Suja Life, LLC v. Pines International, Inc.

          ORDER GRANTING DEFENDANT’S EX PARTE MOTION FOR LEAVE TO CONSIDER ITS LATE OPPOSITION AND GRANTING IN PART DEFENDANT’S EX PARTE MOTION FOR RECONSIDERATION [DKT. NO. 26.]

          HON. GONZALO P. CURIEL United States District Judge

         On July 20, 2016, Defendant Pines International, Inc. (“Defendant” or “Pines”) filed an ex parte motion for reconsideration^[1] of the Court’s order granting Plaintiff Suja Life, LLC’s (“Plaintiff” or “Suja”) ex parte application to continue the hearing date on Defendant’s motion for preliminary injunction and for expedited discovery. (Dkt. No. 26.) On July 21, 2016, Suja filed a notice of intent to oppose the ex parte motion and filed an opposition on July 22, 2016. (Dkt. Nos. 27, 29.) Without seeking leave to file a reply, Pines filed a reply. (Dkt. No. 30.) Based on the reasoning below, the Court GRANTS Pines’ ex parte motion for leave to file a late opposition and GRANTS in part Pines’ ex parte motion to reconsider the Court’s order filed on July 19, 2016.

         Discussion

         On July 19, 2016, the Court granted Plaintiff’s unopposed ex parte motion for order continuing hearing on motion for preliminary injunction and for early discovery. (Dkt. No. 23.) The Court continued the hearing date from September 30, 2016 to November 4, 2016 and granted Suja’s request to conduct early expedited discovery to oppose the motion for preliminary injunction. (Id.)

         Background

         On April 22, 2016, Suja filed a declaratory relief action against Pines that it does not infringe upon any of Pines’ purported trademark rights. (Dkt. No. 1.) In June 2016, the parties were engaged in settlement negotiations and requested an extension of time for Pines to prepare an answer which was granted. (Dkt. Nos. 11, 12.) Then on June 24, 2016, Pines filed an answer and counterclaim against Suja. (Dkt. No. 13.) On June 20, 2016, Pines filed an amended answer and counterclaim for trademark infringement, false designation of origin, unfair competition, state statutory unfair competition, state common law unfair competition, and common law trademark infringement. (Dkt. No. 25.)

         On June 9, 2016, Pines filed a motion for preliminary injunction with a hearing date on September 30, 2016. (Dkt. No. 15.) On July 15, 2016, Suja filed an ex parte motion to continue the hearing on preliminary injunction and sought expedited early discovery. (Dkt. No. 21.) Pines did not file an opposition to the ex parte motion or file a notice of its intent to oppose the ex parte motion pursuant to the undersigned Chambers’ Civil Rules.^[2] Therefore, without a response by Pines, on July 19, 2016, the Court granted in part Plaintiff’s ex parte motion for order continuing hearing date for preliminary injunction and for early discovery from September 30, 2016 to November 4, 2016.^[3] Pines filed the instant ex parte motion for reconsideration of the Court’s order.

         Discussion

         A. Motion for Leave to Consider Late Opposition

         While Pines moves for reconsideration for the Court to consider its late opposition, in fact, it moves for leave of Court to consider its late opposition.

         A motion for reconsideration may be brought under Federal Rule of Civil Procedure (“Rule”) 54(b) which provides that any order which does not terminate the case is subject to revision at any time before the entry of judgment. See Fed.R.Civ.P. 54(b). “Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence; (2) clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah County, Or. v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011).

         Rule 6(b)(1)(B) also provides that the “court may, for good cause, extend the time: . . . (B) on motion made after the time has expired if the party failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B).

         Here, Pines’ counsel admits that he should have immediately filed a notice and mistakenly failed to file a timely notice of intent to oppose Suja’s ex parte motion due to a bicycling accident during the week of July 11, 2016. (Dkt. No. 26-1, McArthur Decl. ¶¶ 8, 9.) He argues it was a clerical error which was exacerbated by the fact that he was hospitalized during the week of July 11, 2016. In response, Suja argues that Pines has not satisfied the standard for reconsideration.

         While Pines has not satisfied the standard for reconsideration for purposes of seeking leave of court to consider its late opposition, it has satisfied the Rule 6(b) standard for excusable neglect. In Pioneer Investment Services Co. v. Brunswick Association Ltd. Partnership, 507 U.S. 380, 395 (1993), the United States Supreme Court specifically set forth the standard for demonstrating excusable neglect, which includes the following four-part test: (1) the danger of prejudice to the non-moving party; (2) the length of delay and its potential impact on judicial proceedings; (3) the ...