FOLEX GOLF INDUSTRIES, INC., a California corporation v. O-TA PRECISION INDUSTRIES CO., LTD., a Taiwan company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FOLEX GOLF INDUSTRIES, INC., a
California corporation,
Plaintiff-Appellant,
v.
O-TA PRECISION INDUSTRIES CO.,
LTD., a Taiwan company,
Defendant-Appellee.
No. 15-56905
D.C. No. 2:09-cv-02248-R-CW
MEMORANDUM*
FOLEX GOLF INDUSTRIES, INC., a
California corporation,
Plaintiff-Appellee,
v.
O-TA PRECISION INDUSTRIES CO.,
LTD., a Taiwan company,
Defendant-Appellant.
No. 16-55245
D.C. No. 2:09-cv-02248-R-CW
Appeal from the United States District Court
for the Central District of California
FILED
NOV 02 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Manuel L. Real, District Judge, Presiding
Argued and Submitted October 6, 2017
Pasadena, California
Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,**
District Judge.
Folex Golf Industries, Inc. appeals the district court’s grant of summary
judgment finding that Folex’s claims were barred by the statute of limitations.
O-TA Precision Industries Co. cross appeals the district court’s denial of its motion
for attorney’s fees under Cal. Civ. Code § 1717.
1. We previously addressed the statute of limitations issue in this case and held
that “[t]he district court erred in concluding as a matter of law that Folex had actual
knowledge in 2005 of its claims against O-TA.” See Folex Golf Indus., Inc. v.
O-TA Precision Indus. Co., 479 F. App’x 61, 61 (9th Cir. 2012). We concluded
that a genuine issue of material fact existed “as to whether Folex was on inquiry
notice of its Fourth, Sixth, Seventh, and Tenth Causes of Action as of 2005.” Id. at
62. This appeal presents the same statute of limitations issue. Under the “law of
the case” doctrine, a district court is “precluded from reconsidering an issue that
has already been decided by the same court, or a higher court in the identical case,”
** The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
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unless an exception to depart from the law of the case exists. United States v.
Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (citation omitted). Thus, summary
judgment cannot be granted on this statute of limitations question unless one of the
five exceptions to the law of the case doctrine has been met. See id. None of the
exceptions apply here. The district court erred in concluding that the August 20,
2006 letter was substantially different from the evidence previously submitted to
establish that Folex was on notice of its potential claims against O-TA in 2005.
See id. at 876-77; see also Eichman v. Fotomat Corp., 880 F.2d 149, 157 (9th Cir.
1989). The district court did not even explain why the substantially different
exception applied.
Even assuming the law of the case does not preclude our review, viewing the
evidence in the light most favorable to Folex, see Thomas v. City of Beaverton, 379
F.3d 802, 807 (9th Cir. 2004), issues of material fact still exist as to whether Folex
was on notice of any claims against O-TA in 2005. At most, the letter reveals that
Folex was aware that Luoyang Ship Material Research Institute (“LSMRI”) was
engaged in fraudulent conduct. However, Folex does not indicate in the August
20, 2006 letter that it was aware O-TA was working in concert with LSMRI. Thus,
the letter does not resolve any of the factual disputes raised in the prior
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proceedings.1 See Folex Golf Indus., Inc., 479 F. App’x at 61-62. We therefore
reverse the district court’s grant of summary judgment and remand for further
proceedings.2
2. Because we reverse the district court’s summary judgment decision, the
issue of whether O-TA is entitled to an award of attorney’s fees is premature.
Therefore, we vacate the district court order regarding attorney’s fees without
reaching the merits of O-TA’s argument.
3. We grant Folex’s motion to reassign this matter to a different district court
judge. We are permitted under 28 U.S.C. § 2106 to reassign cases on remand
when “unusual circumstances” are present. United Nat’l Ins. Co. v. R & D Latex
Corp., 242 F.3d 1102, 1118 (9th Cir. 2001). This is the third remand in this case;
therefore, reassignment is warranted, because the judge may “have substantial
difficulty in putting out of his . . . mind previously expressed views or findings
determined to be erroneous,” making “reassignment . . . advisable to preserve the
appearance of justice.” Id. (quoting United States v. Sears, Roebuck & Co., 785
F.2d 777, 780 (9th Cir. 1986)). Because the case has not progressed significantly
1 O-TA’s motion to strike is denied as moot.
2 Because we conclude that the August 20, 2006 letter did not establish that
Folex was on notice of its claims in 2005, we need not address O-TA’s alternative
arguments regarding Folex’s fraud claim.
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beyond the preliminary stages, any minimal potential for waste or duplication is
outweighed by the need to preserve the appearance of fairness. Id. at 1118-19.
Therefore, we instruct the Chief Judge for the Central District of California to
reassign this case to a different district judge on remand. Each party shall bear its
own costs on appeal.
REVERSED and REMANDED (No. 15-56905); VACATED (No.
15-55245).
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