Greenberg Traurig LLP v. Gale Corp., No. 2:2007cv01572 - Document 64 (E.D. Cal. 2009)
Court Description: MEMORANDUM AND ORDER denying 60 Gale's Motion for Summary Adjudication, signed by Judge Morrison C. England, Jr on 8/3/09. (Kastilahn, A)
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Greenberg Traurig LLP v. Gale Corp. Doc. 64 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 GREENBERG TRAURIG, LLP, 11 Plaintiff, 12 13 No. 2:07-cv-01572-MCE-DAD v. MEMORANDUM AND ORDER GALE CORP., 14 Defendant. 15 ----oo0oo---- 16 Defendant/Counter-claimant Gale Corp. (“Gale”) has brought 17 the present counterclaim against Plaintiff/Counterdefendant 18 Greenberg Traurig, LLP (“Greenberg”) and Third-Party Defendants 19 Kathleen Finnerty (“Finnerty”) and Livingston & Mattesich Law 20 Corporation (“Livingston & Mattesich”) for legal malpractice. 21 Counter-claimant Gale now moves for summary adjudication 22 regarding several alleged breaches of duty by Greenberg. 23 reasons set forth below, Gale’s motion for summary adjudication 24 will be denied.1 25 /// For the 26 27 28 1 Because oral argument will not be of material assistance, the Court orders this matter submitted on the briefs. E.D. Cal. Local Rule 78-230(h). 1 Dockets.Justia.com BACKGROUND 1 2 3 On July 30, 2003, Gale entered into a Retainer Agreement 4 with Livingston & Mattesich for legal representation in the 5 patent infringement suit Kapusta v. Gale Corporation, United 6 States District Court, Eastern District of California, 7 No. Civ. S-03-1232 LKK/KJM (“Kapusta patent litigation”). 8 days later, Kathleen Finnerty became the lead counsel for Gale 9 and took responsibility for handling its defense. Seven Effective 10 October 10, 2005, Livingston & Mattesich’s attorneys joined 11 Greenberg Traurig,2 and Greenberg took over Gale’s case under the 12 same terms and conditions as set forth in the July 2003 Retainer 13 Agreement. 14 attorney after joining Greenberg. Third-party Defendant Finnerty remained Gale’s lead Following a Markman hearing,3 on August 5, 2004, the Court 15 16 issued an order that construed the term “hand-grip size case” in 17 the Kapusta patent to be inapplicable to a “pen size device” such 18 as Gale’s challenged product. 19 /// 20 /// 21 /// 22 23 24 25 26 27 28 2 The parties dispute whether the two firms merged. Greenberg asserts that “individual attorneys with Livingston & Mattesich” simply “left that firm and joined Greenberg Traurig.” (Pl.’s Separate Statement of Undisputed Material Facts, ¶3). By contrast, Gale maintains that the firms merged, “so that Livingston & Mattesich became the Sacramento office of Greenberg Traurig.” (Def.’s Resp. to Separate Statement, ¶3). 3 A “Markman hearing,” or claim construction hearing, is a procedure whereby a district court construes the meaning of one or more patent claims prior to trial. 2 1 On October 28, 2004, as a result of the Court’s claim 2 construction, Ms. Finnerty entered into a stipulation on behalf 3 of Defendant Gale, in which she agreed that Gale’s product met 4 each claim element under the patent except for the “hand grip 5 case.” 6 stipulation on November 2, 2004. 7 to the Court of Appeals for the Federal Circuit. 8 Federal Circuit overturned the district court’s claim 9 construction, and held that the term “hand-grip size case” Judgment of non-infringement was entered pursuant to that Kapusta appealed the judgment On appeal, the 10 applies to a case of any size “that can be gripped in a normal 11 hand.” 12 proceedings consistent with its claim construction. 13 The Federal Circuit remanded the case for further On October 13, 2006, bound by the Federal Circuit’s claim 14 construction and the parties’ stipulation, this Court granted 15 summary judgment against Gale for patent infringement. 16 granting summary judgment, the Court refused to grant Gale’s 17 request, under Rule 60(b), for release from its binding 18 stipulation. 19 60(b) only provides a court with one year during which it may 20 relieve a party from a final judgment. 21 summary judgment as to infringement, the parties settled their 22 remaining claims. 23 In Judge Karlton explained in his order that Rule After the grant of On August 2, 2007, Greenberg filed a complaint against Gale 24 to recover unpaid legal fees arising from its representation of 25 Gale in the Kapusta litigation. 26 present counterclaim and third-party claim for legal malpractice. 