1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 REDISEGNO.COM, S.A. DE C.V., Case No. 5:20-cv-00316-EJD
9 Plaintiff, ORDER GRANTING MOTION TO DISMISS; DENYING MOTION FOR 10 v. RELIEF
11 BARRACUDA NETWORKS, INC., et al., Re: Dkt. Nos. 53, 54 Defendants. 12
13 Rather than repeat the factual background of this case, the Court directs the Parties to its 14 July 2021 Order. See Order Granting Defendant’s Motion for an Order Requiring Plaintiff to Post 15 an Undertaking (“July 2021 Order”), Dkt. No. 49. In its July 2021 Order, this Court ordered 16 Plaintiff Redisegno.com, S.A. DE C.V. (“Redisegno”) to post an undertaking in the amount of 17 $250,000 within 30 days. July 2021 Order at 7. As of the date of this Order, Redisegno has yet to 18 post an undertaking. In response, Defendant Barracuda Networks, Inc. (“Barracuda”) moved to 19 dismiss the action. See Defendant Barracuda’s Notice of Motion and Motion to Dismiss 20 (“MTD”), Dkt. No. 53. On October 22, 2021, Redisegno filed an opposition, to which Barracuda 21 filed a reply. See Opposition to Defendant’s Motion to Dismiss (“Opp.”), Dkt. No. 56; Defendant 22 Barracuda Networks, Inc.’s Reply to Plaintiff’s Opposition (“Reply”), Dkt. No. 57. Redisegno 23 also moved separately for relief from the Court’s July 2021 Order. See Plaintiff Redisegno’s 24 Motion for Relief from Court’s Order of July 22, 2021, Requiring Positing of Undertaking (“Mot. 25 for Relief”), Dkt. No. 54. On November 4, 2021, Barracuda filed an opposition, to which 26 Redisegno filed a reply. See Defendant Barracuda’s Opposition to Plaintiff’s Motion for Relief 27 (“Opp. re Relief”), Dkt. No. 58; Plaintiff Redisegno’s Reply to Defendant’s Opposition (“Reply re 1 Relief”), Dkt. No. 62. Having considered the Parties’ papers, the Court GRANTS Barracuda’s 2 motion to dismiss and DENIES Redisegno’s motion for relief.1 3 I. DISCUSSION 4 To resolve Barracuda’s motion to dismiss, the Court must first determine whether 5 Redisegno’s motion for relief should be granted. Redisegno argues that the Court’s July 2021 6 Order should be vacated because of new evidence and changed circumstances. At the time of the 7 July 2021 Order, Redisegno believed that it would be able to transact business with a surety and 8 obtain a bond for the undertaking. However, Redisegno has been unable to find surety and does 9 not have the means to fund the entire undertaking amount. See Mot. for Relief at 3. Redisegno 10 argues that this changed circumstance requires the Court to vacate its prior order or modify its 11 order so that Redisegno is not deprived of its due process right to have the merits of this action 12 heard. The Court disagrees. 13 Contrary to Redesigno’s motion, Federal Rule of Civil Procedure 60 is irrelevant. Rule 14 60(b) applies only to relief sought from a “final judgment, order, or proceeding,” which the July 15 2021 Order is not. See United States v. Martin, 226 F.3d 1042, 1048 n.8 (9th Cir. 2000) (“Rule 16 60(b), like Rule 59(e), applies only to motions attacking final, appealable orders, and thus was not 17 applicable to the Government’s motion.”). Instead, only Federal Rule of Civil Procedure 54(b) is 18 relevant, as is Civil Local Rule 7-9 on which Rule 54 is based. Pursuant to Civil Local Rule 7-9, 19 any party seeking “reconsideration of [a] interlocutory order” must first obtain leave to file such 20 motion. See N.D. Cal. Civ. L.R. 7-9(a) (“No party may notice a motion for reconsideration 21 without first obtaining leave of Court to file the motion.”). Redisegno has not sought leave to file 22 a motion for reconsideration. Redisegno’s motion fails on this ground alone. 23 However, even assuming that the motion is properly before the Court, Redisegno does not 24 demonstrate that reconsideration is warranted. To demonstrate that reconsideration is warranted, a 25 party must show “a material difference in fact or law from that which was presented to the Court 26
