United States District Court, S.D. California
RAFAEL DAVID SHERMAN, individually and on behalf of all others similarly situated, Plaintiff,
YAHOO! INC., a Delaware corporation, Defendant.
ORDER: 1) DENYING MOTION FOR PARTIAL RECONSIDERATION OF ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 33.] 2) DENYING MOTION IN THE ALTERNATIVE FOR INTERLOCUTORY APPEAL
GONZALO P. CURIEL, District Judge.
Presently before the Court is a Motion for Reconsideration filed by Defendant Yahoo! Inc. ("Defendant" or "Yahoo!"). (Dkt. No. 33.) The Parties have fully briefed the motion. (Dkt. Nos. 37, 38, 39, 40, 43.) The Court held a hearing on the matter on June 13, 2014. Joshua Swigart, Esq. appeared on behalf of Plaintiff Rafael David Sherman, and Ian Ballon, Esq. appeared on behalf of Defendant Yahoo!. For the following reasons, the Court DENIES the motion.
This case concerns a text notification message that was sent to a cellular phone number as part of Yahoo!'s Instant Messenger service. Plaintiff Rafael David Sherman ("Plaintiff") brings this action individually and on behalf of those similarly situated, claiming Defendant violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(A) by "illegally contact[ing] Plaintiff and the Class members via their cellular telephones by using unsolicited SPAM text messages." (Dkt. No. 1, Compl. ¶ 26.)
On February 3, 2014, this Court issued an Order denying Defendant's motion for summary judgment. (Dkt. No. 30.) Specifically, the Court held that: (1) a single, confirmatory text message may be actionable under the TCPA; (2) issues of fact precluded summary judgment on the issue of whether Yahoo!'s PC to SMS Service constitutes an Automatic Telephone Dialer System ("ATDS") within the meaning of the TCPA; and (3) that "Good Samaritan Immunity" did not render Yahoo! immune from liability in this case. (Id.)
On March 24, 2014, Defendant filed a motion for reconsideration of the Court's February 3, 2014 Order. (Dkt. No. 33.) Defendant contends the Court erred by relying on FCC commentary to construe what constitutes an ATDS under the TCPA and that new evidence warrants summary judgment on Plaintiffs' claim that Yahoo!'s PC to SMS Service equipment is an ATDS. (Dkt. No. 33.) In the alternative, Defendant seeks certification of the Court's Order denying summary judgment for appeal due to conflicting constructions of the phrase ATDS among district courts in the Ninth Circuit. (Id.)
District courts have the discretion to reconsider interlocutory rulings until a final judgment is entered. Fed.R.Civ.P. 54(b); United States v. Martin, 226 F.3d 1042, 1048-49 (9th Cir. 2000). While the Federal Rules of Civil Procedure do not set forth a standard for reconsidering interlocutory rulings, the "law of the case" doctrine and public policy dictate that the efficient operation of the judicial system requires the avoidance of re-arguing questions that have already been decided. See Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989).
As such, most courts adhere to a fairly narrow standard by which to reconsider their interlocutory rulings. This standard requires that the party show: (1) an intervening change in the law; (2) additional evidence that was not previously available; or (3) that the prior decision was based on clear error or would work manifest injustice. Id .; Marlyn Natraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009); Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
Reconsideration is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). "A motion for reconsideration is not an opportunity to renew arguments considered and rejected by the court, nor is it an opportunity for a party to re-argue a motion because it is dissatisfied with the original outcome.'" FTC v. Neovi, Inc., 2009 WL 56130 at *2 (S.D. Cal. Jan. 7, 2009) (quoting Devinsky v. Kingsford, 2008 WL 2704338 at *2 (S.D.N.Y. July 10, 2008)).
Defendant brings the present motion seeking reconsideration solely as to the Court's conclusion that issues of fact preclude summary judgment on Plaintiff's claim that Yahoo!'s PC to SMS service equipment constituted an automatic telephone dialing system within the meaning of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. (Dkt. No. 33.) Under the TCPA, an "automatic telephone dialing system" ("ATDS") is defined as "equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C. § 227(a)(1).
Defendant argues reconsideration is warranted on two grounds: (1) that the Court erred in relying on Federal Communications Commission ("FCC") commentary regarding "predictive dialers" to construe the statutory term "ATDS"; and (2) that the Court erred in relying on Yahoo!'s testimony regarding its ability to write or install new software to dial telephone numbers to deny summary judgment. (Dkt. No. 33-1.) Having reviewed the Parties' arguments and ...