27 /// 28 /// In response, Gale filed the 3 STANDARD 1 2 3 The Federal Rules of Civil Procedure provide for summary 4 judgment when “the pleadings, depositions, answers to 5 interrogatories, and admissions on file, together with 6 affidavits, if any, show that there is no genuine issue as to 7 any material fact and that the moving party is entitled to a 8 judgment as a matter of law.” 9 the principal purposes of Rule 56 is to dispose of factually 10 unsupported claims or defenses. 11 477 U.S. 317, 325 (1986). Fed. R. Civ. P. 56(c). 12 One of Celotex Corp. v. Catrett, Rule 56 also allows a court to grant summary adjudication 13 on part of a claim or defense. See Fed. R. Civ. P. 56(a) (“A 14 party seeking to recover upon a claim ... may ... move ... for a 15 summary judgment in the party’s favor upon all or any part 16 thereof.”); see also Allstate Ins. Co. v. Madan, 889 F. Supp. 17 374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter 18 Township of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992). 19 The standard that applies to a motion for summary 20 adjudication is the same as that which applies to a motion for 21 summary judgment. 22 ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). 23 Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact. 24 25 26 See Fed. R. Civ. P. 56(a), 56(c); Mora v. 27 28 Celotex Corp. v. Catrett, 477 U.S. at 323 (quoting Rule 56(c)). 4 1 If the moving party meets its initial responsibility, the 2 burden then shifts to the opposing party to establish that a 3 genuine issue as to any material fact actually does exist. 4 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 5 585-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S. 6 253, 288-89 (1968). 7 In attempting to establish the existence of this factual 8 dispute, the opposing party must tender evidence of specific 9 facts in the form of affidavits, and/or admissible discovery 10 material, in support of its contention that the dispute exists. 11 Fed. R. Civ. P. 56(e). 12 the fact in contention is material, i.e., a fact that might 13 affect the outcome of the suit under the governing law, and that 14 the dispute is genuine, i.e., the evidence is such that a 15 reasonable jury could return a verdict for the nonmoving party. 16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52 17 (1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper 18 Workers, 971 F.2d 347, 355 (9th Cir. 1987). 19 “before the evidence is left to the jury, there is a preliminary 20 question for the judge, not whether there is literally no 21 evidence, but whether there is any upon which a jury could 22 properly proceed to find a verdict for the party producing it, 23 upon whom the onus of proof is imposed.” 24 251 (quoting Improvement Co. v. Munson, 14 Wall. 442, 448, 25 20 L.Ed. 867 (1872)). 26 the moving party has carried its burden under Rule 56(c), its 27 opponent must do more than simply show that there is some 28 metaphysical doubt as to the material facts .... The opposing party must demonstrate that Stated another way, Anderson, 477 U.S. at As the Supreme Court explained, “[w]hen 5 1 Where the record taken as a whole could not lead a rational 2 trier of fact to find for the nonmoving party, there is no 3 ‘genuine issue for trial.’” 4 Matsushita, 475 U.S. at 586-87. In resolving a summary judgment motion, the evidence of the 5 opposing party is to be believed, and all reasonable inferences 6 that may be drawn from the facts placed before the court must be 7 drawn in favor of the opposing party. 8 255. 9 it is the opposing party’s obligation to produce a factual Anderson, 477 U.S. at Nevertheless, inferences are not drawn out of the air, and 10 predicate from which the inference may be drawn. Richards v. 11 Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 12 1985), aff’d, 810 F.2d 898 (9th Cir. 1987). 13 ANALYSIS 14 15 16 The elements of a claim for professional negligence “are 17 (1) the duty of the attorney to use such skill, prudence, and 18 diligence as members of his or her profession commonly possess 19 and exercise; (2) a breach of that duty; (3) a proximate causal 20 connection between the breach and the resulting injury; and 21 (4) actual loss or damage resulting from the attorney’s 22 negligence.” 23 (2001) (citations omitted). 24 adjudication only with respect to the first two elements of the 25 cause of action, duty and breach. 