                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

MUSSA ALI,                                       :
                                                 :
       Plaintiff,                                :       Civil Action No.:    13-2030 (RC)
                                                 :
       v.                                        :       Re Document Nos.: 85, 88
                                                 :
CARNEGIE INSTITUTION OF                          :
WASHINGTON,                                      :
                                                 :
       Defendant.                                :

                                 MEMORANDUM OPINION

    GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE SUPPLEMENTAL STATEMENT
REGARDING FILING DATE, DENYING PLAINTIFF’S ALTERNATIVE REQUEST TO FILE NUNC PRO
  TUNC, & DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION OR LEAVE TO AMEND

                                      I. INTRODUCTION

       Pro se Plaintiff Mussa Ali initiated this matter in September 2012 by filing suit against

the Carnegie Institution of Washington (“Carnegie”) in the U.S. District Court for the District of

Oregon. Mr. Ali alleged that he was erroneously omitted as an inventor on multiple U.S. patents

co-owned by Carnegie and the University of Massachusetts (“UMass”), and he sought to correct

inventorship and to recover more than $100,000 in related damages. After retaining counsel, Mr.

Ali filed an amended complaint that added UMass as a defendant and that requested a portion of

the proceeds that Defendants had received from the patents in question. The Oregon court

dismissed UMass from the case on the basis of sovereign immunity, ruled that the court lacked

personal jurisdiction over Carnegie, and transferred the case to this Court. This Court

subsequently granted Carnegie’s motion to dismiss the amended complaint for failure to join a

necessary party: UMass. Mr. Ali now seeks reconsideration of that dismissal, arguing that

UMass is not a necessary party and that the Court’s finding to the contrary relies on the clearly
erroneous assumption that UMass’s financial interests would be prejudiced if the case proceeded

in its absence. Alternatively, Mr. Ali seeks leave to amend his complaint in an unspecified

manner, perhaps by reinstating the first complaint he filed, which named only Carnegie as a

defendant. For the reasons set forth below, the Court denies Mr. Ali’s motion for reconsideration

and his request for leave to amend his complaint.

                                II. FACTUAL BACKGROUND

       As explained in detail in this Court’s prior Memorandum Opinion, 1 Carnegie and UMass

co-own five patents relating to methods of inhibiting the expression of a particular gene in a cell

through a process called ribonucleic acid interference (“RNAi”). The patents were allegedly

issued as a result of the collaboration between Dr. Andrew Fire and Dr. Craig C. Mello, the two

lead inventors of the laboratories of Carnegie and UMass, respectively. See Def.’s Mot. Dismiss

4, ECF No. 73-1; Am. Compl. ¶ 19, ECF No. 4. Mr. Ali alleges that he made a critical

contribution to the discovery of RNAi while employed at UMass in Dr. Mello’s laboratory, and

that he should be named as a co-inventor on the five patents. See Am. Compl. ¶¶ 8‒20.

       Mr. Ali filed his original complaint in the U.S. District Court for the District of Oregon in

September 2012. See Compl., ECF No. 1. He named only Carnegie as a defendant, sought to

correct inventorship pursuant to 35 U.S. C. § 256, and demanded “more than $100,000” in

damages for related claims of conversion, unfair competition, unjust enrichment, and fraud under

Oregon state law. After retaining counsel, Mr. Ali filed an amended complaint against both

Carnegie and UMass in December 2012. See generally Am. Compl.




       1
         The Court hereby incorporates by reference its earlier Memorandum Opinion. See
generally Ali v. Carnegie Inst. of Washington, No. 13-cv-2030, 2014 WL 4260995, at *1–2
(D.D.C. Aug. 29, 2014).


                                                 2
       In his Amended Complaint, Mr. Ali again asserted a claim under § 256 to be named a co-

inventor of the patents at issue, and he also asserted two alternative claims for “Legal Damages.”

In his first claim for legal damages, Mr. Ali states that if he was contractually obligated to assign

his rights in the patents to UMass, then he seeks his share of the patent-related proceeds that have

been received by UMass and divided between the named UMass inventors. See Am. Compl. ¶¶

28–32. Alternatively, if Mr. Ali was not obligated to assign his rights, then his second claim for

legal damages seeks a portion of the proceeds received by both UMass and Carnegie from the

sale, license, or transfer of their patent rights. See Am. Compl. ¶¶ 33–36.

       In May 2013, the District Court of Oregon dismissed UMass from the case for lack of

subject-matter jurisdiction, finding that the university was an arm of the state and entitled to

sovereign immunity. See Op. & Order at 10, ECF No. 41. In the same decision, the court also

provided Mr. Ali with leave to amend his complaint to include claims against UMass officials

pursuant to Ex Parte Young, 209 U.S. 123 (1908), which Mr. Ali had invoked in his motion for

jurisdictional discovery. Id. at 10 n.3. Mr. Ali chose instead to seek reconsideration of the

dismissal and denial of discovery, which the court denied. See Op. & Order at 7–12, ECF No.

66. The court also ruled that it lacked personal jurisdiction over Carnegie and sua sponte

transferred the case to this Court pursuant to 28 U.S.C. § 1406(a). See id. at 13–26.

       On August 29, 2014, this Court granted Carnegie’s motion to dismiss the case pursuant to

Federal Rule of Civil Procedure 12(b)(7) for failure to join UMass, a necessary party. See

generally Ali, 2014 WL 4260995. The Court explained that UMass was a required party due to

its ownership interest in the patents, that it was entitled to sovereign immunity and could not be

joined, and that the action could not proceed in equity and good conscience without UMass. Id.

