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Results Byiq LLC v. Netcapital.Com LLC

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


May 15, 2013

RESULTS BYIQ LLC,
PLAINTIFF,
v.
NETCAPITAL.COM LLC, NETWIRE INC., NETMOVIES INC., AND DOES 1-20, INCLUSIVE,
DEFENDANTS.

ORDER DENYING MOTION FOR RECONSIDERATION

This case arises out of a consulting agreement between the 19 above-captioned defendants and non-party ByIQ LLC ("ByIQ"). Plaintiff Results ByIQ LLC ("Results ByIQ") alleges that Defendants 21 failed to pay bills issued in connection with services ByIQ 22 rendered pursuant to the consulting agreement. Defendants 23 previously moved for summary judgment on the ground that Results ByIQ lacked standing to enforce an agreement to which it was not a 25 party. On May 7, 2013, the Court denied Defendants' motion, 26 finding that there existed a triable issue of fact as to whether 27

ByIQ assigned its rights under the consulting agreement to Results ByIQ. ECF No. 82 ("SJ Order").

Judgment Order pursuant to Federal Rule of Civil Procedure 59(e).

59(e) allows a court to alter or amend a judgment and, in this 5 case, the Court has yet to enter one. Civil Local Rule 7-9 does 6 allow a party to move for reconsideration, but only after the party 7 has obtained leave of the Court. A motion for leave to file a 8 motion for reconsideration has yet to be filed here. 9

Defendants' Motion are unavailing. Defendants contend that the express terms of the consulting agreement prevented ByIQ from 12 assigning its rights. Defendants specifically point to section 6 13 of the agreement, which provides: 14

are specific to [ByIQ] and [ByIQ] shall not have the right or ability to assign any obligations under this

Agreement without the written consent of NetCapital. Any attempt to do so shall be void.

Mot. at 2 (citing ECF No. 87-1). This language bars ByIQ from 19 assigning its "obligations" to perform services under the 20 consulting agreement. However, it is not clear why the language 21 would also prevent ByIQ from assigning its right to payment for 22 services rendered pursuant to the agreement. 23

Defendants' summary judgment motion or in their reply in support of 25 that motion. Under Civil Local Rule 7-9(b), a party moving for 26 reconsideration must show the emergence of new material facts or a 27 change of law or, alternatively, a "manifest failure by the Court 28 to consider material facts or dispositive legal arguments which

Defendants now move for reconsideration of the Summary ECF No. 86 ("Mot."). The Motion is procedurally improper. Rule

In any event, the substantive arguments advanced in United States District Court For the Northern District of California This Agreement and the services contemplated hereunder

Even if this argument were persuasive, it was not raised in were presented to the Court." Likewise, a Rule 59(e) motion for 2 reconsideration should not be granted unless the court "is 3 presented with newly discovered evidence, committed clear error, or 4 if there is an intervening changing in the controlling law." 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).

Here, Defendants do not point to new facts or a change in the law. Further, the Court did not previously consider the assignment 8 provision because neither party raised the issue at summary 9 judgment. 10

For these reasons, Defendants' motion for reconsideration is DENIED.

IT IS SO ORDERED.

UNITED STATES DISTRICT JUDGE

20130515

© 1992-2013 VersusLaw Inc.



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