26 that Livingston & Mattesich breached five duties it owed to 27 Gale. 28 /// Coscia v. McKenna & Cuneo, 25 Cal. 4th 1194, 1199 Gale’s present motion seeks summary 6 Specifically, Gale argues 1 Gale has stipulated that it “will leave for trial its arguments 2 and evidence regarding the causation and damages elements of its 3 professional negligence claim.” 4 Summ. Adjudication at 2:4-5). 5 will leave for trial its allegation that Greenberg breached its 6 duty to inform Gale of Livingston & Mattesich’s alleged 7 negligence. Finally, Gale has argued that Greenberg is liable as 8 a successor entity for Finnerty’s and Livingston & Mattesich’s 9 alleged malpractice. 10 (P. & A. in support of Mot. for It has also specified that it Finnerty, Livingston & Mattesich and Greenberg offer two 11 general arguments in opposition to Gale’s motion. First, they 12 argue that it is procedurally improper to use summary 13 adjudication to seek judgment with respect to only some of the 14 elements in a cause of action. 15 triable issues of fact remain with respect to each specific 16 factual allegation for which Gale seeks summary adjudication. 17 Because this Court agrees with Finnerty, Livingston & Mattesich 18 and Greenberg that a number of outstanding factual disputes 19 fundamentally preclude summary adjudication, it is not necessary 20 at this time to decide whether Gale’s use of summary 21 adjudication is also procedurally infirm, and the Court 22 accordingly declines to do so.4 23 /// 24 /// Second, they argue that numerous 25 4 26 27 28 This Court notes that the law is much less clear than Finnerty, Livingston & Mattesich and Greenberg would have it. Their argument that a court may not decide the duty and breach elements of a negligence cause of action relies exclusively on dicta from a footnote in Vaxiion Therapeutics, Inc. v. Foley & Lardner, LLP, 593 F. Supp. 2d 1153, 1164 n.8 (S.D. Cal. 2008). 7 1. 1 Legal Standards for Duty and Breach a. 2 Duty of Care 3 4 An attorney has a general duty “to represent his client 5 with ‘such skill, prudence and diligence as lawyers of ordinary 6 skill and capacity commonly possess and exercise in the 7 performance of the tasks which they undertake.’” Lipscomb v. 8 Krause, 87 Cal. App. 3d 970, 975 (1978)(quoting Ishmael v. 9 Millington, 241 Cal. App. 2d 520, 523 (1966). Furthermore, “a 10 lawyer holding himself out to the public and the profession as 11 specializing in an area of the law must exercise the skill, 12 prudence, and diligence exercised by other specialists of 13 ordinary skill and capacity specializing in the same field.” 14 Wright v. Williams, 47 Cal. App. 3d 802, 810 (1975). 15 Although Gale is correct that the “existence of the 16 attorney’s duty of care is generally a question of law,” 17 (P. & A. in support of Mot. for Summ. Adjudication at 18 4:18)(emphasis omitted) (citing Osornio v. Weingarten, 124 Cal. 19 App. 4th 304, 319-20 (2004)), the specific standard of care in 20 each particular situation is a question of fact, which the fact 21 finder must decide on the basis of expert testimony. 22 the premise that “attorney malpractice is to be determined by 23 the rules that apply to professional negligence generally,” 24 Lipscomb, 87 Cal. App. 3d at 975, it becomes apparent that 25 “[t]he question [of standard of care] remains one of fact, to be 26 decided on the basis of expert testimony.” 27 17 Cal. 3d 399, 410 (1976). 28 /// 8 Accepting Landeros v. Flood, 1 The only exception to the expert testimony requirement is where 2 “‘the conduct required by the particular circumstances is within 3 the common knowledge of the layman.’” 4 Owens, 33 Cal. 2d 749, 753 (1949). 5 that summary adjudication is inappropriate where both parties 6 have submitted conflicting expert testimony concerning the 7 attorney’s standard of care. 8 838 F.2d 392 (9th Cir. 1988). 9 with special force to the standard of care for patent Id. (quoting Sinz v. It is therefore axiomatic See Hutchinson v. United States, This rule would seem to apply 10 litigators, given Gale’s admission that “‘patent litigation is a 11 complex and specialized field, [so that] an attorney who is not 12 a specialist ... or is not familiar with patent law practice ... 13 will need the assistance of a specialist.’” (P. & A. in support 14 of Mot. for Summ. Adjudication at 5:24-25)(quoting Beck Report 15 at p.4). 