UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
December 6, 2007
DIMENSION ONE SPAS, INC., A CALIFORNIA CORPORATION, PLAINTIFF,
COVERPLAY, INC., AN OREGON CORPORATION, AND E. JESS TUDOR, AN INDIVIDUAL, DEFENDANTS.
The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER (1) DENYING DIMENSION ONE SPAS, INC.'S MOTION TO STRIKE COVERPLAY'S UNTIMELY MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO COMPLY WITH SCHEDULING ORDER; AND (2) CONDITIONALLY GRANTING COVERPLAY, INC.'S REQUEST FOR LEAVE TO FILE THE MOTION AND RELATED COUNTERCLAIM
On November 19, 2007, Plaintiff Dimension One Spas, Inc. ("Dimension One") filed a motion to strike Defendant Coverplay, Inc. ("Coverplay") motion for summary judgment on Plaintiff's state law claims ("Preemption Motion"). Coverplay opposed the motion to strike. Because Coverplay's Preemption Motion was stricken for unrelated procedural issues (see doc. no. 389), Coverplay's opposition to motion to strike is construed as its motion for leave to file the Preemption Motion. For the reasons which follow, Dimension One's motion to strike is DENIED and Coverplay's request to file the Preemption Motion is GRANTED ON CONDITIONS STATED HEREIN.
With its Preemption Motion, Coverplay seeks summary adjudication of three state law causes of action: unfair competition pursuant to California Business and Professions Code Section 1722, common law unfair competition, and intentional interference with contract, all of which are based on Dimension One's allegations that Coverplay's '599 patent was invalid and that Coverplay misused the patent in promoting its spa cover lift products over Dimension One's products. In its proposed motion, Coverplay intends to contend that these causes of action are preempted by federal patent law.
Dimension One argues Coverplay should not be allowed to proceed with the Preemption Motion because it had raised preemption in its opposition to Dimension One's motion for leave to amend complaint, objections to Magistrate Judge's order granting Dimension One's motion for leave to amend complaint, motion to dismiss Dimension One's first amended complaint, and motion to strike portions of Dimension One's first amended complaint. However, in the orders deciding these motions, the court noted that some of the issues, including the bad faith prerequisite for federal preemption, would more appropriately be raised in a summary judgment motion or at trial. (See, e.g., Order Re: (1) Coverplay's Objections to Judge Stiven's Order Granting Motion to Amend the Complaint; and (2) Coverplay's Motion to Dismiss the First Amendment Complaint, filed Feb. 6, 2006 ("February 6, 2006 Order"), at 7.) The court therefore does not find that Coverplay's prior motion filings and orders thereon preclude revisiting the preemption issue on summary judgment.
Dimension One next maintains that Coverplay should not be allowed to make the Preemption Motion because the motion was first filed on November 16, 2007, long after the January 30, 2006 motion cut off. The court agrees with Dimension One that Coverplay waited an inordinately long period of time to file the motion. According to Coverplay's papers, the earliest it considered seeking leave from this court to file the Preemption Motion November 16, 2007. (Esty Decl. ¶¶ 3-5.) Based on the record in this case, the reasons Coverplay asserts in support of the Preemption Motion should have become apparent no later than the February 6, 2006 Order. (See February 6, 2006 Order at 7.)
Although the court does not condone Coverplay's delay, it finds good cause pursuant to Rule 16(b) to grant Coverplay leave to file the Preemption Motion. In the interest of judicial efficiency and conservation of judicial resources, the court will consider preemption on summary judgment, rather than try claims which may be disposed of as a matter of law. See Portsmouth Square, Inc. v. S'holders Protective Comm., 770 F.2d 866, 869 (9th Cir. 1985).
Dimension One does not contend it will be prejudiced if Coverplay is granted leave. Due to the procedural posture of this case following the April 26, 2006 order denying several of the parties' summary judgment motions without prejudice for administrative reasons pending bench trial on Coverplay's inequitable conduct defense, and the October 30, 2007 order granting leave to re-file the same motions, the court finds Dimension One will not be prejudiced.
For the foregoing reasons, Dimension One's Motion to Strike Coverplay's Untimely Motion for Summary Judgment for Failure to Comply with Scheduling Order is DENIED.
IT IS HEREBY ORDERED as follows:
1. Coverplay's request for leave to file a motion for summary adjudication of Dimension One's state law claims based on federal preemption ("Preemption Motion") is GRANTED ON CONDITION that Coverplay comply with the November 21, 2007 discrepancy order (doc. no. 389) regarding page limits. The court is not inclined to grant any requests for leave to file overlength briefs. Because Coverplay's Motion for Summary Judgment of Non-Infringement, or, if Denied, for Invalidity, filed November 26, 2007 ("Non-Infringement Motion"), already reaches the 25-page limitation, Coverplay may meet this condition by withdrawing the Non-Infringement Motion and re-filing it in a shorter form so as to fit both motions within the 25-page limit pursuant to Civil Local Rule 7.1.
2. No later than noon December 7, 2007, Coverplay shall inform Dimension One whether it intends to file its Preemption Motion and re-file its Non-Infringement Motion. If so, no later than December 10, 2007, Coverplay must file a notice of withdrawal of its Non-Infringement Motion, file its Preemption Motion and re-file its Non-Infringement Motion in compliance with the November 21, 2007 discrepancy order.
3. Dimension One's opposition to Coverplay's motions filed on December 10 pursuant to this order shall be filed and served no later than December 14, 2007. The opposition memoranda of points and authorities must comply with page limitations of Civil Local Rule 7.1.
4. Coverplay's reply in support of its motions filed on December 10, 2007 pursuant to this order shall be filed and served no later than December 20, 2007.
5. The hearing date for the Preemption Motion is January 7, 2008 at 10:30 a.m.
IT IS SO ORDERED.
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