United States District Court, S.D. California
WHITEWATER WEST INDUSTRIES, LTD., a Canadian corporation, Plaintiff,
PACIFIC SURF DESIGNS, INC., a Delaware corporation, and FLOW SERVICES, INC., a Delaware corporation, Defendants.
ORDER: (1) GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO STRIKE OR EXCLUDE THE REPORT AND
TESTIMONY OF JAMES T. CARMICHAEL; (2) DENYING DEFENDANTS'
SECOND MOTION FOR SUMMARY JUDGMENT; (3) DENYING
PLAINTIFF'S FIRST MOTION FOR SUMMARY JUDGMENT. [Doc. No.
197, 191, 200.]
ROGER T. BENITEZ, UNITED STATES DISTRICT JUDGE
the Court is Plaintiffs Motion to Strike or Exclude the
Report and Testimony of James T. Carmichael filed by
Plaintiff Whitewater West Industries, Ltd. ("Plaintiff
or "Whitewater"), Defendants' Second Motion for
Summary Judgment, and Plaintiffs First Motion for Summary
Judgment. The Motions are fully briefed. The Court finds the
motions suitable for determination on the papers without oral
argument, pursuant to Civil Local Rule 7.1.d.1
brings this action against Defendant Pacific Surf Designs,
Inc. ("PSD") and Flow Services, Inc.
("FSI") (collectively "Defendants") for
direct infringement of Plaintiffs U.S. Patent No. 6, 491, 589
(the "'589 Patent") issued on December 10,
2002. Pursuant to 35 U.S.C. § 282, the '589 Patent
is presumed to be valid. (Doc. No. 1 ¶ 11.) The '589
Patent is entitled "Mobile Water Ride Having Sluice
Slide-Over Cover" and relates "to a simulated wave
water ride attraction having one or more flexible
nozzle/sluice covers for ensuring the safety of riders and
lowering the risk of injury or interference with ride
operation. Id. ¶ 12.
January 31, 2014, Surf Park and FlowRider Surf Ltd.
("FlowRider") entered into an Intellectual Property
License Agreement conveying to FlowRider all substantial
rights to the '589 Patent, including the right to bring
actions for infringement of the '589 Patent. All of
FlowRider's rights to the '589 Patent were
transferred to Whitewater pursuant to a January 31, 2014,
Intellectual Property Sublicense Agreement, and a February 1,
2016 amalgamation, in which FlowRider and Whitewater
amalgamated as one company in the name of Whitewater. By
operation of Canadian law, on the date of the amalgamation,
all of FlowRider's assets became the property of
Whitewater. Accordingly, Plaintiff Whitewater has independent
standing to sue for infringement of the '589 Patent.
Id. ¶ 14.
alleges the '589 Patent includes 57 total claims, of
which at least claims 1, 3, 13, 15-17, 24-27, 29-38, 41-43,
50, and 54-55 (the "Asserted Claims") are infringed
by Defendants. Despite such awareness, Defendants willfully,
deliberately, and intentionally continued to engage in their
infringing activities of the Asserted Claims.
Plaintiffs' Motion to Strike or Exclude James T.
Carmichael's Expert Report and Testimony.
move to strike or exclude the expert report and deposition
testimony of James T. Carmichael ("Carmichael") as
improperly providing legal opinions on ultimate issues of
law. (Doc. No. 197 at 4.)
ruling on a motion to strike, the Court "must view the
pleading under attack in the light most favorable to the
pleader." Id. Importantly, a court should not
grant a motion to "Strike "unless it is clear that
the matter to be stricken could have no possible bearing on
the subject matter of the litigation." Colaprico v.
Sun Microsystems, Inc., 758 F.Supp. 1335, 1339 (N.D.
Cal. 1991). Accordingly, if there is any doubt as to whether
the allegations may raise an issue of fact or law, the motion
should be denied. See In re 2TheMart.com, Inc. Sec.
