United States District Court, N.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO
FILE MOTION FOR RECONSIDERATION Re: Dkt. No. 978
December 27, 2016, this court denied Plaintiff Loop AI Labs
Inc.'s motion for sanctions for alleged discovery
misconduct by Defendants Almaviva S.p.A. and Almawave S.r.l.
[Docket No. 964 (Dec. 27, 2016 Order).] On January 10, 2017,
Plaintiff filed a motion before the Honorable Haywood S.
Gilliam for relief from the December 27, 2016 order pursuant
to Local Rule 72-2. [Docket No. 968.] Local Rule 72-2
provides that “[i]f no order denying the motion [for
relief] or setting a briefing schedule is made within 14 days
of filing the motion, the motion shall be deemed denied,
” and that “[t]he Clerk shall notify parties when
a motion has been deemed denied.” Notwithstanding the
lack of notification by the Clerk that Plaintiff's motion
has been deemed denied, Plaintiff filed a motion for leave to
file a motion for reconsideration of the court's
“deemed denial” of its motion for relief. [Docket
No. 978 (Pl.'s Mot.).] Judge Gilliam referred the motion
to the undersigned. [Docket No. 979.] This matter is
appropriate for resolution without a hearing. Civ. L.R.
7-1(b). For the following reasons, Plaintiff's motion is
December 27, 2016 order described the arguments set forth by
Plaintiff in its sanctions motion against Defendants Almaviva
S.p.A. and Almawave S.r.l. (together, the “Italian
Almawave Defendants”), which the court summarizes in
relevant part here. Plaintiff moved for sanctions pursuant to
Federal Rule of Civil Procedure 16(f), based on the Italian
Almawave Defendants' purported failure to engage in fact
discovery in violation of Judge Gilliam's scheduling
orders. Plaintiff's motion rested primarily on the
Italian Almawave Defendants' alleged refusal to provide
substantive responses to Plaintiff's first five sets of
written discovery while their jurisdictional objections
hearing on the motion for sanctions, defense counsel
explained that the Italian Almawave Defendants were concerned
that Plaintiff would attempt to construe any discovery
responses as a waiver of their jurisdictional challenge.
Therefore, they responded to Plaintiff's discovery under
the auspices of Defendant Almawave USA, Inc. (“Almawave
USA”). Defense counsel further represented that as to
Plaintiff's requests for production (“RFPs”),
the Italian Almawave Defendants “did not have any
objections over and above those of Almawave USA, ”
meaning that “the Italian Almawave Defendants did not
withhold any responsive documents due to an objection that
was not also asserted on behalf of Almawave USA.” Dec.
27, 2016 Order at 7. Defendants' corporate officer,
Valeria Sandei, stated in a declaration that “no
distinction was made between the three Almawave entities for
purposes of document collection, review, or production,
” and that “[t]he Italian Almawave
Defendants' documents were included in the documents
produced by Almawave USA.” Id. (citation
omitted). As to interrogatories propounded on the Italian
Almawave Defendants, Sandei stated that Plaintiff propounded
nearly identical interrogatories on Almawave USA, and that
the “substantive responses that [Plaintiff] received
from Almawave USA were virtually the same-if not exactly the
same-as the responses that the Italian Almawave Defendants
would have provided but for their then-pending objections to
jurisdiction.” Id. (citation omitted).
court concluded that the Italian Almawave Defendants had not
“refuse[d] to engage in and allow fact discovery”
in violation of any court orders, since they had responded to
Plaintiff's discovery through Almawave USA. Id.
at 8-9. Accordingly, it concluded that sanctions were not
appropriate, and ordered the Italian Almawave Defendants to
serve amended discovery responses within two weeks that
comported with their representations at the hearing.
Id. at 9, 13.
moved for relief from the court's December 27, 2016 order
on January 10, 2017.
Plaintiff filed its motion for relief, the Italian Almawave
Defendants served Plaintiff with amended discovery responses
in accordance with the court's December 27, 2016 order.
Plaintiff now seeks leave to file a motion for
reconsideration of Judge Gilliam's purported
“deemed denial” of its motion for relief, arguing
that the amended discovery responses constitute
“important new evidence that directly contradicts the
principal factual predicate of the ruling denying Rule 16
sanctions.” Pl.'s Mot. 1. The procedural posture of
the instant motion is unusual, given that Judge Gilliam has
not yet ruled on Plaintiff's motion for relief, and there
has been no notification by the Clerk that the motion is
deemed denied. See Civ. L.R. 72-2. Since Judge
Gilliam has referred the motion to the undersigned for
resolution, this court finds it appropriate to construe it as
a motion for leave to file a motion for reconsideration of
its own December 27, 2016 order.
to Local Rule 7-9, a party may seek leave to file a motion
for reconsideration of an interlocutory order at any time
before judgment. Civ. L.R. 7-9(a). A motion for
reconsideration may be made on one of three grounds: (1) a
material difference in fact or law exists from that which was
presented to the court, which, in the exercise of reasonable
diligence, the party applying for reconsideration did not
know at the time of the order for which reconsideration is
sought; (2) the emergence of new material facts or a change
of law; or (3) a manifest failure by the court to consider
material facts or dispositive legal arguments presented
before such order. Civ. L.R. 7-9(b)(1)-(3). The moving party
may not reargue any written or oral argument previously
asserted to the court. Civ. L.R. 7-9(c). Whether to grant
leave to file a motion for reconsideration under Rule 7-9 is
committed to the court's sound discretion. See
Montebueno Mktg., Inc. v. Del Monte Corp.-USA, 570 Fed.
