Kowalski v. Hawaii International Seafood, Inc. et al
Filing
409
ORDER DENYING ANOVA FOOD, LLC'S MOTION TO STRIKE (ECF No. 380 ). Signed by JUDGE HELEN GILLMOR on 12/10/2014. (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
WILLIAM R. KOWALSKI; HAWAII
INTERNATIONAL SEAFOOD, INC.,
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Plaintiffs,
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vs.
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ANOVA FOOD, LLC; DOES 1-10,
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Defendants.
_______________________________ )
Civil NO. 11-00795 HG-RLP
ORDER DENYING ANOVA FOOD, LLC’S MOTION TO STRIKE (ECF No. 380)
Defendant Anova Food, LLC seeks to strike Plaintiffs’
Counter Motion for Partial Summary Judgment (ECF No. 365).
Plaintiffs’ Counter Motion was filed along with their Opposition
to Defendant’s Motion for Summary Judgment.
Defendant argues it
is untimely because it was filed after the dispositive motions
deadline set in the Rule 16 Scheduling Order.
Defendant’s Motion to Strike (ECF No. 380) is DENIED.
Plaintiffs have shown good cause for filing their Counter
Motion after the Rule 16 deadline.
Plaintiffs’ Counter Motion
addresses only issues raised in Defendant’s Motion for Summary
Judgment.
Judicial economy supports considering Plaintiffs’
Counter Motion as it may assist in narrowing the issues for
trial.
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PROCEDURAL HISTORY
On July 8, 2013, the Second Amended Rule 16 Scheduling Order
was issued.
(ECF No. 205).
The Scheduling Order set October 15,
2014, as the deadline for filing dispositive motions.
On October 15, 2014, Defendant Anova Food, LLC filed its
Motion for Summary Judgment.
(ECF No. 348).
On November 19, 2014, Plaintiffs filed an Opposition to
Defendant’s Motion for Summary Judgment along with a Counter
Motion for Partial Summary Judgment.
(ECF No. 365).
On November 25, 2014, Defendant Anova Food, LLC. filed
DEFENDANT ANOVA FOOD, LLC’S MOTION TO STRIKE.
(ECF No. 380).
On December 5, 2014, Plaintiffs filed PLAINTIFFS WILLIAM R.
KOWALSKI AND HAWAII INTERNATIONAL SEAFOOD, INC.’S MEMORANDUM IN
OPPOSITION TO DEFENDANT ANOVA FOOD, LLC’S MOTION TO STRIKE.
(ECF
No. 392).
The Court elected to consider Defendant’s Motion to Strike
(ECF No. 380) without a hearing pursuant to Local Rule 7.2(d).
LEGAL STANDARD
The Rule 16 Scheduling Order controls the course of
litigation. Fed. R. Civ. P. 16(b); Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992).
Pursuant to Rule 16(b)(4), Plaintiffs must show good cause
for not having filed their Counter Motion before the time
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specified in the scheduling order expired.
at 608-09.
See Johnson, 975 F.2d
This standard “primarily considers the diligence of
the party seeking the amendment.”
Id. at 609.
If the party
seeking the modification was not diligent, the court should deny
the motion.
Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087
(9th Cir. 2002).
ANALYSIS
I.
Plaintiffs Have Shown Good Cause For Filing Its Counter
Motion After the Rule 16 Deadline
A plaintiff may establish good cause for filing his motion
as a counter motion after the dispositive motion deadline by
demonstrating that he was not fully aware of the issues in
support of summary judgment before the dispositive motions
deadline.
See B.T. ex rel Mary T. v. Dept. of Educ. State of
Hawaii, 637 F.Supp.2d 856, 867 (D. Haw. 2009).
Defendant Anova Food, LLC seeks summary judgment on the
issues of equitable estoppel, laches, and patent infringement.
(Def.’s Motion for Summary Judgment, ECF No. 348).
Plaintiffs
have explained that they were not “fully aware of the [laches and
equitable estoppel] arguments in the opposing party’s summary
judgment motion before the dispositive motion deadline.”