Litig., 114 F.Supp.2d 955, 965 (CD. Cal. 2000).
trial judge must act as the gatekeeper for expert testimony
by carefully applying Federal Rule of Evidence 702 to ensure
specialized evidence is "not only relevant but
reliable." Daubert v. Merrell Dow Pharms. Inc.,
509 U.S. 579, 589 & n.7 (1993)("Daubert
7"). The Court's obligation "to scrutinize
carefully the reasoning and methodology underlying [expert]
affidavits" applies even on summary judgment. Houle
v. Jubilee Fisheries, Inc., No. CO4-2346JLR,
2006 WL 27204, at *5 (W.D. Wash. Jan. 5, 2006) (quoting
Daubert I, 509 U.S. at 501). An expert witness may
If (a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b)
the testimony is based upon sufficient facts or data; (c) the
testimony is the product of reliable principles and methods;
and (d) the witness has reliably applied the principles and
methods reliably to the facts of the case.
Fed. R. Evid. 702. The proponent of the evidence bears the
burden of proving the expert's testimony satisfies Rule
702. Cooper v. Brown, 510 F.3d 870, 880 (9th Cir.
Court has broad discretion in exercising its gatekeeping
function, United States v. Hankey, 203 F.3d 1160,
1168 (9th Cir. 2000), which applies to both scientific and
non-scientific testimony. Kumho Tire Co. Ltd. v.
Carmichael, 526 U.S. 137, 147 (1999) (applying
Daubert to all expert testimony, not just scientific
testimony); Hangarter v. Provident Life and Accident Ins.
Co., 373 F.3d 998, 1017 (9th Cir. 2004). Under Rule 702,
the Court must assure itself of two things: that "any
and all scientific testimony or evidence admitted is not only
relevant but reliable." Daubert I, 509 U.S. at
as here, experts are retained to offer non-scientific
testimony, the reliability inquiry will "depend[ ]
heavily on the knowledge and experience of the expert, rather
than the methodology or theory behind it." Hangarter
v. Provident Life and Accident Ins. Co., 373 F.3d 998,
1017 (9th Cir. 2004) (quoting Hankey, 203 F.3d at
1169). It is generally said that "[d]isputes as to the
strength of [an expert's] credentials, faults in his use
of [a particular] methodology, or lack of textual authority
for his opinion, go to the weight, not the admissibility of
his testimony." Kennedy v. Collagen Corp., 161
F.3d 1226, at 1231 (9th Cir. 1998) (quoting McCullock v.
KB. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995)).
second prong, relevance, focuses on whether the expert
testimony "fits" the facts of the trial. That is,
the testimony must be "relevant to the task at
hand" in that it "logically advances a material
aspect of the proposing party's case." Daubert
v. Merrell Dow Pharms. Inc., 43 F.3d 1311, 1316 (9th
Cir. 1995) ("Daubert IF). At the bottom, the
dispositive question for the relevance prong is whether the
proposed testimony "will assist the trier of fact to
understand the evidence or to determine a fact in
issue." Daubert I, 509 U.S. at 591; Elsayed
Mukhtar v. Cal. State. Univ., Hayward, 299 F.3d 1053,
1063 n.7 (9th Cir. 2002), amended by 319 F.3d 1073
(9th Cir. 2003) ("Encompassed in the determination of
whether expert testimony is relevant is whether it is helpful
to the jury, which is the 'central concern' of Rule
extent that an expert purports to offer a legal opinion on an
ultimate issue, such testimony must be excluded because
"offering legal conclusion testimony invades the
province of the trial judge." Nationwide v. Kass
Info. Sys., Inc., 523 F.3d 1051, 1059 (9th Cir. 2008);
Mukhtar, 299 F.3d at 1066 n.10 ("[A]n expert
witness cannot give an opinion as to her legal
conclusion, i.e., an opinion on an ultimate issue of
law."). In breach of contract cases, the expert may not
be allowed to opine on the meaning and import of disputed
terms. See PMI Mortg. Ins. Co. v. Am. Int'l
Speciality Lines Ins. Co., 291 Fed.Appx. 40, 41 (9th
Cir. 2008) (unpublished) ("The expert testimony
proffered by AISLIC went to the interpretation of the
underlying settlement agreement, a contract, an ultimate
question of law upon which the opinion of an expert may not
be given."). To permit any such testimony would be to
commit error, as it is well-known that matters of law are
generally "inappropriate subjects for expert
testimony." Aguilar v. Int'l Longshoremen's
Union Local No. 10, 966 F.2d 443, 447 (9th Cir. 1992).
corollary of this principle, expert conclusions which do not
inform the jury about the facts but which "merely
function like jury instructions," are
impermissible.Lee v. First Nat'l Ins. Co.,
No. CV09060264MMMCWX, 2010 WL 11549637, at * 10 n.8O (CD.