App'x 675, 676 (9th Cir. 2014) (citing Bias v.
Moynihan, 508 F.3d 1212, 1223 (9th Cir. 2007)).
argues that reconsideration is appropriate under Local Rules
7-9(b)(1) and 7-9(b)(2) because “new facts have
emerged” since the issuance of the December 27, 2016
order. Specifically, Plaintiff argues that the Italian
Almawave Defendants' amended discovery responses, which
were served after the issuance of the December 27, 2016 order
and after Plaintiff moved for relief from that order, do not
comply with the court's December 27, 2016 order and do
not demonstrate that the Italian Almawave Defendants complied
with their discovery obligations.
to Plaintiff, defense counsel represented at the hearing that
the Almawave USA had produced “everything” and
that the Italian Almawave Defendants “could provide a
Rule 34 certification (i.e., that all documents responsive to
each request to the [Italian Almawave] Defendants have been
produced) in ‘no time flat.'” Pl.'s Mot.
3. However, according to Plaintiff, “the promised Rule
34 certification is nowhere to be found” and the
amended responses are “unintelligible, ”
“deficient, ” impermissible under the Federal
Rules of Civil Procedure, and “provide no
support” for the Italian Almawave Defendants'
contention that they responded to Plaintiff's discovery
through Almawave USA. Id. at 3-4.
contentions are without merit. The court has reviewed the
Italian Almawave Defendants' amended discovery responses.
They are consistent with defense counsel's
representations to the court. [See Docket No. 978-1
(Healy Decl. Jan. 31, 2017) Exs. 1-A, 1-B.] Specifically, the
amended responses state that the Italian Almawave Defendants
produced responsive documents to Almawave USA, which in turn
produced to Plaintiff all responsive documents “subject
to its objections, the parties' agreements reached as a
result of meeting and conferring, and modified in accordance
with the Court's Orders.” Further, the amended
responses state that “for purposes of document
collection and production there was no distinction made
between which Almawave entity or person controlled the
document and the Almawave entities assumed that any document
within the possession, custody or control of [the Italian
Almawave Defendants] was also in the possession, custody or
control of Almawave USA.” In other words, consistent
with defense counsel's representations, “[t]he
Italian Almawave Defendants' documents were included in
the documents produced by Almawave USA.” Dec. 27, 2016
Order at 7.
asserts that the Italian Almawave Defendants “failed to
do what the Magistrate ordered them to do, ” because
they did not provide Rule 34 certifications confirming that
they produced all responsive documents. Pl.'s Mot. 2.
This is groundless, because it is based on a fallacy. The
court did not order Defendants to “provide Rule 34
certifications, ” as claimed by Plaintiff. Instead, the
court ordered them to serve amended discovery responses
“that comport with the representations that they have
made to Plaintiff and the court.” Dec. 27, 2016 Order
9, 13. As set forth above, Defendants complied with that
order. Plaintiff cites defense counsel's statement at the
hearing that “[everything has been produced by Almawave
USA, ” [Docket No. 946 (Oct. 31, 2016 Hr'g Tr.) 9],
but misleadingly omits the context for the statement, which
was defense counsel's explanation that the Italian
Almawave Defendants had not withheld any documents on the
basis of objections that were not also made by Almawave USA.
See Id. at 13-14. Counsel made no representation
that Almawave USA had produced all responsive
documents to Plaintiff; rather, he made clear that Almawave
USA produced documents subject to its objections. See
Id. at 13 (defense counsel responding in the affirmative
to the question, “So any time that . . . Almawave USA
objected to producing something, the same would be true of
the Italian Almawave Defendants?”). Plaintiffs Rule 34
argument amounts to nothing more than another untimely
attempt to challenge the sufficiency of the Almawave
Defendants' discovery responses and document production.
As detailed in the December 27, 2016 order, “Plaintiff
repeatedly and inexplicably failed to comply with the
court's orders and procedures governing motions to compel
discovery, ” “[f]act discovery is long over,
” and Plaintiff “may not belatedly challenge the
sufficiency of the Almawave Defendants' discovery
responses.” Dec. 27, 2016 Order at 9, 13. Therefore,
its motion for leave to file a motion for reconsideration of
the December 27, 2016 order is denied.