Free Motion for Attorney Fees - District Court of Arizona - Arizona

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6 IN THEUNITED STATES DISTRICT COURT l
7 FOR THE DISTRICT OF ARIH)NA
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10 True Center Gate Leasing, Inc., an) N0. CV-02-1109-PHX-DGC
Arizona corp oration, )
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Plaintiff; )
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V5, } ORDER
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.14 Sonoran Gate, L.L.C., an Arizona limited) °
I liability company; K-Zell Metals, Inc., an)
15 Arizona corporation; Donald Kammerzell)
and Barbara Kammerzell, husband and)
16 wife; and Mike O’Cormor, an individual,) I
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17 Defendants. )
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19 · I
20 Pending before the Court are Plaintiffs motion for sanctions, motions opposing
21 requests for entry of judgments, and motion to amend scheduling order to permit entry of
22 a third amended complaint. Docs. ##132, 153-56, 165. For the reasons set forth below, the
23 Court will grant the motions opposing the entry of judgments and deny the motion to
24 amend and motion for sanctions}
25 "
26 ‘Plaintiff requests oral argument on its motion for sanctions. The Court will deny
27 the request because the parties’ memoranda thoroughly discuss the law and evidence and
` additional argument will not aid the Court in its decisional process. See`Mahon v. Credit
28 Bur. of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir. 1999).
- EXHIBIT H
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1 Background I
2 Plaintiff commenced this action on June 14, 2002 by filing a complaint that
3 purported to state ten causes of actions against various Defendants: (1) false advertising
4 against all Defendants; (2) trademark dilution against all Defendants; (3) trademark
5 inningement against all Defendants; (4) breach of fiduciary duty against Mike O’Connor;
6 (5) conspiracy against O’Connor and Donald Kammerzell; (6) breach of fiduciary duty
A 7 against Donald Kammerzell; (7) breach of contract against K-Zell Metals ("K-Zell");
8 (8) violation of the trade secrets act against all Defendants; (9) slander against O’Connor
3 ` 9 and Donald Kannnerzell; and (10) conversion against O’Connor. Doc. #1. —
10 The November 26, 2002 scheduling order set a December 6, 2002 deadline for filing _
ll motions to amend pleadings. Doc. #20_at 1.1 On November 14, 2003, the Court granted in
12 part Plaintiff s motion for leave to file a first supplemental and amended complaint. Docs.
13 ##33, 56. The Court granted the motion with respect to the eleventh cause of action
- 14 against Defendant K-Zell because the patent challenged in that claim was not issued until
15 January 2003. Doc. #56 at 2-3. The Court denied the motion with respect to the proposed
16 twelfth through fifteenth causes of action because Plaintiff failed to show good cause for -
17 moving to add such claims more than five months after the deadline for amending
13 pleadings. Id at 3-5 (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th
19 ca. 1992)).
20 On December 19, 2003, the Court granted the pa1ties’ request to modify the
21 scheduling order and extended the deadline for amending pleadings to January 9, 2004.
22 Doc. #63 il l(A). On January 14, 2004, the Court -granted the parties’ stipulation permitting
23 Plaintiff to file a second supplemental complaint that added a twelfth cause of action
24 against Defendant K-Zell. Docs. ##67, 69-70.
25 On March 31, 2005, the Court granted summary judgment in favor of Defendants
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27 2The case was initially assigned to District Judge Paul Rosenblatt. The case was
28 reassigned to the undersigned Judge on September 15, 2003. Doc. #53.
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1 with respect to all of the claims against them except the patent claims alleged against
2 Defendant K-Zell in the eleventh and twelfth causes of action. Doc. #139 at 18 1111 3-4. The
3 Court subsequently set a pretrial conference for August 31, 2005. Docs. ##140, 145-46,
4 152.3 Plaintiff and Defendant K-Zell lodged a proposed fmal pretrial order and filed
5 proposed findings of facts and conclusions of law on August 10, 2005. Docs. ##170, 172.
