Kenton Crowley v. Epicept Corporation
547 F. App'x 844
9th Cir.
2013
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Docket

LEE v. HOLDER

United States Court of Appeals, Ninth Circuit

844 F.3d 844

immigration judge to make a discretionary judgment. 8 C.F.R. § 1003.1(d)(3)(ii) (The Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.). Any error by the immigration judge in failing to address the matter was therefore cured when the Board considered Lee‘s claim and denied it as a matter of discretion.

Lee also argues that the immigration judge lacked jurisdiction because the initial Notice to Appear (NTA) was not properly served on Lee. The Board correctly held that the immigration judge cured any defect in service when he gave Lee a copy of the NTA and ten days to review it. Jurisdiction vests with the immigration judge when a charging document is filed with the immigration court along with a certificate showing service on the opposing party pursuant to § 1003.32. 8 C.F.R. § 1003.14(a). Section 1003.32 does not require the certificate of service when service is made on the record during [a] hearing. 8 C.F.R. § 1003.32(a). The record appears to show actual knowledge by Lee of the NTA, and the record shows that service was accomplished on the record in open court, curing whatever defect may have existed.

Lee also argues that the immigration judge and the Board erred by taking it upon themselves to deny voluntary departure when he had not asked for it. The fact that the immigration judge considered a form of relief not formally sought does not imply that the immigration regulations were violated. Although Lee cites a provision of the INA which grants aliens the right to apply for such relief, he has cited no regulation that prohibits an immigration official from considering this form of relief unless a formal application is made by an alien.

Finally, Lee contends that the immigration judge erroneously cited 8 U.S.C. § 1227(a)(1)(C) in his oral decision, did not sustain the charge under 8 U.S.C. § 1227(a)(2)(E)(i), and ordered removal without reference to a charge. We review the Board decision, though, not the immigration judge‘s decision. The Board agrees that the immigration judge did not sustain the charge of removability under section 237(a)(2)(E)(i) of the Act. Thus Lee has not been ordered removed under the Domestic violence, stalking, and child abuse provision. The Board upheld removability based on Lee‘s concession through counsel that he was removable under section 237(a)(1)(D)(i) of the Act. That subsection addresses removability of aliens who had obtained conditional permanent resident status as spouses, sons, and daughters of U.S. citizens. Thus it is clear from the Board‘s decision that Lee was ordered removed because his conditional permanent resident status based on his mother and stepfather no longer applied, not because of domestic violence or stalking. We therefore need not remand for further clarification of the reason for removal.

Petition DENIED.

Kenton L. CROWLEY; John A. Flores, Plaintiffs-Appellants, v. EPICEPT CORPORATION, Defendant-Appellee.

No. 12-55376.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 7, 2013. Filed Dec. 3, 2013.

Karen A. Larson, Karen. A, Larson, P.A., Dana Point, CA, for Plaintiffs-Appellants.

Philip Tencer, Cooley LLP, San Diego, CA, for Defendant-Appellee.

Before: O‘SCANNLAIN, GRABER, and BEA, Circuit Judges.

MEMORANDUM*

Plaintiffs Dr. Kenton Crowley and Dr. John Flores appeal the district court‘s grant of summary judgment to Defendant EpiCept Corporation on Plaintiffs’ claims for breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, and rescission, and the district court‘s denial of Plaintiffs’ motion to amend. In this diversity case concerning a patent-assignment contract with a New Jersey choice-of-law provision, we apply federal procedural law and New Jersey substantive law. . Reviewing de novo the district court‘s grant of summary judgment for Defendant, , we reverse and remand. Reviewing for abuse of discretion the district court‘s denial of Plaintiffs’ motion to amend, , we affirm.

1. On Plaintiffs’ breach of contract claim, the district court erred in granting summary judgment to Defendant because there were genuine issues of material fact. .