In response to Mr. Ali’s request for leave to file a second amended complaint naming UMass




                                                  3
officials as defendants, the Court observed that such an amendment would not be permitted as to

the claims for financial damages, and that it was unclear whether Ex Parte Young would permit a

plaintiff to sue state officials in their official capacities for correction of inventorship. Id. at *7.

Nevertheless, the Court gave Mr. Ali until October 1, 2014, to seek leave to amend his complaint

to include correction of inventorship claims against UMass officials in their official capacities.

Order, Aug. 29, 2014, ECF No. 77. The Court subsequently extended the time for filing such an

amendment to November 14, 2014, on Mr. Ali’s motion. See Order, Sept. 19, 2014, ECF No.

84.

        To date, Mr. Ali has not sought leave to amend his complaint to include correction of

inventorship claims against UMass officials in their official capacities. Instead, on September

29, 2014, Mr. Ali filed the instant motion for reconsideration or, in the alternative, for leave to

amend his complaint, possibly by reinstating his first complaint that named only Carnegie as a

defendant. See generally Pl.’s Mot. Recons., ECF No. 85.

                                           III. ANALYSIS

        Mr. Ali argues that the Court’s determination that UMass was a necessary party was

based on a clearly erroneous factual finding that UMass would be financially prejudiced if Mr.

Ali prevailed in this matter and was named as a co-inventor. Id. at 2–4. He also claims that the

Court erred by failing to find that he has no alternative forum in which to have his case heard on

the merits. Id. at 5–6. Alternatively, if the Court still views UMass as a necessary party, Mr. Ali

asks that he be granted leave “to remedy his amend complaint,” perhaps by reverting “back to

the original complaint in which ONLY Carnegie was named as a defendant.” Id. at 9–10.

Defendants, on the other hand, maintain that Mr. Ali’s motion should be denied as untimely

under Rule 59(e), that it has no basis in fact or law, and that it improperly seeks reconsideration




                                                    4
of arguments that were previously considered by the Court or that could have been presented

previously. See generally Def.’s Opp’n, ECF No. 86. The Court considers each argument in

turn.

                             A. Legal Standards for Reconsideration

        The Federal Rules of Civil Procedure provide three avenues for seeking reconsideration

of judicial decisions. The first is Rule 54(b), which permits reconsideration of interlocutory

orders. See Fed. R. Civ. P. 54(b) (“[A]ny order or other decision, however designated, that

adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does

not end the action as to any of the claims or parties and may be revised at any time before the

entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.”).

        Relief pursuant to Rule 54(b) is to be provided “as justice requires,” and may be

warranted when a court has “patently misunderstood the parties, made a decision beyond the

adversarial issues presented, made an error in failing to consider controlling decisions or data, or

where a controlling or significant change in the law has occurred.” U.S. ex rel. Westrick v.

Second Chance Body Armor, Inc., 893 F. Supp. 2d 258, 268 (D.D.C. 2012) (internal citation,

quotation, and alteration omitted); see also Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C.

2004). “These considerations leave a great deal of room for the court's discretion and,

accordingly, the ‘as justice requires' standard amounts to determining ‘whether [relief upon]

reconsideration is necessary under the relevant circumstances.’” Lewis v. District of Columbia,

736 F. Supp. 2d 98, 102 (D.D.C. 2010) (quoting Cobell, 224 F.R.D. at 272). At the same time, a

court's discretion under Rule 54(b) is “limited by the law of the case doctrine and subject to the

caveat that where litigants have once battled for the court's decision, they should neither be




                                                   5
required, nor without good reason permitted, to battle for it again.” Singh v. George Washington

Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (citations omitted).

       Whereas Rule 54 governs reconsideration of interlocutory orders, Rules 59(e) and 60(b)

dictate when a party may obtain reconsideration of a final judgment. Rule 59(e) permits a party

to file a motion to alter or amend a judgment within 28 days of the entry of that judgment. Fed.

R. Civ. P. 59(e). Such motions are disfavored, are entrusted to the district court's discretion, and

“‘need not be granted unless the district court finds there is an intervening change of controlling

law, the availability of new evidence, or the need to correct a clear error or prevent manifest

injustice.’” Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone v. Firestone,

76 F.3d 1205, 1208 (D.C. Cir. 1996)).

       Rule 60(b), on the other hand, allows a party to seek relief from a final judgment “within

a reasonable time” after entry of the judgment, but only for specified reasons. See Fed. R. Civ.

P. 60(b). Such reasons include, among other things, “mistake, inadvertence, surprise, or

excusable neglect,” id. at (60)(b)(1), “newly discovered evidence that, with reasonable diligence,

could not have been discovered in time to move for a new trial under Rule 59(b),” id. at

(60)(b)(2), and “any other reason that justifies relief,” id. at 60(b)(6). The Rule “was intended to

preserve ‘the delicate balance between the sanctity of final judgments and the incessant

command of the court's conscience that justice be done in light of all the facts.’ It cannot be

employed simply to rescue a litigant from strategic choices that later turn out to be improvident.”