Cal. Dec. 22, 2010) (quoting Charles A. Wright et al, FED.
PRAC. & PROC. EVID. § 6265.2 (2d ed.)); accord
Nationwide, 523 F.3d at 1060.
case, Defendants seek to elicit testimony from Dr. James T.
Carmichael ("Carmichael"), their expert in PTO
practice and procedure, on (1) the duty of candor owed to
the PTO and the Office's expectation of how patent
applicants and petitioners comply with that duty; (2)
the kind of information that the PTO considers material
when deciding either whether an invention is patentable or
whether a petition should be granted; and (3) the
PTO's expectations against the inventor's,
Plaintiff's and Plaintiff's counsel's action in
this case. Id. According to Defendants, Carmichael is
well-qualified as an expert in PTO practice and procedure,
having served for nearly a decade supervising PTO enforcement
proceedings and then as Examiner-In-Chief, to explain
"whether misrepresentations made to, or omissions
withheld from the Patent Office are material and whether
particular facts are indicative of an intent to deceive the
Patent Office is admissible." (Doc. No. 215 at 1.)
does not question or challenge Carmichael's
qualifications as an expert.(Doc. No. 242 at 2.) It does
however set forth three primary reasons why Carmichael's
report and testimony are inadmissible and should be stricken
entirely. First, Plaintiff argues that
Carmichael's report and testimony are designated for no
other purpose than to provide improper legal conclusions.
(See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d
970, 973 (9th Cir. 2010) (internal quotation marks and
citations omitted)) (Doc. No. 197 at 2.) Second, Plaintiff
contends that Carmichael improperly speculates what the PTO
would have done if it had been in possession of the
additional information alleged in this suit. See Id.
And third, Carmichael improperly opines on the credibility
and intent of Whitewater, its counsel, and third-party Thomas
Lochtefeld. (Doc. No. 197 at 2.)
Improper Legal Conclusions
contends Defendants assert the '589 Patent is
unenforceable due to inequitable conduct before the PTO.
Specifically, Defendants allege Plaintiff failed to disclose
prior art to the PTO, as well as conduct engaged in by
Whitewater's attorney, Erikson Squier, and Mr.
Lochtefeld, as to activities related to the expiration and
reinstatement of the '589 Patent. Defendants intend to
illustrate this through Carmichael's expert report and
deposition testimony. Id. Plaintiff argues that a
number of Mr. Carmichael's opinions asserted in his
Expert Report are impermissible legal
conclusions.Since "an expert witness cannot give
an opinion as to his legal conclusion, i.e., an opinion on an
ultimate issue of law," Plaintiff argues that Defendants
should be prohibited from using Carmichael's report to do
so now. U.S. v. Scholl, 166 F.3d 964, 973 (9th Cir.
1999) (excluding expert testimony offering a legal
conclusion.) Id. at 4.
do not dispute that an expert witness cannot give an opinion
as to his legal conclusion. However, "expert testimony
concerning whether misrepresentations made to or omissions
withheld from, the Patent Office are material and whether
particular facts are indicative of an intent to deceive the
Patent Office are admissible, (Doc. No. 215 at 1.)
Specifically, Defendants argue that Carmichael's report
and testimony will undoubtedly aid the Court and jury with
evaluating whether Plaintiffs actions were reasonable and
benign or intended to deceive the PTO and effectively did so.
