CollegeNET, Inc. v. ApplyYourself, Inc., No. 3:2002cv00484 - Document 738 (D. Or. 2009)

Court Description: Opinion & Order; AOL's Motion to Intervene (#724) is denied. Signed on May 28, 2009 by Magistrate Judge Dennis J. Hubel.Associated Cases: 3:02-cv-00484-HU, 3:02-cv-01359-HU (hubel2, ) (Additional attachment(s) added on 5/29/2009: # 1 CORRECTED MAIN DOCUMENT) (ecp).

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1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF OREGON 11 COLLEGENET, INC., a Delaware corporation, 12 Plaintiff, 13 v. 14 15 16 APPLYYOURSELF, INC., a Delaware corporation, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Nos. CV-02-484-HU (LEAD CASE) CV-02-1359-HU OPINION & ORDER 17 20 John D. Vandenberg Michael N. Zachary Scott E. Davis KLARQUIST SPARKMAN, LLP 121 S.W. Salmon Street, Suite 1600 Portland, Oregon 97204 21 Attorneys for Plaintiff 18 19 22 23 Kathleen C. Bricken GARVEY SCHUBERT BARER 121 S.W. Morrison Street Portland, Oregon 97204-3141 24 25 26 J. Michael Jakes Robert F. Shaffer FINNEGAN HENDERSON FARABOW GARRETT & DUNNER, LLP 901 New York Avenue, N.W. Washington, D.C. 20001 27 Attorneys for Defendant 28 1 - OPINION & ORDER 1 2 Christopher J. Lewis SCHWABE WILLIAMSON & WYATT, PC 1211 S.W. Fifth Avenue Portland, Oregon 97204 3 4 5 Steven E. Tiller Leland C. Moore, Jr. WHITEFORD, TAYLOR & PRESTON, LLP 7 Saint Paul Street Baltimore, Maryland 21202 6 7 8 9 Attorneys for ApplicationsOnline, LLC & The Common Application, Inc. HUBEL, Magistrate Judge: These consolidated cases involve two patents relating to an 10 on-line application system. Case number CV-02-484-HU concerns 11 plaintiff's patent number 6,345,278 ("the '278 patent"). 12 number CV-02-1359-HU concerns plaintiff's patent number 6,460,042 13 ("the '042 patent"). Case 14 On October 28, 2008, I granted defendant ApplyYourself's 15 motion for summary judgment on the issue of collateral estoppel 16 (dkt #697). 17 before Judge Brown, CollegeNET, Inc. v. XAP Corp., No. CV-03-1229- 18 BR (hereinafter "the XAP case" or "Judge Brown's case"), which 19 invalidated several claims of the '042 patent for obviousness, I 20 concluded that the remaining claims of the '042 patent were invalid 21 under the doctrine of collateral estoppel. 22 conclusion upon reconsideration in a February 26, 2009 Order (dkt 23 #712). 24 Based on a jury verdict and Judgment in a case pending I adhered to this Following the entry of the October 28, 2008 summary judgment 25 Opinion & Order, and the February 26, 2009 Order on 26 reconsideration, the parties entered settlement negotiations. In 27 March 2009, the parties reported to the Court that the case had 28 settled. On April 21, 2009, they filed a proposed Consent Decree 2 - OPINION & ORDER 1 2 (dkt #720). ApplicationsOnline, LLC and The Common Application 3 (collectively, "AOL"), move to intervene in the case in order to 4 oppose the entry of the parties' proposed Consent Judgment. I deny 5 AOL's motion.1 6 The proposed Consent Decree reads as follows: 7 Based on the parties having advised the Court that they have reached a Settlement Agreement, which calls for the entry of this Consent Judgment, and the consent of the parties to entry of the following judgment; 8 9 10 11 12 13 14 IT IS HEREBY ORDERED that FINAL JUDGMENT is entered as follows: 1. Paragraphs 1-14 of the judgment of the Court entered in this matter on October 15, 2003, [Dkt. No. 356] are incorporated herein and the Court retains jurisdiction to enforce the terms of the injunction relating to United States Patent No. 6,345,278. 2. The claims of United States Patent No. 6,460,042 are not invalid and not unenforceable. 15 16 3. All remaining claims and counterclaims asserted herein are dismissed with prejudice, with each party bearing its own costs and attorney's fees. 17 Proposed Consent Judgment at p. 2. 18 AOL opposes paragraph 2 of the proposed Consent Decree. It is 19 no secret that AOL seeks to use the October 28, 2008 summary 20 judgment opinion invalidating several claims of the '042 patent, 21 against plaintiff in the separate case plaintiff has brought 22 against AOL and which is pending before Judge Brown. CollegeNET v. 23 ApplicationsOnline, LLC, No. CV-05-1255-BR. AOL argues that the 24 October 28, 2008 summary judgment opinion will have preclusive 25 effect in plaintiff's case against AOL and thus, AOL seeks to 26 27 1 28 I deny AOL's request for oral argument because I conclude it would not be helpful to the Court. 3 - OPINION & ORDER 1 preserve it. AOL opposes the proposed Consent Decree because in 2 AOL's opinion, it eviscerates the ruling in the October 28, 2008 3 summary judgment Opinion. 4 AOL's motion to intervene is premised on its construing the 5 proposed Consent Decree as a motion to vacate under Federal Rule of 6 Civil Procedure 60(b). 7 upon vacating the effect of an earlier decision where the sole 8 basis for seeking such relief is the voluntary settlement of the 9 dispute. According to AOL, the relevant law frowns AOL argues that with the proposed Consent Judgment, 10 plaintiff seeks to vacate, under Rule 60(b), or nullify, the 11 October 28, 2008 summary judgment opinion because the proposed 12 Consent Judgment directly contradicts this Court's findings. 13 contends that entering the Consent Judgment would allow plaintiff 14 to 15 inconsistent judgments and would unfairly allow plaintiff to create 16 inconsistent judgments by consent. 