First, the district court erred when it held that the contract‘s definition of an improvement as any modification ... [that] would, if unlicensed, infringe the patent would produce absurd result, on the theory that no improvement could be both a modification and an infringement. An improvement that updates a component of the technology used in a method patent, however, could be both a modification and an infringement. See (affirming a jury‘s verdict that the defendant‘s hearing aid infringed the plaintiff‘s method patent; the defendant‘s hearing aid used a new technological component that had not been available when the plaintiff‘s patent was filed, and was an infringement under the doctrine of equivalents), cert. denied, . Because the district court excised the definition of improvement as an infringing modification from the contract, it did not reach the question whether Plaintiffs’ use of the ointment to treat burns would have infringed and was therefore an improvement under the contract. Genuine questions of material fact remain as to whether Plaintiffs breached their contractual duties by failing to report Plaintiff Flores’ use of the patented product as a burn ointment.

Second, even if Plaintiffs’ failure to report this use of the ointment was a breach, it must have been a material breach—one that defeat[s] the purpose of the contract, (internal quotation marks omitted)—to excuse Defendant from the performance of its duties, (per curiam); . Whether Plaintiffs’ purported breach was material is a question of fact, , making summary judgment improper, .

2. On Plaintiffs’ claim for breach of the implied covenant of good faith and fair dealing, the district court erred in granting summary judgment to Defendant because there were genuine issues of material fact. Plaintiffs proffered evidence that Defendant, which had an exclusive right to develop Plaintiffs’ patents, repeatedly reassured Plaintiffs that it was taking steps toward developing Plaintiffs’ patents, but instead devoted resources to other projects. A rational trier of fact could find from such evidence that such conduct by Defendant demonstrated bad motive or intention, , and destroyed Plaintiffs’ reasonable expectations and right to receive the fruits of the contract, . Because there was conflicting evidence about whether Defendant reasonably exercised its discretion under the circumstances and in light of the reasonable expectations of the parties, summary judgment for Defendant on the claim for breach of the implied covenant of good faith and fair dealing was improper. (applying New Jersey law) (internal quotation marks omitted).

3. On Plaintiffs’ fraud claim, the district court erred in part in granting summary judgment to Defendant because there were genuine issues of material fact concerning Plaintiffs’ claim for fraud after the parties had entered into the contract. . Defendant failed to meet the contract‘s 2002 Food and Drug Administration filing deadline, but Plaintiffs proffered evidence that Defendant reassured them that it was still taking steps to do so. A rational finder of fact could find that this missed deadline gave Plaintiffs grounds to seek reassignment of the patents in 2002, but they did not begin to do so until 2004. Viewing the evidence in the light most favorable to Plaintiffs, , a rational trier of fact could find (a) that, at some point after the parties entered into the contract, Defendant knowingly made a material misrepresentation to Plaintiffs about its then-present intent to develop Plaintiffs’ patents, and (b) that Plaintiffs relied, to their detriment, by delaying seeking reassignment of the patents, .

Plaintiffs concede, however, that Defendant did not make any misrepresentations or withhold facts in the negotiations leading up to the contract. Therefore, the district court correctly granted summary judgment to Defendant on the claim of fraud in the inducement of the contract, because Plaintiffs present no evidence of material misrepresentations by Defendant before the signing of the contract.

4. On remand, if the trier of fact finds fraud, the district court has discretion to consider rescission as an equitable remedy, so long as Plaintiffs have acted within a reasonable amount of time, there has not been substantial performance and, as far as it is practicable, rescission would return the parties as closely as possible to their original positions. . Accordingly, the district court erred in dismissing the request for rescission.

5. The district court did not abuse its discretion, , when it denied Plaintiffs’ motion to amend their complaint. Plaintiffs did not seek to add a new party or theory. Rather, they sought to add new evidentiary support for their claims, which they will now have the opportunity to do at trial. See, e.g., (holding that, even if the district court had erred by not allowing the plaintiff leave to file a reply brief, any error was harmless because it did not prejudice the plaintiff‘s rights).

AFFIRMED in part; REVERSED and REMANDED in part. Costs on appeal awarded to Plaintiffs-Appellants.

Notes

*
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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