Id. Moreover, Defendants assert that Carmichael
steered clear of offering 'legal' and
"individuals' state of minds opinions, and instead
focused on accepted areas such as the PTO's standard for
materiality and the duty of candor it imposes on
practitioners, applicants, and petitioners. Id. at
Court concludes that most of Plaintiff s criticisms go to the
weight that a jury should give Carmichael's opinions,
rather than their admissibility. As such, these arguments are
improper bases to exclude Mr. Carmichael's expert
opinion. Furthermore, this Court will not exclude testimony
that is relevant to issues that will be put before the jury,
even if the testimony is also relevant to issues that will be
decided solely by the Court. Unless the testimony has no
relevance to the jury, it should be permitted.
reviewed Carmichael's expert report and deposition
testimony, the Court concludes that his opinions pass muster
under the reliability and relevance requirements of
Daubert and Rule 702. Furthermore, the Court notes
that Plaintiff offers an expert of its own, Nicholas Godici,
to opine on the same issues. Therefore, Plaintiffs request to
exclude Carmichael's report and testimony entirely is
DENIED. Plaintiff may challenge
Carmichael's expert opinions regarding inequitable
opinion on cross-examination.
Improper Speculation on what PTO's Actions would have
Plaintiff argues that Carmichael's report and deposition
testimony should be stricken or excluded because Mr.
Carmichael "improperly opines on what he believes a PTO
examiner would have done in a specific situation had
he or she had additional information Carmichael had been
provided" at the time of review and decision. (Doc. No.
197 at 7.)
contends that Carmichael's report and testimony
constitute "retroactive mind-reading of the thoughts of
patent examiners." Barry v. Medtronic, Inc.,
No, 1:14-cv-104, 2016 U.S. Dist. LEXIS 104118, *6-7 (E.D.
Tex, July 19, 2016). For example, "the '589 Patent
would not have issued as it did if the PTO had been aware of
those prior installations and systems", and "if Mr.
Squier had disclosed [information he allegedly withheld] the
PTO would not have revived the patent and would have viewed
the certification as unmistakably false". Id. at
7-8. Furthermore, Plaintiff asserts that "Carmichael has
twice had" his expert report or testimony "excluded
for attempting to offer exactly this sort of improper
contend that Plaintiff is blatantly mischaracterizing
Carmichael's opinions and that he most assuredly does
not attempt to read the minds of any patent
examiners as part of his expert services or opinions. (Doc.
No. 215 at 7.) Rather, Carmichael's report and testimony
will assist the Court and the trier of fact in determining
whether "from the perspective of a reasonable PTO
examiner - the omitted information rises to the level of
but-for materiality." Id. Moreover,
"Carmichael's opinion is not speculative but based
upon his deep understanding of, and long experience with, PTO
practice and procedure." Id. at 7-8.
Court agrees with Plaintiff. While district courts have
consistently recognized that experts may opine on the
materiality of a patent applicant's misrepresentations,
omissions, and intent before the PTO, that does not entitle
them to speculate about the outcome "if the examiner had
different information." Doing so is nothing more than
"irrelevant speculation." See Applied
Materials, Inc. v. Advanced Semiconductor Materials Am.,
Inc., No. C 92-20643 RMW, 1995 U.S. Dist LEXIS 22335, at
*8 (N.D. Cal. Apr. 25, 1995). In a similar circumstance, a
district court in the Northern District excluded the
testimony of a patent attorney-expert who was also "a
former supervising patent examiner and former member of the
Patent Office Board of Patent Appeals and Interferences"
from providing his expert opinion "as to what the prior
art teaches," "the 'materiality' of prior
art," or what "the [PTO] examiner would have done
if [the expert] had been the examiner, or if the examiner had
different information." 1995 WL 261407, at *2 (N.D, Cal.
Apr, 25, 1995). In doing so, the court noted that the
defendant's expert was not a technical expert, and lacked
skill in the pertinent art. See Id. at *2-3. The
court found that testimony as to what the examiner
"would have done" under different circumstances was
"irrelevant speculation" that would impermissibly
"advise [the] jury as to applicable principles of
law." See Id. at *3; accord Icon-IP Pty
Ltd. v. Specialized Bicycle Components, Inc., 87
F.Supp.3d 928, 947 (N.D. Cal. 2015) (prohibiting the
defendant's expert, who had spent over thirty-four years
working at the PTO, from speculating "about what the PTO
would have done had specific prior art references been
brought to the examiner's attention").