16 Accordingly, to the extent that the parties have submitted 17 conflicting expert testimony regarding specific duties allegedly 18 owed to Gale, this Court cannot decide, as a matter of law, 19 whether these alleged duties exist. 20 b. 21 Breach of Duty of Care 22 23 Gale freely concedes that “[b]reach is typically a question 24 of fact.” (P. & A. in support of Mot. for Summ. Adjudication at 25 4:24)(citing Osornio v. Weingarten, 124 Cal. App. 4th 304, 319- 26 20 (2004)). 27 /// 28 /// 9 1 Thus, in order to prevail on its motion for summary 2 adjudication, Gale must carry the heavy of burden of proving 3 that no reasonable jury could find that Livingston & Mattesich 4 was non-negligent in handling Gale’s defense in the Kapusta 5 litigation. 6 will not lie if ... the evidence is such that a reasonable jury 7 could return a verdict for the nonmoving party.”) See Anderson, 477 U.S. at 248 (“summary judgment 8 As with duty, in a professional negligence action the 9 existence of breach must be decided on the basis of expert 10 testimony. 11 LLP, 593 F. Supp. 2d 1153, 1165 (S.D. Cal. 2008)(“In a legal 12 malpractice action, expert testimony is required to establish 13 the prevailing standard of skill and learning in the locality 14 and the propriety of particular conduct by the practitioner in 15 particular circumstances, as such standard and skill is not a 16 matter of general knowledge.”)(emphasis added). 17 exception is that “[w]here the failure of attorney performance 18 is so clear that a trier of fact may find professional 19 negligence unassisted by expert testimony, then expert testimony 20 is not required.” 21 647-48 (1981). 22 See Vaxiion Therapeutics, Inc. v. Foley & Lardner, Again, the only Wilkinson v. Rives, 116 Cal. App. 3d 641, As discussed below, because Livingston & Mattesich, 23 Finnerty and Greenberg have submitted expert testimony to rebut 24 each of Gale’s five alleged breaches of duty, Gale’s motion for 25 summary adjudication will be denied. 26 /// 27 /// 28 /// 10 1 2. Gale’s Alleged Breaches Against Livingston & Mattesich a. 2 Failure to Associate with Competent Patent Counsel 3 4 Gale argues that Livingston & Mattesich owed Gale the duty 5 of “associat[ing] with competent patent litigation counsel.” 6 (P. & A. in support of Mot. for Summ. Adjudication at 8:3). 7 contention, however, improperly presupposes that Livingston & 8 Mattesich was not itself competent patent litigation counsel. 9 Although Gale does in fact argue that the Livingston & Mattesich This 10 attorneys lacked the requisite experience to defend against a 11 suit for patent infringement, this conclusion rests on contested 12 evidence. 13 Tucher, both Finnerty and Livingston & Mattesich counsel Scott 14 Plamondon were competent patent litigators. 15 6:6-23). 16 testimony that it was competent to handle Gale’s case, this Court 17 cannot rule, on summary adjudication, that Livingston & Mattesich 18 owed Gale the duty of associating with outside patent counsel. According to Livingston & Mattesich’s expert, Alison (Tucher Report at Because Livingston & Mattesich has submitted expert 19 20 b. Failure to Perform a Proper Prior Art Search 21 22 Gale alleges that Finnerty and Livingston & Mattesich 23 breached their duty to perform a “proper” prior art search. 24 response, Finnerty and Livingston & Mattesich contend that 25 (1) Gale has failed to marshal any legal authority to show the 26 existence or scope of their alleged duty, and (2) to the extent 27 that they did have such a duty, they conducted a prior art 28 search that satisfies the standard of care. 11 In 1 This Court cannot decide, by means of summary adjudication, 2 whether or not Finnerty and Livingston & Mattesich had any duty 3 to search for prior art in this case. 4 & Mattesich and Finnerty point out, Gale has failed to muster 5 any evidence, besides the contested opinions of its experts, to 6 show that Livingston & Mattesich had a duty to search for prior 7 art in this case. 8 Mattesich’s experts have not conceded the existence of such a 9 duty by not explicitly contesting it. As Greenberg, Livingston Contrary to Gale’s suggestion, Livingston & Rather, as Finnerty and 10 Livingston & Mattesich argue, their experts merely assumed, 11 arguendo, the existence of this duty in order to conclude that 12 “Livingston & Mattesich’s representation did not fall below the 13 standard of care by failing to conduct an appropriate prior art 14 search.” 