Smalls v. United States, 471 F.3d 186, 191 (D.C. Cir. 2006) (quoting Good Luck Nursing Home,

Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)). Accordingly, reconsideration pursuant to

Rule 60 is a remedy that should be sparingly used. See Kramer v. Gates, 481 F.3d 788, 792

(D.C. Cir. 2007).




                                                 6
       A motion for reconsideration filed outside the 28-day window provided by Rule 59(e) is

typically viewed as a Rule 60(b) motion. See McMillen v. District of Columbia, No. 04-cv-2036,

2005 WL 3370820, at *1 n.1 (D.C. Cir. Dec. 13, 2005) (holding that motions for reconsideration

filed within Rule 59(e)’s time limit are treated as Rule 59(e) motions, while those filed outside it

are treated as motions under Rule 60(b)); Computer Professionals for Soc. Responsibility v. U.S.

Secret Serv., 72 F.3d 897, 903 (D.C. Cir. 1996) (“An untimely motion under Rule 59(e) may be

considered as a motion under Rule 60(b) if it states grounds for relief under the latter rule.”).

       Regardless of the Rule pursuant to which reconsideration is sought, “it is well-established

that ‘motions for reconsideration,’ whatever their procedural basis, cannot be used as ‘an

opportunity to reargue facts and theories upon which a court has already ruled, nor as a vehicle

for presenting theories or arguments that could have been advanced earlier.” Estate of Gaither

ex rel. Gaither v. District of Columbia, 771 F. Supp. 2d 5, 10 (D.D.C. 2011) (quoting SEC v.

Bilzerian, 729 F. Supp. 2d 9, 14 (D.D.C. 2010)); id. at 10 n.4 (explaining that the same principle

extends to motions under Rule 59(e), 60(b), and 54(b)). Additionally, the party seeking

reconsideration bears the burden of establishing that such relief is warranted under the

circumstances. Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 811 F. Supp. 2d 216,

226 (D.D.C. 2011) (“The party seeking relief from a judgment bears the burden of demonstrating

that it satisfies the prerequisites for such relief.”); Second Chance Body Armor, 893 F. Supp. 2d

at 268; Niedermeier v. Office of Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001).

       Although Mr. Ali does not specify the Rule pursuant to which he seeks reconsideration,

his invocation of “clear error,” see Pl.’s Mot. Recons. at 2, and his statement that his motion was

due within 28 days of the entry of judgment, see Pl.’s Mot. for Extension of Time, Sept. 12,

2014, ECF No. 80, suggest that he seeks relief from the Court’s order of dismissal under Rule




                                                  7
59(e). Carnegie has treated the motion as one brought pursuant to Rule 59(e), and it argues that

the motion is untimely as it was filed more than 28 days after entry of the Court’s order. See

Def.’s Opp’n at 4 n.1. Mr. Ali has not disputed the characterization of his motion as one brought

pursuant to Rule 59(e), see Pl.’s Reply, ECF No. 87, but he has asked the Court to extend the 28-

day deadline or to otherwise excuse his delayed filing as the product of a mailing error, see Pl.’s

Mot. for Extension of Time; Pl.’s Mot. for Leave to File, Nov. 17, 2014, ECF No. 88. 2

       The Court will neither retroactively extend the time for filing Mr. Ali’s motion under

Rule 59(e) nor deny it as untimely. Pursuant to Federal Rule of Civil Procedure 6(b), although

courts can extend most filing deadlines for good cause shown, Rule 59(e) motions are an

exception for which “[a] court must not extend the time to act . . .” Fed. R. Civ. P. 6(b)(2); see

also Derrington-Bey v. D.C. Dep't of Corr., 39 F.3d 1224, 1225 (D.C. Cir. 1994) (“District

courts do not have even the customary discretion given by Fed. R. Civ. P. 6(b) to enlarge the

Rule 59(e) period.”); Ctr. for Nuclear Responsibility, Inc. v. U.S. Nuclear Regulatory Comm’n,

781 F.2d 935, 941 (D.C. Cir. 1986) (“[T]he District Court simply has no power to extend [Rule

59(e)’s] time limitation.”). This Court thus lacks the authority to extend the filing deadline for a

Rule 59(e) motion. But as discussed above, the consequence of untimely filing of a Rule 59(e)

motion in this circuit is not denial of reconsideration, but treatment of the motion as one under

Rule 60(b). See McMillian, 2005 WL 3370820, at *1 n.1.




       2
          Mr. Ali’s motion for leave to file a supplemental statement regarding the mailing error
(ECF No. 88) is hereby granted, but as explained below, the motion’s alternative request to file
the motion for reconsideration nunc pro tunc, apparently so that the motion would comply with
Rule 59(e)’s 28-day filing deadline, is denied. See Justice v. Town of Cicero, 682 F.3d 662, 664
(7th Cir. 2012) (holding that a judge may not backdate a late-filed Rule 59(e) motion and that
granting leave to file such a motion nunc pro tunc is improper).


                                                 8
       This Court need not determine under which Rule Mr. Ali’s motion was brought or should

be considered, however, because as explained below, the Court finds that Mr. Ali’s motion

should be denied regardless of whether it is treated as a motion for reconsideration pursuant to

Rule 54(b), 59(e), or 60(b). 3 Mr. Ali has not shown an error in the Court’s decision to dismiss

his complaint for failure to join a necessary party that would warrant reconsideration under any

standard.