Plaintiff argues Carmichael's report and testimony is not
helpful to the Court or trier of fact to determine what a
patent examiner would have done had it been provided with
additional information Carmichael was exposed to because
Carmichael states what he believes the PTO examiner would
have done based off his experience as a former patent
examiner. (See Doc. No. 242 at 3-5.) In essence,
Carmichael is placing the proverbial cart before the horse by
describing for the fact-finder how they should find in this
circumstance rather than allowing them to make the
determination based on the facts. In this case, despite
Carmichael's prior experience, his testimony oversteps
his bounds of authority. Though Carmichael could
theoretically opine on PTO policy and procedure, Defendants
do not seek to present testimony on that issue. See,
e.g., Sundance, 550 F.3d at 1361 n, 2 & n.5
(allowing the defendant's patent attorney-expert
"testify as to patent office procedure generally")
(citing Bausch & Lomb, Inc. v. Alcon Laboratories,
Inc., 79 F.Supp.2d 252, 254-55 (W.D.N.Y. 2000)).
Similarly, Carmichael's testimony as to "reasonable
practice" by patent examiners would not help the jury to
assess a fact in issue: instead, it would require him to give
impermissible legal opinions. See Argus Chem. Corp. v.
Fibre Glass-Ever coat Co., 759 F.2d 10, 13 (Fed. Cir.
1985) ("The question of the appropriate standard for
determining inequitable conduct in procuring a patent is one
of law.) Therefore, the Court GRANTS Plaintiffs motion and
excludes Carmichael's report and testimony regarding the
hypothetical behavior of the PTO.
Opinions Regarding Intent or Credibility
Plaintiff argues that Carmichael's report and testimony
regarding intent or credibility should be struck/excluded
because it is inadmissible. Plaintiff alleges that throughout
Carmichael's report and testimony, he refers to specific,
purposeful "facts for the sole purpose of
attacking the credibility of, or to attempt to imply what the
intent, of Whitewater, its counsel, or Lochtefeld
was." (Doc. No. 197 at 9.) Certain other
comments by Carmichael are mere speculative inferences
regarding the knowledge, intent, or practices of
Whitewater's counsel in a given situation. Id. at
10. "Such statements are impermissible as they go
directly to the province of the fact-finder." Allen
Organ Co. v. Kimball Int'l, Inc., 839 F.2d 1556,
1567 (Fed. Cir. 1998) ("Intent is a factual
determination particularly within the province of the trier
of fact."). Id.
response, Defendants argue that Carmichael's expert
report and testimony provide a helpful context which will
help the Court and trier of fact to analyze the facts of this
case. Specifically, Carmichael will describe the PTO's
procedures for reinstating a patent that has expired due to
unintentional delay/lapse of maintenance fees. Additionally,
he will describe the procedures for withdrawing and/or
correcting incorrect submissions to the PTO. (Doc. No. 215 at
8.) Finally, Defendants contend Carmichael will identify
specific facts in the record which are suggestive of intent.
Id. Comparing Plaintiffs actions with the
suggestions identified by Carmichael will likely help the
jury determine whether Plaintiff intended to deceive the PTO
during the reinstatement application process. Id.
regulations impose a duty of candor to the PTO on
each named inventor, attorney and/or
agent who prepares/prosecutes a patent application,
as well as every person who is substantively
involved in the preparation and/or prosecution of the
application and whoever is associated with the inventor or
assignee. 37 C.F.R, § 1.56. Accordingly, nondisclosure
of information to the PTO can support a finding of
inequitable conduct which in turn can render an entire patent
unenforceable. See Therasense, Inc. v. Becton, Dickinson
& Co., 649 F.3d 1276, 1287, 1288 (Fed. Cir. 2011)
cases of omission, direct evidence of a deliberate intent to
deceive is rare and thus, indirect and circumstantial
evidence may be considered. Id. Nonetheless, the
evidence "must be sufficient to require a
finding of deceitful intent in the light of all the
circumstances," Id. (internal quotation marks
omitted). The court may not infer intent solely from
materiality. And, "[p]roving that the applicant knew of
a reference, should have known of its materiality, and
decided not to submit it to the PTO does not prove specific
intent to deceive." Id.
"to meet the clear and convincing evidence standard, the
specific intent to deceive must be the single most reasonable
inference able to be drawn from the evidence."
Id. (internal quotation marks omitted). Thus,
"when there are multiple reasonable inferences that may
be drawn, intent to deceive cannot be found."
