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6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ANTONIO PEREZ-CRUET, ) Case No.: 23-cv-1890-BEN (MMP) ) Plaintiff, 11 ) 12 v. ) ) 13 QUALCOMM INCORPORATED, et al., ) ORDER DENYING MOTION 14 Defendants. ) FOR RECONSIDERATION ) 15 ) 16 ) ) [Dkt. 23] 17 ) 18 ) 19 20 Now before the Court is Defendants’ motion for reconsideration or to certify the 21 case for interlocutory review. The motion is DENIED. A more detailed factual 22 summary of this case can be found in the Court’s previous Order denying Defendants’ 23 Motions to Dismiss. 24 As relevant here, Defendants argue the Court should reconsider its ruling on their 25 Motion to Dismiss because the Court allegedly committed a clear error on a controlling 26 question of law. In the alternative, Defendants ask the Court to certify its order denying 27 the motion to dismiss for interlocutory appeal. Defendants argue an interlocutory appeal 28 would decide a controlling question of law and advance the ultimate termination of 1 litigation. Plaintiffs oppose the motion, arguing Defendants merely reiterate the 2 arguments they made in their Motion to Dismiss and an interlocutory appeal would do 3 little to advance the litigation or decide the ultimate merits of the case. 4 Although the Federal Rules of Civil Procedure do not expressly authorize a motion 5 for reconsideration, “[a] district court has the inherent power to reconsider and modify its 6 interlocutory orders prior to the entry of judgment.” United States v. LoRusso,

(2d Cir. 1982). Nevertheless, “[a] motion for reconsideration should not be 8 granted, absent highly unusual circumstances, unless the district court is presented with 9 newly discovered evidence, committed clear error, or if there is an intervening change in 10 the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

(9th Cir. 2009) (quoting 389 Orange St. Partners v. Arnold,

, 12 665 (9th Cir. 1999)). Moreover, motions to reconsider are not a platform to relitigate 13 arguments and facts previously considered and rejected. See Harrison v. Sofamor/Danek 14 Grp., Inc., Case No. 94-cv-0692-K,

, at *3 (S.D. Cal. Sept. 15, 1998). 15 Under

(b), a party may move a district court to certify an 16 “otherwise [un]appealable” order for interlocutory review. In order to certify an order for 17 appeal, the court must find that “such order involves a controlling question of law as to 18 which there is substantial ground for difference of opinion and that an immediate appeal 19 from the order may materially advance the ultimate termination of the litigation.” 28

(b). “Section 1292(b) is a departure from the normal rule that only final 21 judgments are appealable, and therefore must be construed narrowly.” James v. Price 22 Stern Sloan, Inc.,

, 1067 n.6 (9th Cir. 2002). The Ninth Circuit has 23 stressed that § 1292(b) is to be applied sparingly and only in exceptional situations in 24 which an interlocutory appeal would help avoid protracted and expensive litigation. In re 25 Cement Antitrust Litig.,

(9th Cir. 1982). 26 Defendants argue the Court should reconsider its Order because the Court erred by 27 holding Plaintiffs have plausibly alleged claims under ERISA. Much of Defendants’ 28 motion reasserts a previously presented legal argument. Defendants argue again that 26

(a)(8) and IRS regulation §1.401-7(a) should be understood to shield 2 Defendants’ decision as Plan fiduciaries from ERISA liability. This Court continues to 3 disagree with Defendants’ interpretation. Moreover, this conclusion does not appear to 4 be a clear error of law. Therefore, reconsideration is not justified. Alvarado Orthopedic 5 Rsch, L.P. v. Linvatec Corp.,

, at *1 (S.D. Cal. July 19, 2013). 6 Defendants also argue a different decision requires the Court to reconsider. 7 Hutchins v. HP INC., Case No 23cv5875-BLF (N.D. Cal. June 17, 2024), is a more 8 recent decision addressing similar issues. On the whole, Hutchins stands in harmony 9 with this Court’s Order. That Hutchins arrived at a different outcome strongly suggests 10 that the Rule 12(b)(6) plausibility test for an ERISA breach of fiduciary duty claim is 11 inherently fact specific. Because the plausibility test requires a focus on facts, it is not 12 surprising that there might be different outcomes on a motion to dismiss for these types 13 of claims. In fact, Hutchins found that its plaintiffs might be able to plausibly allege a 14 claim based on more particularized facts or special circumstances and granted leave to 15 amend. E.g. Hutchins, Order at 12, 20. The differences in reasoning and factual 16 allegations between Hutchins and this Court’s Order are insufficient to justify 17 reconsideration. Harrison,

, at *4 (“In general, a party may not use a 18 motion for reconsideration simply as a tool to reassert previously presented legal 19 arguments or facts.”). Accordingly, Defendants’ Motion for Reconsideration is denied. 20 In the alternative, Defendants request the Court certify its order for interlocutory 21 appeal. To certify an order for interlocutory review, a court must find that “such order 22 involves a controlling question of law as to which there is substantial ground for 23 difference of opinion and that an immediate appeal from the order may materially 24 advance the ultimate termination of the litigation.”

(b). Defendants 25 assert all three prongs of this test are met. The Court disagrees. 26 The Ninth Circuit has held that § 1292(b) is “to be used only in exceptional 27 situations in which allowing an interlocutory appeal would avoid protracted and 28 expensive litigation.” In re Cement Antitrust Litig.,

. An interlocutory 1 appeal here would have the effect of actually slowing, not advancing, the ultimate 2 termination of the litigation.

(b). Allegations of fiduciary defalcation 3 are inherently fact-sensitive and do not lend themselves to resolution prior to trial. The 4 Court is ready to resolve this case on its merits and an interlocutory appeal will delay that 5 endeavor. Accordingly, the request to certify an interlocutory appeal is denied. 6 CONCLUSION The Motion for Reconsideration is DENIED. 7 8 IT IS SO ORDERED. 9 DATED: August 12, 2024 10 HON. ROGER T. BENITEZ United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28