            B. The Court’s Finding that UMass would be Financially Prejudiced

       At the heart of Mr. Ali’s motion for reconsideration is his contention that the Court erred

by assuming that UMass’s financial interests would be prejudiced if this action proceeded in its

absence. See Pl.’s Mot. Recons. at 2. Mr. Ali argues that contrary to the Court’s “presupposition

that UMass [policy] obligates UMass to pay an additional percentage or amount based on the

number of UMass-affiliated co-inventors listed on the patents-in-suit,” UMass pays a set



       3
          Although the parties both appear to assume that the Court’s August 2014 Order of
dismissal constitutes a final judgment, relief from which is governed by Rule 59(e) or 60(b), the
issue is not as clear-cut as the parties seem to assume. “The district court ordinarily enters a final
judgment only after it has disposed of all claims against all parties.” Capitol Sprinkler
Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 221 (D.C. Cir. 2011). And certainly, the
Court’s order dismissing Mr. Ali’s entire complaint for failure to join a necessary party did
dispose of all claims. But the Order of dismissal also provided a limited period of time in which
Mr. Ali could seek leave to amend that had not yet expired at the time that he filed the instant
motion for reconsideration, and an order that expressly provides for leave to amend is not
generally considered a final judgment. See 19 James W. Moore, Moore's Federal Practice §
201.14 (3d ed.2003) (discussing application of final judgment rule to pretrial orders, and
explaining that “an order dismissing the complaint with leave to amend is not [final or]
appealable unless the grounds of the dismissal make it clear that no amendment of the complaint
could cure the defect in the plaintiff’s case”); see also Ciralsky v. CIA, 355 F.3d 661, 666 (D.C.
Cir. 2004) (distinguishing between a final judgment in the form of a dismissal without prejudice
of a case, and a non-final order dismissing a complaint without prejudice and with leave to
amend). Given this ambiguity, and in light of Mr. Ali’s pro se status, the Court considers the
possibility that Mr. Ali’s motion may fall under the auspices of Rule 54(b) governing
reconsideration of an interlocutory decision, and the Court’s analysis will proceed on that basis
as well.


                                                  9
percentage of its patent proceeds to the co-inventors, and that percentage is divided equally

among the inventors. Id. at 3–4. He notes that this factual allegation was contained in paragraph

30 of his complaint, which states that under university policy, “[U]Mass would pay the co-

inventors a percentage of all revenue realized by [U]Mass through exploitation of that invention .

. . to be shared equally between inventors.” Am. Compl. ¶ 30. Mr. Ali has also provided a new

exhibit to support his assertion: a heavily redacted e-mail from his former attorney, stating that

“under UMass policy the University’s share is distributed 30% to the inventors pro rata.” May

2014 e-mail, Pl.’s Ex. 1, ECF No. 85. On these fact, Mr. Ali argues, it would make no difference

financially to UMass if he were named a co-inventor and the university’s proceeds were divided

among four inventors instead of three. See id. at 2–4.

       In opposition, Carnegie argues that Mr. Ali’s assertion that UMass would not be affected

financially if he were named a co-inventor is contradicted by his own pleadings. Def.’s Opp’n at

4. Additionally, Carnegie contends that Mr. Ali fundamentally misunderstands the Court’s

decision, which did not depend on potential financial prejudice to UMass, but rather considered

such prejudice as one of many factors weighing in favor of finding UMass a necessary party.

Def.’s Opp’n at 4–7.

       As an initial matter, Rules 54(b), 59(e), and 60(b) would each allow this Court to

reconsider a decision premised on factual error. See Second Chance Body Armor, Inc., 893 F.

Supp. 2d at 268 (holding that reconsideration under Rule 54(b) may be warranted when a court

has “patently misunderstood the parties” or “made an error in failing to consider . . . data”);

Ciralsky, 355 F.3d at 671 (holding that relief under Rule 59(e) “need not be granted unless the

district court finds there is . . . a clear error” of fact or law); United Bhd. of Carpenters & Joiners

of Am. v. Operative Plasterers’ & Cement Masons’ Int’l Ass’n of U.S. & Canada, 721 F.3d 678,




                                                  10
690 (D.C. Cir. 2013) (finding that district court did not abuse its discretion in granting

reconsideration under Rule 60(b)(1) when its decision “turned . . . on [its] mistaken

understanding of the record”). In this instance, however, Mr. Ali has failed to show that the

Court’s decision was affected by any factual error, clear or otherwise.

       First, the e-mail from Mr. Ali’s attorney that he has attached to his motion shows that it

was received by Mr. Ali months before this Court ruled on Carnegie’s motion to dismiss. See

May 2014 e-mail, Pl.’s Ex. 1. The fact that Mr. Ali chose not to provide that document to the

Court previously does not mean that it constitutes “new evidence that was not previously

available” or “newly discovered evidence” that would support a motion for reconsideration. See,

e.g., Bain v. MJJ Prods., Inc., 751 F.3d 642, 649 (D.C. Cir. 2014) (affirming denial of motion for

reconsideration where “newly discovered” evidence was known to plaintiff prior to entry of

judgment and plaintiff offered “no justification” for his failure to mention it to the court); Lans v.

Gateway 2000, Inc., 110 F. Supp. 2d 1, 5 (D.D.C. 2000) (“[E]vidence in the possession of the

party before the judgment was rendered . . . is not newly discovered evidence that affords

relief.”) (internal quotation marks omitted); Stewart v. Panetta, 826 F. Supp. 2d 176, 177

(D.D.C. 2011) (explaining that reconsideration under Rule 54 may be premised on the

“discovery of new evidence not previously available”) (emphasis added). Nor can the Court’s

failure to consider evidence not before it constitute error. More to the point, however, the e-mail

provides no new material facts.

