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Ferring B.V. v. Actavis, Inc.

United States District Court, D. Nevada

October 23, 2014

FERRING B. V. Plaintiff,


ROBERT C. JONES, District Judge.

This patent infringement action is one of several filed by Plaintiff in this District. Previously, the Court granted in part and denied in part Defendants' Motion to Dismiss (ECF No. 17) the present case based on a theory of res judicata. Plaintiff has filed a Motion for Reconsideration (ECF No. 39) asking the Court to revisit its prior order on Defendants' motion, or alternatively to certify its judgment on the dismissed claims for appeal under Rule 54(b).


Plaintiff holds U.S. Patent Nos. 7, 947, 739 ("the 739 patent"), 8, 022, 106 ("the 106 patent"), and 8, 273, 795 ("the 795 patent"). Plaintiff brought infringement actions in this District alleging that Defendants' filing of an Abbreviated New Drug Application ("ANDA") with the Federal Drug Administration ("FDA") violated the 739 patent, the 106 patent, and the 795 patent and seeking a permanent injunction under 35 U.S.C. Sections 271(a) and 271(e)(1). These actions were eventually consolidated into a single case (the "Prior Action"). Approximately eighteen months after the Prior Action was filed, Defendants released their alleged infringing product into the market. (Pl.'s Mot. Recons. 4, ECF No. 39). Plaintiff did not seek leave to amend its complaint in the Prior Action to include damages for this second act of alleged infringement. Instead, Plaintiff filed this case (the "Present Action") claiming damages under Section 271(a) for Defendants' alleged making and selling of a product that allegedly violated the 739 patent, the 106 patent, and the 795 patent. The Present Action also sought relief for alleged infringement of U.S. Patent No. 8, 487, 005 ("the 005 patent), which issued to Plaintiff after the Prior Action commenced.

On February 28, 2014, Defendants filed a motion to dismiss the Present Action arguing that the Court's final judgment in the Prior Action caused Plaintiff's infringement claims in the Present Action to be barred by res judicata. (Defs.' Mot. to Dismiss 9-11, ECF No. 17). In its July 23, 2014 order, the Court agreed with Defendants to the extent that Plaintiff sought damages under Section 271(a) for alleged infringement of the 739 patent, the 106 patent, and the 795 patent, and the Court granted the motion to dismiss as to those infringement claims. The Court denied the motion to dismiss as to the 005 patent since the Prior Action did not include claims of infringement under that patent since it had not yet issued.

Plaintiff now moves that the Court reconsider its decision to dismiss the infringement claims based on the 739 patent, the 106 patent, and the 795 patent. Plaintiff argues that Defendants' manufacturing and selling of the alleged infringing product constitutes a separate act of infringement under Section 271(a) that was not properly before the Court in the Prior Action. Plaintiff asserts that the Court committed clear error because it did not distinguish these later commercial activities as separate acts of infringement to which res judicata does not apply.


A. Motion for Reconsideration

A court should be loath to revisit its own decisions unless extraordinary circumstances show that its prior decision was clearly erroneous or would work a manifest injustice. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988). This principle is embodied in the law of the case doctrine, under which "a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case." United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (quoting Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993)). While the district court possesses inherent power to reconsider and amend previous interlocutory orders, City of L.A. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001), this 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) (quoting 12 James William Moore, et al., Moore's Federal Practice § 59.30(4) (3d ed. 2000)) (internal quotation marks omitted).

Indeed, a district court should not grant a motion for reconsideration "absent highly unusual circumstances, unless the court (1) is presented with newly discovered evidence, (2) committed clear error, or (3) if there is an intervening change in the controlling law." 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citing Sch. Dist. No. 1J v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). A motion for reconsideration "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Kona Enters., 229 F.3d at 890. Mere dissatisfaction with the court's order, or belief that the court is wrong in its decision, is not grounds for reconsideration. Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). A motion to reconsider must set forth "some valid reason why the court should reconsider its prior decision" and set "forth facts or law of a strongly convincing nature to persuade the court to reverse its prior decision." Frasure v. United States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003). Furthermore, "[a] motion for reconsideration is not an avenue to re-litigate the same issues and arguments upon which the court already has ruled." Brown v. Kinross Gold, U.S.A., 378 F.Supp.2d 1280, 1288 (D. Nev. 2005).

B. Motion for Appealable Judgment - Rule 54(b)

"When an action presents more than one claim for relief... the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay." Fed.R.Civ.P. 54(b). It is left to the discretion of the district court to determine whether there is no just reason for delay in the entry of judgment. Purdy Mobile Homes, Inc. v. Champion Home Builders Co., 594 F.2d 1313, 1316 (9th Cir. 1979). To properly certify a judgment under Rule 54(b), the district court must satisfy a two-step process. Curtiss-Wright Corp. v. Gen. Electric Co., 446 U.S. 1, 7-8 (1980). First, the court must determine whether the judgment is final "in the sense that it is an ultimate disposition of an individual claim entered in the course of a multiple claims action.'" Id. at 7 (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436 (1956)). Second, the court must decide whether there is any just reason for delay. Id. at 8. When evaluating whether there are just reasons for delay, the court should consider the equities involved, exercising discretion "in the interest of sound judicial administration." Id. (quotations omitted). Additionally, "[j]udgments under Rule 54(b) must be reserved for the unusual case in which the costs and risks of multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced by the pressing needs of the litigants for an early and separate judgment as to some claims or parties." Morrison-Knudsen Co. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981).


A. Motion to ...

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