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Hoyt A. Fleming v. Escort

June 2, 2011


The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court



The Court has before it Escort's motion for reconsideration. The motion is fully briefed and at issue. For the reasons explained below, the Court will grant in part and deny in part the motion.


A motion to reconsider an interlocutory ruling requires an analysis of two important principles: (1) error must be corrected; and (2) judicial efficiency demands forward progress. The former principle has led courts to hold that a denial of a motion to dismiss or for summary judgment may be reconsidered at any time before final judgment. Preaseau v. Prudential Insurance Co., 591 F.2d 74, 79-80 (9th Cir. 1979). While even an interlocutory decision becomes the "law of the case," it is not necessarily carved in stone. Justice Oliver Wendell Holmes concluded that the "law of the case" doctrine "merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power." Messinger v. Anderson, 225 U.S. 436, 444 (1912). "The only sensible thing for a trial court to do is to set itself right as soon as possible when convinced that the law of the case is erroneous. There is no need to await reversal." In re Airport Car Rental Antitrust Litigation, 521 F.Supp. 568, 572 (N.D.Cal. 1981) (Schwartzer, J.).

The need to be right, however, must be balanced with the need for forward progress. A court's opinions "are not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure." Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D.Ill.1988). "Courts have distilled various grounds for reconsideration of prior rulings into three major grounds for justifying reconsideration:

(1) an intervening change in controlling law; (2) the availability of new evidence or an expanded factual record; and (3) need to correct a clear error or to prevent manifest injustice." Louen v Twedt, 2007 WL 915226 (E.D.Cal. March 26, 2007). If the motion to reconsider does not fall within one of these three categories, it must be denied.


Escort argues that its motion to reconsider falls within the third category because the Court committed a clear error in its decision striking as late-filed some 255 patent invalidity contentions from the report of Escort's expert, Dr. Grindon. Escort argues that certain items stricken by the Court were actually contained in its timely-filed Patent Invalidity Contentions. More specifically, Escort lists 38 computer files that it claims were listed in a description of a prior art reference known as "Orr's Prior Invention."

The Court's earlier decision dealt with many issues, and the particular issues raised here by Escort regarding the 38 computer files were not raised in this level of detail by Escort's briefing, and hence were not addressed in the prior decision. The Court will now turn to a specific examination of the 38 computer files at issue in this motion to reconsider.

In Escort's Invalidity Contentions, Escort identified as prior art the invention of Steven Orr, and referred to it as "Orr's Prior Invention." Orr connected his laptop computer to his radar detector, and used a computer program to collect and store false positive warnings from the radar detector as he drove around to various locations. In the Invalidity Contentions, Escort claimed that "Orr's Prior Invention" "teaches a method for collecting field data from a radar detector, so that data could be stored from each radar encounter of the detector . . . ." Escort attached to its Invalidity Contentions the Declaration of Orr, who stated that prior to Fleming's invention, he (Orr) had "created a family of tools" that consisted in part of various computer files that would run on his laptop computer to collect data from his radar detector as he drove around in various areas. Escort claims that these computer files -- dated prior to Fleming's invention -- show that Orr's invention was prior in time to Fleming's.

Orr attached to his declaration a list of those computer files that he claims demonstrate that his invention constitutes prior art. Escort attached this list -- along with Orr's declaration -- to its Invalidity Contentions. Escort's expert, Dr. Grindon, relies on those computer files in rendering his opinions that "Orr's Prior Invention" constitutes prior art.

In its motion to reconsider, Escort claims that the Court's earlier decision striking 255 prior art references by Dr. Grindon, not contained in Escort's Invalidity Contentions, cannot apply to the 38 computer files listed by Escort in its motion to reconsider and relied upon by Dr. Grindon, because those 38 files were identified in the Invalidity Contentions. Those 38 computer files are as follows: CLIFCMI.XLS CLIFTON.XLS CMICIN.XLS F1.ZIP F2.ZIP F3.ZIP F4.ZIP F5.ZIP F6.ZIP F7.ZIP F8.ZIP F9.ZIP F10.ZIP HOME.XLS PICNIC.XLS RAIN.XLS ROAD.ZIP TOWRK.425.XLS TWOROUTE.XLS WORK.XLS BAS.ZIP RDWIDE.bas tst4600k.bas Graph2.bas Road22.bas Road23.bas Road24.bas Road24a.bas F1x.dat through F10x.dat See Escort Brief (Dkt. 126) at p. 3. Escort represents that "[e]ach of the computer files listed above, and relied upon by Dr. Grindon in his expert report, appear in the list of computer files included in Escort's Invalidity Contentions." Id.

In fact, however, 17 of the computer files listed above cannot be found under those names in the list attached to Orr's Declaration: (1) RDWIDE.bas; (2) tst4600k; (3) Graph2.bas; (4) Road22.bas; (5) Road23.bas; (6) Road24.bas; (7) Road24a.bas; and (8-17) F1x.dat through F10x.dat. While these 17 files were not called out by name in Orr's Declaration or list, there were hints in his Declaration that they existed. For example, Orr states in his Declaration (that accompanied the Invalidity Contentions) that "[e]mbedded within each ZIP file [referring to F1.ZIP through F10.ZIP] is a number of data files with a .DAT extension, each containing radar spectral information collected from radar encounters . . . ." See Orr Declaration at ΒΆ ...

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