Kurin, Inc. v. Magnolia Medical Technologies

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KURIN, INC. No. 21-55025
Plaintiff-counter- D.C. No. 3:18-cv-01060-L-LL
defendant-Appellant,
v. MEMORANDUM*
MAGNOLIA MEDICAL
TECHNOLOGIES, INC.,
Defendant-counter-claimant-
Appellee.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted November 17, 2021
Pasadena, California
Before: WARDLAW, PARKER, ** and HURWITZ, Circuit Judges.
Kurin, Inc. appeals the district court’s orders (1) denying its motion for
summary judgment on the counterclaims of Magnolia Medical Technologies, Inc.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barrington D. Parker, United States Circuit Judge for
the U.S. Court of Appeals for the Second Circuit, sitting by designation.
(2) granting Magnolia’s motion for summary judgment on Kurin’s four Lanham Act
claims against Magnolia, and (3) granting Magnolia’s motion to voluntarily dismiss
its counterclaims under Rule 41(a)(2). For the reasons that follow, we dismiss the
appeal for lack of jurisdiction to the extent it seeks review of the district court’s order
denying summary judgment, and we otherwise affirm the district court’s orders.
1. We lack jurisdiction to review the district court’s order denying Kurin’s
motion for summary judgment on Magnolia’s counterclaims. Ordinarily, an order
denying summary judgment is interlocutory and therefore not appealable. Ortiz v.
Jordan, 562 U.S. 180, 188 (2011). This rule has two relevant exceptions. First, an
order denying summary judgment is appealable when it is based on a legal error—
this is known as the “purely legal issues” exception. See In re Bard IVC Filters
Prod. Liab. Litig., 969 F.3d 1067, 1072 (9th Cir. 2020) (a reviewing court has
jurisdiction over an interlocutory appeal when “the district court made an error of
law that, if not made, would have required the district court to grant the motion.”).
Here, in denying Kurin’s motion for summary judgment, the district court ruled that
Kurin failed to carry its initial burden of production because it neither (1) produced
affirmative evidence negating an essential element of Magnolia’s case nor (2)
demonstrated an absence of evidence to support Magnolia’s claim. The district court
identified and applied the correct legal standard. See Nissan Fire & Marine Ins. Co.,
Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). Consequently, the
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“purely legal issues” exception does not apply.
Second, an order denying summary judgment may be appealable when it
merges into a final judgment. Moran v. Aetna Life Ins. Co., 872 F.2d 296, 301 (9th
Cir. 1989). After denying Kurin’s motion for summary judgment on Magnolia’s
counterclaims, the district court granted Magnolia’s motion to voluntarily dismiss
those counterclaims without prejudice. Those counterclaims were therefore not part
of a final judgment. Cf. Concha v. London, 62 F.3d 1493, 1507 (9th Cir. 1995) (“A
voluntary dismissal without prejudice is ordinarily not a final judgment from which
the plaintiff may appeal.”). Therefore, neither the final-judgment exception nor the
“purely legal issues” exception applies, and we lack jurisdiction to review the
district court’s order denying summary judgment on Magnolia’s counterclaims.
Consequently, we dismiss the appeal to the extent it appeals that order.
2. The district court did not err in granting Magnolia’s summary judgment
on Kurin’s Lanham Act claims. The court granted Magnolia’s motion for summary
judgment with respect to four allegedly false or misleading statements made by
Magnolia. We conclude that each of Kurin’s claims fails for the same reasons: Kurin
failed to produce evidence creating a genuine dispute of material fact on whether
the allegedly false or misleading statements either (1) actually deceived or had a
tendency to deceive a significant portion of the consuming public or (2) were likely
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to influence purchasing decisions.1 See 15 U.S.C. § 1125(a)(1); Southland Sod
Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997). Accordingly, we
conclude that the district court did not err in granting summary judgment on the
Lanham Act claims.
3. The district court did not abuse its discretion in granting Magnolia’s
motion to voluntarily dismiss its counterclaims without prejudice. See Fed. R. Civ.
P. 41(a)(2). First, a district court may refuse to grant a Rule 41 motion if the
nonmoving party shows that it will suffer legal prejudice as a result of the dismissal.
Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). Kurin argues that the dismissal
without prejudice would result in excessive expense and substantial inconvenience
should Magnolia attempt to refile the claims. But neither result amounts to legal
prejudice. See Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir.
1996) (“[T]he expense incurred in defending against a lawsuit does not amount to
legal prejudice.”); Hamilton v. Firestone Tire & Rubber Co., Inc., 679 F.2d 143,
145 (9th Cir. 1982) (“[T]he mere inconvenience of defending another lawsuit does
not constitute plain legal prejudice.”).
Second, a district court should consider whether to dismiss a party’s claims
1
The district court granted summary judgment on three of the four statements because it
concluded that the statements were neither false nor misleading. Although the court found
that the fourth statement was literally false, it granted summary judgment because it
concluded that Kurin had failed to adduce sufficient evidence of proximate causation or
damages. Because we affirm on different grounds, we need not reach these issues.
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under Rule 41 with, rather than without, prejudice when the moving party seeks to
dismiss its claims to avoid a near-certain adverse ruling. Maxum Indem. Ins. Co. v.
A-1 All Am. Roofing Co., 299 F. App’x 664, 666 (9th Cir. 2008). The district court
considered this factor, see Kurin, Inc. v. Magnolia Med Techs., Inc., 2021 WL
22605, at *2, and concluded that Magnolia’s claims were a “far cry” from a near-
certain adverse ruling, noting that “no adverse rulings on the merits have been
issued against Magnolia,” id. The court therefore did not abuse its discretion in
dismissing Magnolia’s claims without prejudice.
AFFIRMED IN PART AND DISMISSED IN PART.
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