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In Re Novatel Wireless Securities

June 27, 2012


The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge


On March 29, 2012, Defendants filed a motion for reconsideration, [Doc. No. 436], of this Court's Order of March 1, 2012, [Doc. No. 428], which granted the Plaintiff's motion to exclude the expert testimony of Defendants' loss causation expert Dr. Bradford Cornell. Plaintiffs filed an opposition, [Doc. No. 438], and the Defendants filed a reply, [Doc. No. 441]. The hearing set for July 6, 2012, is hereby VACATED, as the Court finds this motion appropriate for submission on the papers without oral argument pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below, the Defendants motion for reconsideration is DENIED.

Legal Standard

Under Rule 59(e) of the Federal Rules of Civil Procedure, a "motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment. 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." 12 James Wm. Moore, Moore's Federal Practice § 59.30[4] (3d ed.2000); see also Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003); Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Indeed, "a motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." Carroll, 342 F.3d at 945 (quoting Kona, 229 F.3d at 890 (citations omitted)). A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation. Id.

In the Southern District of California, motions for reconsideration are also governed by Civil Local Rule 7.1(i). The rule requires that for any motion for reconsideration, it shall be the continuing duty of each party and attorney seeking such relief to present to the judge ... an affidavit of a party or witness or certified statement of an attorney setting forth the material facts and circumstances surrounding each prior application, including inter alia: (1) when and to what judge the application was made, (2) what ruling or decision or order was made thereon, and (3) what new or different facts and circumstances are claimed to exist which did not exist, or were not shown, upon such prior application.

Civ. L.R. 7.1(i)(1).


The Defendants motion seeks reconsideration*fn1 of this Court's March 1, 2012 Order granting the Plaintiffs' motion to exclude the expert testimony of Dr. Bradford Cornell. The Order concluded that Dr. Cornell, Defendants' loss causation expert, should be excluded from offering his opinion testimony because his analysis was based on a loss causation standard that is incompatible with that set forth by the Ninth Circuit. The Defendants argue that reconsideration is warranted because the Order is clearly erroneous.

I. Reconsideration Based Upon Clear Error

In the instant motion, the Defendants invoke "clear error" as the basis for reconsideration.*fn2

While "[t]he Ninth Circuit has not defined a standard for 'clear error,' . . . it has been discussed by other circuits." Campion v. Old Republic Home Prot. Co., No. 09-CV-748-JMA(NLS), 2011 U.S. Dist. LEXIS 54104, at *5 (S.D. Cal. May 20, 2011). As the Fifth Circuit described the standard, the decision must be "'dead wrong'":

"[I]n the context of the law of the case doctrine, 'clearly erroneous' is a very exacting standard. 'Mere doubts or disagreement about the wisdom of a prior decision of this or a lower court will not suffice for this exception. To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must be dead wrong.'" (quoting Hopwood v. Texas, 236 F.3d 256, 273 (5th Cir. 2000)). Similarly, the Eighth Circuit has stated that to be clearly erroneous, a decision must strike the Court "'as more than just maybe or probably wrong'"; it must strike the Court "'as wrong with the force of a five-week-old, unrefrigerated dead fish.'" In re Papio Keno Club, Inc., 262 F.3d 725, 729 (8th Cir. 2001).

Defendants' "clear error" argument is based on their claim that "the Court's Order overlooked" their argument that Dr. Cornell could offer other relevant testimony that is not "tainted by" his erroneous legal conclusions. Doc. No. 436, at 2. In the Order, however, the Court expressly noted that it had considered and rejected this argument. See Novatel, 2012 U.S. Dist. LEXIS 26926, at *9 (noting defendants' argument that "if Plaintiffs could show that Dr. Cornell's understanding of legal loss causation standards was erroneous . . . that would require, at most, the exclusion of the erroneous legal conclusions themselves, not the exclusion of Dr. Cornell's testimony as a whole"). The Court rejected Defendants argument finding the "erroneous legal conclusions form[ed] the basis of Dr. ...

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