
Id.
disagreement with the Court's ruling is not sufficient for there
to be a “substantial ground for difference”; the proponent of an
appeal must make some greater showing.
Supp. 792, 800 (N.D. Cal. 1992).
Mateo v. M/S KISO, 805 F.
Defendants must make a greater
showing that a substantial ground for difference of opinion
exists regarding the August 10, 2012 Orders.
See Valdovinos v.
McGrath, No. C02 1704 CW, 2007 WL 2023505, *3-4 (N.D. Cal. July
12, 2007).
Defendants’ request for an interlocutory order under 28
U.S.C. § 1292(b) is DENIED.
CONCLUSION
In accordance with the foregoing, Defendant Anova Food,
LLC’s Motion for Reconsideration (ECF No. 112) is DENIED.
Defendant Anova Food, Inc.’s
Motion for Reconsideration
(ECF No. 115) is DENIED.
Defendant Clearsmoke Technologies, Ltd.’s Motion for
Reconsideration (ECF No. 113) is DENIED.
//
//
//
//
//
36
Defendants Anova Food, LLC, Anova Food, Inc., and Clearsmoke
Technologies, Ltd.’s requests for an interlocutory order under 28
U.S.C. § 1292(b) are DENIED.
IT IS SO ORDERED.
DATED: July 31, 2013, Honolulu, Hawaii.
/S/ Helen Gillmor
Helen Gillmor
United States District Judge
William R. Kowalski; Hawaii International Seafood, Inc. v. Anova
Food, LLC; Anova Food, Inc.; Clearsmoke Technologies, Ltd.; DOES
1-10; Civil No. 11-00795 HG-RLP; ORDER DENYING DEFENDANT ANOVA
FOOD, LLC’s MOTION FOR RECONSIDERATION (ECF No. 112) AND DENYING
DEFENDANT CLEARSMOKE TECHNOLOGIES, LTD.’S MOTION FOR
RECONSIDERATION (ECF No. 113) AND DENYING DEFENDANT ANOVA FOOD,
INC.’S MOTION FOR RECONSIDERATION (ECF No. 115) AND DENYING
DEFENDANTS’ REQUEST FOR AN INTERLOCUTORY APPEAL PURSUANT TO 28
U.S.C. § 1292(b)
37
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