       The e-mail from Mr. Ali’s attorney explains that under UMass policy, a percentage of the

university’s patent-related income is distributed “to the inventors pro rata.” May 2014 e-mail,

Pl.’s Ex. 1. But in its prior decision, this Court expressly considered—indeed, quoted twice

verbatim—Mr. Ali’s factual allegation that UMass policy “would pay the co-inventors [who




                                                 11
assigned their rights to the university] a percentage of all revenue realized by UMass through

exploitation of that invention . . . to be shared equally between inventors.” See Ali, 2014 WL

4260995, at *1, *5 (quoting Am. Compl. ¶ 30)). And while Mr. Ali argues that this fact makes

the Court’s subsequent finding of financial prejudice to UMass clearly erroneous, his argument

rests on a misreading of the Court’s analysis.

       Mr. Ali contends that if he is found to have assigned his rights, his “prospective addition

as a co-inventor” would not prejudice UMass financially because the amount the university pays

to its inventors is fixed and would not change. Pl.’s Mot. Recons. at 2–3. That may well be true.

But the Court did not assume that the total percentage paid to co-inventors at UMass would

increase simply because another co-inventor may be added to the patent. Instead, the financial

prejudice to UMass that concerned this Court stemmed from Mr. Ali’s claim for damages,

wherein he seeks not only to be included in future payouts but also to be compensated by UMass

for several years of unpaid royalties. Put another way, the Court’s finding of financial prejudice

stemmed not from the mathematical operation of UMass policy, but from Mr. Ali’s claim for

damages premised on the alleged violation of that policy.

       As the Court explained, in addition to alleging a right to be recognized as a co-inventor

and a contractual right to receive a percent of patent-related revenues, Mr. Ali “also seeks

damages from UMass,” Ali, 2014 WL 4260995, at *3, and he “alleges that he ‘is entitled to a

portion of all proceeds realized by [U]Mass as a consequence of . . . any and all of the Patents.’”

Id. at *1 (quoting Am. Compl. ¶ 30). Far from making a limited request for prospective relief,

Mr. Ali asserted entitlement to “a portion of all proceeds realized by [U]Mass,” Am. Compl. ¶

31, or if he did not assign his rights to UMass, “to recover from [U]Mass and Carnegie a portion

of the moneys they have secured” from the patents in question, id. at ¶ 36. If the latter, Mr. Ali




                                                 12
has acknowledged, “then he will be able to assign or license his right, title, and interest in the

patents-in-suit without encumberance from UMass . . . [so] Ali’s inventorship stake could thus

potentially damage the value of both Carnegie’s and UMass’[s] licenses and the licensing

income they generate.” Pl.’s Opp’n Mot. to Dismiss at 23, ECF No. 75. It is thus clear from Mr.

Ali’s own allegations and arguments that if he were to succeed in this suit, it would prejudice the

financial interests of the absent sovereign, UMass.

       Undaunted, Mr. Ali suggests that his success in this matter need not harm UMass

financially because the Court could fashion relief that would require the other UMass co-

inventors to compensate him instead of UMass. Pl.’s Mot. Recons. at 4–5. He notes that “it is

the UMass-affiliated co-inventors . . . who have been siphoning off Ali’s shares of the proceeds,”

so the Court “could compel the said co-inventors to pay back Ali’s share of the proceeds to him,”

or “fashion a judgment in which Ali would be entitled to a bigger share of the portion of money

distributed among the UMass-affiliated co-inventors.” Id. As Carnegie correctly notes,

however, Mr. Ali’s proposed alternatives would require this Court either to order non-party

UMass to restructure its reimbursement contracts so that Mr. Ali could receive a greater share of

future payouts, or to order the non-party co-inventors to pay money damages to Mr. Ali. See

Def.’s Opp’n at 10–11. This Court, however, lacks the authority to issue a judgment that would

bind a non-party. See Taylor v. Sturgell, 553 U.S. 880, 893 (2008) (“[O]ne is not bound by a

judgment in personam in a litigation in which he is not designated as a party or to which he has

not been made a party by service of process.”) (internal quotation marks omitted); Provident

Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 110 (1968) (“Of course, since the

outsider is not before the court, he cannot be bound by the judgment rendered.”); see also

Charles Alan Wright & Arthur R. Miller, et al., 7 Fed. Prac. & Proc. Civ. § 1608 (3d ed.)




                                                 13
(explaining that under Rule 19(b), courts should attempt to “promote judicial economy by

avoiding going forward with actions in which the court may end up rendering hollow or

incomplete relief because of the inability to bind persons who could not be joined”).