(Pla.’s
Opp. at p. 7, ECF No. 392).
Plaintiffs have provided evidence that Defendant Anova Food,
LLC did not disclose the basis for its equitable estoppel defense
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in either its Initial Disclosures or its Response to
Interrogatories.
(Id. at pp. 7-9; Anova Food, LLC’s Response to
Interrogatories and Initial Disclosures, Pla.’s Exs. C, D, ECF
No. 329-10, 11).
Defendant Anova Food, LLC stated a general
“estoppel/laches” defense in its Answer but did not provide the
basis for either defense.
(ECF No. 161).
In July 2014, Plaintiffs were made aware that Anova Food,
Inc., sought to rely on a laches defense when Anova Food, Inc.
provided Plaintiffs with a copy of a draft Motion for Summary
Judgment prior to their dismissal from the case. (Draft of Anova
Food, Inc.’s Motion, Pla.’s Exs. A, B, ECF No.392-2, 3; Pla.’s
Opp. at p. 7, ECF No. 392).
Defendant Anova Food, LLC did not
provide the same disclosure and Plaintiffs were not fully aware
of the basis of its laches defense prior to October 15, 2014.
Plaintiffs have established good cause.
Plaintiffs filed
their Counter Motion for Summary Judgment after they were made
aware of the basis of Defendant’s equitable estoppel and laches
defenses.
II.
Plaintiffs’ Counter Motion Complies with Local Rule 7.9 and
Only Addresses Issues Raised in Defendant’s Motion for
Summary Judgment
District of Hawaii Local Rule 7.9 provides that any motion
raising the same subject matter as an original motion may be
filed by the responding party together with the party’s
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opposition.
Plaintiffs’ Counter Motion complies with the District of
Hawaii Local Rule 7.9.
Plaintiffs’ Counter Motion only addresses
the two equitable defenses raised in Defendant’s Motion for
Summary Judgment.
Plaintiffs have not pointed to any prejudice it would suffer
in addressing Plaintiffs’ Counter Motion as it addresses the same
issues raised in its motion.
Several courts have declined to strike an otherwise untimely
cross-motion for summary judgment when the cross-motion only
addresses the issues raised in the original motion.
Tran v.
Captain Glyn, Inc., 909 F.Supp. 727, 731 (D. Haw. 1995); Aspen
Specialty Ins. Co. v. Utah Local Gov’t Trust, 954 F.Supp.2d 1311,
1313 (D. Utah 2013); Hummel v. St. Joseph Bd. Of Commissioners,
2014 WL 4843715, *2 (N.D. Ind. Sept. 29, 2014).
Courts have declined to strike late-filed counter motions
for summary judgment when considering such motions would benefit
judicial economy and narrow the issues for trial.
Dayton Valley
Investors, LLC v. Union Pacific R. Co., 664 F.Supp.2d 1174, 1179
(D. Nev. 2009).
In Connecticut Indem. Co. v. 21st Century Trans. Co., 186
F.Supp.2d 264, 269 (E.D.N.Y. 2002), the court explained that it
is appropriate to consider a cross-motion that seeks summary
judgment on the same claims because it “would be a strange result
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indeed if the Court only considered [one party’s] motion,
determined that there was no genuine issues in dispute . . . and
yet refused to grant summary judgment . . . forcing its claims to
go to trial.”
The Court finds good cause and the interests of justice
mitigate in favor of considering Plaintiffs’ Counter Motion for
Summary Judgment (ECF No. 365).
CONCLUSION
Defendant Anova Food, LLC’s Motion to Strike (ECF No. 380)
is DENIED.
IT IS SO ORDERED.
Dated:
December 10, 2014, Honolulu, Hawaii.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
William R. Kowalski; Hawaii International Seafood, Inc., v. Anova
Food, LLC; Does 1-10, Civil No. 11-00795HG-RLP; ORDER DENYING
DEFENDANT ANOVA FOOD, LLC’S MOTION TO STRIKE (ECF No. 380)
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