6 Discussion
7 I, Plaintiff’s Motions Opposing Defendants’ Requests for Entry of Judgments.
8 Defendants have lodged proposed forms of judgment. See Docs. ##143-44, 150-51.
9 Plaintiff moves the Court to decline to enter the proposed judgments under Federal Rule
. 10 of Civil Procedure 54(b), which provides, in pertinent part:
i 1] When more than one claim for relief is presented in an action . . . or when
multiple parties are involved, the court may direct the entry of a fmal
12 judgment as to one or more but fewer than all of the claims or parties only
upon an express determination that there is no just reason for delay and
- 13 upon an express direction for the entry ofjudgment.
14 Docs. ##153-56. Plaintiff argues that there is no pressing need for Defendants to obtain i
15 final judgments now rather than alter the upcoming trial, and that entry of judgment on the
16 non-patent claims may needlessly cause multiple appeals involving the same underlying
17 facts. [al
18 The Court agrees. A firm trial. date will be set at the fmal pretrial conference to be
19 held on August 31, 2005, and the entire case can be appealed after the two remaining
20 patent claims have been tried to the Court. The Ninth Circuit has cautioned against the
21 unnecessary certification of appeals under Rule 54(b), See Blair v. Shanahan, 38 F.3d
22 1514, 1522 (9th Cir. 1994) (holding that the district court did not err in refusing to certify an
23 T....T......;._
24 °The Court stated in the March 31, 2005 order that it would set a pretrial conference
25 by separate order “with respect to the causes of action against Defendant Sonoran Gate
and the eleventh and twelfth causes of action against Defendant K-Zell[.]" Doc. #139 at
g 26 18 ij 6 (emphasis added): The Court, however, had granted summary judgment on all of the
27 claims against Sonoran Gate, i.e., the first, second, third, and eighth causes of action. [al
at 18 i[ 5. Sonoran Gate is not required to participate in the pretrial conference or the trial
. 28 of this matter because there are no causes of action remaining against it.
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A 1 interlocutory appeal under Rule 54(b) and stating; "There was no abuse of discretion . .
2 . [l]t was expected that a short bench trial was to begin in only four months, and the entire
3 case could be reviewed after trial.”); Lindsay v. Benejiciai Reinsurance Co., 59 F.3d 942,
4 951 (9th Ci1·. 1995) (holding that the bankruptcy court erred in entering partial final
5 judgment under Rule 54(b) and stating: "The dangers of profligate Rule 54(b)
‘ 6 determinations have materialized in this case. We and the parties have been burdened with
. 7 the time and expense of five appeals, and 334 pages of briefs, in significant part because
8 of the routine 54(b) determinations issued for interlocutory rulings."); Frank Briscoe Co.
9 v. Morrison-Knudsen Co., 776 F.2d 1414, 1416 (9th Cir. 1985) (“‘Judgments under Rule
10 54(b) must be reserved for the unusual case in which the costs and risks of multiplying the
l 11 number of proceedings and of overcrowding the aplpellate docket are outbalanced by the
12 pressing needs of the litigants for an early and separate judgment as to some claims or
13 parties .... A similarity of legal or factual issues will weigh heavily against entry of judgment
14 under the rule, and in such cases a Rule 54(b) order will be proper only where necessary
15 ·to avoid a harsh and unjust result[.]") (quoting Morrison-Knudsen Co. v. Archer, 655 F .2d
16 962, 965 (9th Cir. 1981)). Because Defendants have identified no pressing need for early
. 17 _ and separate judgments, Plaintiffis motions will be granted.
_ 18 11. Plaintiff’s Rule 16 Motion t0 Amend Scheduling Order to Permit Entry of Third
Amended Complaint.
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_ 20 Plaintiff states that it seeks leave to file the proposed-third amended complaint to
21 simplify the allegations in the second supplemental complaint and clarify that the eleventh
22 and twelfth causes of action have been brought against all Defendants, not ·just Defendant
23 K—Zell. Doc. #165 at 2. Plaintiff contends that Defendants have not carefully read the
24 allegtions of the eleventh and twelfth causes of action and that good cause has been
25 demonstrated by the proposed judgments lodged by Defendants. Id at 7 (citing Johnson
26 v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)).
27 Defendants state that it is clear from the record that Plaintiff brought the eleventh
28 and twelfth causes of action solely against Defendant K-Zell. Docs. ##166-68. Defendants
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