       Moreover, even if Mr. Ali’s alternative proposals were a viable means of shaping relief to

avoid prejudice to UMass, they would nevertheless fail to warrant reconsideration of this Court’s

judgment because such arguments could have been, but were not, presented to the Court prior to

the entry of judgment. See Kittner v. Gates, 783 F. Supp. 2d 170, 173 (D.D.C. 2011) (deeming

waived an argument that plaintiff could have but did not include “in her briefing on Defendants'

Motion to Dismiss,” because “a motion for reconsideration may not . . . be used to raise

arguments or defenses that could have been advanced during the original proceeding”). When

opposing Carnegie’s motion to dismiss for failure to join UMass, Mr. Ali addressed each factor

under Rule 19(b), including the second factor, which requires a court to consider whether

“prejudice could be lessened or avoided by . . . shaping the relief.” Fed. R. Civ. P. 19(b)(2). The

entirety of Mr. Ali’s argument on the subject consisted of a two-sentence assertion that this

matter involves no prejudice, so “the second factor carries ‘little weight’ in balancing the Rule

19(b) factors with respect to Carnegie’s Rule 12(b)(7) motion.” Pl.’s Opp’n at 28. Far from

arguing in favor of the means of shaping relief that he now proposes, Mr. Ali actually argued that

the Court should give little attention to the possibility of shaping the requested relief to avoid

prejudice.

       This strategic choice cannot be undone via a motion for reconsideration. Rule 60(b) does

not provide “an opportunity for unsuccessful litigants to take a mulligan.” Kramer v. Gates, 481

F.3d 788, 792 (D.C. Cir. 2007); Mcmanus v. District of Columbia, 545 F. Supp. 2d 129, 134

(D.D.C. 2008) (“Although they might have, Plaintiffs did not make this argument in response to




                                                  14
[defendant’s] motion for sanctions, and their belated attempt to challenge the Court's grant of

sanctions on this ground is therefore improper. Rule 60(b) may not be relied upon to rescue

Plaintiffs from their poor strategic choices.”). And Rules 54 and 59 likewise do not afford

reconsideration on the basis of arguments that could have been, but were not, previously

presented to the court. Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De

C.V., No. CV 11-1623 (RC), 2015 WL 456400, at *8 (D.D.C. Feb. 3, 2015) (“[I]t is well

established in this Circuit that motions for reconsideration, whatever their procedural

underpinnings, cannot be used as a vehicle for presenting theories or arguments that could have

been advanced earlier.”) (internal quotation marks omitted); Fresh Kist Produce, LLC v. Choi

Corp., 251 F. Supp. 2d 138, 140 (D.D.C. 2003) (“[A] Rule 59(e) motion to reconsider is not

simply an opportunity to reargue facts and theories upon which a court has already ruled, nor is it

a vehicle for presenting theories and arguments that could have been advanced earlier.”) (internal

quotation marks and citations omitted). In short, Mr. Ali cannot utilize his motion for

reconsideration to take a second bite at the proverbial apple, and his new arguments pertaining to

the possibility of shaping relief are therefore unavailing.

       As a final matter, the Court observes that even if Mr. Ali’s claim of factual error had

merit, and even if the Court could fashion relief at the financial expense of non-parties, Mr. Ali

has still failed to establish a basis for reconsideration of the Court’s finding that the case could

not proceed without UMass, because financial prejudice to UMass was only one factor in the

Court’s analysis, and a secondary one at that. As explained in the prior Memorandum Opinion,

UMass faced not only financial prejudice if Mr. Ali prevailed on his assignment-based damages

claims, but also potential impairment of its ownership interests in the patents in question if he

prevailed solely on his correction of inventorship claim. Ali, 2014 WL 4260995, at *3




                                                  15
(explaining that “UMass is a necessary party because it is a co-owner of the patents, and its

interests would be highly prejudiced in its absence, even if the Court could afford partial relief to

Plaintiff as to inventorship”). Moreover, the Court repeatedly emphasized that when determining

whether the action should proceed without UMass, “sovereign immunity reigns supreme in the

analysis.” Id. at *4; see also Republic of Philippines v. Pimentel, 553 U.S. 851, 867 (2008)

(holding that “where sovereign immunity is asserted, and the claims of the sovereign are not

frivolous, dismissal of the action must be ordered where there is a potential for injury to the

interests of the absent sovereign”) (emphasis added). And although the Court detailed the

potential financial prejudice to UMass posed by Mr. Ali’s claims for damages, it did so in the

context of explaining that it would be unfair to force Carnegie to defend this suit alone when, in

fact, Mr. Ali’s claims derive from his period of employment with UMass, implicate a potential

contract with UMass, and do not include allegations that would allow him to recover money

damages from Carnegie. Id. at *5.

       In other words, it was not only the financial prejudice to an absent sovereign that

governed the Court’s Rule 19 analysis, but also the likely prejudice to UMass’s patent-ownership

interests and to Carnegie if it was forced to defend the suit alone despite the fact that “UMass’s

relationship with Plaintiff is much more central to the case than Carnegie’s.” Id. (explaining that

“it would be highly prejudicial to Carnegie to force it to vigorously defend a suit and pay

attorney’s fees in a case” where the plaintiff alleged that he was entitled to money damages

exclusively from a non-party); see also Op. & Order at 6 (“Ali alleges that he has an agreement

with UMass, but he does not allege any separate agreement that would entitle him to a financial

benefit from Carnegie. Therefore, if Ali is named a co-inventor of some or all of the patents-in-

suit and he is entitled to compensation from UMass, Ali cannot receive that compensation in this




                                                 16
suit unless UMass is a party-defendant.”). Mr. Ali’s arguments are simply insufficient to disturb

this Court’s finding that, in light of the many factors bearing on the decision of whether UMass

is a necessary party, 4 the case could not in equity and good conscience proceed without UMass.

