United States District Court, S.D. California
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.
GONZALO P. CURIEL United States District Judge
20, 2016, Defendant Pines International, Inc.
(“Defendant” or “Pines”) filed an ex
parte motion for reconsideration 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.
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.)
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.
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. 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. Pines filed the instant ex parte motion
for reconsideration of the Court’s order.
Motion for Leave to Consider Late Opposition
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.
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).
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).
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.
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