Opinion
Case No. C 11-0550-SC
05-15-2013
RESULTS BYIQ LLC, Plaintiff, v. NETCAPITAL.COM LLC, NETWIRE INC., NETMOVIES INC., and DOES 1-20, inclusive, Defendants.
ORDER DENYING MOTION FOR
RECONSIDERATION
This case arises out of a consulting agreement between the above-captioned defendants and non-party ByIQ LLC ("ByIQ"). Plaintiff Results ByIQ LLC ("Results ByIQ") alleges that Defendants failed to pay bills issued in connection with services ByIQ rendered pursuant to the consulting agreement. Defendants previously moved for summary judgment on the ground that Results ByIQ lacked standing to enforce an agreement to which it was not a party. On May 7, 2013, the Court denied Defendants' motion, finding that there existed a triable issue of fact as to whether ByIQ assigned its rights under the consulting agreement to Results ByIQ. ECF No. 82 ("SJ Order").
Defendants now move for reconsideration of the Summary Judgment Order pursuant to Federal Rule of Civil Procedure 59(e). ECF No. 86 ("Mot."). The Motion is procedurally improper. Rule 59(e) allows a court to alter or amend a judgment and, in this case, the Court has yet to enter one. Civil Local Rule 7-9 does allow a party to move for reconsideration, but only after the party has obtained leave of the Court. A motion for leave to file a motion for reconsideration has yet to be filed here.
In any event, the substantive arguments advanced in Defendants' Motion are unavailing. Defendants contend that the express terms of the consulting agreement prevented ByIQ from assigning its rights. Defendants specifically point to section 6 of the agreement, which provides:
This Agreement and the services contemplated hereunder are specific to [ByIQ] and [ByIQ] shall not have the right or ability to assign any obligations under this Agreement without the written consent of NetCapital. Any attempt to do so shall be void.Mot. at 2 (citing ECF No. 87-1). This language bars ByIQ from assigning its "obligations" to perform services under the consulting agreement. However, it is not clear why the language would also prevent ByIQ from assigning its right to payment for services rendered pursuant to the agreement.
Even if this argument were persuasive, it was not raised in Defendants' summary judgment motion or in their reply in support of that motion. Under Civil Local Rule 7-9(b), a party moving for reconsideration must show the emergence of new material facts or a change of law or, alternatively, a "manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court." Likewise, a Rule 59(e) motion for reconsideration should not be granted unless the court "is presented with newly discovered evidence, committed clear error, or if there is an intervening changing in the controlling law." 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). Here, Defendants do not point to new facts or a change in the law. Further, the Court did not previously consider the assignment provision because neither party raised the issue at summary judgment.
For these reasons, Defendants' motion for reconsideration is DENIED.
IT IS SO ORDERED.
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UNITED STATES DlSTRICT JUDGE