                         C. The Availability of an Alternative Forum

       Mr. Ali’s final argument in favor of reconsideration asserts that the Court should have

rejected Carnegie’s position that Mr. Ali had access to an alternative forum in the Massachusetts

state courts. While acknowledging that the Court’s treatment of the fourth Rule 19(b) factor was

“largely neutral,” Mr. Ali nevertheless contends that the Court should have rejected Carnegie’s

alternative forum proposal as unworkable and implausible. Pl.’s Mot. Recons. at 5. Though the

precise contours of Mr. Ali’s argument are less than clear, it appears that he takes issue with the

Court’s apparent acceptance of Carnegie’s argument that he should be required to go to state

court to vindicate his claims when state court judges are incapable of correcting the inventorship

of an issued patent. See id. at 5–6. If the Court had properly rejected Carnegie’s argument and

recognized that Mr. Ali had no alternative forum available to him, he reasons, the Court may

have found that this case could proceed without UMass.

       There are two major flaws in Mr. Ali’s argument. First and foremost, his argument that

no alternative forum is available to him was fully briefed in his opposition to Carnegie’s motion

to dismiss, see Pl.’s Opp’n at 30–32, and duly considered in this Court’s prior Memorandum


       4
         The decision of whether to proceed without a required party “must be based on factors
varying with the different cases, some such factors being substantive, some procedural, some
compelling by themselves, and some subject to balancing against opposing interests.” Republic
of Philippines v. Pimentel, 553 U.S. 851, 863 (2008) (quoting Provident Tradesmens Bank &
Trust Co. v. Patterson, 390 U.S. 102, 119 (1968)). The factors are not rigid, and “the district
court has substantial discretion in considering which factors to weigh and how heavily to
emphasize certain considerations in deciding whether the action should go forward.” Kickapoo
Tribe of Indians of Kickapoo Reservation in Kansas v. Babbitt, 43 F.3d 1491, 1495 (D.C. Cir.
1995).


                                                 17
Opinion, Ali, 2014 WL 4260995, at *8. Mr. Ali’s argument for reconsideration does nothing

more than repeat those same arguments previously considered by the Court, and as such, it

provides no basis for reconsideration. Capitol Sprinkler, 630 F.3d at 226–27 (district courts act

within the scope of their discretion in denying “reconsideration” under Rule 54(b) where the

motion raises no arguments not already rejected on the merits); State of N.Y. v. United States,

880 F. Supp. 37, 38 (D.D.C. 1995) (“A Rule 59(e) motion to reconsider is not simply an

opportunity to reargue facts and theories upon which a court has already ruled.”); Hampton v.

Vilsack, 791 F. Supp. 2d 163, 166 (D.D.C. 2011) (denying reconsideration under 60(b) where

“Plaintiff's instant motion merely repeats his prior arguments on this point,” because “[a] motion

for reconsideration is not simply an opportunity to reargue facts and theories upon which a court

has already ruled”) (internal quotation marks omitted).

       Second, Mr. Ali mischaracterizes the Court’s analysis. The Court did not “accept”

Carnegie’s assertion of an available alternative forum for Mr. Ali’s claims. In actuality, the

Court said that “[t]here may or may not be an alternative forum for Plaintiff’s claims,” that the

factor was “inconclusive,” and that “it is unclear whether he can sue UMass in state court for

damages, and/or whether the statute of limitations has run on his state law claims.” Ali, 2014

WL 4260995, at *8. The Court explained, however, that even if Mr. Ali had no alternative

forum and no other remedy available for his claims, that was not enough “to persuade the Court

that dismissal was no longer warranted,” given “the weighty competing interest of preserving . . .

sovereign immunity.” Id. at *18, *19 n.13. In short, the Court expressly foreclosed the

possibility that the lack of an alternative forum would alter the Court’s decision that this action

could not proceed in equity and good conscience without UMass. There is thus no merit to Mr.

Ali’s contention that such a finding would have changed the Court’s decision.




                                                 18
        In sum, Mr. Ali’s motion provides no basis for reconsidering the dismissal of his

complaint for failure to join a necessary party, and his request for reconsideration is therefore

denied. 5

                  D. Request for Leave to File Second Amended Complaint 6

        In the conclusion section of Mr. Ali’s motion for reconsideration, he includes an

alternative request for relief in the form of leave “to remedy his amended complaint to address

the concern of this Court, for example by re-amending his complaint back to the original

complaint in which ONLY Carnegie was named as a defendant.” Pl.’s Mot. Recons. at 9–10.

        Typically, leave to amend a complaint “shall be given freely when justice so requires.”

See Fed R. Civ. P. 15(a). In deciding whether to allow a party to amend a complaint, courts may