15 Court were to find that such a duty existed in the abstract, 16 deciding this issue would be inappropriate on summary 17 adjudication because the parties disagree sharply as to the 18 content of this alleged duty. 19 Tucher opined that Livingston & Mattesich met its standard of 20 care by having attorney Scott Plamondon conduct an informal 21 prior art search. 22 insists that this very same search was insufficient to satisfy 23 Livingston & Mattesich’s standard of care. 24 (Tucher Report at 9:19-20). Moreover, even if this For instance, expert Alison (Tucher Report at 9:1-2). In contrast, Gale In addition, both parties have submitted admissible expert 25 evidence that raises a triable issue of material fact whether or 26 not Finnerty and Livingston & Mattesich breached their purported 27 duty. 28 /// 12 1 For example, Greenberg expert Jon Hokanson disputed the 2 allegations of Gale’s experts, and opined that “a prior art 3 search on behalf of Gale was conducted in 2004,” with the result 4 that “there is [no] reason to believe that another prior art 5 search would have provided Gale with a more favorable judgment 6 or settlement.” 7 summary adjudication is inappropriate with regard to this 8 alleged breach of duty. (Hokanson Report at ¶ 31). Accordingly, 9 c. 10 Failure to Consider Reexamination of the Kapusta Patent 11 12 Gale contends that Livingston & Mattesich and Finnerty 13 breached its duty to obtain the advice of a patent attorney 14 regarding whether or not to seek reexamination of the Kapusta 15 patent. 16 expert testimony: “Livingston & Mattesich’s representation did 17 not fall below the standard of care by not obtaining an opinion 18 from patent counsel as to whether to pursue reexamination of the 19 asserted patent.” 20 Gale’s motion for summary adjudication will be denied with 21 respect to both the duty and breach elements of this allegation. Livingston & Mattesich has submitted contradictory (Tucher Report at 13:15-17). Consequently, 22 d. 23 Failure to Consider all Non-Infringement Arguments 24 25 Gale contends that Finnerty and Livingston & Mattesich had 26 an affirmative duty to consult with competent patent counsel to 27 consider every possible non-infringement argument. 28 /// 13 1 As authority for that proposition, Gale cites to Underwater 2 Devices Inc. v. Morrison-Knudsen Co., 717 F. 2d 1380 (Fed. Cir. 3 1983) and Golden Blount, Inc. v. Robert H. Peterson Co., 438 F. 4 3d 1354 (Fed. Cir. 2006).5 5 for the rule that Gale proposes. 6 at 1389-90, held that a potential infringer must exercise due 7 care to determine whether or not he is infringing any known 8 patents, and to seek the advice of competent patent counsel in 9 making this determination. These cases, however, do not stand Underwater Devices, 717 F. 2d Golden Blount, 438 F. 3d at 1368, 10 merely reiterated the rule that a potential infringer must 11 exercise due care to determine if he is infringing any known 12 patents. 13 failure to obtain the opinion of patent counsel does not create 14 a presumption of willful infringement. 15 cases placed an affirmative duty on an attorney defending a 16 patent infringement suit to consult other patent counsel to 17 discuss every possible non-infringement argument. 18 It also cited recent authority for the rule that the Id. Neither of these Therefore, the only possible duty that could have required 19 Finnerty and Livingston & Mattesich to make, or at least 20 consider, other non-infringement arguments, would have to arise 21 from an attorney’s general duty “to represent his client with 22 ‘such skill, prudence and diligence as lawyers of ordinary skill 23 and capacity commonly possess and exercise.’” 24 5 25 26 27 28 Gale concedes that In re Seagate Technology, LLC, 497 F. 3d 1360 (Fed. Cir. 2007)(en banc) overruled the duty to seek the advice of counsel before engaging in potentially infringing activities. Nevertheless, Gale cites these cases to support its contention that Finnerty and Livingston & Mattesich had a duty to seek the advice of competent patent counsel at the time of the Kapusta litigation. (P. & A. in support of Mot. for Summ. Adjudication at 13:6-7). 14 1 Lipscomb, 87 Cal. App. 3d at 975 (quotation omitted). Gale’s 2 expert asserts that Finnerty and Livingston & Mattesich had a 3 duty to consider other non-infringement arguments. 4 at 9)(“The failure to associate patent counsel and to do a 5 proper analysis of the claims permeates the Kapusta case.”) 6 Livingston & Mattesich’s expert, however, disagrees. 