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General Charles E. "Chuck" Yeager (Ret v. At&T Mobility

August 29, 2011

GENERAL CHARLES E. "CHUCK" YEAGER (RET.), PLAINTIFF,
v.
AT&T MOBILITY, LLC. DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff is recently proceeding in this action pro se, last counsel having withdrawn on April 11, 2011. This proceeding was referred to this court by Local Rule 302(21), pursuant to 28 U.S.C. § 636(b)(1). Previously pending on this court's law and motion calendar for August 11, 2011, was defendant's motion for reconsideration, filed July 8, 2011. Andrew Stroud and Stephen Lau appeared for defendant. Plaintiff appeared in pro se. Having heard oral argument and reviewed the papers, the court now issues the following findings and recommendations.

BACKGROUND

Plaintiff initiated this action on November 21, 2007, concerning a press release issued by defendant*fn1 on May 17, 2006, in which plaintiff's name was used. The two page publication, entitled "Cingular Wireless Announces Enhanced Emergency Preparedness Program for 2006 Hurricane Season," states in part:

'Nearly 60 years ago, the legendary test pilot Chuck Yeager broke the sound barrier and achieved Mach 1. Today, Cingular is breaking another kind of barrier with our MACH 1 and MACH 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers,' [Chief Operating Officer] de la Vega said.

(Compl., Ex. 1.) This mention of plaintiff is the sum total of references to his name or likeness in this press release.

On December 7, 2009, District Judge Damrell denied defendant's motion for summary judgment. Because of an interlocutory appeal from that order*fn2 and a stay of the action as a result, as well as various substitutions and withdrawals of plaintiff's counsel, and reassignment of the case to Judge Mueller, defendant did not bring its motion for reconsideration until ordered to do so by the undersigned on June 24, 2011.

Defendant's grounds for the motion are twofold. First, defendant argues that Judge Damrell committed clear error by relying on Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983), to find that the Press Release Release at issue was commercial speech.*fn3 Second, defendant submits that two recent Supreme Court cases issued after the summary judgment order constitute an intervening change in the law warranting reconsideration and granting of defendant's summary judgment motion. Plaintiff opposes the motion, arguing that defendant has failed to show clear error or an intervening change in controlling law.

DISCUSSION

Parties seeking reconsideration should demonstrate "new or different facts or circumstances [which] are claimed to exist or were not shown upon such prior motion, or what other grounds exist for the motion." E.D. Cal. L. R. 230 (j); see United States v. Alexander, 106 F.3d 874, 876 (9th Cir.1997) (citing Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.), cert. denied, 508 U.S. 951, 113 S.Ct. 2443, 124 L.Ed.2d 661 (1993)) (Reconsideration appropriate for a change in the controlling law, facts, or other circumstances, a need to correct a clear error, or a need to prevent manifest injustice).

Although motions to reconsider are directed to the sound discretion of the court, Frito-Lay of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384, 390 (D.C. Puerto Rico 1981), considerations of judicial economy weigh heavily in the process. Thus Local Rule 230(j) requires that a party seeking reconsideration of a district court's order must brief the "new or different facts or circumstances [] claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion." The rule derives from the "law of the case" doctrine which provides that the decisions on legal issues made in a case "should be followed unless there is substantially different evidence . . . new controlling authority, or the prior decision was clearly erroneous and would result in injustice." Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir. 1981); see also Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir. 1985), cert. denied, 475 U.S. 1064 (1986).

"After thoughts" or "shifting of ground" are not appropriate bases for reconsideration. Fay Corp. v. BAT Holdings I, Inc., 651 F.Supp. 307, 309 (W.D. Wash.1987), aff'd, 896 F.2d 1227 (9th Cir.1990). The standards "reflect[ ] district courts' concern for preserving dwindling resources and promoting judicial efficiency." Costello v. United States Government, 765 F.Supp. 1003, 1009 (C.D. Cal.1991). "While Rule 59(e) permits a district court to reconsider and amend a previous order, the rule offers an 'extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.'" Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (quoting 12 James Wm. Moore et al., Moore's Federal Practice § 59.30[4] (3d ed.2000)).

A. Whether the District Court's Bolger Analysis Was Clear Error Here, defendant first claims that Judge Damrell committed clear error in relying on Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 103 S.Ct. 2875 (1983), because the Press Release is missing the combination of characteristics that leads to a finding of commercial speech. Defendant argues that this case does not present the circumstances found in Bolger in that the Press Release did not use an advertising format, was not distributed through advertising channels, and does not contain a sales pitch, or any specific products.*fn4

Defendant contends that it was not aware of the district court's intention to rely on Bolger as plaintiff did not cite to that case, and the court did not hold oral argument. Bolger was raised initially by the court in its order.

In Bolger, the Supreme Court considered and found the speech at issue, pamphlets concerning prophylactics produced and distributed by a contraceptives manufacturer, to be commercial in nature because all three of the following factors were present: (1) the party conceded the pamphlets were advertisements; (2) the pamphlets contained a reference to a specific product; (3) the party had an economic motivation for mailing the pamphlets. The Ninth Circuit Court of Appeals has interpreted the factors in ...


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