27 1 The Court finds this motion appropriate for decision without oral argument pursuant to Civil Local Rule 7-1(b). 1 before entry of the interlocutory order,” “new material facts or a change of law occurring after the 2 time of such order,” or “a manifest failure by the Court to consider material facts or dispositive 3 legal arguments which were presented to the Court before the interlocutory order.” N.D. Cal. Civ. 4 L.R. 7-9. Reconsideration requires more than a mere “disagreement with the Court’s decision.” 5 United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001). A motion 6 for reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality and 7 conservation of judicial resources.” Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 8 2020); see also Reeder v. Knapik, 2007 WL 2088402, at *2 (S.D. Cal. July 18, 2007) (“A motion 9 to reconsider is not another opportunity for the losing party to make its strongest case, reassert 10 arguments, or revamp previously unmeritorious arguments.”). 11 Redisegno does not present any new evidence or evidence of changed circumstances. 12 First, Redisegno argues that it “did not know, nor could not know” that a surety would not aid in 13 covering the bond. See Mot. for Relief at 4. Redisegno maintains that this constitutes “new 14 evidence” based on its counsel’s mistake or ignorance regarding surety bonds. But ignorance of 15 how the surety process works is not a new fact or piece of evidence. On the contrary, bonding 16 requirements were widely known or easily ascertainable prior to the July 2021 ruling. 17 Next, Redisegno argues that its new insolvency presents a changed circumstance. 18 However, the only support for this is a single sentence in a declaration that “Redisegno is 19 insolvent at this time.” See Declaration of Hugo Figueroa in Support of Motion for Relief from 20 Order (“Figueroa Decl.”) ¶ 4, Dkt. No. 54-1 (“In my capacity as Redisegno’s Accountant, . . . I 21 can say Redisegno is insolvent at this time.”). The lack of any back-up data, financial reports, or 22 detail as to Redisegno’s financial condition is problematic. Additionally, Redisegno does not 23 explain how insolvency constitutes a changed circumstance that warrants reconsideration. 24 Redisegno was able to present such evidence during (1) the briefing on Barracuda’s motion for an 25 undertaking or (2) prior to the expiration of the posting period. It did neither. See Kona Enters., 26 229 F.3d at 890 (“[Reconsideration] may not be used to raise arguments or present evidence for 27 the first time when they could reasonably have been raised earlier in the litigation.”); see also 1 School Dist. No. IJ v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (“The overwhelming 2 weight of authority is that failure to file documents in an original motion or opposition does not 3 turn the late filed documents into ‘newly discovered evidence.’”). 4 Finally, Redisegno presents case law on legal issues implicated by the July 2021 Order. 5 See Mot. for Relief at 5–7. Local Rule 7-9(b)(1) only allows this Court to consider materially 6 different law than that which was presented to the Court and requires that the party applying for 7 reconsideration show “that in the exercise of reasonable diligence, [it] did not know such fact or 8 law at the time of the interlocutory order.” While the cases cited by Redisegno were not presented 9 to the Court, each was decided well before the Court issued its July 2021 Order.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 REDISEGNO.COM, S.A. DE C.V., Case No. 5:20-cv-00316-EJD
9 Plaintiff, ORDER GRANTING MOTION TO DISMISS; DENYING MOTION FOR 10 v. RELIEF
11 BARRACUDA NETWORKS, INC., et al., Re: Dkt. Nos. 53, 54 Defendants. 12
13 Rather than repeat the factual background of this case, the Court directs the Parties to its 14 July 2021 Order. See Order Granting Defendant’s Motion for an Order Requiring Plaintiff to Post 15 an Undertaking (“July 2021 Order”), Dkt. No. 49. In its July 2021 Order, this Court ordered 16 Plaintiff Redisegno.com, S.A. DE C.V. (“Redisegno”) to post an undertaking in the amount of 17 $250,000 within 30 days. July 2021 Order at 7. As of the date of this Order, Redisegno has yet to 18 post an undertaking. In response, Defendant Barracuda Networks, Inc. (“Barracuda”) moved to 19 dismiss the action. See Defendant Barracuda’s Notice of Motion and Motion to Dismiss 20 (“MTD”), Dkt. No. 53. On October 22, 2021, Redisegno filed an opposition, to which Barracuda 21 filed a reply. See Opposition