7 Report at 7:14-8:16). 8 experts creates a triable issue of material fact with regard to 9 both the duty and breach elements of this allegation. (Beck Report (Tucher The disagreement between each party’s 10 Accordingly, Gale’s motion for summary adjudication will be 11 denied insofar as it asks this Court to rule that Finnerty and 12 Livingston & Mattesich breached their alleged duty to consult 13 outside patent counsel to consider other non-infringement 14 arguments. 15 e. 16 Breach of Standard of Care by Entering into the Stipulated Judgment 17 18 Gale argues that Finnerty and Livingston & Mattesich 19 breached their standard of care by stipulating that Gale’s 20 product infringed every claim of the Kapusta patent except for 21 the “hand-grip size case” element. 22 Justin Beck, “No reasonably careful attorney would have entered 23 into a stipulation containing paragraph six.” 24 16). 25 this contention by citing the testimony of their experts, who 26 opined that entering into the stipulation was prudent given the 27 circumstances. 28 stipulation “serve[d] her client’s interests.” According to Gale expert (Beck Report at For their part, Finnerty and Livingston & Mattesich rebut Alison Tucher, for example, opined that the 15 1 (Tucher Report at ¶ 41). She also likened the stipulation to a 2 lawyer “bargain[ing] away the sleeves on her vest.” 3 existence of contradictory expert testimony, this Court must 4 deny summary adjudication with respect to Gale’s duty and breach 5 arguments concerning Finnerty’s stipulated judgment. Given the 6 3. 7 Greenberg’s Successor Liability 8 9 Finally, Gale argues that Greenberg is liable as a 10 successor entity for all malpractice claims that it can prove at 11 trial against Livingston & Mattesich. 12 provides authority for its position in the briefs submitted on 13 the present summary adjudication motion, this Court is well 14 aware of the successor liability dispute. 15 contention that Greenberg is liable as Livingston & Mattesich’s 16 successor, Gale argues that the asset transfer to Greenberg was 17 a merger. 18 merger agreement between Livingston & Mattesich and Greenberg, 19 it must prove the existence of a de facto merger if it is to 20 establish successor liability. 21 Although neither side In support of its Since Gale has not provided any evidence of a formal To prove that a de facto merger has occurred, a litigant 22 must establish the existence of some or all of the following 23 factors that courts consider: “(1) was the consideration paid 24 for the assets solely stock of the purchaser or its parent; 25 (2) did the purchaser continue the same enterprise after the 26 sale; (3) did the shareholders of the seller become shareholders 27 of the purchaser; (4) did the seller liquidate; and 28 /// 16 1 (5) did the buyer assume the liabilities necessary to carry on 2 the business of the seller?” 3 LLC, 438 F. Supp. 2d 1122, 1130 (C.D. Cal. 2006). 4 submitted an October 13, 2005, announcement from Livingston & 5 Mattesich to its clients to support its merger theory. 6 announcement reads, “As of October 10, the attorneys, lobbyists, 7 facilities and operations of Livingston & Mattesich Law 8 Corporation will become the Sacramento office of Greenberg 9 Traurig, LLP.” Orthotec, LLC v. Reo Spineline, Gale has That Although this evidence lends some support to its 10 de facto merger theory, Greenberg has submitted admissible 11 evidence that challenges Gale’s position. 12 and third-party Defendant, Kathleen Finnerty, has declared, 13 “Greenberg Traurig, LLP, did not merge with or succeed to the 14 interest of Livingston & Mattesich and has, to this day, 15 remained a complete and separate legal entity from Livingston & 16 Mattesich.” 17 Adjudication 2:11-13). 18 conflicting evidence relevant to the de facto merger issue, this 19 Court finds that a triable issue of material fact exists. 20 Consequently, this Court cannot rule, on summary adjudication, 21 that Greenberg is liable as a successor to Livingston & 22 Mattesich. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// Greenberg shareholder (Finnerty Decl. in Opp. To Mot. For Summ. Because both parties have submitted 17 CONCLUSION 1 2 3 4 5 For the foregoing reasons, Gale’s motion for summary adjudication is DENIED. Dated: August 3, 2009 6 7 8 _____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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