United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION FOR RECONSIDERATION AND GRANTING
IN PART MOTION TO SEAL
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Phytelligence,
Inc.'s Motion for Reconsideration. Dkt #102.
Phytelligence moves for reconsideration of the Court's
Order granting summary judgment for Washington State
University (“WSU”), arguing the Court engaged in
manifest error and that “testimony obtained after the
close of briefing demonstrates triable issues of material
fact, precluding summary judgment.” Id. at 2.
Defendant Washington State University has filed a Response at
the request of the Court. Dkt. #112; see LCR
argues the following demonstrate manifest error: “(1)
refusing to consider extrinsic evidence for purposes of
interpreting the option clause; (2) improperly weighing the
extrinsic evidence, and doing so in favor of WSU, the moving
party; and (3) improperly construing the text of the option
clause in a manner that renders it illusory despite the
parties' intention to create a binding agreement.”
Dkt. #102 at 2.
points to the following new evidence as creating triable
issues of material fact: A) a WSU official testifying that
the option clause was form language not typically included in
such an agreement but included here to incentivize
Phytelligence to propagate WA 38; B) testimony about
WSU's back-and-forth communications with Phytelligence
from 2014- 2017 about shifting requirements to exercise the
option. Dkt. #102 at 6. This new evidence comes from
depositions taken after the close of briefing on the
for reconsideration are disfavored.” LCR 7(h)(1).
“The court will ordinarily deny such motions in the
absence of a showing of manifest error in the prior ruling or
a showing of new facts or legal authority which could not
have been brought to its attention earlier with reasonable
Court first addresses the issue of manifest error. The Court
cited Hearst Commc'ns, Inc. v. Seattle Times
Co., 154 Wn.2d 493, 115 P.3d 262, 267 (2005) for the
proposition that extrinsic evidence may not be used to
“show an intention independent of the [contract]”
or to “vary, contradict[, ] or modify the written
word.” Dkt. #96 at 7. The Court found that Section 4 of
the Agreement at issue “unambiguously requires a future
contract without detailing the terms of such a contract,
” and that although Phytelligence attempts to show that
the parties intended to agree that the future contract
referred to in Section 4 would consist of
‘standard' or ‘uniform' license terms,
the extrinsic evidence is too vague to demonstrate the
meaning or context of the word “contract.”
Id. at 9. The Court found that, even if the Court
were to consider the extrinsic evidence, it would be
insufficient to prove the existence of agreed-upon terms.
relies on Berg v. Hudesman, 115 Wn.2d 657, 801 P.2d
222 (1990). Phytelligence argues that “[i]t is manifest
error to decline to consider extrinsic evidence in
interpreting a contract, ” citing Berg, then
in the next paragraph acknowledges that “the
Hearst court held that extrinsic evidence may not be
used to show an intention independent of a written instrument
or to vary or contradict the written words…”
Dkt. #102 at 2. It is untenable to state that extrinsic
evidence must be considered under Berg then
to say in the next breath that there are circumstances where
it cannot be used. It is precisely those circumstances the
Court found exist here-that Phytelligence is attempting to
offer extrinsic evidence to contract and expand the written
words of the agreement. The agreement signed by Phytelligence
states that it “will need to sign a separate
contract… to exercise this option.” Dkt #1-1 at
12. Phytelligence and WSU never signed this separate
contract. Although the parties are free to disagree about
what the terms of that separate contract should have been,
Phytelligence's extrinsic evidence cannot be used to
vary, contradict, or modify this language.
Phytelligence correctly points out that the Court should not
“adopt a contract interpretation that renders part of
the contract absurd or meaningless, ” Kelley v.
Tonda, 393 P.3d 824, 832, 198 Wn.App. 303 (Wash.Ct.App.
2017), this does not prevent the Court from finding a part of
the contract to be an unenforceable agreement-to-agree as a
matter of law.
event, the Court also found the extrinsic evidence offered by
Phytelligence insufficient to prove the existence of
agreed upon terms. This was an independent basis for
granting summary judgment. Phytelligence submitted extrinsic
evidence of “assurances” as to various terms, but
no evidence establishing agreement between the parties
sufficient to bind WSU to the process preferred by
Phytelligence. The Court thus found that Phytelligence failed
to make a sufficient showing as to this essential element of
its case as a matter of law. To the extent Phytelligence was
arguing at summary judgment that the agreement was not fully
integrated and that the parties subsequently contracted for
additional terms, this was not in the pleadings, and the
Court agrees with WSU that it is procedurally improper to
introduce these new claims in response to a summary judgment
motion. See Dkt. #96 at 8.
to the issue of the newly introduced evidence, the Court
agrees with WSU that the deposition testimony and exhibits
are cumulative, offered to support previously-made arguments
the Court rejected, and largely irrelevant to the Court's
threshold ruling on whether the option clause was
enforceable. More importantly, Phytelligence fails to
establish that it could not have presented this evidence
earlier with reasonable diligence. WSU did not file the
underlying Motion for Summary Judgment until seven months
after discovery began. WSU later stipulated to a two-week
extension of the deadline for Phytelligence's opposition,
and agreed Phytelligence was free to “request
additional time to file and serve opposition papers to the
Motion, or request relief pursuant to Fed.R.Civ.P.
56(d).” Dkt. #61 at 1. Phytelligence did not request
such relief. Despite this extension, Phytelligence conducted
the depositions relied on in the instant Motion after it
responded to WSU's Motion for Summary Judgment.
Considering all of the above and the remainder of the record,
the Court finds a lack of diligence on the part of
Phytelligence in obtaining this discovery and including it in
briefing. The instant Motion will thus be denied.
Court has reviewed the related Motion to Seal (Dkt. #104) and
the Response from interested third party Proprietary Variety
Management, LLC, Dkt. #118, and finds good cause for sealing
the only remaining exhibit at issue.
reviewed the relevant briefing and the remainder of the
record, the Court hereby finds and ORDERS:
1) Plaintiff's Motion for Reconsideration (Dkt. #43) is
2) Plaintiff's Motion to Seal (Dkt. #104) is GRANTED with
regard to “Exhibit J” found at Dkt. #106-5 and
DENIED as to all other exhibits. Dkt. #106 is to remain
sealed with its attachments and Plaintiff is DIRECTED to
refile the Declaration of Sara L. Tolbert ...