Folex Golf Industries, Inc. v. O-Ta Precision Industries Co. ( 2017 )


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  •                                                                             FILED
    NOT FOR PUBLICATION
    NOV 02 2017
    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    FOLEX GOLF INDUSTRIES, INC., a                   No.   15-56905
    California corporation,
    D.C. No. 2:09-cv-02248-R-CW
    Plaintiff-Appellant,
    v.                                              MEMORANDUM*
    O-TA PRECISION INDUSTRIES CO.,
    LTD., a Taiwan company,
    Defendant-Appellee.
    FOLEX GOLF INDUSTRIES, INC., a                   No.   16-55245
    California corporation,
    D.C. No. 2:09-cv-02248-R-CW
    Plaintiff-Appellee,
    v.
    O-TA PRECISION INDUSTRIES CO.,
    LTD., a Taiwan company,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Central District of California
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    Manuel L. Real, District Judge, Presiding
    Argued and Submitted October 6, 2017
    Pasadena, California
    Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,**
    District Judge.
    Folex Golf Industries, Inc. appeals the district court’s grant of summary
    judgment finding that Folex’s claims were barred by the statute of limitations.
    O-TA Precision Industries Co. cross appeals the district court’s denial of its motion
    for attorney’s fees under Cal. Civ. Code § 1717.
    1.    We previously addressed the statute of limitations issue in this case and held
    that “[t]he district court erred in concluding as a matter of law that Folex had actual
    knowledge in 2005 of its claims against O-TA.” See Folex Golf Indus., Inc. v.
    O-TA Precision Indus. Co., 479 F. App’x 61, 61 (9th Cir. 2012). We concluded
    that a genuine issue of material fact existed “as to whether Folex was on inquiry
    notice of its Fourth, Sixth, Seventh, and Tenth Causes of Action as of 2005.” 
    Id. at 62.
    This appeal presents the same statute of limitations issue. Under the “law of
    the case” doctrine, a district court is “precluded from reconsidering an issue that
    has already been decided by the same court, or a higher court in the identical case,”
    **
    The Honorable Edward R. Korman, United States District Judge for
    the Eastern District of New York, sitting by designation.
    2
    unless an exception to depart from the law of the case exists. United States v.
    Alexander, 
    106 F.3d 874
    , 876 (9th Cir. 1997) (citation omitted). Thus, summary
    judgment cannot be granted on this statute of limitations question unless one of the
    five exceptions to the law of the case doctrine has been met. See 
    id. None of
    the
    exceptions apply here. The district court erred in concluding that the August 20,
    2006 letter was substantially different from the evidence previously submitted to
    establish that Folex was on notice of its potential claims against O-TA in 2005.
    See 
    id. at 876-77;
    see also Eichman v. Fotomat Corp., 
    880 F.2d 149
    , 157 (9th Cir.
    1989). The district court did not even explain why the substantially different
    exception applied.
    Even assuming the law of the case does not preclude our review, viewing the
    evidence in the light most favorable to Folex, see Thomas v. City of Beaverton, 
    379 F.3d 802
    , 807 (9th Cir. 2004), issues of material fact still exist as to whether Folex
    was on notice of any claims against O-TA in 2005. At most, the letter reveals that
    Folex was aware that Luoyang Ship Material Research Institute (“LSMRI”) was
    engaged in fraudulent conduct. However, Folex does not indicate in the August
    20, 2006 letter that it was aware O-TA was working in concert with LSMRI. Thus,
    the letter does not resolve any of the factual disputes raised in the prior
    3
    proceedings.1 See Folex Golf Indus., Inc., 479 F. App’x at 61-62. We therefore
    reverse the district court’s grant of summary judgment and remand for further
    proceedings.2
    2.    Because we reverse the district court’s summary judgment decision, the
    issue of whether O-TA is entitled to an award of attorney’s fees is premature.
    Therefore, we vacate the district court order regarding attorney’s fees without
    reaching the merits of O-TA’s argument.
    3.    We grant Folex’s motion to reassign this matter to a different district court
    judge. We are permitted under 28 U.S.C. § 2106 to reassign cases on remand
    when “unusual circumstances” are present. United Nat’l Ins. Co. v. R & D Latex
    Corp., 
    242 F.3d 1102
    , 1118 (9th Cir. 2001). This is the third remand in this case;
    therefore, reassignment is warranted, because the judge may “have substantial
    difficulty in putting out of his . . . mind previously expressed views or findings
    determined to be erroneous,” making “reassignment . . . advisable to preserve the
    appearance of justice.” 
    Id. (quoting United
    States v. Sears, Roebuck & Co., 
    785 F.2d 777
    , 780 (9th Cir. 1986)). Because the case has not progressed significantly
    1
    O-TA’s motion to strike is denied as moot.
    2
    Because we conclude that the August 20, 2006 letter did not establish that
    Folex was on notice of its claims in 2005, we need not address O-TA’s alternative
    arguments regarding Folex’s fraud claim.
    4
    beyond the preliminary stages, any minimal potential for waste or duplication is
    outweighed by the need to preserve the appearance of fairness. 
    Id. at 1118-19.
    Therefore, we instruct the Chief Judge for the Central District of California to
    reassign this case to a different district judge on remand. Each party shall bear its
    own costs on appeal.
    REVERSED and REMANDED (No. 15-56905); VACATED (No.
    15-55245).
    5