Opinion
CV 01-1459-BR.
June 16, 2004
BARBEE B. LYON JON P. STRIDE Tonkon Torp LLP Portland, OR.
MARK T. BANNER CHRISTOPHER J. RENK ERIK S. MAURER Banner Witcoff, Ltd. Chicago, IL, Attorneys for Plaintiff.
GORDON S. GANNICOTT Hollander, Lebenbaum, Gannicott Portland, OR.
MARIA P. SPERANDO Gary, Williams, Parenti, Finney, Lewis McManus, Watson Sperando, P.L. Stuart, FL.
MELVIN K. SILVERMAN Silverman Santucci LLP, Fort Lauderdale, FL Attorneys for Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant Roy Dixon's Motion for Reconsideration (#257) of the Court's Order granting summary judgment to Plaintiff Nike, Inc., as to Dixon's Third and Fourth Counterclaims. For the following reasons, the Court DENIES Dixon's Motion.
BACKGROUND
Nike brought this preemptive action seeking a declaratory judgment from the Court that: (1) Nike did not infringe on Dixon's shoe patent, (2) Dixon's shoe patent is unenforceable, (3) Dixon did not submit trade secrets to Nike, (4) Nike did not misappropriate trade secrets from Dixon, and (5) Dixon is not entitled to trade secret protection. Dixon brought his Counterclaims on the grounds that Nike misappropriated his patented athletic shoe design after he sent the design to Nike with the hope of entering into a business relationship with Nike regarding development of the shoe.
In his Counterclaims, Dixon sought damages on the basis that: (1) Nike misappropriated Dixon's trade secrets relating to his shoe design, (2) Nike breached a confidential relationship with Dixon relating to his shoe design, (3) Nike was unjustly enriched as a result of its breach of an implied contract not to use Dixon's confidential information relating to his shoe design, (4) Nike negligently misrepresented to Dixon its intent to use his shoe design, (5) Nike fraudulently misrepresented to Dixon that it had returned his shoe design materials without reviewing them, and (6) Nike engaged in constructive fraud by representing to Dixon that it had returned his shoe design materials without reviewing them. Dixon also sought an accounting from Nike.
Dixon now seeks reconsideration of the Court's Opinion and Order issued April 6, 2004, granting Nike summary judgment as to Dixon's Third and Fourth Counterclaims for unjust enrichment and negligent misrepresentation. Dixon bases his Motion on Fed.R.Civ.P. 59(e) and (60(b). Nike, however, correctly points out those rules apply only to motions for amendment, alteration, or reconsideration of final judgments or orders. In this case, the Court's Opinion and Order applies only to Dixon's Counterclaims and, therefore, is an interlocutory order rather than a final order that disposes of the entire case. Accordingly, the Court finds Dixon should have brought his Motion for Reconsideration under Fed.R.Civ.P. 54(b). The Court, therefore, will consider the Motion pursuant to Rule 54(b).
STANDARDS
Fed.R.Civ.P. 54(b) provides any order that does not adjudicate all of the claims of the parties "is subject to revision at any time before the entry of judgment. . . ." Neither Rule 54(b) nor the commentary to the rule addresses the standards that a district court should apply when reconsidering interlocutory orders.
Although the United States District Court for the District of Oregon does not have a local rule that addresses this subject, many district courts within the Ninth Circuit have promulgated local rules that provide some guidance. In Motorola Inc. v. J.B. Rodgers Mechanical Contractors, the court reviewed the local rules of those districts in the Ninth Circuit that had addressed the issue of reconsideration of interlocutory orders, and the court concluded the rules of the Central District of California "capture the most common elements of the various local rules." 215 F.R.D. 581, 583-86 (D. Az. 2003). This Court agrees and, like the court in Motorola, adopts the standards set forth in the local rules of the Central District of California for determining whether to grant a motion for reconsideration. The Court, therefore, evaluates whether:
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 of 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 the 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.Id. at 586.