to Defendant’s Motion to Dismiss (“Opp.”), Dkt. No. 56; Defendant 22 Barracuda Networks, Inc.’s Reply to Plaintiff’s Opposition (“Reply”), Dkt. No. 57. Redisegno 23 also moved separately for relief from the Court’s July 2021 Order. See Plaintiff Redisegno’s 24 Motion for Relief from Court’s Order of July 22, 2021, Requiring Positing of Undertaking (“Mot. 25 for Relief”), Dkt. No. 54. On November 4, 2021, Barracuda filed an opposition, to which 26 Redisegno filed a reply. See Defendant Barracuda’s Opposition to Plaintiff’s Motion for Relief 27 (“Opp. re Relief”), Dkt. No. 58; Plaintiff Redisegno’s Reply to Defendant’s Opposition (“Reply re 1 Relief”), Dkt. No. 62. Having considered the Parties’ papers, the Court GRANTS Barracuda’s 2 motion to dismiss and DENIES Redisegno’s motion for relief.1 3 I. DISCUSSION 4 To resolve Barracuda’s motion to dismiss, the Court must first determine whether 5 Redisegno’s motion for relief should be granted. Redisegno argues that the Court’s July 2021 6 Order should be vacated because of new evidence and changed circumstances. At the time of the 7 July 2021 Order, Redisegno believed that it would be able to transact business with a surety and 8 obtain a bond for the undertaking. However, Redisegno has been unable to find surety and does 9 not have the means to fund the entire undertaking amount. See Mot. for Relief at 3. Redisegno 10 argues that this changed circumstance requires the Court to vacate its prior order or modify its 11 order so that Redisegno is not deprived of its due process right to have the merits of this action 12 heard. The Court disagrees. 13 Contrary to Redesigno’s motion, Federal Rule of Civil Procedure 60 is irrelevant. Rule 14 60(b) applies only to relief sought from a “final judgment, order, or proceeding,” which the July 15 2021 Order is not. See United States v. Martin, 226 F.3d 1042, 1048 n.8 (9th Cir. 2000) (“Rule 16 60(b), like Rule 59(e), applies only to motions attacking final, appealable orders, and thus was not 17 applicable to the Government’s motion.”). Instead, only Federal Rule of Civil Procedure 54(b) is 18 relevant, as is Civil Local Rule 7-9 on which Rule 54 is based. Pursuant to Civil Local Rule 7-9, 19 any party seeking “reconsideration of [a] interlocutory order” must first obtain leave to file such 20 motion. See N.D. Cal. Civ. L.R. 7-9(a) (“No party may notice a motion for reconsideration 21 without first obtaining leave of Court to file the motion.”). Redisegno has not sought leave to file 22 a motion for reconsideration. Redisegno’s motion fails on this ground alone. 23 However, even assuming that the motion is properly before the Court, Redisegno does not 24 demonstrate that reconsideration is warranted. To demonstrate that reconsideration is warranted, a 25 party must show “a material difference in fact or law from that which was presented to the Court 26
27 1 The Court finds this motion appropriate for decision without oral argument pursuant to Civil Local Rule 7-1(b). 1 before entry of the interlocutory order,” “new material facts or a change of law occurring after the 2 time of such order,” or “a manifest failure by the Court to consider material facts or dispositive 3 legal arguments which were presented to the Court before the interlocutory order.” N.D. Cal. Civ. 4 L.R. 7-9. Reconsideration requires more than a mere “disagreement with the Court’s decision.” 5 United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001). A motion 6 for reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality and 7 conservation of judicial resources.” Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 8 2020); see also Reeder v. Knapik, 2007 WL 2088402, at *2 (S.D. Cal. July 18, 2007) (“A motion 9 to reconsider is not another opportunity for the losing party to make its strongest case, reassert 10 arguments, or revamp previously unmeritorious arguments.”). 11 Redisegno does not present any new evidence or evidence of changed circumstances. 12 First, Redisegno argues that it “did not know, nor could not know” that a surety would not aid in 13 covering the bond. See Mot. for Relief at 4. Redisegno maintains that this constitutes “new 14 evidence” based on its counsel’s mistake or ignorance regarding surety bonds. But ignorance of 15 how the surety process works is not a new fact or piece of evidence. On the contrary, bonding 16 requirements were widely known or easily ascertainable prior to the July 2021 ruling. 