Id. at 1290-91.
both materiality and intent are fact-driven, and it is the
Defendant's burden to prove the existence of these
threshold elements. At this juncture, Defendants have not
done so. Carmichael's conclusory report and testimony do
not present clear and convincing evidence that the withheld
information or alleged misstatements were material to the
prosecution of the '589 Patent, nor that the applicants
intentionally omitted reference to it. In addition, given the
conflicting evidence between Carmichael's and
Defendants' expert contentions, the Court cannot conclude
there are no triable issues of material fact regarding
Plaintiffs failure to disclose the prior art or pay the
renewal fees for the '589 Patent.
Carmichael's report suggests the Plaintiff and/or one of
its agents could reasonably have considered the prior art to
be immaterial and therefore deemed disclosing it
inconsequential to the patent reapplication process.
Furthermore, despite stating in his expert report the
Plaintiff likely overlooked paying the maintenance fees on
the '589 Patent, Carmichael now contends that the
evidence is clear that Plaintiff could not have overlooked
the maintenance fee renewal considering that Mr. Squier
"disclosed that Carmichael was not in a position to not
know that the renewal was due, coupled by the fact that no
reasonable investigation had been conducted to support his
claim of an unintentional delay in paying the patents
maintenance fees by Plaintiff." (Doc. No. 242 at 4.)
This is especially important considering that under current
PTO procedure, the reviewing agent would likely not have
revived the patent and would have viewed the certification as
unmistakably false. Id.
Defendants' evidence reflecting prior disclosure of the
'589 Patent information elsewhere in regards to other
patents held by Plaintiff, cuts both ways. The other
disclosures appear to indicate the applicants were aware of
the undisclosed prior art, and the applicants chose not to
disclose. Thus, on the one hand, it is reasonable to assume
the applicants chose not to disclose the prior art because
they deemed it unnecessary and were unaware of the need to
pay the renewal fees for the '589 Patent. On the other
hand, the applicants' misrepresentations to the PTO could
demonstrate that they chose not to disclose the prior art or
pay the renewal fees because they wanted to investigate first
the validity of Defendants' claims before expending the
funds necessary to renew the '589 Patent. Thus, there is
conflicting evidence regarding what the examiner actually
considered. Therefore, the Court GRANTS
Plaintiffs motion to exclude CarmichaeFs report and testimony
as to intent and credibility.
Summary Judgement Motions
parties have now filed summary judgment motions.
Defendant's motion raises four issues (1) Inequitable
Conduct; (2) Intervening Rights for sales made while
'589 Patent was expired; (3) Infringement Under
35 U.S.C. § 271; and (4) Permanent Injunction.
(See Doc. No. 191.) Plaintiffs motion raises three
issues (1) Infringement of the '589 Patent; (2)
Validity of the '589 Patent; and (3) Inequitable
Conduct. (See Doc. No. 200.)
Court's September 27, 2018 Order denying Defendants First
Motion for Summary Judgment provides an overview of the
'589 Patent and the other allegedly infringing products,
so the Court does not repeat it here.
judgment is appropriate if there is no genuine dispute as to
any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving
party bears the initial responsibility of informing the court
of the basis of its motion, and identifying those portions of
'"the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting former Fed.R.Civ.P. 56(c)).
the moving party meets its initial burden of demonstrating
the absence of a genuine issue of material fact, the burden
then shifts to the nonmoving party to present "specific
facts" showing a "genuine issue for trial."
Fed. Trade Comm 'n v. Stefanchik, 559 F.3d 924,
927-28 (9th Cir. 2009) (internal quotation marks omitted).
The nonmoving party must go beyond the pleadings and
designate facts showing an issue for trial. Bias v.
Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing
Celotex, 477 U.S. at 324).
substantive law governing a claim determines whether a fact
is material. Suever v. Connell, 579 F.3d 1047, 1056
(9th Cir. 2009). The court draws inferences from the facts in
the light most favorable to the nonmoving party. Earl v.
Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th
factual context makes the nonmoving party's claim as to
the existence of a material issue of fact implausible, that
party must come forward with more persuasive evidence to
support his claim than would otherwise be necessary.