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Fathers & Daughters Nevada, LLC v. Zhang

United States District Court, D. Oregon

April 18, 2018

LINGFU ZHANG, Defendant.

          John Mansfield and Megan Vaniman, Harris Bricken, Attorneys for Plaintiff.

          David H. Madden, Mersenne Law, Attorneys for Defendant.


          Michael H. Simon, District Judge

         Plaintiff Fathers & Daughters Nevada, LLC (“F&D”) sued Defendant Lingfu Zhang, alleging that Zhang copied and distributed F&D's motion picture Fathers & Daughters through a public BitTorrent network in violation of F&D's exclusive rights under the Copyright Act. The Court granted Zhang's motion for summary judgment, finding that F&D did not present evidence raising a genuine dispute as to any material fact regarding whether F&D was a beneficial owner or legal owner of the relevant exclusive rights in the Fathers & Daughters copyright. F&D now moves the Court for reconsideration of that decision under Rule 59(e) or, alternatively, Rule 60(b) of the Federal Rules of Civil Procedure, arguing that the Court's decision is clearly erroneous or manifestly unjust. For the reasons discussed below, F&D's motion is denied.


         Under Federal Rule of Civil Procedure 59(e), a court has discretion to alter or amend a judgment if: (1) it is presented with newly discovered evidence; (2) it committed clear error or made an initial decision that was manifestly unjust; or (3) there is an intervening change in controlling law. Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011), cert. denied, 568 U.S. 959 (2012); see also McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (“A motion for reconsideration under Rule 59(e) should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.” (emphasis in original) (citation and quotation marks omitted)).

         Rule 60(b) allows a district court to relieve a party from a final judgment or order for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . . by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied . . . or (6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Rule 60(b)(6) requires a showing of “both injury and that circumstances beyond [the movant's] control prevented timely action to protect its interests.” United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). A motion under Rule 60(b) must be made within a reasonable time and, in any event, “no more than a year after the entry of the judgment or order or the date of the proceeding.” Fed.R.Civ.P. 60(c). The party making the Rule 60(b) motion bears the burden of proof. See Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 383 (1992).

         Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quotation marks and citation omitted). “[R]econsideration is appropriate only in very limited circumstances . . . .” Shalit v. Coppe, 182 F.3d 1124, 1132 (9th Cir. 1999). Raising arguments or providing evidence in a motion for reconsideration that could have been included when litigating the original motion are not proper grounds for reconsideration. See Id. (finding no abuse of discretion by district court in denying a motion for reconsideration when movant offered no reason for failure to provide the evidence when litigating the underlying motion); Rosenfeld v. U.S. Dep't of Justice, 57 F.3d 803, 811 (9th Cir. 1995) (“The district court did not abuse its discretion in declining to consider an argument raised for the first time on reconsideration without a good excuse.”); Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. California, 649 F.Supp.2d 1063, 1069 (E.D. Cal. 2009) (“In the absence of new evidence or a change in the law, a party may not use a motion for reconsideration to raise arguments or present new evidence for the first time when it could reasonably have been raised earlier in the litigation.” (citing Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.2003))).


         F&D argues that the Court misconstrued the Sales Agency agreement in concluding that F&D was not a beneficial owner of the copyright. F&D also argues that a triable issue exists as to whether the peer-to-peer rights purportedly retained by F&D fall within the rights transferred to Vertical Entertainment, LLC (“Vertical”) because extrinsic evidence must be considered under California law.

         A. Procedure

         F&D argues that it is the beneficial owner of the copyright to Fathers and Daughters and offers new argument and a new declaration regarding interpretation of the Sales Agency Agreement. F&D originally offered no evidence or argument how it was the beneficial owner entitled to royalties from Fathers & Daughters under the Sales ...

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