17 Next, Redisegno argues that its new insolvency presents a changed circumstance. 18 However, the only support for this is a single sentence in a declaration that “Redisegno is 19 insolvent at this time.” See Declaration of Hugo Figueroa in Support of Motion for Relief from 20 Order (“Figueroa Decl.”) ¶ 4, Dkt. No. 54-1 (“In my capacity as Redisegno’s Accountant, . . . I 21 can say Redisegno is insolvent at this time.”). The lack of any back-up data, financial reports, or 22 detail as to Redisegno’s financial condition is problematic. Additionally, Redisegno does not 23 explain how insolvency constitutes a changed circumstance that warrants reconsideration. 24 Redisegno was able to present such evidence during (1) the briefing on Barracuda’s motion for an 25 undertaking or (2) prior to the expiration of the posting period. It did neither. See Kona Enters., 26 229 F.3d at 890 (“[Reconsideration] may not be used to raise arguments or present evidence for 27 the first time when they could reasonably have been raised earlier in the litigation.”); see also 1 School Dist. No. IJ v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (“The overwhelming 2 weight of authority is that failure to file documents in an original motion or opposition does not 3 turn the late filed documents into ‘newly discovered evidence.’”). 4 Finally, Redisegno presents case law on legal issues implicated by the July 2021 Order. 5 See Mot. for Relief at 5–7. Local Rule 7-9(b)(1) only allows this Court to consider materially 6 different law than that which was presented to the Court and requires that the party applying for 7 reconsideration show “that in the exercise of reasonable diligence, [it] did not know such fact or 8 law at the time of the interlocutory order.” While the cases cited by Redisegno were not presented 9 to the Court, each was decided well before the Court issued its July 2021 Order. Thus, Redisegno 10 must demonstrate that it exercised reasonable diligence when it failed to cite these cases. It has 11 not done so, and the Court DENIES Redisegno’s motion for relief. See Wood v. Google, LLC, 12 2019 WL 1936241 at *3 (N.D. Cal. May 1, 2019) (“It is not the purpose of allowing motions for 13 reconsideration to enable a party to complete presenting his case after the court has ruled against 14 him. Were such a procedure to be countenanced, some lawsuits really might never end . . . .” 15 (citation omitted)). 16 The Court moves to Barracuda’s motion to dismiss. Pursuant to Federal Rule of Civil 17 Procedure 41(b), “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, 18 a defendant may move to dismiss the action or any claim against it.” Likewise, California Code of 19 Civil Procedure § 1030(d) requires that “[i]f the plaintiff fails to file the undertaking within the 20 time allowed, the plaintiff’s action . . . shall be dismissed as to the defendant in whose favor the 21 order requiring the undertaking was made.” Federal courts applying section 1030(d) have 22 dismissed a plaintiff’s claims for failure to comply with an order to post a bond. See, e.g., 23 Interlabservice, OOO v. Illumina, Inc. Eyeglasses, 2017 WL 4335030 (S.D. Cal. Sept. 26, 2017) 24 (dismissing the plaintiff’s action under Rule 41(b) for failure to post a bond); Pittman ex rel. L.P. 25 v. Avish P’ship, 525 F. App’x 591, 594 (9th Cir. 2013) (affirming dismissal under Rule 41(b) after 26 the plaintiff failed to post a section 1030(b) security bond within the time ordered). Because 27 Redisegno has failed to comply with this Court’s undertaking order, the Court GRANTS 1 Barracuda’s motion to dismiss. 2 I. CONCLUSION 3 For the foregoing reasons, the Court GRANTS Barracuda’s motion to dismiss and 4 || DENIES Redisegno’s motion for relief. The Clerk shall close the file. 5 IT IS SO ORDERED. 6 || Dated: April 25, 2022 7
a J. I 9 United States District Judge 10 11 12
15 16
= 17
Z 18 19 20 21 22 23 24 25 26 27 28 || Case No.: 5:20-cv-00316-EJD ORDER GRANTING MOTION TO DISMISS; DENYING MOTION FOR RELIEF