17 wrongfully rely on the "last in time" rule There are several problems with AOL's arguments. AOL regarding First, the 18 cases AOL relies on regarding the impropriety of vacating a final 19 judgment as a condition of settlement, involve final, appealable 20 judgments and are distinguishable. Second, the "last in time" rule 21 provides that the last judgment in time controls for res judicata 22 purposes. 23 2003 and there is nothing in the proposed Consent Decree that is 24 inconsistent with that Judgment. 25 its position that a Consent Decree is not an adjudication of the 26 merits and thus, does not create an inconsistent judgment for the 27 purposes of res judicata. 28 the October 28, 2008 summary judgment Opinion is viewed as a final The last Judgment in this case was entered in October 4 - OPINION & ORDER Additionally, AOL acknowledges AOL Memo. at p. 3 n.3. Thus, even if 1 judgment, a view this Court does not share, for the "last in time" 2 rule, AOL itself asserts that the proposed Consent Decree should 3 not be considered an inconsistent final judgment. 4 Third, I acknowledge that Rule 60(b) applies to orders as well 5 as final judgments. Nonetheless, I do not view the proposed 6 Consent Decree as equivalent to a Rule 60(b) motion to vacate the 7 October 28, 2008 summary judgment Opinion. 8 final judgment and it was clear that it was not a final resolution 9 of the consolidated cases. That opinion was not a See United States v. Lummi Indian 10 Tribe, 235 F.3d 443, 448 (9th Cir. 2000) (holding, in question 11 regarding appellate jurisdiction, that district court's summary 12 judgment order, which left no issues to be resolved, was not final 13 where no final judgment was entered, and the parties continued to 14 litigate after the plaintiff filed an amended pleading); see also 15 Fed. R. Civ. P. 58(a)(1) ("Every judgment and amended judgment must 16 be set forth on a separate document. . . ."); Nat'l Distrib. Agency 17 v. Nationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997) 18 ("Had the court entered a separate final judgment subsequent to the 19 dismissal order, we would be confident that the court intended no 20 further action in the case"). 21 summary judgment Opinion was subject to continued litigation, and 22 that subsequent litigation and then settlement negotiations were 23 contemplated and occurred, I decline to adopt AOL's position that 24 the proposed Consent Decree can be reasonably considered the 25 equivalent of a Rule 60(b) motion to set aside a final judgment or 26 order. 27 28 Given that the October 28, 2008 At a November 6, 2008 telephone hearing, I raised the issue of a final judgment 5 - OPINION & ORDER with the parties. I fully expected more 1 litigation on the issue of the form and content of an amended final 2 judgment. 3 an 4 reconsideration of the October 28, 2008 summary judgment opinion. 5 I allowed plaintiff to file a reconsideration motion which I ruled 6 on in February 2009. 7 final judgment in February 2009 at the request of the parties to 8 this case to allow them time to negotiate a settlement which was 9 contemplated to potentially include any and all appeal rights of 10 any party in this case, with respect to any ruling by the Court. 11 At that hearing, plaintiff asked to delay discussion of amended final judgment because it planned to seek Notably thereafter, I also delayed entry of The parties in this case then reached such a settlement before 12 AOL moved to intervene. What AOL has, at most, is an "evanescent 13 hope" that the rulings of this Court will ripen into a final 14 judgment which could then be appealed and which AOL hopes will be 15 upheld on appeal. 16 in the basis for my October 28, 2008 summary judgment opinion which 17 is the Judgment entered by Judge Brown, following the jury verdict, 18 in the XAP case. 19 on the summary judgment ruling in this case. But, the value, if any, of this hope, is found It is on that Judgment that AOL should focus, not 20 AOL has a pending motion to intervene in the XAP case. 21 Without expressing any opinion about the motion to intervene in 22 that case, and without expressing any opinion about the issues the 23 motion raises there, it seems clear to this Court that the issues 24 about which AOL wishes to argue, begin and end with the vitality of 25 the Judgment in the XAP case. 26 Thus, while AOL's intervention motion here may not be 27 untimely, and the existing parties may not adequately represent 28 AOL's interest at this stage of the litigation in this case, I do 6 - OPINION & ORDER 1 not accept AOL's arguments that AOL has a significant, protectable 2 interest relating to the property or transaction that is the 3 subject of this action, or that the disposition of this action may 4 impair or impede AOL's ability to protect its interest. 5 deny 6 Additionally, I decline to exercise my discretion in favor of 7 permissive intervention under Rule 24(b) . the motion to intervene 8 9 10 as of right under Rule Thus, I 24(a). CONCLUSION AOL's motion to intervene (#724) is denied. IT IS SO ORDERED. 11 Dated this 28th day of May , 2009 12 13 14 Dennis James Hubel United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 - OPINION & ORDER

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