Unigestion Holding, S.A. v. UPM Tech.

Decision Date13 July 2022
Docket Number3:15-cv-185-SI
CourtU.S. District Court — District of Oregon

Anne M. Talcott, Kathryn E. Kelly, Andrew J. Lee, and Sara Kobak SCHWABE, WILLIAMSON & WYATT PC, and Robert C.L. Vaughan Cherine Smith Valbrun, Leah B. Storie, and Anisha Carla Atchanah, KIM VAUGHAN LERNER LLP, Of Attorneys for Plaintiff.

Kathryn P. Salyer, Eleanor A. DuBay, and Blake Van Zile TOMASI SALYER MARTIN, and Christopher W. Savage, DAVIS WRIGHT TREMAINE LLP, Of Attorneys for Defendants.



On January 18, 2022, the Court granted in part and denied in part the parties' cross-motions for summary judgment. ECF 294; Unigestion Holding, S.A. v. UPM Technology, Inc., __ F.Supp.3d __, 2022 WL 161491 (D. Or. Jan. 18, 2022). The following month, on February 28, 2022, Defendant UPM Technology, Inc. (UPM) filed a renewed motion for summary judgment. ECF 335. On March 29, 2022, the Court held a pretrial conference on Phase I issues, as described more fully below. On May 27, 2022, Plaintiff Unigestion Holding, S.A., doing business as Digicel-Haiti, Inc. (Digicel-Haiti) filed a motion for reconsideration or, in the alternative, certification of interlocutory appeal with the Ninth Circuit under 28 U.S.C. § 1292(b) or, in the further alternative, certification of questions to the Oregon Supreme Court. ECF 375. For the reasons that follow, the Court denies these motions.

A. Summary Judgment

Rule 56(a) of the Federal Rules of Civil Procedure states that a party is entitled to summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the lack of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although [c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient ....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

The first sentence of Rule 56(a) provides: “A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought.” Fed.R.Civ.P. 56(a) (emphasis added). The 2010 Advisory Committee explains that this sentence was “added to make clear at the beginning that summary judgment may be requested not only as to an entire case but also as to a claim, defense, or part of a claim or defense.” Fed.R.Civ.P. 56(a) advisory committee's note to 2010 amendment; see also Minority Police Officers Ass'n of S. Bend v. City of S. Bend, Ind., 721 F.2d 197, 200 (7th Cir. 1983) (“The word ‘judgment' in the term ‘partial summary judgment' is a misnomer. A partial summary judgment is merely an order deciding one or more issues in advance of trial; it may not be a judgment at all, let alone a final judgment on a separate claim.”).

Further, Rule 56(g) states: “If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact-including an item of damages or other relief-that is not genuinely in dispute and treating the fact as established in the case.” Fed.R.Civ.P. 56(g) (emphasis added). As explained by the 2010 Advisory Committee, “the court may decide whether to apply the summary-judgment standard to dispose of a material fact that is not genuinely in dispute.” Fed.R.Civ.P. 56(g) advisory committee's note to 2010 amendment. Finally, even if “the court believes that a fact is not genuinely in dispute it may refrain from ordering that the fact be treated as established. The court may conclude that it is better to leave open for trial facts and issues that may be better illuminated by the trial of related facts that must be tried in any event.” Id.

B. Reconsideration

Rule 54(b) of the Federal Rules of Civil Procedure provides that any order “may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” Fed.R.Civ.P. 54(b). The rule, however, does not address the standards that a district court should apply when asked to reconsider an interlocutory order, and the Ninth Circuit has not established a standard of review. Some things, however, are clear. Rule 54(b) is not a mechanism to get a ‘do over' to try different arguments or present additional evidence when the first attempt failed. Thus, while the limits governing reconsideration of final judgments under Rule 59(e) do not strictly apply, courts frequently invoke them as common-sense guideposts when parties seek reconsideration of an interlocutory ruling under Rule 54(b).” Stephen S. Gensler & Lumen N. Mulligan, 2 Fed. R. of Civ. P., Rules and Commentary, Rule 54 (2022).

When reconsidering an interlocutory order, district courts in the Ninth Circuit have held:

Motions to reconsider under Rule 54(b), while generally disfavored, may be granted if: (1) there are material differences in fact or law from that presented to the court and, at the time of the court's decision, the party moving for reconsideration could not have known the factual or legal differences through reasonable diligence; (2) there are new material facts that happened after the Court's decision; (3) there has been a change in law that was decided or enacted after the court's decision; or (4) the movant makes a convincing showing that the court failed to consider material facts that were presented to the court before the court's decision.

In re Galena Biopharma, Inc. Derivative Litig., 2014 WL 5494890 (D. Or. Oct. 30, 2014) (quoting Lyden v. Nike, Inc., 2014 WL 4631206, at * 1 (D. Or. Sept. 15, 2014)); see also see also Stockamp & Assocs. v. Accretive Health, 2005 WL 425456, at * 6-7 (D. Or. Feb. 18, 2005) (discussing the four factors as established in the local rules of the Central District of California and applied by other district courts within the Ninth Circuit); cf. U.S. Tobacco Coop. Inc. v. Big S. Wholesale of Virginia, LLC, 899 F.3d 236, 257 (4th Cir. 2018) (discussing that courts have more discretion in evaluating reconsideration under Rule 54(b) and concluding that “a court may revise an interlocutory order under the same circumstances in which it may depart from the law of the case: (1) a subsequent trial producing substantially different evidence; (2) a change in applicable law; or (3) clear error causing manifest injustice” (quotation marks omitted)). However, [w]hile a motion for reconsideration allows a party to bring a material oversight to the court's attention, it is not appropriate for a party to request reconsideration merely to force the court to think about an issue again in the hope that it will come out the other way the second time.” Brown v. S. Nevada Adult Mental Health Servs., 2014 WL 2807688, at * 2 (D. Nev. June 20, 2014) (cleaned up).

C. Interlocutory Review Under § 1292(b)

“Under 28 U.S.C. § 1292(b) parties may take an interlocutory appeal when ‘exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.' ICTSI Oregon, Inc. v. Int'l Longshore & Warehouse Union, 22 F.4th 1125, 1130 (9th Cir. 2022) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978)). A district court may certify an order for interlocutory appeal when the district court finds “that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b) (emphasis added); see also ICTSI, 22 F.4th at 1130.

“A controlling question of law must be one of law-not fact-and its resolution must ‘materially affect the outcome of litigation in the district court.' Id. (quoting In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982)). A court may find substantial ground for difference of opinion when “novel legal issues are presented, on which fair-minded jurists might reach contradictory conclusions.” Reese v. BP Expl (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011). “For example, this prong is satisfied if ‘the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented.' ICTSI, 22 F.4th at 1130 (quoting Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010)). The district court need not, however, “await development of contradictory precedent before concluding that the question presents a substantial ground for difference of opinion.” Id. at 113031 (cleaned up). “Finally, the ‘materially advance' prong is satisfied when the...

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