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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JOHN E. ABDO, et al.,

Plaintiffs,

v.

MICHAEL FITZSIMMONS, et al.,

Defendants.

RISING TIDE I, LLC, et al.,

Plaintiffs,

v.

MICHAEL FITZSIMMONS, et al.,

Defendants.

Case No. 17-cv-00851-TSH 

ORDER DENYING MOTION FOR 

LEAVE TO FILE MOTION FOR 

RECONSIDERATION

Abdo Dkt. No. 178, 

Rising Tide Dkt No. 179

 Case No. 17-cv-01232-TSH 

On July 6, 2020, having reviewed the Parties’ competing proposals regarding the timing 

and scope of summary judgment briefing, the Court entered an Order Setting Summary Judgment 

Briefing Schedule and Referring Parties for a Settlement Conference (the “Briefing Order”). ECF 

No. 173 (Abdo)/169 (Rising Tide). The Court limited memoranda of law in support of motions 

for summary judgment to 50 pages per side, with all moving Defendants filing one combined brief 

and all moving Plaintiffs filing one combined brief. The Court limited memoranda of law in 

opposition to motions for summary judgment to 50 pages per side and replies in support of 

motions to 30 pages per side. The Court additionally ordered that, if Plaintiffs and Defendants are 

unable to agree on a joint statement of facts, all moving Defendants collectively and all moving 

Plaintiffs collectively should file a single statement of facts, controverting statement facts, and 

reply statement of facts. 

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United States District Court

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Defendant James C. Peters moves for leave to file a motion for reconsideration (the 

“Motion”) of the Court’s Briefing Order. ECF No. 178-1. Peters asserts as grounds for his 

Motion that he is uniquely situated among the Defendants because he was “not around when the 

vast majority of alleged violations and underlying events occurred.” Mot. at 2. He argues that 

therefore his set of facts are so different from the other Defendants that he “should be allowed to 

present his own case for summary judgment via his own motion focused on his unique set of facts, 

making the legal and factual arguments that are in his best interest.” Mot. at 2. He argues that he 

will be prejudiced if forced to file a pleading along with the other Defendants. He also points out 

that actual conflicts of interest exist between the Defendants, and that the firm originally 

representing all Defendants has advised them to retain separate counsel and that most Defendants 

have done so. He asks that he be allowed to file a separate brief consistent with the Local Rules’ 

page limitations. 

The Court will deny Peters’ motion. As Peters points out, the sole remaining claim against 

him is an alleged violation of the third clause of California Corporate Code § 25504. That clause 

imposes liability on every director or officer of a corporation who aids in fraudulently selling 

securities within California unless the director lacks “knowledge of or reasonable grounds to 

believe in the existence of the facts by reason of which the liability is alleged to exist.” Cal. Corp. 

Code § 25504. Peters intends to assert an affirmative defense and “show[] that he lacked 

‘knowledge of or reasonable grounds to believe’ during his 11th hour tenure at Delivery Agent.” 

Mot. at 3-4. Whether Peters can successfully raise that defense and show that he lacked the 

requisite knowledge essentially comes down to a question of fact and presumably requires no 

extensive legal argument—Peters was either there and knew or wasn’t and didn’t. Peters himself 

agrees that it “takes little space to state” the conclusion that he “had no reason to know of the facts 

giving rise to the alleged liability.” Reaching that conclusion will come down to facts, and 

Defendants are not limited in the number of material facts that they can assert in their statement of 

facts, controverting statement, or reply statement. Nor did the Court impose a limit on the amount 

of evidence the parties may submit and cite to in their statements of facts. Lastly, even though 

Peters may be in a unique position vis-à-vis the other Defendants, Defendants are obligated by the 

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United States District Court

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Court’s orders to prepare their memoranda cooperatively. Accordingly, Peters’ Motion is 

DENIED. 

IT IS SO ORDERED.

Dated: August 3, 2020

THOMAS S. HIXSON

United States Magistrate Judge

Case 3:17-cv-00851-TSH Document 185 Filed 08/03/20 Page 3 of 3