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Areas Usa Sjc, LLC v. Mission San Jose Airport


August 20, 2012


The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed August 20, 2012 **



In this action for breach of contract, defendants Mission San Jose Airport LLC and Mission Yogurt, Inc. (collectively "Mission") now apply for leave to file a motion for reconsideration of this 18 court's August 1, 2012 Order Granting in Part and Denying in Part Plaintiff's Motion to Dismiss 19 Mission's Amended Counterclaims. See Dkt. No. 61 ("Order"). Defendants argue that this court 20 failed to consider material legal arguments and improperly resolved an issue of fact in plaintiff's 21 favor while ruling on plaintiff's motion to dismiss defendants' second amended counterclaims. 22

The moving party in a motion for leave to file a motion for reconsideration must show that:

(1) a material difference in fact or law exists from that which was presented to the court, and the 24 party did not know of such fact or law before entry of the order; (2) new material facts or a change 25 of law occurred after the entry of the order; or (3) the court failed to consider material facts or legal 26 arguments presented before entry of the order. Civ. L.R. 7-9(b); see also School Dist. No. 1J, 27 Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (Absent "other, highly 28 unusual, circumstances," "[r]econsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, 2 or (3) if there is an intervening change in controlling law.") (citing All Hawaii Tours, Corp. v. 3 860 (9th Cir. 1988)). 5

6 its opposition papers and at hearing on the motion to dismiss in support of its breach of contract 7 claim. Dkt. No. 62, p. 4. Mission claimed in its Second Amended Counterclaims that plaintiff 8 breached the subcontract between the parties by failing to disclose to Mission that it had made an 9 Polynesian Cultural Center, 116 F.R.D. 645, 648 (D. Haw. 1987), rev'd on other grounds, 855 F.2d 4

Mission alleges that this court failed to consider material legal arguments that it presented in "additional agreement" with the City of San Jose to inform any potential subconcessionaire of the 10 special building restrictions associated with the airport's CTX machines. The court found that

Mission had not alleged facts sufficient to show that any "additional agreement" was made.

Specifically, it concluded that, "[t]he conversations alleged do not create a contract. Rather, they 13 further support Mission's fraudulent inducement claim." Order, p. 9. 14

15 the meaning of the term "additional agreement." Although both parties had ample opportunity in 16 their moving papers and at hearing to inform the court that the meaning of this term was at issue, 17 neither party did so. In fact, this court asked Mission at the July 31 hearing whether it felt it had 18 adequately pled the elements of a contract-offer, acceptance, and consideration-in support of its 19 assertion that an "additional agreement" had been made. Mission's counsel told the court that 20

Mission had so pled.*fn1 As the meaning of the term "additional agreement" was never put at issue in 21 the motion to dismiss, the court cannot conclude that it failed to consider a material legal argument 22 presented to it before the entry of the August 1 Order. 23

Mission now contends that, in so ruling, this court improperly made a finding of fact about 2 never presented to the court before entry of the August 1 Order. No other basis for reconsideration 3 exists. To the extent that Mission fears the court has improperly made a factual finding about the 4 meaning of the term "additional agreement," the court now clarifies: It used the term "contract" to 5 describe the alleged "additional agreement" because no party argued that an additional agreement 6 might consist of something other than a contract. The court makes no finding as to the appropriate 7 interpretation of the term "additional agreement," and should interpretation of that term be relevant 8 to either of the parties' claims, the court will address it at the appropriate time. Although the court 9 may, at a later time, make a finding as to the scope of the term "additional agreement," it continues 10 to hold that Mission failed to allege facts sufficient to show that any agreement was made in support

of its breach of contract claim as pled in its Second Amended Counterclaims.

Mission next contends that even if this court was justified in dismissing its breach of contract 13 claim, it was improper to dismiss it without leave to amend. Dkt. No. 62, p. 8. Mission contends that 14 it had only one opportunity to amend its claim, but this is patently untrue. See id. Mission first 15 attempted to state a breach of contract claim in its First Amended Counterclaims. Dkt. No. 27, pp. 16

Counterclaims, which included a revised breach of contract claim. The court struck the improperly 18 filed Second Amended Answer and Counterclaims, and dismissed the First Amended 19

Amended Answer and Counterclaims. Therefore, the most recent version of Mission's breach of 21 contract claim is the third iteration of the claim, and Mission's fourth attempt at pleading 22 counterclaims. The court certainly has no obligation to allow Mission any more opportunities to 23 amend its claim. 24 25 reconsideration, its motion is DENIED. 26

16-17. Plaintiff moved to dismiss, and Mission improperly filed a Second Amended Answer with 17

Counterclaims, with leave to amend.*fn2 Mission then filed its now-operative pleading, the Second 20 Accordingly, Mission having failed to offer valid grounds for filing a motion for


C11-04487 HRL Notice will be electronically mailed to: Karin Bohmholdt Scott Bertzyk Denise Mayo Daniel Rockey 4 Meryl Macklin 5 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

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