DISCUSSION
1. Third Counterclaim — Implied Contract.
Dixon moves the Court to reconsider that part of its Opinion and Order in which it granted Nike's Motion for Summary Judgment as to Dixon's Third Counterclaim for breach of implied contract. The Court held Dixon's Third Counterclaim is preempted by Oregon's Uniform Trade Secrets Act (OUTSA), Or. Rev. Stat. §§ 646.461 — 646.475.
Dixon apparently concedes his Third Counterclaim may be preempted to the extent he alleges an implied-in-law contract based on unjust enrichment. Dixon, however, asserts he also alleges in his Third Counterclaim that an implied-in-fact contract exists. In support of that theory, Dixon contends the parties' correspondence regarding Dixon's submission of his shoe design, Nike's lack of interest in the design, and Nike's willingness to talk to Dixon about his concerns is sufficient evidence to support an inference of an implied-in-fact contract between Nike and Dixon to reach a financial settlement. Dixon asserts such an implied-in-fact contract claim would not be preempted by OUTSA.
Dixon relies on Jaqua v. Nike, Inc., 125 Or. App. 294 (1993), to support his theory. In Jaqua, the plaintiff was employed by Nike. During the course of his employment, the plaintiff created a shoe design. He presented the design to Nike and alleged Nike used the design in one of its shoe creations. The plaintiff expected to be paid for the design, but he did not receive any payment. After his employment ended, he brought an action against Nike in which he alleged two separate claims: breach of an implied-in-fact contract and breach of an impliedin-law contract. The court ruled the statute-of-limitations for contracts applied to both theories, but the court did not address whether the plaintiff's claim for breach of an implied-in-law contract was preempted by OUTSA.
Nike asserts Dixon alleges in his Third Counterclaim an implied-in-law contract rather than an implied-in-fact contract. Nike contends Dixon's contention that Nike assented to a contract with Dixon "borders on the frivolous." According to Dixon, however, the correspondence between Nike and Dixon supposedly forms the evidentiary basis of an implied-in-fact contract. That correspondence, however, does not contain any material facts that were unavailable to the Court when it issued its original Opinion and Order. Moreover, the Court also finds Dixon's characterization of the correspondence as creating an inference of an implied-in-fact contract between Dixon and Nike is without merit.
Accordingly, the Court finds Dixon did not assert breach of an implied-in-fact contract in his Third Counterclaim, and Dixon has not shown the Court previously failed to consider material facts that would warrant the Court's reconsideration of its Opinion and Order as to Dixon's Third Counterclaim.
2. Fourth Counterclaim — Negligent Misrepresentation.
Dixon moves the Court to reconsider that part of its Opinion and Order in which it grants Nike's Motion for Summary Judgment as to Dixon's Fourth Counterclaim for negligent misrepresentation. Dixon merely repeats his previous argument that Nike had a responsibility and "a higher duty of care" to act in good faith to review Dixon's unsolicited submissions and that correspondence between the parties "placed Dixon in a position to rely upon Nike to achieve a resolution of their dispute."
Dixon refers the Court to Conway v. Pacific University, 324 Or. 231, 924 P.2d 818 (1996). In Conway, the court held a special relationship did not exist between Professor Conway and his employer, Pacific University, sufficient to justify the imposition of liability on Pacific University for negligent misrepresentation that allegedly occurred during contract renewal negotiations. Here, as in Conway, the Court found there was no special relationship between Nike and Dixon sufficient to impose liability on Nike for negligent misrepresentation. See Onita Pac. Corp. v. Bronson, 315 Or. 149, 160 (1992). Dixon has not presented any evidence for the Court to change its finding.
In summary, after considering Dixon's Motion, the Court adheres to its Opinion and Order issued April 6, 2004, in which the Court granted Nike's Motion for Summary Judgment against Dixon's Third and Fourth Counterclaims.
CONCLUSION
For these reasons, the Court DENIES Defendant Roy Dixon's Motion for Reconsideration (#157).
IT IS SO ORDERED.