consider “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to

cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by



        5
         Mr. Ali’s motion includes a footnote that appears to invoke the possibility of a due
process issue under the 14th Amendment. See Pl.’s Mot. Recons. at 3 n.5. The footnote
concludes, however, by observing that for the purpose of this case, “this Court doesn’t need to go
there and or entertain that possibility.” Id. The Court takes Mr. Ali at his word and declines to
address an unnecessary constitutional question, the nature of which is not clearly identified in
Mr. Ali’s motion.
        6
         If this Court’s Order of dismissal constitutes a final judgment subject to reconsideration
under Rule 59(e) or 60(b), then Mr. Ali’s request for leave to amend must be denied outright
given that his motion for reconsideration has been denied. Once a final judgment has been
entered, a court cannot permit an amendment unless the plaintiff first satisfies” the “more
stringent standard[s]” of Rule 59(e) or Rule 60(b). See Ciralsky v. CIA, 355 F.3d 661, 673
(holding that district court properly concluded that plaintiff’s motion to amend his complaint was
moot because reconsideration of dismissal without prejudice was not warranted); see also W.
Wood Preservers Inst. v. McHugh, 292 F.R.D. 145, 147 (D.D.C. 2013) (“It is well established
that ‘where a district court is presented with a motion for leave to amend following a dismissal,
the court considers the motion for leave to amend only after consideration of a party’s motion to
amend or alter the dismissal.’” (quoting DeGeorge v. United States, 521 F.Supp.2d 35, 40–41
(D.D.C. 2007)). For the purpose of analyzing Mr. Ali’s request for leave to amend, the Court
thus assumes without deciding that the Court’s order of dismissal did not constitute a final
judgment and that Mr. Ali’s motion for reconsideration was brought pursuant to Rule 54(b).


                                                 19
virtue of allowance of the amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S.

178, 182 (1962). “An amended complaint is futile if it merely restates the same facts as the

original complaint in different terms, reasserts a claim on which the court previously ruled, fails

to state a legal theory or could not withstand a motion to dismiss.” Robinson v. Detroit News,

Inc., 211 F. Supp. 2d 101, 114 (D.D.C. 2002). Additionally, request for leave to amend may be

denied if a plaintiff fails to comply with Local Rule 15.1, which dictates that a motion for leave

to amend “shall be accompanied by an original of the proposed pleading as amended.” Local

Rule 15.1; see also Johnson v. District of Columbia, 49 F. Supp. 3d 115, 122 (D.D.C. 2014)

(denying leave to amend due to plaintiff’s failure to attach her proposed amended complaint);

Belizan v. Hershon, 434 F.3d 579, 583 (D.C. Cir. 2006) (affirming denial of oral motion for

leave to amend for failure to comply with Rule 15(a) and Local Rule 15.1).

       In this case, Mr. Ali’s general request for leave to amend in an unspecified manner is

insufficient to satisfy the requirements of Rule 15(a). See U.S. ex rel. Williams v. Martin-Baker

Aircraft Co., 389 F.3d 1251, 1259 (D.C. Cir. 2004) (holding that dismissal of complaint with

prejudice was appropriate given plaintiff’s “failure to articulate to the district court anything

more than a bare request to amend his complaint,” and explaining that a request for leave to

amend “without any indication of the particular grounds on which amendment is sought—does

not constitute a motion within the contemplation of Rule 15(a)”). In addition, his one-sentence

request for leave to file a second amended complaint, unaccompanied by any such proposed

pleading, fails to comply with Local Rule 15.1. Given that this Court cannot review Mr. Ali’s

proposed second amended complaint and has no way to assess the merits of his “bare request to

amend,” and in light of his failure to comply with Rule 15(a) and Local Rule 15.1, his general

request for leave to amend must be denied.




                                                  20
       Even if this Court were inclined to interpret Mr. Ali’s suggestion that he might re-instate

his first complaint as a request for leave to do the same, a grant of leave to amend would still be

inappropriate. Mr. Ali has offered no argument whatsoever as to how reinstating the first

complaint—which is premised on substantially the same factual allegations and once again

would have Carnegie as the sole defendant opposing Mr. Ali’s claims to correct inventorship and

for related damages—would affect this Court’s decision that UMass is a necessary party without

which this case must not proceed. See Greggs v. Autism Speaks, Inc., 987 F. Supp. 2d 51, 54

(D.D.C. 2014) (explaining that a court may deny a motion to amend if such amendment would

be futile, for example, if it “merely restates the same facts as the original complaint in different

terms, reasserts a claim on which the court previously ruled, fails to state a legal theory or could

not withstand a motion to dismiss” (quoting Robinson, 211 F. Supp. 2d at 114)).

       Additionally, such an amendment exceeds the limited scope of leave to amend set forth in

the Court’s Order, which constrained Mr. Ali to seeking leave “to name UMass officials in their

official capacities,” and instructed him that if he wished to do so, he must “address whether this

Court would have personal jurisdiction over these officials.” Order, Aug. 29, 2014, ECF No. 78.

Mr. Ali has not argued that this Court’s prior grant of leave was too narrow or otherwise

explained his disregard for the limitations of the Court’s August 2014 Order. Instead, he has

declined to seek leave to amend in the manner permitted by both this Court and by the Oregon

District Court, and the deadline for such an amendment has long since come and gone. See

Order, Sept. 19, 2014, ECF No. 84 (giving Mr. Ali until November 14, 2014 to seek leave to file

a second amended complaint); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (citing “undue

delay” and “repeated failure to cure deficiencies by amendments previously allowed” as reasons

for which a court might deny leave to amend).




                                                 21
       The Court therefore denies Mr. Ali’s request for leave to amend his complaint.

                                       IV. CONCLUSION

       For the foregoing reasons, Mr. Ali’s motion for leave to file a supplemental statement

regarding the filing date of his motion for reconsideration is GRANTED, his alternative request

for leave to file nunc pro tunc is DENIED, and his motion for reconsideration or, in the alternative,

to amend his complaint is DENIED. An order consistent with this Memorandum Opinion is

separately and contemporaneously issued.


Dated: June 26, 2015                                                    RUDOLPH CONTRERAS
                                                                        United States District Judge




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